WELLS v. ROCKEFELLER, GOVERNOR OF NEW YORK, et al.
No. 238.
Argued January 13, 1969.
Decided April 7, 1969.
Robert B. McKay argued the cause and filed a brief for appellant.
George D. Zuckerman, Assistant Attorney General of New York, argued the cause for appellees. With him on the brief were Louis J. Lefkowitz, Attorney General, pro se, and Samuel A. Hirshowitz, First Assistant Attorney General.
Mr. Justice Brennan
delivered the opinion of the Court.
This case was argued with Kirkpatrick v. Preisler, ante, р. 526, which affirmed the judgment of a three-judge District Court declaring invalid Missouri’s 1967 congressional districting statute. Before us here is a judgment of a three-judge District Court for the Southern District of New York which sustained the validity of New York’s 1968 congressional districting statute, N. Y. Laws 1968, с. 8. 281 F. Supp. 821 (1968). In 1967 that court had struck down an earlier districting statute apportioning New York’s 41 congressional seats and had retained jurisdiction of the case pending action by the New York Legislature to redress the plan’s deficiencies. The court recognized that a thorough revision of district lines might not be possible in time for the upcoming 1968 congressional election but concluded nevertheless that “[t]here are enough changes which can be superimposed on the present districts to cure the most flagrant inequalities.” 273 F. Supp. 984, 992, aff’d, 389 U. S. 421 (1967).
On February 28, 1968, a month and a half after the New York Legislature reconvened, the districting statute presently under attack was enacted. After a hearing, the three-judge court, on March 20, 1968, sustained the statute, stating that the districting plan afforded New York voters “an opportunity to vote in the 1968 and 1970 elections on a basis of population equality within reasonably comparable districts.” 281 F. Supp., at 826. We noted probable jurisdiction. 393 U. S. 819 (1968). We reverse insofar as the judgment of the District Court sustains the plan for use in the 1970 congressional election.
Appellant levels two constitutional attacks against the statute: (1) that the statute violates the equal-population principle of Wesberry v. Sanders, 376 U. S. 1 (1964), and (2) that the statute represents a systematic and intentional partisan gerrymander violating Art. I, § 2, of the Constitution and the Fourteenth Amendment. We do not reach, and intimate no view upon the merits of, the attack upon the statute as a constitutionally impermissible gerrymander. We hold that reversal of the District Court’s judgment is compelled by our decision today in Kirkpatrick v. Preisler, supra, which elucidates the command of Wesberry that congressional districting meet the standard of equal representation for equal numbers of people as nearly as is practicable.
The District Court correctly held in its 1967 opinion that “there is a burden on the proponent of any dis-tricting plan to justify deviations from equality.” 273 F. Supp., at 987. The District Court took no testimony on the question of justification at the hearing held to consider the 1968 statute. Recognizing that the statute, which was enacted with virtually no debate on its merits in either house of the New York Legislature, was the work of a Joint Legislative Committee, the court’s 1968 opinion refers to the Report of the Joint Committee as the source of the justifications relied upon as sufficient to sustain the population disparities created by the plan. 281 F. Supp., at 823-824. We have been referred to the same source.
The Report recites that the Committee “gave priority to the population totals in the several districts” as they appeared in the 1960 decennial census and that “very limited” consideration was given to population shifts within the State since 1960. The Report recites further that “[o]ther considerations were the geographical conformation of the area to be districted, the maintenance of county integrity, the facility by which the various Boards of Elections can ‘tool up’ for the forthcoming [1968] primary election, equality of population within the region, and equality of population throughout the state.” Interim Report of the Joint Legislative Committee on Reapportionment of N. Y. State Legislature (1968).
The heart of the scheme, however, lay in the decision to treat seven sections of the State as homogeneous regions and to divide each region into congressional districts of virtually identical population. Thirty-one of New York’s 41 congressional districts were constructed on that principle. The remaining 10 districts were composed of groupings of whole counties. A chart showing the population of each district under the 1968 statute appears in the Appendix to this opinion. The seven regions are: (a) Suffolk and Nassau Counties on Long Island with five districts having an average population of 393,391 and a maximum deviation from that average of 208; (b) Queens County with four districts having an average population of 434,672 and a maximum deviation from that average of 120; (c) Kings County plus a district made up of part of Kings and part of Queens, and a district made up of Richmond County and part of Kings, with seven districts having an average population of 417,171 and a maximum deviation from that average of 307; (d) New York and Bronx Counties with eight districts having an average population of 390,415 and a maximum deviation from that average of 496; (e) Westchester and Putnam Counties with two districts having an average population of 420,307 and a maximum deviation from that average of 161; (f) Wayne plus part of Monroe and the remainder of Monroe plus four other counties with two districts having an average population of 410,688 and a maximum deviation from that average of 256; and (g) Erie and Niagara Counties with three districts having an average population of 435,652 and a maximum deviation from that average of 228. The 10 remaining “North country” districts were composed of groupings of whole counties.
