author: Mr. Justice White

text:
    GAFFNEY v. CUMMINGS et al.
    No. 71-1476.
    Argued February 26-27, 1973
    Decided June 18, 1973
    White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 772.

      Robert G. Dixon, Jr., argued the cause for appellant. With him on the briefs were Harry W. Hultgren, Jr., Francis J. McCarthy, and Gordon W. Hatheway, Jr.

      Robert A. Satter argued the cause for appellees. With him on the brief was James A. Wade.

   Mr. Justice White

delivered the opinion of the Court.

The questions in this case are whether the population variations among the election districts provided by a reapportionment plan for the Connecticut General Assembly, proposed in 1971, made out a prima facie case of invidious discrimination under the Equal Protection Clause and whether an otherwise acceptable reapportionment plan is constitutionally vulnerable where its purpose is to provide districts that would achieve “political fairness” between the political parties.

I

The reapportionment plan for the Connecticut General Assembly became law when published by Connecticut's Secretary of State in December 1971. Under the State's Constitution, the legislature is given the initial opportunity to reapportion itself in the months immediately following the completion of a decennial census of the United States. Conn. Const., Art. III, § 6 (b). In the present case, the legislature was unable to agree on a plan by the state constitutional deadline of April 1, 1971. The task was therefore transferred, as required by the constitution, to an eight-member bipartisan commission. Ibid. The Democratic and Republican Party leaders in the legislature each appointed four commissioners. The commission was given until July 1, 1971, to devise a reapportionment plan, id., § 6 (c); but, although the commission approached agreement, it too was unable to adopt a plan within the deadline. Accordingly, as a final step in the constitutional process, a three-man bipartisan Board was constituted. Id., §6(d). The Speaker of the House of Representatives, a Democrat, and the Republican Minority Leader of the House each chose a judge of the State Superior Court to be a Board member, and the two judges in turn designated a third Board member, who was a justice of the State Supreme Court. Ibid.

This Apportionment Board, using the census data available during the summer of 1971, and relying heavily on the legislative commission's tentative, plans, filed a reapportionment plan on September 30, 1971, with one member dissenting.

According to the 1970 census data before the Board, the population of Connecticut is 3,032,217. The Board’s reapportionment plan provides for a Senate consisting of 36 senators elected from single-member districts. The ideal senatorial district, in terms of population, would thus contain 84,228 people. The districts actually created deviate, on the average, by 0.45% from this ideal, the median deviation being 0.47%. The largest and smallest senatorial districts deviate by +0.88% and —0.93%, respectively, making the total maximum deviation 1.81%.

The reapportionment plan proposed a House of 151 single-member districts. The population of the ideal assembly district would be 20,081. The average deviation from perfect equality for all the plan’s assembly districts is 1.9%, the median deviation, 1.8%. The maximum deviation from the ideal is +3.93% and —3.9%. The maximum deviation between any two districts thus totals 7.83%.

In Connecticut, towns rather than counties are the basic unit of local government. See Butterworth v. Dempsey, 229 F. Supp. 754, 761 (Conn.), aff’d, 378 U. S. 564 (1964). The State Constitution provides that “no town shall be divided” for the purpose of creating House districts, except where districts are formed “wholly within the town.” Art. III, § 4. No comparable directive exists for the creation of Senate districts. The Constitution further provides, however, that the “establishment of districts . . . shall be consistent with federal constitutional standards.” Id., § 5. To meet those standards and to reach what it thought to be substantial population equality, the Board cut the boundary lines of 47 of the State’s 169 towns. The Board also consciously and overtly adopted and followed a policy of “political fairness,” which aimed at a rough scheme of proportional representation of the two major political parties. Senate and House districts were structured so that the composition of both Houses would reflect “as closely as possible . . . the actual [statewide] plurality of vote on the House or Senate lines in a given election.” Rather than focusing on party membership in the respective districts, the Board took into account the party voting results in the preceding three statewide elections, and, on that basis, created what was thought to be a proportionate number of Republican and Democratic legislative seats.

In November 1971, not long after the Board filed the reapportionment plan with the Secretary of the State, an action was brought in federal district court seeking declaratory and injunctive relief against implementation of the plan. The complaint alleged that the Board “erroneously applied the one man-one vote doctrine of the Fourteenth Amendment ... to achieve smaller deviations from population equality for the assembly districts than was required by the Fourteenth Amendment . . . and thereby was compelled to segment an excessive number of towns in forming assembly districts.” The complaint further alleged the plan amounted to a political gerrymander and contained “a built-in bias in favor of the Republican Party.” Appellant Gaffney, the Chairman of the State Republican Party, was permitted to intervene in support of the Board’s plan and, after a three-judge court was empaneled, the court heard testimony in March 1972. At the hearing, plaintiff-appellees introduced three alternative House apportionment plans that required fewer town-line cuts, although all three plans involved total deviations from population equality in excess of those contained in the Board plan. A fourth plan for the House was submitted with a total maximum deviation from population equality among districts of 2.61%, as compared with the Board plan, which contained a 7.83% total maximum deviation. This alternative plan, however, was prepared without regard for town lines, which were cut substantially more times than in the Board plan. Considerable evidence was introduced demonstrating the obvious political considerations in the Board’s district making. In late March, the District Court filed its decision invalidating the Board plan and permanently enjoining its use in future elections. 341 F. Supp. 139. The court held that “the deviations from equality of populations of the Senate and House districts are not justified by any sufficient state interest and that the Plan denies equal protection of the law to voters in the districts of greater population . . . Id., at 148. The court relied in part on Kirkpatrick v. Preisler, 394 U. S. 526 (1969). More particularly, the court found that the policy of “partisan political structuring,” 341 F. Supp., at 150, “cannot be approved as a legitimate reason for violating the requirement of numerical equality of population in districting.” Id., at 149. The court therefore required that a plan reflecting “closer adherence to the constitutional guidelines” be adopted. Jurisdiction over the case was retained for all purposes, and the court announced that it “will appoint a master ... to devise a plan conforming to federal and state constitutional requirements . . . .” Id., at 150.

On June 12, 1972, after a motion to expedite consideration of the appeal had been denied (406 TJ. S. 942), this Court granted appellant’s motion for a stay of the District Court’s judgment. 407 U. S. 902. On the basis of that stay, and a subsequent supportive state order, the 1972 fall elections for the State Assembly were held under the Board’s reapportionment plan. When this Court convened in October 1972, we noted probable jurisdiction over the appeal. 409 U. S. 839. By this time, a Special Master had been appointed by the District Court and had prepared a reapportionment plan.

II

We think that appellees’ showing of numerical deviations from population equality among the Senate and House districts in this case failed to make out a prima facie violation of the Equal Protection Clause of the Fourteenth Amendment, whether those deviations are considered alone or in combination with the additional fact that another plan could be conceived with lower deviations among the State’s legislative districts. Put another way, the allegations and proof of population deviations among the districts fail in size and quality to amount to an invidious discrimination under the Fourteenth Amendment which would entitle appellees to relief, absent some countervailing showing by the State.

The requirement of Art. I, § 2, of the Constitution, that representatives be chosen “by the People of the several States,” mandates that “one man’s vote in a congressional election is to be worth as much as another’s.” Wesberry v. Sanders, 376 U. S. 1, 8 (1964) (footnote omitted). This standard “permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.” Kirkpatrick v. Preisler, 394 U. S., at 531. In Kirkpatrick and in Wells v. Rockefeller, 394 U. S. 542 (1969), the Court found inconsistent with this standard state statutes creating congressional districts having total maximum deviations of 5.97% and 13.1%, respectively. It is the standard of these cases which is the prevailing rule under Art. I and which we confirm in White v. Weiser, post, p. 783, today, for the purposes of congressional reapportionment.

