U.S. Supreme Court

Baker v. Carr,369U.S. 186 (1962)Baker v. Carr

No. 6

Argued April 19-20,1961

Set for reargument May 1,1961

Reargued October 9,1961

Decided March 26,1962

369U.S. 186

APPEAL FROM THE UNITED STATESDISTRICT COURT

FOR THE MIDDLE DISTRICT OFTENNESSEE

Syllabus

Appellants are persons allegedly qualified to vote for membersof the General Assembly of Tennessee representing the counties inwhich they reside. They brought suit in a Federal District Court inTennessee under 42 U.S.C. §§ 1983 and 1988, on behalf of themselvesand others similarly situated, to redress the alleged deprivationof their federal constitutional rights by legislation classifyingvoters with respect to representation in the General Assembly. Theyalleged that, by means of a 1901 statute of Tennessee arbitrarilyand capriciously apportioning the seats in the General Assemblyamong the State's 95 counties, and a failure to reapportion themsubsequently notwithstanding substantial growth and redistributionof the State's population, they suffer a "debasement of theirvotes," and were thereby denied the equal protection of the lawsguaranteed them by the Fourteenth Amendment. They sought,interalia, a declaratory judgment that the 1901 statute isunconstitutional and an injunction restraining certain stateofficers from conducting any further elections under it. TheDistrict Court dismissed the complaint on the grounds that itlacked jurisdiction of the subject matter and that no claim wasstated upon which relief could be granted.

Held:

1. The District Court had jurisdiction of the subject matter ofthe federal constitutional claim asserted in the complaint. Pp.369 U. S.198-204.

2. Appellants had standing to maintain this suit. Pp.369 U. S.204-208.

3. The complaint's allegations of a denial of equal protectionpresented a justiciable constitutional cause of action upon whichappellants are entitled to a trial and a decision. Pp.369 U. S.208-37.

179 F.Supp. 824, reversed and cause remanded

Page 369 U. S. 187

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This civil action was brought under 42 U.S.C. §§ 1983 and 1988to redress the alleged deprivation of federal constitutionalrights. The complaint, alleging that, by means of a 1901 statute ofTennessee apportioning the members of the General Assembly amongthe State's 95 counties, [Footnote1] "these plaintiffs and others similarly situated,

Page 369 U. S. 188

are denied the equal protection of the laws accorded them by theFourteenth Amendment to the Constitution of the United States byvirtue of the debasement of their votes," was dismissed by athree-judge court convened under 28 U.S.C. § 2281 in the MiddleDistrict of Tennessee. [Footnote2] The court held that it lacked jurisdiction of the subjectmatter and also that no claim was stated upon which relief could begranted.179 F.Supp. 824. We noted probable jurisdiction of the appeal. 364U.S. 898. [Footnote 3] We holdthat the dismissal was error, and remand the cause to the DistrictCourt for trial and further proceedings consistent with thisopinion.

The General Assembly of Tennessee consists of the Senate, with33 members, and the House of Representatives, with 99 members. TheTennessee Constitution provides in Art. II as follows:

"Sec. 3. Legislative authority -- Term of office. -- TheLegislative authority of this State shall be vested in a GeneralAssembly, which shall consist of a Senate and House ofRepresentatives, both dependent on the people; who shall hold theiroffices for two years from the day of the general election."

"Sec. 4. Census. -- An enumeration of the qualified voters, andan apportionment of the Representatives in the General Assembly,shall be made in the year one thousand eight hundred andseventy-one and within every subsequent term of ten years."

"Sec. 5. Apportionment of representatives. -- The number ofRepresentatives shall, at the several

Page 369 U. S. 189

periods of making the enumeration, be apportioned among theseveral counties or districts, according to the number of qualifiedvoters in each, and shall not exceed seventy-five; until thepopulation of the State shall be one million and a half, and shallnever exceed ninety-nine;Provided, that any county havingtwo-thirds of the ratio shall be entitled to one member."

"Sec. 6. Apportionment of senators. -- The number of Senatorsshall, at the several periods of making the enumeration, beapportioned among the several counties or districts according tothe number of qualified electors in each, and shall not exceedone-third the number of representatives. In apportioning theSenators among the different counties, the fraction that may belost by any county or counties in the apportionment of members tothe House of Representatives shall be made up to such county orcounties in the Senate, as near as may be practicable. When adistrict is composed of two or more counties, they shall beadjoining, and no county shall be divided in forming adistrict."

