, Burns v. Richardson :: 384 U.S. 73 (1966) :: US LAW US Supreme Court Center

Burns v. Richardson :: 384 U.S. 73 (1966) :: US LAW US Supreme Court Center

    U.S. Supreme Court

    Burns v. Richardson, 384 U.S. seventy three (1966)

    Burns v. Richardson

    No. 318

    Argued February 21, 1966

    Decided April 25, 1966*

    384 U.S. 73

    Syllabus

    The Hawaii Constitution gives that three small counties opt for 15 of 25 country senators, while the fourth county (Oahu), with seventy nine% of the State s populace, elects 10. Under an apportionment legal by using the Constitution, Oahu has been allotted 36 of the fifty one seats within the country house of representatives, the representatives being elected from multi-member districts apportioned on the premise of the variety of registered voters in every. Suit become delivered in federal district courtroom attacking the apportionment plan. The District Court held the senate, however not the house, apportionment unconstitutional, and directed the legislature to publish to the electorate the query of a convention to amend the charter. On movement of intervening legislators, it changed its order to require the enactment of 3 statutes: (1) an intervening time senate apportionment plan, the usage of registered citizens as a basis, to be submitted to the court, for use within the 1966 election, (2) a constitutional change embodying pertinent provisions of the meantime plan for submission to the electorate at that election, and (3) submission to the electorate of the query of calling a constitutional convention. The senate apportionment plan adopted through the legislature allocated 19 of the 25 senators to Oahu on the idea of registered electorate. The senators were to be elected from five multi-member districts. The District Court, even as expressly approving the usage of a registered citizens foundation, disapproved the plan because of the failure to create unmarried member districts, and reinstated its in advance order requiring instantaneous motel to the conference approach.

    Held:

    1. In permitting legislative action, the District Court should have allowed legislative overview of the complete apportionment scheme, with out restricting the available choices for intervening time and everlasting plans. Pp. 384 U. S. 83-86.

    Page 384 U. S. seventy four

    2. The proposed senate reapportionment plan, together with the existing house apportionment, constitutes an interim association which has now not been proven to fall short of federal standards. Pp. 384 U. S. 85-97.

    (a) The Equal Protection Clause does now not require that as a minimum one residence of a bicameral legislature consist of single member districts. The legislative preference of multi-member districts is difficulty to constitutional challenge handiest upon a displaying that the plan was designed to or would operate to limit or cancel out the balloting strength of racial or political agencies, and no such showing become made. Pp. 384 U. S. 88-89.

    (b) Although each homes of the legislature must be apportioned appreciably on a population basis, the Equal Protection Clause does no longer require the usage of total population figures derived from the federal census because the only preferred to measure great populace equivalency. Pp. 384 U. S. ninety-92.

    (c) Hawaii s registered citizens foundation, depending in part upon political interest and chance elements, is not itself a permissible populace foundation, but may be used so long because it produces a distribution of legislators not substantially one-of-a-kind from that which could end result from use of a permissible population foundation. Pp. 384 U. S. 92-ninety three.

    (d) Hawaii s special population problems, including huge concentrations of army and different transients centered on Oahu, advocate that country citizen population, in place of overall populace, is the suitable comparative guide. Pp. 384 U. S. ninety four-95.

    (e) The registered citizens foundation is appropriate for the period in-between plan in view of the District Court s conclusion that the apportionment accomplished with the aid of its use significantly approximated that which would have happened had kingdom citizen populace been the manual. Pp. 384 U. S. 95-ninety six.

    three. The District Court is directed on remand to go into an order adopting the proposed senate reapportionment plan plus the present house apportionment as an meantime legislative apportionment for Hawaii, and maintaining jurisdiction for such similarly proceeding as may be suitable after the 1966 trendy elections have been held. P. 384 U. S. 98.

    238 F. Supp. 468, 240 F. Supp. 724, vacated and remanded.

    Page 384 U. S. 75

    U.S. Supreme Court

    Burns v. Richardson, 384 U.S. 73 (1966)

    Burns v. Richardson

    No. 318

    Argued February 21, 1966

    Decided April 25, 1966*

    384 U.S. 73

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF HAWAII

    Syllabus

    The Hawaii Constitution gives that 3 small counties opt for 15 of 25 state senators, while the fourth county (Oahu), with 79% of the State s population, elects 10. Under an apportionment legal with the aid of the Constitution, Oahu has been allotted 36 of the 51 seats inside the state house of representatives, the representatives being elected from multi-member districts apportioned on the premise of the range of registered electorate in each. Suit changed into added in federal district courtroom attacking the apportionment plan. The District Court held the senate, however now not the house, apportionment unconstitutional, and directed the legislature to post to the voters the query of a conference to amend the charter. On movement of intervening legislators, it modified its order to require the enactment of three statutes: (1) an interim senate apportionment plan, the use of registered citizens as a foundation, to be submitted to the court docket, to be used in the 1966 election, (2) a constitutional amendment embodying pertinent provisions of the period in-between plan for submission to the electorate at that election, and (three) submission to the citizens of the question of calling a constitutional convention. The senate apportionment plan followed via the legislature allocated 19 of the 25 senators to Oahu on the idea of registered voters. The senators were to be elected from 5 multi-member districts. The District Court, at the same time as expressly approving the use of a registered citizens basis, disapproved the plan due to the failure to create unmarried member districts, and reinstated its in advance order requiring immediately motel to the convention method.

    Held:

    1. In allowing legislative movement, the District Court should have allowed legislative evaluate of the whole apportionment scheme, without limiting the available picks for meantime and permanent plans. Pp. 384 U. S. eighty three-86.

    Page 384 U. S. 74

    2. The proposed senate reapportionment plan, collectively with the existing residence apportionment, constitutes an meantime association which has not been proven to fall brief of federal standards. Pp. 384 U. S. 85-97.

    (a) The Equal Protection Clause does no longer require that as a minimum one residence of a bicameral legislature consist of single member districts. The legislative desire of multi-member districts is situation to constitutional challenge best upon a showing that the plan was designed to or could operate to limit or cancel out the balloting energy of racial or political agencies, and no such displaying become made. Pp. 384 U. S. 88-89.

    (b) Although both homes of the legislature must be apportioned extensively on a populace foundation, the Equal Protection Clause does not require using total population figures derived from the federal census as the best general to degree great populace equivalency. Pp. 384 U. S. 90-ninety two.