Earlier this Term, the question arose whether the same standard is applicable when reviewing state legislative reapportionments under the Equal Protection Clause of the Fourteenth Amendment. Mahan v. Howell, 410 U. S. 315 (1973). We concluded that there are fundamental differences between congressional district-ing under Art. I and the Wesberry line of cases on the one hand, and, on the other, state legislative reappor-tionments governed by the Fourteenth Amendment and Reynolds v. Sims, 377 U. S. 533 (1964), and its progeny. Noting that the “dichotomy between the two lines of cases has consistently been maintained,” 410 U. S., at 322, we concluded that “the constitutionality of Virginia's legislative redistricting plan was not to be judged by the more stringent standards that Kirkpatrick and Wells make applicable to congressional reapportionment, but instead by the equal protection test enunciated in Reynolds v. Sims,” id., at 324, that test being that districts in state reapportionments be “as nearly of equal population as is practicable,” Reynolds, supra, at 577, and that “[s]o long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature.” Id., at 579. In Mahan, the ideal district was 46,485 persons per delegate. The maximum variation from the ideal was 16.4% — -“the 12th district being overrepresented by 6.8% and the 16th district being underrepresented by 9.6%.” 410 U. S., at 319 (footnote omitted). The average percentage variation under the plan was ±3.89%. Of the 52 house districts, 35 were within 4% of the ideal district, and nine, exceeded a 6% variation from the ideal.

The asserted justification for the divergencies in Mahan was “the State's policy of maintaining the integrity of political subdivision lines,” id., at 325, a policy we found to be rational and wholly sufficient to justify the district population disparities of the size and quality that had been found to exist. We ruled that the “relatively minor variations present in the Virginia plan contrast sharply with the larger variations in state legislative reapportionment plans that have been struck down by previous decisions of this Court,” id., at 329, and that “Virginia has not sacrificed substantial equality to justifiable deviations.” Ibid.

Although requiring that the population variations among legislative districts in Mahan be justified by substantial state considerations, we did not hold that in state legislative cases any deviations from perfect population equality in the districts, however small, make out prima facie equal protection violations and require that the contested reapportionments be struck down absent adequate state justification. Nor had we so held in any prior state reapportionment case. Swann v. Adams, 385 U. S. 440 (1967), and Kilgarlin v. Hill, 386 U. S. 120 (1967), required state justification of population variations found in state legislative reapportionments, but the variations involved in each of these cases exceeded those we dealt with in Mahan.

In the case now before us, appellant urges that the population variations among Senate and House districts in the Board plan did not in and of themselves demonstrate an equal protection violation and that the State was not required to justify them, absent further proof of invidiousness by appellees. For several reasons we think the point is well taken and that the District Court erred in holding to the contrary.

As we noted in Mahan v. Howell, Reynolds v. Sims recognized that a State must make an honest and good-faith effort to construct its districts “as nearly of equal population as is practicable,” but that absolute equality was a “practical impossibility”: “Mathematical exactness or precision is hardly a workable constitutional requirement.” 377 U. S., at 577. Moreover, the Reynolds court also noted that “some distinctions may well be made between congressional and state legislative representation,” and that “[s]omewhat more flexibility may therefore be constitutionally permissible with respect to state legislative apportionment than in congressional districting.” Id., at 578. All that would be required was “substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” Id., at 579. In other words, “[s] imply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” Id., at 568.

As these pronouncements have been worked out in our cases, it has become apparent that the larger variations from substantial equality are too great to be justified by any state interest so far suggested. There were thus the enormous variations struck down in the early cases beginning with Reynolds v. Sims, as well as the much smaller, but nevertheless unacceptable deviations, appearing in later cases such as Swann v. Adams, 385 U. S. 440 (1967); Kilgarlin v. Hill, 386 U. S. 120 (1967); and Whitcomb v. Chavis, 403 U. S. 124, 161-163 (1971). On the other hand, as Mahan v. Howell demonstrates, population deviations among districts may be sufficiently large to require justification but nonetheless be justifiable and legally sustainable. It is now time to recognize, in the context of the eminently reasonable approach of Reynolds v. Sims, that minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.

We doubt that Reynolds would mandate any other result, if for no other reason than that the basic statistical materials which legislatures and courts usually have to work with are the results of the United States census taken at 10-year intervals and published as soon as possible after the beginning of each decade. These figures may be as accurate as such immense undertakings can be, but they are inherently less than absolutely accurate. Those who know about such things recognize this fact, and, unless they are to be wholly ignored, it makes little sense to conclude from relatively minor “census population” variations among legislative districts that any person’s vote is being substantially diluted. The “population” of a legislative district is just not that knowable to be used for such refined judgments.

What is more, it must be recognized that total population, even if absolutely accurate as to each district when counted, is nevertheless not a talismanic measure of the weight of a person’s vote under a later adopted reapportionment plan. The United States census is more of an event than a process. It measures population at only a single instant in time. District populations are constantly changing, often at different rates in either direction, up or down. Substantial differentials in population growth rates are striking and well-known phenomena. So, too, if it is the weight of a person’s vote that matters, total population — even if stable and accurately taken — may not actually reflect that body of voters whose votes must be counted and weighed for the purposes of reapportionment, because “census persons" are not voters. The proportion of the census population too young to vote or disqualified by alienage or nonresidence varies substantially among the States and among localities within the States. The six congressional districts in Connecticut, for example, vary from one another by as much as 4% in their age-eligible voters, with the first district having 68% of its census population at voting age while the sixth district has 64% at 18 years or older. Bureau of the Census, Congressional District Data Book, 93d Congress, Connecticut 7-8 (1972). Other States have congressional districts that vary from one another by as much as 29% and as little as 1% with respect to their age-eligible voters. And these figures tell us nothing of the other ineligibles making up the substantially equal census populations among election districts: aliens, nonresident military personnel, nonresident students, for example. See Burns v. Richardson, 384 U. S. 73, 90-97 (1966); Davis v. Mann, 377 U. S. 678, 691-692 (1964); Ely v. Klahr, 403 U. S. 108, 115-116, n. 7 (1971); Mahan v. Howell, 410 U. S., at 330-332. Nor do these figures tell anything at all about the proportion of all those otherwise eligible individuals whose vote cannot be counted or weighed because they either failed to register or failed to vote.

Reynolds v. Sims, of course, dealt with more than the statistical niceties involved in equalizing individual voting strength. It argued that “if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.” 377 U. S., at 562. To conclude differently, “and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result.” Id., at 565. More fundamentally, Reynolds recognized that “the achieving of fair and effective representation for all citizens is . . . the basic aim of legislative apportionment,” id., at 565-566, and it was for that reason that the decision insisted on substantial equality of populations among districts.

This is a vital and worthy goal, but surely its attainment does not in any commonsense way depend upon eliminating the insignificant population variations involved in this case. Fair and effective representation may be destroyed by gross population variations among districts, but it is apparent that such representation does not depend solely on mathematical equality among district populations. There are other relevant factors to be taken into account and other important interests that States may legitimately be mindful of. See Mahan v. Howell, supra; Abate v. Mundt, 403 U. S. 182 (1971); Dusch v. Davis, 387 U. S. 112 (1967); Sailors v. Board of Education, 387 U. S. 105 (1967); Burns v. Richardson, supra. An unrealistic overemphasis on raw population figures, a mere nose count in the districts, may submerge these other considerations and itself furnish a ready tool for ignoring factors that in day-to-day operation are important to an acceptable representation and apportionment arrangement.

“Nor is the goal of fair and effective representation furthered by making the standards of reapportionment so difficult to satisfy that the reapportionment task is recurringly removed from legislative hands and performed by federal courts which themselves must make the political decisions necessary to formulate a plan or accept those made by reapportionment plaintiffs who may have wholly different goals from those embodied in the official plan. From the very outset, we recognized that the apportionment task, dealing as it must with fundamental “choices about the nature of representation,” Burns v. Richardson, 384 U. S., at 92, is primarily a political and legislative process. Reynolds v. Sims, 377 U. S., at 586. We doubt that the' Fourteenth Amendment requires repeated displacement of otherwise appropriate state decisionmaking in the name of essentially minor deviations from perfect census-population equality that no one, with confidence, can say will deprive any person of fair and effective representation in his state legislature.

