Whitcomb v. Chavis

Mr. Justice Douglas,

with whom Mr. Justice Brennan and Mr. Justice Marshall concur, dissenting in part and concurring in the result in part.

The Indiana Constitution provides that “no county, for Senatorial apportionment, shall ever be divided.” Art. 4, § 6. The legislative apportionment statutes in Indiana which implemented that provision gave Marion County eight senators, all elected at large. The statutes also gave the county 15 at-large representatives.

Marion County is the most populous in the State. It contains nine townships and includes the city of Indianapolis. On January 9, 1969, this lawsuit was commenced to require a subdivision of the multi-member districting practiced in Marion County. Certain voters contended that the multi-member district deprived them of equal protection of the laws because it diluted the voting rights of an identifiable racial minority within the county.

To determine if there was an identifiable minority within the county the District Court adopted the following definition of “ghetto”:

“A primarily residential section of an urban area characterized by a higher relative density of population and a higher relative proportion of substandard housing than in the overall metropolitan area which is inhabited predominantly by members of a racial, ethnic, or other minority group, most of whom are of lower socioeconomic status than the prevailing status in the metropolitan area and whose residence in the section is often the result of social, legal, or economic restrictions or custom.” 305 F. Supp. 1364, 1373.

Applying the definition to the extensive evidence in the case, the District Court found there was an identifiable ghetto area within Center Township. The court then contrasted the residence of those elected to the state House and Senate from Marion County since 1960. There had been 21 elected senators; two came from Center Township, 11 from Washington Township. Of the 67 representatives, 12 came from Center Township and. 28 from Washington Township.

The District Court concluded:

“The inequity of representation by residence of legislators between Washington and Center Townships is apparent .... Washington Township, the upper middle-class and wealthy suburban area having 14.64%' of the population of Marion County, was the residence of 52.27% of the senators and 41.79% of the representatives.. Center Township, having 41.14% of the population (approximately three times as large), was the residence of 9.51% of the senators (less than one-fifth of Washington Township) ' and 17.91% of the representatives (approximately three-sevenths of Washington Township).” 305 F. Supp., at 1385.

The court found that the voting strength of the cognizable element within Center Township was severely minimized, that minimization occurred by virtue of the strong control which the political parties exert over the nomination process in Marion County, and that black voters within Center Township are unable to be assured of the opportunity of voting for prospective legislators. of their choice. The court .further found that “[u]nder the evidence before the Court such invidious effects will continue so long as Marion County is apportioned into large senate and house multi-member districts.” 305 F. Supp., at 1399.

I

Based on its findings the District Court held the then Indiana apportionment acts unconstitutional and enjoined their enforcement.' The court then determined that to redistrict Marion County alone would leave constitutionally impermissible population variances between the newly created districts and the other districts in the State and therefore redistricting the entire State was necessary.- In its redistricting plan the District Court divided well over half of the counties in the State despite Art. 4, § 6, of the Indiana Constitution. Marion County itself was divided into seven separate senatorial districts and an eighth was created. by taking part of Marion and parts of Johnson and Morgan Counties. The court mandated that the 1970 election be conducted in accordance with the plan it approved and the court retained jurisdiction for the purpose of passing on any- future claims of unconstitutionality made by the plaintiffs against any future legislative apportionment plan promulgated. This Court stayed the District Court’s order. 396 U. S. 1055.

This suit was commenced some 22 months before the 1970 election in ample time for a décision on the merits. The plaintiffs in fact won below but this Court stayed the order. Now the election has been held and a federal decennial census, has been taken. Under the compulsion of the .decree of the District Court the legislature has adopted single-member districts for tne entire State. But absent a federal decree they would certainly follow the mandate Of the Indiana Constitution.

As the Court says, the' fact that the 1970 election is history does not affect the underlying claim in this case. We .have a finding of fact that an-identifiable racial minority has its voting strength severely minimized by the operation of multi-member districts. We also have a finding' that the invidious effects will continue so long as Marion County has multi-member districts. Under the order of the District Court (absent our stay) the 1965 apportionment statutes could not be used. The District Court would retain jurisdiction and no attempt by- the state legislature to apply Art. 4, § 6, of the Constitution would be successful bécause under the conclusions of the District Court it is unconstitutional as applied to. Marion County. See Reynolds v. Sims, 377 U. S. 533, 584. There is no chance that the Indiana Constitution can be amended in time to undo the harm. By its own provisions any amendment requires a. majority vote in each house of two consecutive general assemblies; it is then referred to the voters and ratified by majority vote. Art. 16, § 1.

The Indiana Constitution requires “an enumeration ... of all male inhabitants over the age of twenty-one years” to be made every six years. Art. 4, § 4. Then at the next legislative session, the general assembly is directed to reapportion the State according to the number of male inhabitants above'the age of 21. Art. 4, § 5. These provisions'fell into disuse and the last enumeration provided for was in 1921 and, prior to Baker v. Carr, 369 U, S. 186, the legislature had not been apportioned since that time. See Matthews v. Handley, 179 F. Supp. 470 (ND Ind. 1959); Fruit v. Metropolitan School District, 241 Ind. 621, 172 N. E. 2d 864. Indiana courts had no power to require reapportioning under the state constitution. Parker v. State ex rel. Powell, 133 Ind. 178, 32 N. E. 836.