    (c) Hawaii s registered citizens basis, depending in part upon political pastime and hazard elements, isn't itself a permissible population basis, but may be used so long as it produces a distribution of legislators no longer considerably distinct from that which could result from use of a permissible population foundation. Pp. 384 U. S. ninety two-93.

    (d) Hawaii s special population problems, consisting of huge concentrations of navy and different transients focused on Oahu, advocate that kingdom citizen populace, as opposed to general population, is the right comparative manual. Pp. 384 U. S. ninety four-ninety five.

    (e) The registered citizens basis is acceptable for the interim plan in view of the District Court s end that the apportionment executed through its use substantially approximated that which might have took place had country citizen population been the guide. Pp. 384 U. S. ninety five-ninety six.

    three. The District Court is directed on remand to enter an order adopting the proposed senate reapportionment plan plus the present house apportionment as an meantime legislative apportionment for Hawaii, and retaining jurisdiction for such in addition intending as can be appropriate after the 1966 widespread elections had been held. P. 384 U. S. 98.

    238 F. Supp. 468, 240 F. Supp. 724, vacated and remanded.

    Page 384 U. S. 75

    MR. JUSTICE BRENNAN brought the opinion of the Court.

    This reapportionment case changed into added within the District Court of Hawaii by using citizens and certified citizens of the City and County of Honolulu, appellees in every of the three appeals consolidated right here. They alleged that Hawaii s legislative apportionment changed into unconstitutional beneath our decisions in Reynolds v. Sims, 377 U. S. 533, and companion cases. [Footnote 1] William S. Richardson, Lieutenant Governor of Hawaii, additionally an appellee in all three appeals, became named defendant in his capacity as the state officer accountable for supervising state elections. John A. Burns, Governor of Hawaii, appellant in No. 318, intervened as a celebration plaintiff. has memberships of the State

    Page 384 U. S. 76

    House of Representatives, appellants in No. 323, and individuals of the State Senate, appellants in No. 409, intervened as events defendant.

    Under the Hawaii Constitution, adopted in 1950 and put into effect upon admission to statehood in 1959, the State is divided into 4 foremost counties, referred to in the State Constitution as "primary regions." Each county is made from a set of islands, separated from every of the opposite counties with the aid of huge and deep ocean waters. The main island of the City and County of Honolulu, the most populous county, is the island of Oahu. It is the State s industrial middle, major traveller enchantment, and location of most of the various federal navy establishments placed in the State. In 1960, 79% of the State s population lived there. The 3 other counties, usually rural and agricultural, are Hawaii County, Maui County, and Kauai County. [Footnote 2]

    The apportionment article of the State Constitution became framed to assure that the 3 small counties would select a controlling majority of the State Senate, and that the populace middle, Oahu, could manipulate the State House of Representatives. Thus, Art. III, § 2, of the State Constitution apportions a 25-member senate amongst six constant senatorial districts, assigning a distinctive number of seats to every. Fifteen senate seats, a controlling majority, are allotted amongst Hawaii, Kauai and

    Page 384 U. S. seventy seven

    Maui Counties, and 10 seats are assigned to Oahu. Alteration of this apportionment is made very difficult by using a provision

    "that no constitutional amendment altering . . . the illustration from any senatorial district inside the senate shall become powerful except it shall additionally be authorised via a majority of the votes tallied upon the question in each of a majority of the counties. [Footnote three]"

    3 Hawaii Const., Art. XV, § 2, � 6.

    For the State House of Representatives, then again, the State Constitution establishes 18 representative districts, 10 of which are on Oahu, and requires the Governor to apportion the 51-member frame amongst those districts on the basis of the wide variety of citizens registered in each. The first apportionment befell in 1959, simply previous to statehood, and become based on registration figures for the 1958 territorial election. It produced 13 multi-member representative districts and five single member districts, and allocated 36 representatives, a controlling majority, to Oahu. [Footnote 4] The Governor is needed to reapportion

    Page 384 U. S. 78

    the State decennially, a responsibility which can be enforced through mandamus from the State Supreme Court.

    This apportionment scheme became first attacked within the Supreme Court of Hawaii within a month after we determined Reynolds v. Sims. That court docket refused to pass on the validity of the apportionment at that time. It stated the imminence of the 1964 election, and said its notion that, regular with the Hawaii Constitution, judicial court cases should watch for legislative proposals for a constitutional modification or a constitutional conference. Guntert v. Richardson, forty seven Haw. 662, 394 P.2d 444. Compare Reynolds v. Sims, 377 U.S. at 377 U.S. 585. A special legislative session became then referred to as via the Governor to take into account reapportionment. It didn't act.

    This suit was introduced on August thirteen, 1964. A three-Judge court docket turned into convened, as required with the aid of 28 U.S.C. §§ 2281, 2284 (1964 ed.). Interim alleviation was denied in view of the pendency of the 1964 elections, and hearings had been set for January, 1965. The courtroom published its first choice and order on February 17, 1965. 238 F. Supp. 468. That order declared all provisions of the apportionment plan contained within the Hawaii Constitution valid beneath the Equal Protection Clause besides the referred to provisions referring to the apportionment of the State Senate. These had been affirmatively declared to be invalid and unconstitutional.

    In the February 17 order, the District Court determined now not to fashion its very own reapportionment plan for the senate. Nor did it teach the legislature to reapportion the senate or to advise constitutional amendments for that cause. [Footnote five] Instead, it directed the legislature to submit

    Page 384 U. S. 79

    to the voters at a right away special election the question, "Shall there be a convention to advise a revision of or amendments to the Constitution?" The legislature changed into additionally directed to set up the convention techniques consistent with a timetable the court set. [Footnote 6] The courtroom retained jurisdiction for all purposes, consisting of that of itself reapportioning the senate within the occasion of

    Page 384 U. S. 80

    a bad vote on the question, failure of the convention to adopt a appropriate amendment, or rejection by using the voters of the modification adopted by using the conference.