That the Court was not deterred by the hazards of the political thicket when it undertook to adjudicate the re-apportiomnent cases does not mean that it should become bogged down in a vast, intractable apportionment slough, particularly when there is little, if anything, to be accomplished by doing so.

This very case represents what should not happen in the federal courts. The official state functionaries proposed a plan with a maximum variation among the districts of 7.83% in the House and 1.81% in the Senate, and with respective average variations of 1.90% and .45%. Appellees then proposed four alternate plans for the House, three of which involved slightly larger variations among districts but cut fewer town lines. The fourth cut more lines, but had a maximum variation between its largest and smallest district of only 2.6%. The District Court thought the state plan involved unacceptably large variations between districts, although in the House, with districts of about 20,000 people, the average variation involved only 399 people, and the largest variations involved only 1,573 people. But neither did the District Court adopt any of the plans submitted by appellees. Instead, it appointed its own Master to come up with still another scheme. That plan, we are told, involves a total maximum deviation in the House of only 1.16%. Was the Master compelled, as a federal constitutional matter, to come up with a plan with smaller variations than were contained in appellees' plans? And what is to happen to the Master's plan if a resourceful mind hits upon a plan better than the Master’s by a fraction of a percentage point? Involvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally “better” when measured against a rigid and unyielding population-equality standard.

The point is, that such involvements should never begin. We have repeatedly recognized that state reapportionment is the task of local legislatures or of those organs of state government selected to perform it. Their work should not be invalidated under the Equal Protection Clause when only minor population variations among districts are proved. Here, the proof at trial demonstrated that the House districts under the State Apportionment Board’s plan varied in population from one another by a maximum of only about 8% and that the average deviation from the ideal House district was only about 2%. The Senate districts had even less variations. On such a showing, we are quite sure that a prima facie case of invidious discrimination under the Fourteenth Amendment was not made out.

Ill

State legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment. A districting statute otherwise acceptable, may be invalid because it fences out a racial group so as to deprive them of their pre-existing municipal vote. Gomillion v. Lightfoot, 364 U. S. 339 (1960). A districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed “to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson v. Dorsey, 379 U. S. 433, 439 (1965). See White v. Regester, post, p. 755; Whitcomb v. Chavis, 403 U. S. 124 (1971); Abate v. Mundt, 403 U. S., at 184 n. 2; Burns v. Richardson, 384 U. S., at 88-89. We must, therefore, respond to appellees’ claims in this case that even if acceptable populationwise, the Apportionment Board’s plan was invidiously discriminatory because a “political fairness principle” was followed in making up the districts in both the House and Senate.

The record abounds with evidence, and it is frankly admitted by those who prepared the plan, that virtually every Senate and House district line was drawn with the conscious intent to create a districting plan that would achieve a rough approximation of the statewide political strengths of the Democratic and Republican Parties, the only two parties in the State large enough to elect legislators from discernible geographic areas. Appellant insists that the spirit of “political fairness” underlying this plan is not only permissible, but a desirable consideration in laying out districts that otherwise satisfy the population standard of the reapportionment cases. Appellees, on the other hand, label the plan as nothing less than a gigantic political gerrymander, invidiously discriminatory under the Fourteenth Amendment.

We are quite unconvinced that the reapportionment plan offered by the three-member Board violated the Fourteenth Amendment because it attempted to reflect the relative strength of the parties in locating and defining election districts. It would be idle, we think, to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it. Our cases indicate quite the contrary. See White v. Regester, supra; Burns v. Richardson, supra; Whitcomb v. Chavis, supra; Abate v. Mundt, supra. The very essence of districting is to produce a different — a more “politically fair” — result than would be reached with elections at large, in which the winning party would take 100% of the legislative seats. Politics and political considerations are inseparable from district-ing and apportionment. The political profile of a State, its party registration, and voting records are available precinct by precinct, ward by ward. These subdivisions may not be identical with census tracts, but, when overlaid on a census map, it requires no special genius to recognize the political consequences of drawing a district line along one street rather than another. It is not only obvious, but absolutely unavoidable, that the location and shape of districts may well determine the political complexion of the area. District lines are rarely neutral phenomena. They can well determine what district will be predominantly Democratic or predominantly Republican, or make a close race likely. Redistricting may pit incumbents against one another or make very difficult the election of the most experienced legislator. The reality is that districting inevitably has and is intended to have substantial political consequences.

It may be suggested that those who redistrict and reapportion should work with census, not political, data and achieve population equality without regard for political impact. But this politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results; and, in any event, it is most unlikely that the political impact of such a plan would remain undiscovered by the time it was proposed or adopted, in which event the results would be both known and, if not changed, intended.

It is much more plausible to assume that those who redistrict and reapportion work with both political and census data. Within the limits of the population equality standards of the Equal Protection Clause, they seek, through compromise or otherwise, to achieve the political or other ends of the State, its constituents, and its officeholders. What is done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment. As we have indicated, for example, multimember districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized. See White v. Regester, supra; Whitcomb v. Chavis, supra. See also Gomillion v. Lightfoot, supra. Beyond this, we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States. Even more plainly, judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so. There is no doubt that there may be other reapportionment plans for Connecticut that would have different political consequences and that would also be constitutional. Perhaps any of appellees' plans would have fallen into this category, as would the court's, had it propounded one. But neither we nor the district courts have a constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State.

Reversed.

[For dissenting opinion of Mr. Justice Brennan, see post, p. 772.]

       The ratio of the largest Senate district to the smallest is 1.018 to 1.

       The ratio of the largest assembly district to the smallest is 1.082 to 1.

       Some town boundaries were cut more than once, resulting in what the parties have termed “town segments,” or portions of a town that were used to form an assembly district not wholly within that town. The Board’s plan creates 78 such segments in the formation of the 151 assembly districts.

       Testimony of Judge George A. Saden, the Republican Board member. App. 264. According to Mr. James F. Collins, a staff member of the Board, the plan for the House resulted in approximately 70 safe Democratic seats, 55 to 60 safe Republican seats, with the balance characterized as probable or swing Democratic or Republican or “just plain swing,” 341 F. Supp. 139, 147. See App. 126-127.

       The Board’s Senate plan was not challenged in the District Court and no alternative Senate plan was introduced. Appellees do not challenge the Senate districts on the ground of their population deviations. Brief for Appellees 14 n. 4; Tr. of Oral Arg. 20.

       Plaintiff-appellees’ plan resulted in 58 town-line cuts and 88 town segments, as opposed to the corresponding figures of 47 and 78 in the Board’s plan.

       Plaintiff-appellees further offered testimony illustrating the undesirability — in the context of the State’s administrative apparatus — of excessive cutting of town lines.

       The order was entered in a parallel state proceeding, Miller v. Schaffer, No. 173606, Super. Ct., Hartford County, filed November 12, 1971, which was directed at correcting certain clerical errors or omissions in the Board's plan.

        Reynolds v. Sims involved the Alabama State Legislature, which had not reapportioned itself in over 60 years. Under the apportionment existing in 1964, some senatorial districts with the same number of representatives had over 40 times more people than others. House districts with identical representation could vary by 16 to 1. In Maryland in 1964, some House districts with nominally equal representation could have six times more people than others, while senatorial districts could be 32 times larger than others. Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656 (1964). The list may easily be expanded to include other States, and Connecticut is no exception. In 1964, the Connecticut towns of Hartford and Union had the same representation in the House, but Union had a population of 383 people, while Hartford had a population of 162,178. A vote in Union was thus weighted about 425 times more heavily than a vote in Hartford. At that time, it would have taken only 11.9% of Connecticut’s population to elect a majority of its House, and only 31% to elect a Senate majority. See Butterworth v. Dempsey, 229 F. Supp. 754 (Conn.), aff’d, 378 U. S. 564 (1964).