In • 1969 the legislature initially approved proposéd constitutional changes to those two sections which will provide for using the federal decennial census for Indiana and apportioning the State immediately thereafter, such apportionment to- remain unaltered until the next decennial census. S. J. Res. No. 26, Acts 1969, c. 464. The provision must still be approved, by the 1971 general 'assembly and a majority of the voters. See Art. 16, § 1, of the Indiana Constitution. At the time this case was argued under the Indiana Apportionment Act of 1965 (2d Spec. Sess.), c. 4, § 1, and c. 5, § 1, the 1960 Decennial Census was accepted as correct.

Nor does the fact that the state legislature has passed a reapportionment plan abolishing, multi-member districts throughout the entire State moot this case. But for the decision below no such plan would have beén forthcoming. The plan is in plain violation, of the state constitution and in view of the fact that no Indiana Legislature has ever violated that provision of the state constitution before it is obvious that the impetus came from the outside.¹ ' The provision of the state constitution forbidding dividing a county for senatorial apportionment is unconstitutional under the Federal Constitution as applied to Marion County. See Reynolds v. Sims, 377 U. S., at 584. Mooting the cáse would accomplish nothing. If we were to moot it, the state courts would likely void the 1971 apportionment plan as violative of the state constitution and then the parties would be right back where they were at the beginning of this • lawsuit. It is appáreñt this controversy remains alive and that there is no reason to .wait two or more years in order to decide it in a case; growing out of a state court determination • on the. constitutionality of single-member districts in Marion County, as would happen. should we vacate the décree below and force the parties to another forum for another round of litigation on the' same issue.

The constitutional provision which now requires multi-member senatorial districts has been in Indiana’s constitution from the date of enactment — 1851. And the ghetto voters’ position as a class will not change. ' The findings of the District Court clearly state the invidious effects will last so long as multi-member districting lasts. The District Court found that “to redistrict Marion County alone, to provide single-member districts or any other type of districts meeting constitutional standards,, would leave impermissible population variations between the new Marion County districts and other districts in the State.” 305 F. Supp., at 1399. Accordingly the court redistricted the entire State.² The decision to redistrict the State and the finding of minimization- of the ghetto voters’ strength are intertwined. As the District Court stated, the “portions of the . . . statutes relating to Marion County” were found to be not severable from the full body of the statutes. 305 F. Supp., at 1399. There is no showing here that that finding is even partially erroneous let alone clearly erroneous. A decision to .redistrict Marion County involves the entire State; each properly must be considered with the other.

II

The merits of the case go to the question reserved in Fortson v. Dorsey, 379 U. S. 433, 439, and in Wells v. Rockefeller, 394 U. S. 542, 544, whether a gerrymander can be “constitutionally impermissible.” The question of the gerrymander³ is the other half of Reynolds v. Sims, 377 U. S. 533. Fair representation of voters in a legislative assembly — one man, one vote — would seem to require (1) substantial equality of population within each district and (2) the avoidance of district lines that weigh the power of one race more heavily than another. The latter can be done — and is done — by astute drawing of district lines that makes the district either heavily Democratic or heavily Republican as the case may be. Lines may be drawn so as to make the voice of one racial group weak or strong, as the case may be.

The problem of the gerrymander is how to defeat or circumvent the sentiments of the community. The problem of the law is how to prevent it. As Mr.' Justice Harlan once said “A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues.” Wells v. Rockefeller, 394 U. S., at 551 (dissenting). The easy device is the gerrymander. The District Court found that it operated in this case to dilute the vote of the blacks.

m

In Gomillion v. Lightfoot, 364 U. S. 339, we dealt with, the probleni of a State intentionally making a district smaller to exclude black voters. Here we háve almost the converse problem. The State’s districts surround the black voting area with white voters.

Gomillion, involving the turning of the city of Tuskegee from a geographical square “to an uncouth twenty-eight-sided figure,” 364 U. S., at 340, was only one of our cases which dealt with elevating the political interests of one identifiable group over those of another. Georgia’s county unit system was similar, although race was not a factor. Under the Georgia system a farmer in a rural county could have up to 99 times the-voting power of his urban-dwelling brother. See Gray v. Sanders, 372 U. S. 368. Here the districting plan operates to favor “upper-middle class and wealthy” suburbanites. 305 F. Supp., at 1385.

A showing of racial motivation is not necessary when dealing with multi-member districts. Burns v. Richardson, 384 U. S. 73, 88; Fortson v. Dorsey, 379 U. S., at 439. Although the old apportionment plan which is in full harmony with the State’s 1851 constitution, may not be racially motivated, the test for multi-member districts is whether there are invidious effects.

That rule is but an application of a basic principle applied in Hunter v. Erickson, 393 U. S. 385. There a city passed, a housing law which provided that before •an ordinance regulating the sale or lease of realty on the basis of race could become effective it must be approved by a majority vote. Thus,, the protection of minority interests became much more.difficult. We held that a State or a state agency could not in its voting scheme so disadvantage black interests.