    The courtroom selected the conference course over the legislative path for 2 reasons. Under the Hawaii Constitution, all elections necessary to adoption of amendments proposed by a constitutional convention may be hung on a unique foundation. Legislative proposals, then again, may be submitted handiest at a popular election. In beginning the machinery important for a convention, the court docket hoped that a legitimate permanent plan can be provided to the electorate and adopted earlier than the subsequent standard election, to be held in 1966. The 2d motive become that the court docket doubted that the legislature could be able to agree on an amendment thought for reapportioning the senate, in view of the failure of the formerly referred to as legislative special session to behave.

    The special elections important underneath the courtroom s order, however, entailed full-size fee. On motion of the intervening legislators, which showed widespread progress towards a legislative concept for change, the courtroom, on March 9, 1965, changed its order. As advised by the parties, it suspended the February 17 order, and instead required the legislature to enact three separate statutes before turning to regular legislative enterprise. One statute was to advise an interim senate apportionment plan, the use of registered electorate as a foundation, to be submitted to the court docket. If permitted, it would be adopted with the aid of the court as its plan for use in the 1966 wellknown election. The 2d statute become to recommend a constitutional amendment embodying pertinent provisions of the period in-between plan, to be submitted to the humans for approval at that election. The third statute turned into to post the question of calling a constitutional conference to the voters at the 1966 general election.

    Page 384 U. S. eighty one

    Three statutes were enacted. H.B. 987, the only the sort of measures before us, [Footnote 7] proposed an interim plan of apportionment for the senate. 1 Hawaii Sess.Laws 1965, Act 281. The plan observed the pattern for house apportionment. It hooked up eight senatorial districts, five on Oahu. As required by using the courtroom s order, the 25 senators have been to be apportioned on the premise of registered electorate. [Footnote eight] Using figures derived from registration for the 1964 popular elections, Oahu turned into allotted 19 out of the 25 senators, a controlling majority.

    Under the total apportionment scheme which resulted from this enactment, Oahu could not have any single-member districts in either the house or the senate. The distribution of registered electorate in Oahu is such that Oahu s 10 representative districts have two to 6 representatives every, and its five senatorial districts every would have both three or 4 senators. Hawaii County would be a unmarried senatorial district represented with the aid of 3 senators, and feature 5 consultant districts, 4 choosing a unmarried representative and the 5th electing three. Maui County would be a unmarried senatorial district electing two senators and have two representative districts, one electing 4, and the opposite a single consultant.

    Page 384 U. S. 82

    Kauai County would be a single senatorial and a unmarried consultant district electing one senator and 3 representatives. Thus, Oahu, with seventy nine% of total population, would opt for seventy six% of the senate, 19 of 25 senators, and seventy one% of the residence, 36 of fifty one representatives.

    The new senate apportionment scheme became submitted to the court docket immediately upon passage. By opinion and order of April 28, 1965, the District Court disapproved it, and reinstated the supply of its earlier order requiring instantaneous lodge to the conference method. [Footnote 9] 240 F. Supp. 724. It expressly accredited the usage of the registered voters degree of population. Its disapproval turned into based on the legislative decision now not to create single-member senatorial districts for Oahu, however merely to growth the range of multi-member senatorial districts on that island from two to five. It was now not contended that the apportionment did not meet the usual of Reynolds v. Sims if using multi-member districts and the use of registered voters as the apportionment base did not offend the Equal Protection Clause. [Footnote 10]

    In May, 1965, the Governor filed a be aware of attraction to this Court from sure provisions of the 2 orders, and thereafter the collaborating senators and representatives additionally filed notices of attraction from components of the orders. [Footnote eleven]

    Page 384 U. S. 83

    We mentioned probably jurisdiction, and consolidated the appeals for argument. 382 U.S. 807. We set apart and vacate both orders and remand for in addition complaints regular with this opinion.

    I

    All events concede the invalidity of the provisions of Art. III, § 2, apportioning the senate on the basis of geography, instead of populace, and of the availability of Art. XV, § 2, � 6, requiring a majority vote of the citizens in every of a majority of the counties to amend senatorial apportionment established by way of the charter. The District Court concluded that, as a be counted of state regulation, the residence and senate apportionment plans were severable. Compare Lucas v. Colorado General Assembly, 377 U. S. 713, 377 U. S. 735. Even so, Maryland Committee v. Tawes, 377 U. S. 656, holds that a court docket, in reviewing an apportionment plan, ought to recall the scheme as a whole. Implicit in this precept is the similarly proposition that the body developing an apportionment plan in compliance with a judicial order have to frequently be left free to plot proposals for apportionment on an standard basis. The Governor argues that the District Court dedicated "fundamental errors" in stopping the Hawaii Legislature from conducting such deliberations, and that, for this reason alone, the legislative product was inevitably tinged with constitutional errors.

    We agree that, as soon as the District Court determined to permit legislative action, it could and need to have made clean to the Hawaii Legislature that it could recommend change of the house in addition to the senate plan, each as to the interim apportionment to be followed under

    Page 384 U. S. eighty four

    court order and as to proposals for permanent reapportionment through constitutional amendment. That approach could have enabled the legislature to channel its efforts to everlasting, instead of transient, exchange. Indeed, the failure to ask such thoroughgoing attention became in particular unfortunate in connection with the court docket s requirement in its order of March nine that the Hawaii Legislature put together constitutional amendments for a permanent apportionment plan. By directing that the everlasting plan include the meantime reapportionment plan, and through limiting the alternatives available to the legislature in adopting an intervening time plan, the courtroom positioned massive restraints at the legislature s deliberations about permanent apportionment. It seemed not handiest to restriction the legislature to attention of senate apportionment, but also to require that a registered citizens basis be used for that apportionment. These constraints, together with the District Court s motion in explicitly maintaining the constitutionality of the residence apportionment in its order of February 17, may also have confined the possibilities of the legislature to assemble the whole scheme of apportionment excellent perfect to the State s desires. [Footnote 12] Our choice in Reynolds v. Sims emphasized

    Page 384 U. S. 85

    that

    "legislative reapportionment is primarily a depend for legislative attention and resolution, and that judicial alleviation becomes appropriate handiest whilst a legislature fails to reapportion according to federal constitutional requirements in a timely fashion after having had an good enough possibility to achieve this."

    377 U.S. at 377 U.S. 586. Until this point is reached, a State s freedom of preference to plot substitutes for an apportionment plan observed unconstitutional both as an entire or in element need to now not be restrained past the clean instructions of the Equal Protection Clause.