       See, e. g., H. Alterman, Counting People: The Census in History 262 (1969):
      “A census, by its nature, can never be an exact count of a nation. This is especially true of the United States .... Thus, an error of 1 or 2 percent in the count of the total population is to be expected; professionally, it is regarded as an ‘acceptable’ error.”
      The Census Bureau estimates that the 1970 census had an under-coverage rate of 2.5%, or about 5,300,000 people. Address of J. S. Siegel, Population Association of America Annual Meeting, in New Orleans, La., Apr. 26, 1973. See N. Y. Times, Apr. 26, 1973, p. 1, col. 1.
      Inexactness of census data is most evident with respect to minorities. It is estimated, for example, that Negroes were underenumerated in the 1970 census by 7.7%, as compared to an estimated 1.9% undercount for white persons. Ibid. See also Siegel, Completeness of Coverage of the Nonwhite Population in the 1960 Census and Current Estimates, and Some Implications, in Social Statistics and the City 13 (D. Heer ed. 1968).

       See, e. g., M. Spiegelman, Introduction to Demography 415-416 (1968); U. S. Bureau of the Census, 2 The Materials and Methods of Demography 806 (1971).
      In Connecticut, for example, the population of the State as a whole grew by 19.6% during the 1960’s. But the population in the area comprising the Second Congressional District grew by over 28%, while the population in the Fourth District grew by only 11.2%. The U. S. Bureau of the Census, Congressional District Data Book, 93d Congress, Connecticut 7 (1972).

         See Burns v. Richardson, 384 U. S. 73, 91-92 (1966):
      “We start with the proposition that the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population equivalency is to be measured. . . . Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Unless a choice is one the Constitution forbids, cf., e. g., Carrington v. Rash, 380 U. S. 89, the resulting apportionment base offends no constitutional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby.”

       Utah, Rhode Island, New Hampshire, and Missouri have only 1% variations. New York has a 29% variation in age-eligible voters among its congressional districts, while California has a 25% and Illinois a 20% variation. These figures may be computed from the Bureau of the Census’ Congressional District Data, 93d Congress, for the respective States.

       Again using Connecticut congressional districts as an example, in the November 1972 elections, the percentage of registered voters who actually voted varied by a maximum of 2.8%. See Statement of Vote, General Election Nov. 7, 1972, State of Conn. Pub. Doc. No. 26, p. 72 (1973). The percentages of registered voters who voted varied by as much as about 23% among the towns in the State. Id., at 65-71.

       For discussions of the vast and growing literature in this area, see Reapportionment in the 1970s (N. Polsby ed. 1971).

       Among the Senate districts (of about 84,000 people each), the average deviatioii involves only about 400 people and the maximum deviation only 1,532 people.

       Reply Brief for Appellant 19. Apparently, more refined census data were available to the Master in preparing this later plan.

       Appellees also maintain that the shapes of the districts would not have been so “indecent” had the Board not attempted to “wiggle and joggle” boundary lines to ferret out pockets of each party’s strength. That may well be true, although any plan that attempts to follow Connecticut’s “oddly shaped” town lines (App. 98) is bound to contain some irregularly shaped districts. But compactness or attractiveness has never been held to constitute an independent federal constitutional requirement for state legislative districts. Cf. White v. Weiser, post, p. 783; Wright v. Rockefeller, 376 U. S. 52, 54 (1964), and id,., at 59-61 (Douglas, J., dissenting).


source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Brennan,

license: Public Domain

text:
    WHITE, SECRETARY OF STATE OF TEXAS, et al. v. REGESTER et al.
    No. 72-147.
    Argued February 26, 1973
    Decided June 18, 1973
    White, J., delivered the opinion of the Court, in Parts I, III, and IV of which all Members joined, and in Part II of which Burger, C. J., and Stewart, Blackmun, Powell, and Rehnquist, JJ., joined. BreNNAN, J., filed an opinion concurring in part and dissenting in part, in which Douglas and Marshall, JJ., joined, post, p. 772.

      Leon Jaworski, Special Assistant Attorney General of Texas, argued the cause for appellants. With him on the briefs were John L. Hill, Attorney General, Larry York, Executive Assistant Attorney General, Alton F. Gurry, Special Assistant Attorney General, and Lewis A. Jones, Assistant Attorney General.

      David B. Richards argued the cause for appellees Regester et al. With him on the brief were Ronald L. Glower and James A. Mattox. Ed Idar, Jr., argued the cause for appellees Bernal et al. With him on the brief were Mario Obledo, George J. Korbel, and Frank Hernandez. Thomas Gibbs Gee argued the cause for appellees Willeford et al. With him on the brief was William Terry Bray. J. Douglas McGuire filed a brief for appellees Van Henry Archer, Jr., et al. D. Marcus Ranger and E. Brice Cunningham filed a brief for ap-pellees Washington et al.

        William A. Dobrovir filed a brief for League of Women Voters of the United States et al. as amici curiae urging affirmance.

   Mr. Justice White

delivered the opinion of the Court.

This case raises two questions concerning the validity of the reapportionment plan for the Texas House of Representatives adopted in 1970 by the State Legislative Redistricting Board: First, whether there were unconstitutionally large variations in population among the districts defined by the plan; second, whether the multimember districts provided for Bexar and Dallas Counties were properly found to have been invidiously discriminatory against cognizable racial or ethnic groups in those counties.

The Texas Constitution requires the state legislature to reapportion the House and Senate at its first regular session following the decennial census. Tex. Const., Art. Ill, § 28. In 1970, the legislature proceeded to reapportion the House of Representatives but failed to agree on a redistricting plan for the Senate. Litigation was immediately commenced in state court challenging the constitutionality of the House reapportionment. The Texas Supreme Court held that the legislature’s plan for the House violated the Texas Constitution. Smith v. Craddick, 471 S. W. 2d 375 (1971). Meanwhile, pursuant to the requirements of the Texas Constitution, a Legislative Redistricting Board had been formed to begin the task of redistricting the Texas Senate. Although the Board initially confined its work to the reapportionment of the Senate, it was eventually ordered, in light of the judicial invalidation of the House plan, to also reapportion the House. Mauzy v. Legislative Redistricting Board, 471 S. W. 2d 570 (1971).

On October 15, 1971, the Redistricting Board’s plan for the reapportionment of the Senate was released, and, on October 22, 1971, the House plan was promulgated. Only the House plan remains at issue in this case. That plan divided the 150-member body among 79 single-member and 11 multimember districts. Four lawsuits, eventually consolidated, were filed challenging the Board’s Senate and House plans and asserting with respect to the House plan that it contained impermissible deviations from population equality and that its multi-member districts for Bexar County and Dallas County operated to dilute the voting strength of racial and ethnic minorities.

A three-judge District Court sustained the Senate plan, but found the House plan unconstitutional. Graves v. Barnes, 343 F. Supp. 704 (WD Tex. 1972). The House plan was held to contain constitutionally impermissible deviations from population equality, and the multimember districts in Bexar and Dallas Counties were deemed constitutionally invalid. The District Court gave the Texas Legislature until July 1, 1973, to reapportion the House, but the District Court permitted the Board’s plan to be used for purposes of the 1972 election, except for requiring that the Dallas County and Bexar County multimember districts be reconstituted into single-member districts for the 1972 election.

Appellants appealed the statewide invalidation of the House plan and the substitution of single-member for multimember districts in Dallas County and Bexar County. Mr. Justice Powell denied a stay of the judgment of the District Court, 405 U. S. 1201, and we noted probable jurisdiction sub nom. Bullock v. Regester, 409 U. S. 840.

