Abate v. Mundt, 403 U.S. 182 (1971)

MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS joins, dissenting.

The Court today reaffirms all of the principles of Reynolds v. Sims, 377 U.S. 533 (1964), and its progeny, but refuses, for a combination of reasons unpersuasive to me, to apply those principles to this apportionment scheme. I believe that our recent decisions in Avery v. Midland County, 390 U.S. 474 (1968); Kirkpatrick v. Preisler, 394 U.S. 526 (1969), and Wells v. Rockefeller, 394 U.S. 542 (1969), require reversal, and I therefore dissent.

The Court holds that

a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality. Reynoldsv. Sims, supra, at 578.

Ante at 185. The Court’s reliance on Reynolds is misplaced. We said there that

it may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting.

377 U.S. at 578. But we warned that

[t]o do so would be constitutionally valid, so long as the resulting apportionment was one based substantially on population and the equal population principle was not diluted in any significant way.

Ibid. (emphasis added). Moreover, the Court did not, at that point in time, "deem it expedient . . . to attempt to spell out any precise constitutional tests." We have done so since.

In Kirkpatrick v. Preisler, supra, we explained that, because "[t]oleration of even small deviations detracts from" the constitutional command of "equal representation for equal numbers of people," only those "limited population variances which are unavoidable despite a good faith effort to achieve absolute equality, or for which justification is shown" are permissible. 394 U.S. at 531. "[T]he State must justify each variance, no matter how small." Ibid. On the record presented here, it is clear that such a good faith effort has not been made. Nor can it be said that sufficient justification has been demonstrated for an 11.9% deviation from voting equality.

The plan approved here allegedly represents as close to mathematical exactness as is possible without changing existing political boundaries or using weighted or fractional votes. But a plan devised under these constraints is not devised in the good faith effort that the Constitution requires. In Wells v. Rockefeller, supra, we struck down a similar plan. We held that an attempt to maintain existing county lines was insufficient justification for a 12.1% variance. In explanation, we stated that an attempt "to keep regions with distinct interests intact" was insufficient because to accept such a justification

would permit groups of districts with defined interest orientations to be overrepresented at the expense of districts with different interest orientations.

394 U.S. at 546. That is precisely what we are dealing with here. The attempt to maintain existing town lines has resulted in a variance from equality of 11.9%. I cannot believe that a 0.2% differential is the determining factor in approving this apportionment scheme.

The Court explains that it is, rather, a combination of factors that dictates this result, and that, among them, is the fact that New York has a long history of maintaining the integrity of existing counties. It is not clear to me why such a history, no matter how protracted, should alter the constitutional command to make a good faith effort to achieve equality of voting power as near to mathematical exactness as is possible.

Today’s result cannot be excused by asserting that local governments are somehow less important than national and state governments. We have already fully applied the principle of one man, one vote to local polities because

the States universally leave much policy and decisionmaking to their governmental subdivisions. . . . In a word, institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens.

Avery v. Midland County, 390 U.S. at 481.

It is clear to me that none of the factors relied upon by the Court today can, singly or in combination, justify this variation. Obviously no other local apportionment scheme can possibly present the same combination of factors relied on by the Court today. In that sense, this decision can have little or no precedential value. Nevertheless, I cannot help but regret even this small departure from the basic constitutional concept of one man, one vote.