    We are dealing right here, but, best with the meantime plan. The State remains unfastened to adopt different plans for apportionment, and the prevailing period in-between plan will stay in effect for not time than is essential to undertake a everlasting plan. The 1966 fashionable elections are approaching, and election machinery must be put into operation earlier than similarly court cases might be completed. In this context, the question of embarrassment of nation legislative deliberations may be placed apart. For gift purposes, H.B. 987 may be handled together with the existing house apportionment as a new, usual idea for interim apportionment. The best question for us is whether, viewing the ensuing plan in its entirety

    Page 384 U. S. 86

    and with out regard to its records, it fall short of federal constitutional standards. We conclude for motives to be stated that H.B. No. 987 and the existing house apportionment together constitute an intervening time legislative apportionment which has not been shown to fall brief of federal requirements. We direct the District Court to go into an order appropriate to adopt the plan because the court docket s very own for legislative apportionment relevant to the 1966 election, and thereafter till a constitutional everlasting plan is adopted, constitutional deficiencies within the period in-between plan are proven or every other meantime plan for reapportionment of the Hawaii Legislature recommended by means of the legislature is authorized by the court.

    II

    The April 28 opinion started evaluation in phrases of the interim senate apportionment plan s impact upon illustration within the State s scheme of illustration as an entire. The District Court changed into not concerned with population disparities, however, but with what it considered to be a distinction in representational effectiveness between multi-member and unmarried member legislative districts. [Footnote 13] In an casual memorandum circulated among

    Page 384 U. S. 87

    the events in early April, the District Court had counseled the legislature of its doubts regarding the validity of a multi-member senatorial districting plan, announcing:

    "We trust that the Senate must be redistricted into single senatorial districts, although we may approve two-member districts if and simplest if the legislature can affirmatively display great reasons therefor. There may also very well be valid reasons for one or 2-member districts in the neighboring islands, however we perceive no justification in any respect for apart from single member districts at the Island of Oahu, especially the closely populated regions thereof."

    The opinion of April 28 simply well-knownshows that the court docket changed into nevertheless satisfied that most effective unmarried member senatorial districting on Oahu could be appropriate. It felt, as an example, that the legislature had "built monoliths" into the districting scheme by making the limits of the third senatorial district and the eighth consultant district one and the equal, as a consequence enabling the equal constituency to go with 4 representatives and 3 senators, and by means of fashioning the 6th senatorial district nearly absolutely from the 15th consultant district, from which six representatives and four senators might be elected. It additionally felt that, in putting in the senatorial districts on Oahu, the legislature had now not taken into account "network of hobbies, network of problems, socio-economic popularity, political and racial elements"; and, sooner or later, that

    "the legislature s adamant insistence on three and four-member senatorial districting turned into the conscious or subconscious -- although no longer unnatural -- reluctance of the affected senators to carve out single member districts which thereafter would in all chance bring about a political duel to the loss of life with a fellow and neighbor senator."

    240 F. Supp. at 730-731.

    Page 384 U. S. 88

    But the Equal Protection Clause does not require that at the least one residence of a bicameral country legislature encompass unmarried member legislative districts; see Fortson v. Dorsey, 379 U. S. 433. Where the requirements of Reynolds v. Sims are met, apportionment schemes along with multi-member districts will represent an invidious discrimination only if it could be shown that,

    "designedly or in any other case, a multi-member constituency apportionment scheme, underneath the instances of a specific case, might function to reduce or cancel out the voting energy of racial or political factors of the voting population."

    Id. at 379 U. S. 439.

    It can be that this invidious effect can greater without difficulty be proven if, in contrast to the statistics in Fortson, districts are big on the subject of the entire variety of legislators, if districts are not accurately subdistricted to assure distribution of legislators that are resident over the whole district, or if such districts represent each houses of a bicameral legislature, as opposed to one. But the demonstration that a selected multi-member scheme consequences an invidious result ought to seem from proof inside the report. Cf. McGowan v. Maryland, 366 U. S. 420. That demonstration changed into now not made right here. [Footnote 14] In relying on conjecture as to the consequences of multi-member districting, in place of proven fact, the court acted in a way greater suitable to the frame chargeable for drawing up the districting plan. Speculations do not deliver proof that the multi-member districting turned into designed to have or had the invidious impact important to a judgment of

    Page 384 U. S. 89

    the unconstitutionality of the districting. Indeed, even as it'd have been better had the court docket not insisted that the legislature "justify" its idea, besides insofar because it thus reserved to itself the remaining selection of constitutionality vel non, the legislature did assign reasons for its choice. [Footnote 15] Once the District Court had decided, well, not to impose its personal senate apportionment, but to permit the legislature to border one, such judgments have been solely for the legislature to make. They had been difficulty to constitutional venture most effective upon an illustration that the meantime apportionment, despite the fact that made on a proper populace foundation, became designed to, or could function to, minimize or cancel out the voting electricity of racial or political factors of the voting population. [Footnote 16]

    Page 384 U. S. ninety

    III

    The dispute over use of distribution in keeping with registered voters as a foundation for Hawaiian apportionment arises due to the widespread variations in effects produced by way of that distribution in contrast to that produced by way of the distribution in step with the State s total populace, as measured by way of the federal census figures. In 1960, Oahu s share of Hawaii s total population became seventy nine%. Its proportion of individuals certainly registered changed into 73%. On the basis of general population, Oahu could be assigned 40 participants of the fifty one-member residence of representatives; on the basis of registered electorate, it would be entitled to 37 representatives. [Footnote 17] Probably because of choppy distribution of military residents -- in large part unregistered -- the differences among numerous districts on Oahu are even extra putting. For example, on a total populace basis, Oahu s 9th and 10th consultant districts might be entitled to eleven representatives, and the 15th and 16th representative districts might be entitled to 8. On a registered

    Page 384 U. S. 91

    voter basis, but, the 9th and tenth districts claim most effective six representatives, and the fifteenth and sixteenth districts are entitled to 10. [Footnote 18]