I

We deal at the outset with the challenge to our jurisdiction over this appeal under 28 U. S. C. § 1253, which permits injunctions in suits required to be heard and determined by a three-judge district court to be appealed directly to this Court. It is first suggested that the case was not one required to be heard by a three-judge court. The contention is frivolous. A statewide reapportionment statute was challenged and injunctions were asked against its enforcement. The constitutional questions raised were not insubstantial on their face, and the complaint clearly called for the convening of a three-judge court. That the court declared the entire apportionment plan invalid, but entered an injunction only with respect to its implementation for the 1972 elections in Dallas and Bexar Counties, in no way indicates that the case required only a single judge. Appellants are therefore properly here on direct appeal with respect to the injunction dealing with Bexar and Dallas Counties, for the order of the court directed at those counties was literally an order “granting . . . an . . . injunction in any civil action . . . required ... to be heard and determined by a district court of three judges” within the meaning of § 1253.

We also hold that appellants, because they appealed from the entry of an injunction, are entitled to review of the District Court’s accompanying declaration that the proposed plan for the Texas House of Representatives, including those portions providing for multimember districts in Dallas and Bexar Counties, was invalid statewide. This declaration was the predicate for the court’s order requiring Dallas and Bexar Counties to be reapportioned into single districts; for its order that “unless the Legislature of the State of Texas on or before July 1,1973, has adopted a plan to reapportion the legislative districts within the State in accordance with the constitutional guidelines set out in this opinion this Court will so reapportion the State of Texas”; and for its order that the Secretary of State “adopt and implement any and all procedures necessary to properly effectuate the orders of this Court in conformance with this Opinion . . . 343 F. Supp., at 737. In these circumstances, although appellants could not have directly appealed to this Court the entry of a declaratory judgment unaccompanied by any injunctive relief, Gunn v. University Committee, 399 U. S. 383 (1970); Mitchell v. Donovan, 398 U. S. 427 (1970), we conclude that we have jurisdiction of the entire appeal. Roe v. Wade, 410 U. S. 113 (1973); Florida Lime & Avocado Growers v. Jacobsen, 362 U. S. 73 (1960). With the Texas reapportionment plan before it, it was in the interest of judicial economy and the avoidance of piecemeal litigation that the three-judge District Court have jurisdiction over all claims raised against the statute when a substantial constitutional claim was alleged, and an appeal to us, once properly here, has the same reach. Roe v. Wade, supra, at 123; Carter v. Jury Comm’n, 396 U. S. 320 (1970); Florida Lime & Avocado Growers v. Jacobsen, supra, at 80.

II

The reapportionment plan for the Texas House of Representatives provides for 150 representatives to be selected from 79 single-member and 11 multimember districts. The ideal district is 74,645 persons. The districts range from 71,597 to 78,943 in population per representative, or from 5.8% overrepresentation to 4.1% underrepresentation. The total variation between the largest and smallest district is thus 9.9%

The District Court read our prior cases to require any deviations from equal population among districts to be justified by “acceptable reasons” grounded in state policy; relied on Kirkpatrick v. Preisler, 394 U. S. 526 (1969), to conclude that the permissible tolerances suggested by Reynolds v. Sims, 377 U. S. 533 (1964), had been substantially eroded; suggested that Abate v. Mundt, 403 U. S. 182 (1971), in accepting total deviations of 11.9% in a county reapportionment was sui generis; and considered the “critical issue” before it to be whether “the State [has] justified any and all variances, however small, on the basis of a consistent, rational State policy.” 343 F. Supp., at 713. Noting the single fact that the total deviation from the ideal between District 3 and District 85 was 9.9%, the District Court concluded that justification by appellants was called for and could discover no acceptable state policy to support the deviations. The District Court was also critical of the actions and procedures of the Legislative Reapportionment Board and doubted “that [the] board did the sort of deliberative job .. . worthy of judicial abstinence.” Id., at 717. It also considered the combination of single-member and multimember districts in the House plan “haphazard,” particularly in providing single-member districts in Houston and multimember districts in other metropolitan areas, and that this “irrationality, without reasoned justification, may be a separate and distinct ground for declaring the plan unconstitutional.” Ibid. Finally, the court specifically invalidated the use of multi-member districts in Dallas and Bexar Counties as unconstitutionally discriminatory against a racial or ethnic group.

The District Court’s ultimate conclusion was that "the apportionment plan for the State of Texas is unconstitutional as unjustifiably remote from the ideal of 'one man, one vote,’ and that the multi-member districting schemes for the House of Representatives as they relate specifically to Dallas and to Bexar Counties are unconstitutional in that they dilute the votes of racial minorities.” Id., at 735.

Insofar as the District Court’s judgment rested on the conclusion that the population differential of 9.9% from the ideal district between District 3 and District 85 made out a prima facie equal protection violation under the Fourteenth Amendment, absent special justification, the court was in error. It is plain from Mahan v. Howell, 410 U. S. 315 (1973), and Gaffney v. Cummings, ante, p. 735, that state reapportionment statutes are not subject to the same strict standards applicable to reapportionment of congressional seats. Kirkpatrick v. Preisler did not dilute the tolerances contemplated by Reynolds v. Sims with respect to state districting, and we did not hold in Swann v. Adams, 385 U. S. 440 (1967), or Kilgarlin v. Hill, 386 U. S. 120 (1967), or later in Mahan v. Howell, supra, that any deviations from absolute equality, however small, must be justified to the satisfaction of the judiciary to avoid invalidation under the Equal Protection Clause. For the reasons set out in Gaffney v. Cummings, supra, we do not consider relatively minor population deviations among state legislative districts to substantially dilute the weight of individual votes in the larger districts so as to deprive individuals in these districts of fair and effective representation. Those reasons are as applicable to Texas as they are to Connecticut; and we cannot glean an equal protection violation from the single fact that two legislative districts in Texas differ from one another by as much as 9.9%, when compared to the ideal district. Very likely, larger differences between districts would not be tolerable without justification “based on legitimate considerations incident to the effectuation of a rational state policy,” Reynolds v. Sims, 377 U. S., at 579 ; Mahan v. Howell, supra, at 325, but here we are confident that appellees failed to carry their burden of proof insofar as they sought to establish a violation of the Equal Protection Clause from population variations alone. The total variation between two districts was 9.9%, but the average deviation of all House districts from the ideal was 1.82%. Only 23 districts, all single-member, were overrepresented or underrepresented by more than 3%, and only three of those districts by more than 5%. We are unable to conclude from these deviations alone that appellees satisfied the threshold requirement of proving a prima facie case of invidious discrimination under the Equal Protection Clause. Because the District Court had a contrary view, its judgment must be reversed in this respect.

III

We affirm the District Court’s judgment, however, insofar as it invalidated the multimember districts in Dallas and Bexar Counties and ordered those districts to be redrawn into single-member districts. Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State. Whitcomb v. Chavis, 403 U. S. 124 (1971); Mahan v. Howell, supra; see Burns v. Richardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379 U. S. 433 (1965); Lucas v. Colorado General Assembly, 377 U. S. 713 (1964); Reynolds v. Sims, supra. But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups. See Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Whitcomb v. Chavis, supra, at 149-150.

With due regard for these standards, the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes. 343 F. Supp., at 725. It referred also to the Texas rule requiring a majority vote as a prerequisite to nomination in a primary election and to the so-called “place” rule limiting candidacy for legislative office from a multimember district to a specified “place” on the ticket, with the result being the election of representatives from the Dallas multimember district reduced to a head-to-head contest for each position. These characteristics of the Texas electoral system, neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination, the District Court thought. More fundamentally, it found that since Reconstruction days, there have been only two Negroes in the Dallas County delegation to the Texas House of Representatives and that these two were the only two Negroes ever slated by the Dallas Committee for Responsible Government (DCRG), a white-dominated organization that is in effective control of Democratic Party candidate slating in Dallas County. That organization, the District Court found, did not need the support of the Negro community to win elections in the county, and it did not therefore exhibit good-faith concern for the political and other needs and aspirations of the Negro community. The court found that as recently as 1970 the DCRG was relying upon “racial campaign tactics in white precincts to defeat candidates who had the overwhelming support of the black community.” Id., at 727. Based on the evidence before it, the District Court concluded that “the black community has been effectively excluded from participation in the Democratic primary selection process,” id., at 726, and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner. These findings and conclusions are sufficient to sustain the District Court’s judgment with respect to the Dallas multimember district and, on this record, we have no reason to disturb them.