It is clear that our decision in Kirkpatrick v. Preisler, supra, compels the conclusion that this scheme is unconstitutional. We there held, at 531, that “the command of Art. I, § 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.” The general command, of course, is to equalize population in all the districts of the State and is not satisfied by equalizing population only within defined sub-states. New York could not and does not claim that the legislature made a good-faith effort to achieve precise mathematical equality among its 41 congressional districts. Rather, New York tries to justify its scheme of constructing equal districts only within each of seven sub-states as a means to keep regions with distinct interests intact. But we made clear in Kirkpatrick that “to accept population variances, large or small, in order to create districts with specific interest orientations is antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people.” To accept a scheme such as New York's would permit groups of districts with defined interest orientations to be overrepresented at the expense of districts with different interest orientations. Equality of population among districts in a sub-state is not a justification for inequality among all the districts in the State.
Nor are the variations in the “North country” districts justified by the fact that these districts are constructed of entire counties. Kirkpatrick v. Preisler, supra.
We appreciate that the decision of the District Court did not rest entirely on an appraisal of the merits of the New York plan. As noted earlier, when the three-judge District Court in 1967 held the then-existing districting plan unconstitutional, it recognized that the imminence of the 1968 election made redistricting an unrealistic possibility and therefore said only that “[tjhere are enough changes which can be superimposed on the present districts to cure the most flagrant inequalities.” 273 F. Supp., at 992. On February 26, 1968, the New York Legislature enacted the plan before us. On March 20, 1968, the District Court approved the plan for both the 1968 and 1970 congressional elections. Since the 1968 primary election was only three months away on March 20, we cannot say that there was error in permitting the 1968 election to proceed under the plan despite its constitutional infirmities. See Kilgarlin v. Hill, 386 U. S. 120, 121 (1967); Martin v. Bush, 376 U. S. 222, 223 (1964); Kirkpatrick v. Preisler, 390 U. S. 939 (1968). But ample time remains to promulgate a plan meeting constitutional standards before the election machinery must be set in motion for the 1970 election. We therefore reverse the judgment of the District Court insofar as it approved the plan for use in the 1970 election and remand the case for the entry of a new judgment consistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT.
Population of New York’s Congressional Districts Under 1968 Plan.
C.D. Dev. % Description.
1 393,585 - 3.845 Part of Suffolk.
2 393,465 — 3.874 Part of Suffolk, Part of Nassau.
3 393,434 - 3.882 Part of Nassau.
4 393,183 — 3.943 Part of Nassau.
5 393,288 — 3.918 Part of Nassau.
6 434,615 + 6.178 Part of Queens.
7 434,750 + 6.212 Part of Queens.
8 434.552 + 6.163 Part of Queens.
9 434,770 + 6.217 Part of Queens.
10 417.122 + 1.905 Part of Queens, Part of Kings.
11 417,090 + 1.897 Part of Kings.
12 417,298 + 1.948 Part of Kings.
13 417,040 + 1.885 Part of Kings.
14 417,080 + 1.895 Part of Kings.
15 417,090 + 1.898 Part of Kings.
16 417,478 + 1.992 Richmond, Part of Kings.
17 390,742 — 4.540 Part of New York.
18 390,861 — 4.511 Part of New York.
19 390,023 — 4.715 Part of New York.
20 390,363 - 4.632 Part of New York.
21 390.552 — 4.586 Part of New York, Part of Bronx.
22 390,492 — 4.601 Part of Bronx.
23 390,228 — 4.665 Part of Bronx.
24 390,057 — 4.707 Part of Bronx.
25 420,146 + 2.644 Putnam, Part of Westchester.
26 420,467 + 2.722 Part of Westchester.
27 409,349 Rockland, Orange, Sullivan, Delaware.
28 396.122 — 3.225 Dutchess, Ulster, Columbia, Greene, Schoharie.
29 425,822 + 4.031 Albany, Schenectady.
30 415,030 + 1.394 Rensselaer, Saratoga, Washington, Warren, Fulton, Hamilton, Essex.
31 Clinton, St. Lawrence, Jefferson, Lewis, Franklin, Oswego. 425,905 + 4.051
32 385,406 — 5.843 Oneida, Madison, Herkimer.
33 415,333 + 1.468 Chemung, Broome, Tioga, Tompkins.
34 423,028 + 3.348 Onondaga.
35 386,148 — 5.662 Ontario, Yates, Seneca, Cayuga, Cortland, Chenango, Otsego, M’gomery.
410,943 + 0.396 Part of Monroe, Wayne. CO CO
410,432 + 0.271 Part of Monroe, Orleans, Genesee, Wyoming, Livingston. CO
Chautauqua, Cattaraugus, Allegany, Steuben, Schuyler. 382,277 - 6.608 00 OO
435,393 + 6.369 Part of Erie.
435,684 + 6.440 Part of Erie, Niagara.
435,880 + 6.488 Part of Erie.
State Mean. 409,324
Largest District (41st C. D.). 435,880
Smallest District (38th C. D.). 382,277
Citizen Population Variance (largest district population divided by the smallest district population). 1.139 to 1
Maximum Deviation above State Mean. 6.488%
Maximum Deviation below State Mean. 6.608%
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