    The holding in Reynolds v. Sims, as we characterized it inside the other instances determined at the identical day, is that "each homes of a bicameral state legislature have to be apportioned significantly on a population basis." [Footnote 19] We begin with the proposition that the Equal Protection Clause does now not require the States to use overall populace figures derived from the federal census as the same old through which this full-size populace equivalency is to be measured. Although overall populace figures have been, in fact, the premise of evaluation if so and maximum of the others determined that day, our discussion cautiously left open the question what populace became being noted. At several points, we mentioned sizeable equivalence in terms of voter populace or citizen population, making no difference between the acceptability of this kind of check and a test based totally on total populace. [Footnote 20] Indeed, in WMCA, Inc. v. Lomenzo, 377 U. S. 633, determined the identical day, we dealt with an apportionment primarily based upon United States citizen population as providing issues

    Page 384 U. S. ninety two

    no distinct from apportionments using a total population degree. Neither in Reynolds v. Sims nor in another decision has this Court suggested that the States are required to encompass aliens, transients, short-term or transient citizens, or persons denied the vote for conviction of crime within the apportionment base through which their legislators are allotted and in opposition to which compliance with the Equal Protection Clause is to be measured. [Footnote 21] The decision to include or exclude this sort of organization involves choices approximately the character of illustration with which we were shown no constitutionally founded motive to intervene. Unless a desire 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 of thumb hooked up in Reynolds v. Sims is to be measured thereby. Use of a registered voter or real voter foundation presents a further trouble. Such a foundation depends no longer most effective upon standards such as govern state citizenship, however also upon the extent of political pastime of those eligible to sign up and vote. Each is consequently prone to mistaken affects through which those in political electricity might be capable of perpetuate underrepresentation of businesses constitutionally entitled to participate in the electoral process

    Page 384 U. S. 93

    or perpetuate a "ghost of earlier malapportionment." [Footnote 22] Moreover,

    "fluctuations in the range of registered electorate in a given election may be sudden and vast, because of such fortuitous elements as a chiefly arguable election issue, a in particular famous candidate, or maybe climate conditions."

    Ellis v. Mayor & City Council of Baltimore, 352 F.2d 123, a hundred thirty (C.A.4th Cir.1965). [Footnote 23] Such results must be specifically a depend of problem wherein, as in the case of Hawaii apportionment, registration figures derived from a single election are made controlling for so long as 10 years. In view of those concerns, we hold that the prevailing apportionment satisfies the Equal Protection Clause handiest because, on this record, it was discovered to have produced a distribution of legislators not appreciably one of a kind from that which might have resulted from using a permissible populace basis.

    As the District Court cited, the 1950 constitutional conference discussed 3 possible measures, overall populace, country citizen population, and variety of registered electorate, in considering how the State House of Representatives ought to be apportioned. Apportionment under the Organic Act were on the idea of citizen population; this had proved tough to manage because records were no longer with ease to be had. Total population become disfavored due to the fact the census tracts, by means of which it is decided and pronounced, did no longer necessarily comport with traditional neighborhood obstacles. Registered citizens became selected as an inexpensive approximation of each citizen and total population -- with ease determinable, conveniently

    Page 384 U. S. ninety four

    broken down via election district, and a degree which, as towards general population, truly preferred the opposite islands over Oahu. It is honest to say that the convention report meditated that citizen population, as a great deal as total populace, was the premise towards which a registered voters popular became as compared.

    Hawaii s unique populace issues would possibly nicely have led it to conclude that state citizen population, as opposed to overall populace, ought to be the basis for comparison. The District Court mentioned the persevering with presence in Hawaii of massive numbers of the navy:

    "Hawaii has emerge as the US navy bastion for the complete Pacific, and the navy populace inside the State fluctuates violently because the Asiatic spots of problem arise and disappear. If general population had been to be the handiest acceptable criterion upon which legislative representation can be based, in Hawaii, grossly absurd and disastrous effects might float. . . ."

    238 F. Supp. at 474. [Footnote 24] Similarly, the courtroom stated the distortion in census figures because of

    "the big quantity of travelers who always waft inside and outside of the State and who . . . , for census purposes, are initially, as a minimum, counted as a part of Hawaii s census population. . . ."

    Id. at 475. (Footnote not noted.) Both the travelers and the military have a tendency to be tremendously targeting Oahu, and, certainly, are largely confined to specific areas of that island. Total population figures may also therefore represent a notably distorted reflection of the distribution of state citizenry. If so, a finding that registered citizens distribution does

    Page 384 U. S. ninety five

    not approximate general populace distribution is inadequate to set up constitutional deficiency. It is sufficient if it appears that the distribution of registered voters approximates distribution of state residents or another permissible population base.

    Because state citizen population figures are tough to obtain or extrapolate, a assessment of the consequences which would be obtained by using use of such figures with the effects acquired by means of the usage of registered voter figures is difficult. But the District Court found that navy population of Oahu, and its distribution over that island, was sufficient to give an explanation for the already referred to differences among overall populace and registered electorate apportionments, each as among Hawaii s four counties and as among Oahu s representative districts. The District Court noted

    "that there is nothing inside the State Constitution or the Hawaii statutes which in line with se excludes participants of the militia from setting up their house in Hawaii and thereafter becoming eligible to vote. This court docket finds no scheme in Hawaii s Constitution or in the statutes implementing the exercising of franchise that is aimed at disenfranchising the navy or another group of residents."

    238 F. Supp. at 475. No problem became raised within the complaints before it that army men have been excluded improperly from the apportionment base. [Footnote 25]

    Page 384 U. S. 96

    Moreover, the District Court pressured that Hawaii s Constitution and legal guidelines actively inspire voter registration. A excessive percentage of the viable vote casting populace is registered, [Footnote 26] and

    "sturdy drives to carry out the vote have led to a vote of from 88% to 93.6% of all registered voters for the duration of the elections of 1958, 1959, 1960 and 1962."

    Id. at 476 (footnote overlooked). In those situations, we discover no demonstrated error in the District Court s end that the apportionment executed via use of a registered citizens basis notably approximated that which would have seemed had state citizen population been the manual.

    We aren't to be understood as determining that the validity of the registered citizens foundation as a degree has been hooked up all the time or occasions, in Hawaii or elsewhere. The District Court turned into cautious to disclaim any preserving that it changed into a "perfect foundation." We agree. It may well be that reapportionment more frequently than every 10 years, possibly each 4 or 8 years, could better keep away from the hazards of its use. Use of presidential election year figures may both assure a high degree of participation and decrease the chance that various levels of neighborhood hobby inside the final results of the election might produce specific styles of political interest over

    Page 384 U. S. ninety seven

    the State. Other measures, which include a machine of permanent non-public registration, may make a contribution to the stability and accuracy of the registered citizens discern as an apportionment foundation. Future litigation may additionally reveal infirmities, brief or everlasting, now not installed via the prevailing report. [Footnote 27] We maintain that, to be able to its intervening time use, Hawaii s registered voter foundation does now not, on this record, fall short of constitutional standards.