IV

The same is true of the order requiring disestablishment of the multimember district in Bexar County. Consistently with Hernandez v. Texas, 347 U. S. 475 (1954), the District Court considered the Mexican-Americans in Bexar County to be an identifiable class for Fourteenth Amendment purposes and proceeded to inquire whether the impact of the multimember district on this group constituted invidious discrimination. Surveying the historic and present condition of the Bexar County Mexican-American community, which is concentrated for the most part on the west side of the city of San Antonio, the court observed, based upon prior cases and the record before it, that the Bexar community, along with other Mexican-Americans in Texas, had long "suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others.” 343 F. Supp., at 728. The bulk of the Mexican-American community in Bexar County occupied the Barrio, an area consisting of about 28 contiguous census tracts in the city of San Antonio. Over 78% of Barrio residents were Mexican-Americans, making up 29% of the county’s total population. The Barrio is an area of poor housing; its residents have low income and a high rate of unemployment. The typical Mexican-American suffers a cultural and language barrier that makes his participation in community processes extremely difficult, particularly, the court thought, with respect to the political life of Bexar County. “[A] cultural incompatability . . . conjoined with the poll tax and the most restrictive voter registration procedures in the nation have operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.” 343 F. Supp., at 731. The residual impact of this history reflected itself in the fact that Mexican-American voting registration remained very poor in the county and that only five Mexican-Americans since 1880 have served in the Texas Legislature from Bexar County. Of these, only two were from the Barrio area. The District Court also concluded from the evidence that the Bexar County legislative delegation in the House was insufficiently responsive to Mexican-American interests.

Based on the totality of the circumstances, the District Court evolved its ultimate assessment of the multi-member district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county. Its judgment was that Bexar County Mexican-Americans “are effectively removed from the political processes of Bexar [County] in violation of all the Whitcomb standards, whatever their absolute numbers may total in that County.” Id., at 733. Single-member districts were thought required to remedy “the effects of past and present discrimination against Mexican-Americans,” ibid., and to bring the community into the full stream of political life of the county and State by encouraging their further registration, voting, and other political activities.

The District Court apparently paid due heed to Whitcomb v. Chavis, supra, did not hold that every racial or political group has a constitutional right to be represented in the state legislature, but did, from its own special vantage point, conclude that the multimember district, as designed and operated in Bexar County, invidiously excluded Mexican-Americans from effective participation in political life, specifically in the election of representatives to the Texas House of Representatives. On the record before us, we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise.

Affirmed in part, reversed in part, and remanded.

APPENDIX TO OPINION OF THE COURT

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting in No. 71-1476, ante, p. 735, and concurring in part and dissenting in part in No. 72-147.

The Court today upholds statewide legislative apportionment plans for Connecticut and Texas, even though these plans admittedly entail substantial inequalities in the population of the representative districts, and even though the States have made virtually no attempt to justify their failure “to construct districts ... as nearly of equal population as is practicable.” Reynolds v. Sims, 377 U. S. 533, 577 (1964). In reaching this conclusion, the Court sets aside the judgment of the United States District Court for the District of Connecticut holding the Connecticut plan invalid, and the judgment of the United States District Court for the Western District of Texas reaching a similar result as to the Texas plan. In the Texas case, the Court does affirm, however, the District Court’s determination that the use of multi-member districts in Dallas and Bexar Counties had the unconstitutional effect of minimizing the voting strength of racial groups. See Whitcomb v. Chavis, 403 U. S. 124, 142-144 (1971); Burns v. Richardson, 384 U. S. 73, 88 (1966); Fortson v. Dorsey, 379 U. S. 433, 439 (1965). With that latter conclusion I am in full agreement, as I also agree with and join Part I of the Court’s opinion in No. 72-147, White v. Regester. But the decision to uphold the state apportionment schemes reflects a substantial and very unfortunate retreat from the principles established in our earlier cases, and I therefore must state my dissenting views.

I

At issue in No. 71-1476, Gaffney v. Cummings, is the 1971 reapportionment plan for election of members of the House of Representatives of Connecticut. The plan was premised on a 151-member House, with each member elected from a single-member district. Since the population of the State was 3,032,217, according to 1970 census data, the ideal would fix the population of each district at 20,081. In fact, the population of many districts deviated substantially from the ideal, ranging from a district underrepresented by 3.93% to one overrepresented by 3.9%. The total spread,of deviation — a figure deemed relevant in each of our earlier decisions — ■ was 7.83%. The population of 39 assembly districts deviated from the average by more than 3%. Another 34 districts deviated by more than 2%. The average deviation was just under 2%. To demonstrate that the state plan did not achieve the greatest practicable degree of equality in per-district population, appellees submitted a number of proposed apportionment plans, including one that would have significantly reduced the extent of inequality. The total range of deviation under appellees' plan would have been 2.61%, as compared to 7.83% under the state plan.

The District Court held the state plan invalid on the ground that “the deviations from equality of populations of the . . . House districts are not justified by any sufficient state interest.” 341 F. Supp. 139, 148 (Conn. 1972). Instead of adopting one of appellees' plans, the court appointed a Special Master to chart a new plan, and his effort produced a scheme with a total range of deviation of only 1.16%. In overturning the District Court's decision, the Court does not conclude, as it did earlier this Term in Mahan v. Howell, 410 U. S. 315 (1973), that the District Court failed to discern the State's sufficient justification for the deviations. Indeed, in view of appellant's halfhearted attempts to justify the deviations at issue here, such a conclusion could hardly be supported. Whereas the Commonwealth of Virginia made a substantial effort to draw district lines in conformity with the boundaries of political subdivisions — an effort that was found sufficient in Mahan v. Howell to validate a plan with total deviation of 16.4%— the evidence in the case before us requires the conclusion that Connecticut’s apportionment plan was drawn in complete disregard of political subdivision lines. The District Court pointed out that “[t]he boundary lines of 47 towns are cut under the Plan so that one or more portions of each of these 47 towns are added to another town or a portion of another town to form an assembly district.” 341 F. Supp., at 142. Moreover, the boundary lines of 29 of these 47 towns were cut more than once, and the plan created “78 segments of towns in the formation of 151 assembly districts.” Ibid.

Although appellant failed to offer cogent reasons in explanation of the substantial variations in district population, the Court nevertheless upholds the state plan. The Court reasons that even in the absence of any explanation for the failure to achieve equality, the showing of a total deviation of almost 8% does not make out a prima facie case of invidious discrimination under the Fourteenth Amendment. Deviations no greater than 8% are, in other words, to be deemed de minimis, and the State need not offer any justification at all for the failure to approximate more closely the ideal of Reynolds v. Sims, supra.

The Texas reapportionment case, No. 72-147, White v. Regester, presents a similar situation, except that the range of deviation in district population is greater and the State’s justifications are, if anything, more meager. An ideal district in Texas, which chooses the 150 members of the State House of Representatives from 79 single-member and 11 multimember districts, is 74,645. As defined in the State’s 1970 plan, a substantial number of districts departed significantly from the ideal. The total range of deviation was at least 9.9%, and arguably almost 30%, depending on the mode of calculation. The District Court pointed out that

“[i]n all of the evidence presented in this case, the State has not attempted to explain in terms of rational State policy its failure to create districts equal in population as nearly as practicable, nor has the State sought to justify a single deviation from precise mathematical equality. The lengthy depositions of the members of the legislative redistricting board and of the staff members who did the actual drawing of the legislative district lines are devoid of any meaningful indications of the standards used.” 343 F. Supp. 704, 714 (WD Tex. 1972).