Multi-member districts are not per se unconstitutional. Fortson v. Dorsey, 379 U. S., at 439. In that case we expressly reserved judgment on the question of whether a multi-member districting plan which operated “to minimize or cancel out the voting strength of racial or political elements of the voting population” could pass constitutional muster. Ibid.

In Burns v. Richardson, supra, we again considered the ■problems of multi-member districts. The doubts noted in Fortson v. Dorsey were resolved and we stated that . assuming the requirements of Reynolds v. Sims, 377 U. S. 533, were satisfied, multi-member districts are unconstitutional “only if it can be shown that 'designedly or otherwise’. . . [such a district would operate] to minimize or cancel out the voting strength of racial or political . elements of the voting population.” 384 U. S., at 88. We went on to suggest how the burden of proof could be met.

“It may be that this invidious effect can more easily be shown if, in contrast to' the facts in Fort-son, districts are large in relation to the total number of legislators, if districts are not appropriately sub-districted to assure distribution of legislators that are resident over the entire district, or if such districts characterize both houses of a bicameral legislature rather than one.” Ibid.

These factors are all present in this case. Between the largest (Marion) and second largest ('Lake) counties in the State, 26% of each house of the legislature is controlled. There is no subdistricting under the Indiana plan. Cf. Dusch v. Davis, 387 U. S. 112. And multi-member districts are used in both houses of the legislature.

In both Fortson and Burns. we demanded that the invidious effects of multi-member districts appear from, evidence in the record. Here that demand is satisfied by . (1) the showing of an identifiable voting group living, in Center Township, (2) the severe discrepancies of residency of elected members of the general assembly between Cénter and Washington Townships, cf. Brennan, J., dissenting in Abate v. Mundt, post, p. 187, (3) the finding of pervasive influence of the county organizations of the political parties, and (4) the finding that legislators from the county maintain “common, undifferentiated” positions on political issues.⁴ 305 F. Supp., at 1385.

IV

Little time need be spent on the District Court’s decision to redistrict the entire State. The court found that there were already impermissible population variances between districts under the current apportionment pían. The ratio between the largest and smallest Senate district was 1.327 to 1. For the House it was 1:279 to 1. The court also found that the new Marion County districts would also have impermissible population variances when compared to existing districts.

On these facts the demands of our decisions required redistricting. As Reynolds v. Sims showed, the state constitution must give way to requirements of the Supremacy Clause when there is a conflict with the Federal Constitution. And, finally, the District Court’s own plan was exemplary. The population ratio' for the largest and smallest Senate districts was. 1.017 to 1 and for the House it was 1.020 to 1.

V

It is said that if we prevent racial gerrymandering today, we must prevent gerrymandering of any special interest group tomorrow, whether it be social, economic, or ideological. ■ I do not agree. Our Constitution has a special thrust when it comes to voting; the Fifteenth Amendment says the right of citizens to vote shall not. be “abridged” on account of “race, color, or previous condition of servitude.”

Our cases since Baker v. Carr have never intimated that “one man, one vote” meant “one white man, one vote.” Since “race” may not be gerrymandered, I think . the Court emphasizes the irrelevant when it says that the effect on “the . actual voting power” of the-blacks should first be known. They may be - :all Democratic or all Republican; but once, their identity is purposely-washed out of the system, the system, as I see it, has a constitutional defect.. It is asking the impossible for us to demand that the blacks first show that the effect of the scheme was to discourage or prevent poor blacks from voting or joining such party as they -chose. On this record, the voting rights of the blacks have been “abridged,” as I read the Constitution.

The District Court has done ah outstanding job, bringing insight to the problems. One can always fault a lower court by stating theoretical aspects of apportionment plans that may not have been considered. This District Court acted earnestly and boldly to correct a festering electoral system. I would not even vacate and remand so that it could revise its plan in accordance with the 1970 census figures. That court has retained jurisdiction of the cause and has sense enough to update its own plan. We can make the contribution of the District Court enormous and abiding by leaving it the initiative to carry out the mandate of Reynolds v. Sims.

I would affirm the judgment.

1 Wallace, Legislative Apportionment In Indiana: A Case History, 42 Ind. L. J. 6, 30 (1966).

2 The District Court also found independent of the new districts that there were impermissible population variances in the Indiana apportionment. .The ratio between the largest and smallest Senate district was 1.327 to 1. For the House it. was 1.279 to 1. Under the plan promulgated by the District Court these were reduced to 1.017 to 1 and 1.020 to 1 respectively..

3 See Tyler & Wells, The New Gerrymander Threat, AFL-CIO American Federationist 1 (Feb. 1971).

4 The three-judge court “emphasized that the black plaintiffs were members of an identifiable interest group whose voting strength had been minimized by the multi-member districting scheme. They were not only unable to elect a legislator who was attuned to their interests, but were also saddled with lawmakers who reflected white suburban ideology and were controlled by political leaders.” Note, Chavis v. Whitcomb: Apportionment, Gerrymandering, and Black Voting Rights, 24 Rutgers L. Rev. 521, 533 (1970).