    IV

    Our end that the interim apportionment must follow to the 1966 election calls for that the provisions of the order of February 17 mandating a direct special election at the question of calling a constitutional convention ought to remain inoperative. The imminence of the 1966 elections precludes any similarly action pending that occasion. But the query stays what function the District Court has in bringing about a everlasting reapportionment as right away as fairly may be after that election. We agree with it must retain jurisdiction of the case to take such further lawsuits as may be suitable in the event a everlasting reapportionment isn't made effective. We word that the voters will vote at the 1966 election on the question whether or not a constitutional convention need to be convened. We see no cause, but, why the newly elected legislature must both be forced to advise amendments or be precluded from providing them. The legislature will doubtless

    Page 384 U. S. ninety eight

    find reason sufficient to act within the truth that the District Court will preserve jurisdiction over the cause to take any movement that may be suitable pending the adoption of a permanent reapportionment which complies with constitutional standards. Such movement might also encompass similarly inquiry into the constitutionality of the prevailing plan in its operation, attention of replacement intervening time plans for apportioning the residence and senate that might be submitted by way of the legislature in the occasion of failure of proposals for constitutional modification, or judicial apportionment if the present plan is shown to be constitutionally deficient and no perfect substitute is impending.

    The District Court is for this reason directed on remand to go into the right order (1) adopting H.B. No. 987 and the existing residence apportionment as an interim legislative apportionment for Hawaii and (2) maintaining jurisdiction of the reason for all functions.

    Our judgment shall difficulty forthwith.

    Vacated and remanded.

    MR. JUSTICE FORTAS took no part in the attention or selection of this situation.

    * Together with No. 323, Cravalho et al. v. Richardson et al., and No. 409, Abe et al. v. Richardson et al., additionally on enchantment from the identical courtroom.

    [Footnote 1]

    WMCA, Inc. v. Lomenzo, 377 U. S. 633; Maryland Committee v. Tawes, 377 U. S. 656; Davis v. Mann, 377 U. S. 678; Roman v. Sincock, 377 U. S. 695, and Lucas v. Colorado General Assembly, 377 U. S. 713.

    [Footnote 2]

    Kalawao, a Hansen s disorder remedy place, is taken into consideration a 5th county for some functions. However, its residents are considered a part of Maui County for political purposes, and vote in that county for kingdom legislators. We consequently deal with handiest the 4 most important counties, or simple regions, on this opinion. The State s 1960 population of 632,772 changed into divided among these four counties as follows: City and County of Honolulu, 500,409; Hawaii County, sixty one,332; Maui County, forty two,855, and Kauai County, 28,176. The population of the small outlying islands apart from Oahu which comprise the City and County of Honolulu is negligible. We consequently check with that county hereafter as Oahu.

    [Footnote three]

    The District Court discovered that

    "this proviso turned into mainly inserted that allows you to freeze illustration inside the senate, and it gave to the rural counties what amounted to the right of veto over any try to change the consultant makeup of the senate."

    238 F. Supp. 468, 472.

    [Footnote 4]

    Hawaii makes use of the approach of equal proportions to distribute legislators first the various four counties and then some of the districts inside every county. This is the same approach as used in apportioning the participants of the House of Representatives of america Congress. Complex mathematically, it determines a priority order wherein legislators are to be assigned among diverse competing districts. The device is mentioned in Schmeckebier, The Method of Equal Proportions, 17 Law & Contemp.Prob. 302 (1952). Use of this technique will no longer necessarily result in a constitutional apportionment. It is the distribution of legislators, in place of the method of distributing legislators, that need to fulfill the needs of the Equal Protection Clause. No declare is made, however, that the effect of making use of the method in Hawaii in this situation become to disclaim any person identical protection of the laws through growing consultant districts drastically unequal in length.

    [Footnote five]

    The courtroom doubted whether or not the legislature itself had authority beneath state law to undertake an meantime apportionment plan, in view of the decision in Guntert v. Richardson, supra. The Hawaii Constitution authorizes the legislature to advise constitutional amendments to the electorate either upon passage through a two-thirds vote of both homes of the legislature or upon passage by using a majority vote of both houses in each of successive legislative classes. The Hawaii Constitution additionally authorizes the legislature to post to the people the query of calling a constitutional conference, both at a widespread election or at a special election referred to as for that purpose. Hawaii Const., Art. XV, § 3.

    [Footnote 6]

    Paragraph 4 of the court docket s order supplied:

    "four. This courtroom will not interfere with the convening or engaging in of the enterprise of the Third State Legislature in normal session in 1965, save and except that the events herein are hereby enjoined from taking very last motion upon any legislation, besides such movements as are important to prepare the respective homes at such session and suitable budget for the session, till regulation, pursuant to the availability of Article XV of stated Constitution providing for the submission to the humans of Hawaii, by using unique election to be held no longer later than August 1, 1965, the question: shall there be a conference to advocate a revision of or amendments to the Constitution?, and for any and all acts required via law to put in force such rules, has been enacted into law. Such regulation shall also provide that, if the vote be inside the constitutional affirmative, then a special election shall be held not later than September 15, 1965, to decide on delegates to the convention within the way provided inside the Constitution. Such law can also consist of legislative motion beneath Article XV, Section 2, 4th paragraph, of the Constitution. Such law shall in addition offer that the conference convene not later than October 15, 1965, and that it conclude its deliberation in time to publish its proposed constitutional amendments to the voters of Hawaii at a unique election to be held not later than January 30, 1966, which include (but no longer proscribing the conference thereto) provisions therein for reapportioning the Senate of Hawaii on a constitutionally valid foundation. Such law shall also suitable and make available budget for the prices of such elections and conference."