As the District Court’s opinion makes clear, the variations surely cannot be defended as a necessary byproduct of a state effort to avoid fragmentation of political subdivisions. Nevertheless, the Court today sets aside the District Court’s decision, reasoning, as in the Connecticut case, that a showing of as much as 9.9% total deviation still does not establish a prima facie case under the Equal Protection Clause of the Fourteenth Amendment. Since the Court expresses no misgivings about our recent decision in Abate v. Mundt, 403 U. S. 182 (1971), where we held that a total deviation of 11.9% must be justified by the State, one can reasonably surmise that a line has been drawn at 10% — deviations in excess of that amount are apparently acceptable only on a showing of justification by the State; deviations less than that amount require no justification whatsoever.

II

The proposition that certain deviations from equality of district population are so small as to lack constitutional significance, while repeatedly urged on this Court by States that failed to achieve precise equality, has never before commanded a majority of the Court. Indeed, in Kirkpatrick v. Preisler, 394 U. S. 526, 530 (1969), we expressly rejected the argument

“that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the 'as nearly as practicable’ standard. 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.”

The Court reasons, however, that Kirkpatrick v. Preisler, supra, a case that concerned the division of Missouri into congressional districts, has no application to the apportionment of seats in a state legislature. In my dissenting opinion in Mahan v. Howell, supra, I pointed out that the language, reasoning, and background of the Kirkpatrick decision all command the conclusion that our holding there is applicable to state legislative apportionment no less than to congressional districting. In fact, this Court specifically recognized as much in the context of a challenge to an Arizona apportionment scheme in Ely v. Klahr, 403 U. S. 108 (1971). Describing the opinion of the District Court whose judgment was under review, we noted that the court below had “properly concluded that this plan was invalid under Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller, 394 U. S. 542 (1969), since the legislature had operated on the notion that a 16% deviation was de minimis and consequently made no effort to achieve greater equality.” 403 U. S., at 111. Yet it is precisely such a notion that the Court today approves.

Moreover, even if Kirkpatrick should be deemed inapplicable to the apportionment of state legislative districts, the reasoning that gave rise to our rejection of a de minimis approach is fully applicable to the case before us. We pointed out there that the “as nearly as practicable” standard — the standard that controls legislative apportionment as well as congressional districting, Reynolds v. Sims, supra, at 577 — demands that “the State make a good-faith effort to achieve precise mathematical equality. . . . Equal representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives. Toleration of even small deviations detracts from these purposes.” 394 U. S., at 530-531. Kirkpatrick recognized that “to consider a certain range of variances de minimis would encourage legislators to strive for that range rather than for equality as nearly as practicable.” 394 U. S., at 531.

Although not purporting to quarrel with the principle that precise mathematical equality is the constitutionally mandated goal of reapportionment, the Court today establishes a wide margin of tolerable error, and thereby undermines the effort to effectuate the principle. For it is clear that the state legislatures and the state and federal courts have viewed Kirkpatrick as controlling on the issue of legislative apportionment, and the outgrowth of that assumption has been a truly extraordinary record of compliance with the constitutional mandate. Appellees in No. 71-1476 make the point forcefully by comparing the extent of inequality in the population of legislative districts prior to 1969, the year of our decision in Kirkpatrick, with the extent of inequality in subsequent years. Prior to 1969, the range of variances in population of state senatorial districts exceeded 15% in 44 of the 50 States. Three States had reduced the total variance to between 10% and 15%; two had cut the variance to between 5% and 10%; only one had reduced the variance below 5%. The record of apportionment of state House districts was even less encouraging. Variances in excess of 15% characterized all but two of the States, and only one of these had brought the total variance under 10%. The improvement in the post-1969 years could not have been more dramatic. The table provided by appellees, set out in full in the margin, reveals that in almost one-half of the States the total variance in population of senatorial districts was within 5% to zero. Of the 45 States as to which information was available, 32 had reduced the total variance below 10% and only eight had failed to bring the total variance below 15%. With regard to House districts the improvement is similar. On the basis of information concerning 42 States, it appears that 20 had achieved a total variance of less than 5%, and only 14 retained districts with a total variance of more than 15% from the constitutional ideal.

To appreciate the significance of this encouraging development, it is important to understand that the demand for precise mathematical equality rests neither on a scholastic obsession with abstract numbers nor a rigid insensitivity to the political realities of the reapportionment process. Our paramount concern has remained an individual and personal right — the right to an equal vote. “While the result of a court decision in a state legislative apportionment controversy may be to require the restructuring of the geographical distribution of seats in a state legislature, the judicial focus must be concentrated upon ascertaining whether there has been any discrimination against certain of the State’s citizens which constitutes an impermissible impairment of their constitutionally protected right to vote.” Reynolds v. Sims, supra, at 561. We have demanded equality in district population precisely to insure that the weight of a person’s vote will not depend on the district in which he lives. The conclusion that a State may, without any articulated justification, deliberately weight some persons’ votes more heavily than others, seems to me fundamentally at odds with the purpose and rationale of our reapportionment decisions. Regrettably, today’s decisions are likely to jeopardize the very substantial gains that have been made during the last four years.

Moreover, if any approach ascribes too much importance to abstract numbers and too little to the realities of malapportionment, it is not Kirkpatrick’s demand for precise equality in district population, but rather the Court’s own de minimis approach. By establishing an arbitrary cutoff point expressed in terms of total percentage variance from the constitutional ideal, the Court fails to recognize that percentage figures tend to hide the total number of persons affected by unequal weighting of votes. In the Texas casé, for example, the District Court pointed out that

“the total deviations for Dallas and Bexar Counties, respectively, amount to about 16,000 people and 5,500 people, for a total of around 21,500 people. The percentage deviation figures are only a shorthand method of expressing the ‘loss,’ dilution, or disproportionate weighting of votes. Just as the Court in Reynolds concluded that legislators represent people, not trees or cows, so we would emphasize that legislators represent people, not percentages of people.” 343 F. Supp., at 713 n. 5.

Finally, it is no answer to suggest that precise mathematical equality is an unsatisfactory goal in view of the inevitable inaccuracies of the census data on which the plans are based. That argument, which we implicitly rejected in Kirkpatrick v. Preisler, supra, mixes two distinct questions. In the first place, a state apportionment plan must be grounded on the most accurate available data, and the unreliability of the data may itself necessitate the invalidation of the plan. But once the data are established, the State’s constitutional obligation is to achieve the highest practicable degree of equality with reference to the information at hand. In my view, the District Courts properly concluded that neither Texas nor Connecticut had satisfied this obligation. I would therefore affirm both judgments.

       Article III, § 28, of the Texas Constitution provides:
      “The Legislature shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts, agreeable to the provisions of Sections 25, 26, and 26-a of this Article. In the event the Legislature shall at any such first regular session following the publication of a United States decennial census, fail to make such apportionment, same shall be done by the Legislature Redistricting Board of Texas, which is hereby created, and shall be composed of five (5) members, as follows: The Lieutenant Governor, the Speaker of the House of Representatives, the Attorney General, the Comptroller of Public Accounts and the Commissioner of the General Land Office, a majority of whom shall constitute a quorum. Said Board shall assemble in the City of Austin within ninety (90) days after the final adjournment of such regular session. The Board shall, within sixty (60) days after assembling, apportion the state into senatorial and representative districts, or into senatorial or representative districts, as the failure of action of such Legislature may make necessary. Such apportionment shall be in writing and signed by three (3) or more of the members of the Board duly acknowledged as the act and deed of such Board, and, when so executed and filed with the Secretary of State, shall have force and effect of law. Such apportionment shall become effective at the next succeeding statewide general election. The Supreme Court of Texas shall have jurisdiction to compel such Commission [Board] to perform its duties in accordance with the provisions of this section by writ of mandamus or other extraordinary writs conformable to the usages of law. The Legislature shall provide necessary funds for clerical and technical aid and for other expenses incidental to the work of the Board, and the Lieutenant Governor and the Speaker of the House of Representatives shall be entitled to receive per diem and travel expense during the Board’s session in the same manner and amount as they would receive while attending a special session of the Legislature. This amendment shall become effective January 1, 1951. As amended Nov. 2. 1948.”