Thus, Tennessee's standard for allocating legislativerepresentation among her counties is the total number of qualifiedvoters resident in the respective counties, subject only to minorqualifications. [Footnote 4]Decennial reapportionment

Page 369 U. S. 190

in compliance with the constitutional scheme was effected by theGeneral Assembly each decade from 1871 to 1901. The 1871apportionment [Footnote 5] waspreceded by an 1870 statute requiring an enumeration. [Footnote 6] The 1881 apportionmentinvolved three statutes, the first authorizing an enumeration, thesecond enlarging the Senate from 25 to

Page 369 U. S. 191

33 members and the House from 75 to 99 members, and the thirdapportioning the membership of both Houses. [Footnote 7] In 1891, there were both anenumeration and an apportionment. [Footnote 8] In 1901, the General Assembly abandonedseparate enumeration in favor of reliance upon the Federal Census,and passed the Apportionment Act here in controversy. [Footnote 9] In the more than 60 yearssince that action, all proposals in both Houses of the GeneralAssembly for reapportionment have failed to pass. [Footnote 10]

Page 369 U. S. 192

Between 1901 and 1961, Tennessee has experienced substantialgrowth and redistribution of her population. In 1901, thepopulation was 2,020,616, of whom 487,380 were eligible to vote.[Footnote 11] The 1960Federal Census reports the State's population at 3,567,089, of whom2,092,891 are eligible to vote. [Footnote 12] The relative standings of the counties interms of qualified voters have changed significantly. It isprimarily the continued application of the 1901 Apportionment Actto this shifted and enlarged voting population which gives rise tothe present controversy.

Indeed, the complaint alleges that the 1901 statute, even as ofthe time of its passage,

"made no apportionment of Representatives and Senators inaccordance with the constitutional formula . . . , but insteadarbitrarily and capriciously apportioned representatives in theSenate and House without reference . . . to any logical orreasonable formula whatever. [Footnote 13]"

It is further alleged

Page 369 U. S. 193

that, "because of the population changes since 1900, and thefailure of the Legislature to reapportion itself since 1901," the1901 statute became "unconstitutional and obsolete." Appellantsalso argue that, because of the composition of the legislatureeffected by the 1901 Apportionment Act, redress in the form of astate constitutional amendment to change the entire mechanism forreapportioning, or any other change short of that, is difficult orimpossible. [Footnote 14]The complaint concludes that

"these plaintiffs

Page 369 U. S. 194

and others similarly situated, are denied the equal protectionof the laws accorded them by the Fourteenth Amendment to theConstitution of the United States by virtue of the debasement oftheir votes. [Footnote15]"

They seek a

Page 369 U. S. 195

declaration that the 1901 statute is unconstitutional and aninjunction restraining the appellees from acting to conduct anyfurther elections under it. They also pray that, unless and untilthe General Assembly enacts a valid reapportionment, the DistrictCourt should either decree a reapportionment by mathematicalapplication of the Tennessee constitutional formulae to the mostrecent Federal Census figures, or direct the appellees to conductlegislative elections, primary and general, at large. They alsopray for such other and further relief as may be appropriate.

ITHE DISTRICT COURT's OPINION AND ORDER OF DISMISSAL

Because we deal with this case on appeal from an order ofdismissal granted on appellees' motions, precise identification

Page 369 U. S. 196

of the issues presently confronting us demands clear expositionof the grounds upon which the District Court rested in dismissingthe case. The dismissal order recited that the court sustained theappellees' grounds "(1) that the Court lacks jurisdiction of thesubject matter, and (2) that the complaint fails to state a claimupon which relief can be granted. . . ."

In the setting of a case such as this, the recited groundsembrace two possible reasons for dismissal:

First: That the facts and injury alleged, the legalbases invoked as creating the rights and duties relied upon, andthe relief sought, fail to come within that language of Article IIIof the Constitution and of the jurisdictional statutes which definethose matters concerning which United States District Courts areempowered to act;

Second: That, although the matter is cognizable andfacts are alleged which establish infringement of appellants'rights as a result of state legislative action departing from afederal constitutional standard, the court will not proceed becausethe matter is considered unsuited to judicial inquiry oradjustment.

We treat the first ground of dismissal as "lack of jurisdictionof the subject matter." The second we consider to result in afailure to state a justiciable cause of action.

The District Court's dismissal order recited that it was issuedin conformity with the court's per curiam opinion. The opinionreveals that the court rested its dismissal upon lack of subjectmatter jurisdiction and lack of a justiciable cause of actionwithout attempting to distinguish between these grounds. Afternoting that the plaintiffs challenged the existing legislativeapportionment in Tennessee under the Due Process and EqualProtection Clauses, and summarizing the supporting allegations andthe relief requested, the court stated that

"The action is presently before the Court upon the defendants'motion to dismiss predicated upon three

Page 369 U. S. 197

grounds: first, that the Court lacks jurisdiction of the subjectmatter; second, that the complaints fail to state a claim uponwhich relief can be granted, and third, that indispensable partydefendants are not before the Court."