    238 F. Supp. at 479.

    [Footnote 7]

    H.B. 986, 1 Hawaii Sess.Laws 1965, Act 280, presents for submission to the citizens within the 1966 trendy election of the question whether or not a constitutional convention ought to be called. H.B. 773, 1 Hawaii Sess.Laws 1965, p. 483, offering a constitutional modification inside the identical shape as the interim plan, became passed via only a majority vote inside the senate, and for this reason have to be acted on once more earlier than it could be submitted to the human beings for adoption or rejection. See n five, supra. In view of the restrictions positioned at the legislature in adopting this idea, we think the District Court, on remand, ought to make no attempt to require any in addition movement in this degree. See 384 U. S. infra.

    [Footnote eight]

    The technique of equal proportions changed into to be used for apportioning the senate, in addition to the residence. See n four, supra.

    [Footnote 9]

    On May 21, 1965, MR. JUSTICE DOUGLAS stayed this action pending our determination of those appeals.

    [Footnote 10]

    We are not to be understood as agreeing with the District Court, insofar as it is able to have rested its selection at the view that use of the technique of same proportions itself stored the plan from constitutional challenge based totally on Reynolds v. Sims. 240 F. Supp. at 727. See n four, supra.

    [Footnote eleven]

    These notices were well timed filed. The February 17 opinion became not formally entered till April 9, 1965. The second decision became dated and entered April 28, 1965. Notices of appeal were filed May 3 and 7, 1965. Whether judged via the date of entry, United States v. Hark, 320 U. S. 531; Fed.Rule Civ.Proc. 58, or with the aid of the truth that the order included within the choice of February 17 turned into no longer ultimately made effective till the decision of April 28, United States v. Crescent Amusement Co., 323 U. S. 173, 323 U. S. 177, the appeals from the selection introduced February 17 were well timed. 28 U.S.C. § 2101(b) (1964 ed.).

    [Footnote 12]

    We have no longer omitted the fact that the restrictions had been advised by way of the legislators themselves. Nevertheless, continuously with Maryland Committee v. Tawes, the District Court need to have indicated to the legislators that they possessed the same extensive scope of inquiry because the courtroom had stated in its opinion of February 17 changed into open to a constitutional convention. It had recommended there that there might be accurately considered with the aid of the conference:

    "1. Whether [Hawaii] will keep to apply registered citizens because the apportionment foundation, or change it to State citizen population eligible to vote (i.e., voter populace), or citizen population, or general populace."

    "2. Whether it is higher to have one or each homes of the legislature composed of unmarried member representative districts, or to have and justify one or both homes composed, in whole or in part, of multi-member or floterial districts."

    "3. Whether decennial reapportionment of either or both houses have to be made on or earlier than June 1st of the year previous the Federal census -- as is now the case -- or on a date soon after the taking of such census."

    "4. Whether the representative district strains ought to continue to be extensively as they now are or whether or not in the long run (i.e., after 1970) there have to be redistricting in the sort of way that the census tracts and representative districts can be coordinated for the statistical purposes vital to put into effect the adjustments (if any) made within the basis of reapportionment."

    238 F. Supp. at 478.

    [Footnote thirteen]

    "In reapportioning and redistricting the senate, each houses neglected the reality that, to be legitimate, the make-up of the senate must undoubtedly complement the make-up of the residence, to provide the vital equality of voter representation. Both homes of the legislature apparently forgot that the schemes of districting every residence, when conjoined, have to offer compensating advantages to the citizens -- not most effective to those electorate inside every representative district, be it senate or house, however to all electorate all through the State. While there perforce should be some overlap of illustration with the numerous senate and house districts, that overlap must not be inclusive of to pay attention and accentuate the voting energy of a single senatorial-representative district to the factor that the electorate therein have a integrated disproportionate representational benefit over any other electorate of the State."

    240 F. Supp. at 729.

    [Footnote 14]

    Appellant Burns concedes in his short that, "[i]n the case of the Hawaii House multi-member districts, large proofs have been no longer put in as to the info of the submergence of minorities." There may also, as an instance, be advantage within the argument that, by using encouraging block voting, multi-member districts lessen the possibility of a minority birthday celebration to win seats. But such consequences have to be established by means of evidence.

    [Footnote 15]

    As said inside the court s opinion, the legislature s proffered justifications have been:

    "(1) unmarried member districts might tend to cause the senators therefrom to be worried with localized problems and forget about the broader troubles dealing with the State, and consequently it would fragment the technique to statewide problems and programs to the detriment of the State; (2) traditionally, the individuals of the house had represented smaller constituencies than participants of the senate, and way of life and experience awful proved the balance suitable; (three) multi-member districts could boom the importance of an person s vote by way of focusing his interest at the wide spectrum of essential community troubles, in place of those of extra constrained and neighborhood difficulty; (4) to installation single member districts might compound the extra technical and more intricate problem of drawing the bounds; (5) population shifts might more drastically have an effect on the boundaries of many smaller unmarried member districts -- to a more diploma than could be discovered in large multi-member districts, mentioning Oahu s population boom and subdivision improvement."

    240 F. Supp. at 727.

    [Footnote 16]

    We reject the thought that the districts are arbitrarily or invidiously defined. The reality that district limitations may additionally have been drawn in a way that minimizes the variety of contests among present incumbents does not, in and of itself, establish invidiousness. And we discover no aid for this suggestion in the present huge variances in size a number of the Oahu representative districts. This distribution is governed via the populace shifts that have befell since the district boundaries had been first described. In the preliminary apportionment, the six representative districts comprising the fifth senatorial district each contained two or 3 representatives -- inside the geographically big, fantastically rural districts and 3 in urban districts. The four representative districts comprising the fourth senatorial district contained three to 6 representatives; these districts comprised the coronary heart of residential Honolulu, and had been understandably compact. Whether one surmises that the drafters were leaving room for expansion inside the less populous districts or drawing district lines as a feature of size, as well as populace, no irrationality appears from the distribution. It is applicable to observe that the Hawaii Legislature was dominated via multi-member districts in both houses earlier than statehood. This function this did now not originate with the senate plan right here beneath attention.

    [Footnote 17]

    This discern is calculated the usage of 1960 figures; within the apportionment of 1959, Oahu become assigned 36 representatives on the premise of 1958 registration figures.

    [Footnote 18]

    Thus, in 1960, the ninth and tenth districts contained 28% of Oahu s population, however simplest 17% of its registered citizens; the fifteenth and 16th districts, with simplest 21% of island populace, contained 29% of island registered citizens.