       The Court held that the plan violated Art. III, § 26, of the Texas Constitution, which provides:
      “The members of the House of Representatives shall be apportioned among the several counties, according to the number of population in each, as nearly as may be, on a ratio obtained by dividing the population of the State, as ascertained by the most recent United States census, by the number of members of which the House is composed; provided, that whenever a single county has sufficient population to be entitled to a Representative, such county shall be formed into a separate Representative District, and when two or more counties are required to make up the ratio of representation, such counties shall be contiguous to each other; and when any one county has more than sufficient population to be entitled to one or more Representatives, such Representative or Representatives shall be apportioned to such county, and for any surplus of population it may be joined in a Representative District with any other contiguous county or counties.”

       In a separate appeal, we summarily affirmed that portion of the judgment of the District Court upholding the Senate plan. Archer v. Smith, 409 U. S. 808 (1972).

       Title 28 U. S. C. § 1253 provides:
      “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.”

       See Appendix to opinion of the Court, post, p. 770.

       It may be, although we are not sure, that the District Court would have invalidated the plan statewide because of what it thought was an irrational mixture of multimember and single-member districts. Thus, in questioning the use of single-member districts in Houston but multimember districts in all other urban areas, and remarking that the State had provided neither “compelling” nor “rational” explanation for the differing treatment, the District Court merely concluded that this classification “may be” an independent ground for invalidating the plan. But there are no authorities in this Court for the proposition that the mere mixture of multimember and single-member districts in a single plan, even among urban areas, is invidiously discriminatory, and we construe the remarks not as part of the District Court’s declaratory judgment invalidating the state plan but as mere advance advice to the Texas Legislature as to what would or would not be acceptable to the District Court.

       The District Court also concluded, contrary to the assertions of certain plaintiffs, that the Senate districting scheme for Bexar County did not “unconstitutionally dilute the votes of any political faction or party.” 343 F. Supp. 704, 735. The majority of the District Court also concluded that the Senate districting scheme for Harris County did not dilute black votes.

       The court’s conclusion that the variations in this case were not justified by a rational state policy would, in any event, require reconsideration and reversal under Mahan v. Howell, 410 U. S. 315 (1973). The Texas Constitution, Art. III, §26, expresses the state policy against cutting county lines wherever possible in forming representative districts. The District Court recognized the policy but, without the benefit of Mahan v. Howell, may have thought the variations too great to be justified by that policy. It perhaps thought also that the policy had not been sufficiently or consistently followed here. But it appears to us that to stay within tolerable population limits it was necessary to cut some county lines and that the State achieved a constitutionally acceptable accommodation between population principles and its policy against cutting county lines in forming representative districts.

       See Whitcomb v. Chavis, 403 U. S. 124, 141-148 (1971), and the cases discussed in n. 22 of that opinion, including Kilgarlin v. Hill, 386 U. S. 120 (1967), where we affirmed the District Court's rejection of petitioners’ contention that the combination of single-member, multimember, and floterial districts in a single reapportionment plan was “an unconstitutional ‘crazy quilt.’ ” Id., at 121.

       There is no requirement that candidates reside in subdistricts of the multimember district. Thus, all candidates may be selected from outside the Negro residential area.

       The District Court found that “it is extremely difficult to secure either a representative seat in the Dallas County delegation or the Democratic primary nomination without the endorsement of the Dallas Committee for Responsible Government.” 343 F. Supp., at 726.

       Mexican-Americans constituted approximately 20% of the population of the State of Texas.

       The District Court found that “[t]he fact that [Mexican-Americans] are reared in a sub-culture in which a dialect of Spanish is the primary language provides permanent impediments to their educational and vocational advancement and creates other traumatic problems.” 343 F. Supp., at 730.

       Two other residents of the Barrio, a Negro and an Anglo-American, have also served in the Texas Legislature.

       In Fortson v. Dorsey, 379 U. S. 433 (1965), we held that a multimember district is not per se unconstitutional under the Equal Protection Clause, even though we had previously recognized certain inherently undesirable features of the device. See Lucas v. Colorado General Assembly, 377 U. S. 713, 731 n. 21 (1964). We have concluded, however, that the use of the device is, in fact, unconstitutional, where it operates to “ 'minimize or cancel out the voting strength of racial or political elements of the voting population,’ ” Burns v. Richardson, 384 U. S. 73, 88 (1966), quoting from Fortson v. Dorsey, supra, at 439. Today’s decision is the first in which we have sustained an attack on the use of multimember districts. Cf. Whitcomb v. Chavis, 403 U. S. 124, 144 (1971).

       With regard to the senatorial districts, the 1971 plan produced a total variance of 1.81%. Although appellees did not specifically challenge the apportionment of senatorial districts, the District Court properly concluded that its finding of unconstitutional deviation in one house required invalidation of the entire apportionment plan. Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656, 673 (1964); Lucas v. Colorado General Assembly, supra, at 735. Burns v. Richardson, supra, at 83.

       The District Court pointed out that “the State’s method of computing deviations in the multi-member districts may distort the actual percentage deviations in those eleven districts. . . . Since we have concluded that the 9.9% total deviation is not the result of a good faith attempt to achieve population equality as nearly as practicable, it is unnecessary for us to resolve this complex computational conflict.” 343 F. Supp. 704, 713 n. 5. A similar conflict existed in Mahan v. Howell, 410 U. S. 315 (1973), as I pointed out in my dissenting opinion, id., at 333, and there too the Court declined to indicate any awareness of the dispute.

         There is a statement, to be sure, in Swann v. Adams, 385 U. S. 440, 444 (1967), that “\_d\e minimis deviations are unavoidable,” but that statement must be viewed in context. By way of clarification, the Court immediately added that “the Reynolds opinion limited the allowable deviations to those minor variations which ‘are based on legitimate considerations incident to the effectuation of a rational state policy.' 377 U. S. 533, 579.” Ibid. Similarly, the Court noted, quoting from Roman v. Sincock, 377 U. S. 695, 710 (1964), that “the Constitution permits ‘such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.’ ” 385 U. S., at 444. Swann v. Adams does not, in my view, suggest any support for the proposition that deviations as great as 10% are tolerable in the absence of any justification or explanation by the State.

       By contrast, in Mahan v. Howell, supra, the Court expressly reaffirmed the holding of Reynolds v. Sims, 377 U. S. 533 (1964), that “some deviations from the equal-population principle are constitutionally permissible” “[s]o long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy.” Id., at 579, quoted in Mahan v. Howell, supra, at 325 (emphasis added). In my view, the Court incorrectly concluded in Mahan v. Howell that Virginia had justified the population variations at issue there. Nevertheless, the Court did follow the line of analysis prescribed in our earlier decisions — requiring the State to justify every deviation from precise equality. The approach of Mahan is, therefore, directly at odds with'the approach adopted today. See also, e. g., Abate v. Mundt, 403 U. S. 182, 185 (1971); Kilgarlin v. Hill, 386 U. S. 120, 122 (1967); Swann v. Adams, supra, at 443-446.

       Appellees’ figures are compiled from a table entitled Apportionment of Legislatures, in 17 Council of State Governments, the Book of the States: 1968-1969, pp. 66-67 (1968), and from Council of State Governments, Reapportionment in the Seventies (1973).

       Deviations After 1970

       See 394 U. S., at 538-540 (1969) (Fortas, J., concurring); Wells v. Rockefeller, 394 U. S. 542, 554 (1969) (White, J., dissenting).