179 F. Supp. at 826.

The court proceeded to explain its action as turning on thecase's presenting a "question of the distribution of politicalstrength for legislative purposes." For,

"From a review of [numerous Supreme Court] . . . decisions,there can be no doubt that the federal rule, as enunciated andapplied by the Supreme Court, is that the federal courts, whetherfrom a lack of jurisdiction or from the inappropriateness of thesubject matter for judicial consideration, will not intervene incases of this type to compel legislative reapportionment."

179 F. Supp. at 826. The court went on to express doubts as tothe feasibility of the various possible remedies sought by theplaintiffs. 179 F. Supp. at 827-828. Then it made clear that itsdismissal reflected a view not of doubt that violation ofconstitutional rights was alleged, but of a court's impotence tocorrect that violation:

"With the plaintiffs' argument that the legislature of Tennesseeis guilty of a clear violation of the state constitution and of therights of the plaintiffs the Court entirely agrees. It also agreesthat the evil is a serious one which should be corrected withoutfurther delay. But even so, the remedy in this situation clearlydoes not lie with the courts. It has long been recognized and isaccepted doctrine that there are indeed some rights guaranteed bythe Constitution for the violation of which the courts cannot giveredress."

179 F. Supp. at 828.

In light of the District Court's treatment of the case, we holdtoday only (a) that the court possessed jurisdiction of the subjectmatter; (b) that a justiciable cause of

Page 369 U. S. 198

action is stated upon which appellants would be entitled toappropriate relief, and (c) because appellees raise the issuebefore this Court, that the appellants have standing to challengethe Tennessee apportionment statutes. [Footnote 16] Beyond noting that we have no cause atthis stage to doubt the District Court will be able to fashionrelief if violations of constitutional rights are found, it isimproper now to consider what remedy would be most appropriate ifappellants prevail at the trial.

IIJURISDICTION OF THE SUBJECT MATTER

The District Court was uncertain whether our cases withholdingfederal judicial relief rested upon a lack of federal jurisdictionor upon the inappropriateness of the subject matter for judicialconsideration -- what we have designated "nonjusticiability." Thedistinction between the two grounds is significant. In the instanceof nonjusticiability, consideration of the cause is not wholly andimmediately foreclosed; rather, the Court's inquiry necessarilyproceeds to the point of deciding whether the duty asserted can bejudicially identified and its breach judicially determined, andwhether protection for the right asserted can be judicially molded.In the instance of lack of jurisdiction, the cause either does not"arise under" the Federal Constitution, laws or treaties (or fallwithin one of the other enumerated categories of Art. III, § 2); oris not a "case or controversy" within the meaning of that section;or the cause is not one described by any jurisdictional statute.Our conclusion,see pp.369 U. S.208-237infra, that this cause presents nononjusticiable "political question" settles the only possible doubtthat it is a case or controversy. Under the present heading of"Jurisdiction

Page 369 U. S. 199

of the Subject Matter," we hold only that the matter set forthin the complaint does arise under the Constitution, and is within28 U.S.C. § 1343.

Article III, 2, of the Federal Constitution provides that

"The judicial Power shall extend to all Cases, in Law andEquity, arising under this Constitution, the Laws of the UnitedStates, and Treaties made, or which shall be made, under theirAuthority. . . ."

It is clear that the cause of action is one which "arises under"the Federal Constitution. The complaint alleges that the 1901statute effects an apportionment that deprives the appellants ofthe equal protection of the laws in violation of the FourteenthAmendment. Dismissal of the complaint upon the ground of lack ofjurisdiction of the subject matter would, therefore, be justifiedonly if that claim were "so attenuated and unsubstantial as to beabsolutely devoid of merit,"Newburyport Water Co. v.Newburyport,193 U. S. 561,193 U. S. 579,or "frivolous,"Bell v. Hood,327 U.S. 678,327 U. S. 683.[Footnote 17] That the claimis unsubstantial must be "very plain."Hart v. Keith VaudevilleExchange,262 U. S. 271,262 U. S. 274.Since the District Court obviously and correctly did not deem theasserted federal constitutional claim unsubstantial and frivolous,it should not have dismissed the complaint for want of jurisdictionof the subject matter. And, of course, no further consideration ofthe merits of the claim is relevant to a determination of thecourt's jurisdiction of the subject matter. We said in an earliervoting case from Tennessee:

"It is obvious . . . that the court, in dismissing for want ofjurisdiction, was controlled by what it deemed to be the want ofmerit in the averments which were made in the complaint as to theviolation of the Federal right. But as the very nature of thecontroversy was Federal, and, therefore,

Page 369 U. S. 200

jurisdiction existed, whilst the opinion of the court as to thewant of merit in the cause of action might have furnished groundfor dismissing for that reason, it afforded no sufficient groundfor deciding that the action was not one arising under theConstitution and laws of the United States."

Swafford v. Templeton,185 U.S. 487,185 U. S.493.