    [Footnote 19]

    E.g., WMCA, Inc. v. Lomenzo, 377 U.S. at 377 U. S. 653; Maryland Committee v. Tawes, 377 U.S. at 377 U. S. 674.

    [Footnote 20]

    Thus, we referred to "[t]he proper of a citizen to same illustration, and to have his vote weighted equally with the ones of all other citizens. . . ." Reynolds v. Sims, 377 U.S. at 377 U.S. 576. We additionally stated: "[I]t is a realistic impossibility to set up legislative districts so that every one has an same variety of residents, or citizens, or electorate." Id. at 377 U.S. 577.

    "[T]he overriding objective need to be big equality of populace the various diverse districts, in order that the vote of any citizen is approximately identical in weight to that of another citizen in the State."

    Id. at 377 U.S. 579.

    [Footnote 21]

    In Davis v. Mann, 377 U.S. at 377 U. S. 691, we rejected an argument that underrepresentation of 3 political subdivisions in Virginia became

    "constitutionally justifiable, because it allegedly led to component from the reality that the ones areas include massive numbers of navy and army-related personnel. Discrimination in opposition to a category of people merely because of the character of their employment, without more being shown, is constitutionally impermissible."

    See also Carrington v. Rash, 380 U. S. 89. Where the exclusion is of those not meeting a State s house requirements, however, unique ideas follow. The distinction among exclusion of all navy and army-related employees and exclusion of these not assembly a State s house requirements is a difference among an arbitrary and a constitutionally permissible type.

    [Footnote 22]

    Buckley v. Hoff, 243 F. Supp. 873, 876 (D.C.Vt.1965).

    [Footnote 23]

    Ellis disapproved a registered voters foundation for apportioning the governing council of Baltimore, Maryland. The Court of Appeals held that this basis changed into permissible handiest if it yielded effects extensively approximating those obtained by using use of a complete population base.

    [Footnote 24]

    For instance, at one factor at some point of World War II, the military population of Oahu constituted about one-1/2 the population of the Territory. If general populace were utilized in any such state of affairs, the permanent residents residing in districts such as army bases might have drastically extra balloting energy than the electors of districts not consisting of such bases. Indeed, in view of this opportunity, appellant Burns concedes that a "nontransient" determine, as well as general population, is probably used for apportionment functions.

    [Footnote 25]

    Appellant Burns urges here that the apportionment base for the residence, registered voter figures from the 1958 widespread election, is infected by such an exclusion. Hawaii became then a Territory, and registration become governed by 48 U.S.C. § 619 (1958 ed.), which provided:

    "No character shall be allowed to vote who's inside the Territory by using purpose of being within the Army or Navy or by means of purpose of being connected to troops within the provider of the USA."

    Such a restrict, if imposed by a State, would violate the Equal Protection Clause. Carrington v. Rash, 380 U. S. 89. The statute not applies, but its impact persists within the house apportionment. The quantity of registered electorate within the districts in which Oahu s primary military bases are located has expanded two times as much as registration in the other Oahu districts and more than three times as a whole lot as country populace in view that 1958. Reapportionment of the house now on a registered voters basis could work a substantial realignment of the State s consultant districts. If it can be proven that that is so basically due to the fact army guys now have a vote they had been as soon as denied, instead of due to easy population shifts, a right away intervening time adjustment of house apportionment might be merited. Time does now not allow the necessary hearings available earlier than the 1966 elections, but requiring such hearings is virtually within the courtroom s authority below its persevering with jurisdiction thereafter.

    [Footnote 26]

    The District Court found the discern to be 87.1%. Even if an asserted blunders in data is corrected, the discern exceeds eighty%.

    [Footnote 27]

    Note 25 supra. An strive became made to show that registration chances amongst low income residents of Oahu have been appreciably decrease than amongst different resident groups. It is unclear to what volume these information mirror army pay scales. Thus, they may be an unfair representation of kingdom citizen registration styles. Moreover, no tremendous effect in submerging the political voice of this institution seems. Of path, this issue may be reexamined have to in addition hearings be held in exercising of the courtroom s persevering with jurisdiction.

    MR. JUSTICE HARLAN, concurring inside the result.

    Because judicial duty calls for me, as I see matters, to bow to the authority of Reynolds v. Sims, 377 U. S. 533, notwithstanding my original and persevering with perception that the selection turned into constitutionally incorrect (see my dissenting opinion, 377 U.S. at 377 U.S. 589 et seq.), I feel compelled to concur within the Court s disposition of this case. Even underneath Reynolds, but, I can't accept as true with the rationale, elaborated in 384 U. S. by means of which Hawaii s registered voter base is continued. As I study these days s opinion, registered voter figures are a suitable foundation for apportionment simplest so long as they

    Page 384 U. S. ninety nine

    substantially approximate the consequences that would be reached under a few different type of populace-based totally scheme of apportionment.

    Many tough questions of judgment, bearing on both to policy and to administrative comfort, ought to be resolved with the aid of a State in figuring out what records to apply in organising its apportionment plan. I would not read Reynolds as precluding a State from apportioning its legislature on any rational basis regular with Reynolds philosophy that "people," no longer other pastimes, must be the idea of state legislative apportionment. I suppose apportionment on the premise of registered voters is a rational system of this type, and that it is consequently permissible under Reynolds regardless of whether or not, inside the specific case, it approximates a few other form of a population apportionment.

    MR. JUSTICE STEWART, concurring inside the judgment.

    At the time Reynolds v. Sims become decided, I expressed the perception that

    "the Equal Protection Clause demands however two basic attributes of any plan of country legislative apportionment. First, it demands that, in the light of the State s personal traits and desires, the plan ought to be a rational one. Secondly, it needs that the plan have to be which include now not to permit the systematic frustration of the need of a majority of the citizens of the State."

    Lucas v. Colorado General Assembly, 377 U. S. 713, at pp. 377 U. S. 753-754 (dissenting opinion).

    Time has now not changed my perspectives. I still trust the Court misconceived the requirements of the Equal Protection Clause in Reynolds v. Sims and its companion instances. But as long as the ones cases continue to be the regulation, I must bow to them. And, even under those decisions, there is sincerely room for at least as a lot flexibility because the Court today accords to Hawaii. Accordingly, I concur within the judgment.

    Oral Argument - February 21, 1966
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