"For it is well settled that the failure to state a proper causeof action calls for a judgment on the merits, and not for adismissal for want of jurisdiction."

Bell v. Hood,327 U. S. 678,327 U. S. 682.See also Binderup v. Pathe Exchange,263 U.S. 291,263 U. S.305-308.

Since the complaint plainly sets forth a case arising under theConstitution, the subject matter is within the federal judicialpower defined in Art. III, § 2, and so within the power of Congressto assign to the jurisdiction of the District Courts. Congress hasexercised that power in 28 U.S.C. § 1343(3):

"The district courts shall have original jurisdiction of anycivil action authorized by law [Footnote 18] to be commenced by any person . . . [t]oredress the deprivation, under color of any State law, statute,ordinance, regulation, custom or usage, of any right, privilege orimmunity secured by the Constitution of the United States. . . .[Footnote 19] "

Page 369 U. S. 201

An unbroken line of our precedents sustains the federal courts'jurisdiction of the subject matter of federal constitutional claimsof this nature. The first cases involved the redistricting ofStates for the purpose of electing Representatives to the FederalCongress. When the Ohio Supreme Court sustained Ohio legislationagainst an attack for repugnancy to Art. I, § 4, of the FederalConstitution, we affirmed on the merits and expressly refused todismiss for want of jurisdiction "In view . . . of the subjectmatter of the controversy and the Federal characteristics whichinhere in it. . . ."Ohio ex rel. Davis v. Hildebrant,241 U. S. 565,241 U. S. 570.When the Minnesota Supreme Court affirmed the dismissal of a suitto enjoin the Secretary of State of Minnesota from acting underMinnesota redistricting legislation, we reviewed the constitutionalmerits of the legislation and reversed the State Supreme Court.Smiley v. Holm,285 U. S. 355.And see companion cases from the New York Court of Appealsand the Missouri Supreme Court,Koenig v. Flynn,285 U. S. 375;Carroll v. Becker,285 U. S. 380.When a three-judge District Court, exercising jurisdiction underthe predecessor of 28 U.S.C. § 1343(3), permanently enjoinedofficers of the State of Mississippi from conducting an election ofRepresentatives under a Mississippi redistricting act, we reviewedthe federal questions on the merits and reversed the DistrictCourt.Wood v. Broom,287 U. S. 1,reversing 1 F. Supp.134. A similar decree of a District Court, exercisingjurisdiction under the same statute concerning a Kentuckyredistricting act was

Page 369 U. S. 202

reviewed and the decree reversed.Mahan v. Hume, 287U.S. 575,reversing 1 F. Supp.142. [Footnote 20]

The appellees refer toColegrove v. Green,328 U.S. 549, as authority that the District Court lackedjurisdiction of the subject matter. Appellees misconceive theholding of that case. The holding was precisely contrary to theirreading of it. Seven members of the Court participated in thedecision. Unlike many other cases in this field which have assumedwithout discussion that there was jurisdiction, all three opinionsfiled inColegrove discussed the question. Two of theopinions expressing the views of four of the Justices, a majority,flatly held that there was jurisdiction of the subject matter. MR.JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS and Mr. JusticeMurphy, stated: "It is my judgment that the District Court hadjurisdiction . . . ," citing the predecessor of 28 U.S.C. §1343(3), andBell v. Hood, supra. 328 U.S. at328 U. S. 568.Mr. Justice Rutledge, writing separately, expressed agreement withthis conclusion. 328 U.S. at328 U. S.564-565, n. 2. Indeed, it is even questionable that theopinion of MR. JUSTICE FRANKFURTER, joined by Justices Reed andBurton, doubted jurisdiction of the subject matter. Such doubtwould have been inconsistent with the professed willingness to turnthe decision on either the majority or concurring views inWoodv. Broom, supra. 328 U.S. at328 U. S.551.

Several subsequent cases similar toColegrove have beendecided by the Court in summary per curiam statements. None wasdismissed for want of jurisdiction of the subject matter.Cookv. Fortson,329 U. S. 675;Turman v.

Page 369 U. S. 203

Duckworth, ibid.; Colegrove v. Barrett, 330 U.S. 804;[Footnote 21]Tedesco v.Board of Supervisors, 339 U.S. 940;Remmey v. Smith,342 U.S. 916;Cox v. Peters, 342 U.S. 936;Anderson v.Jordan, 343 U.S. 912;Kidd v. McCanless, 352 U.S.920;Radford v. Gary, 352 U.S. 991;Hartsfield v.Sloan, 357 U.S. 916;Matthews v. Handley,361 U. S. 127.[Footnote 22]

Two cases decided with opinions afterColegrovelikewise plainly imply that the subject matter of this suit iswithin District Court jurisdiction. InMacDougall v.Green,335 U. S. 281, theDistrict Court dismissed for want of jurisdiction, which had beeninvoked under 28 U.S.C. § 1343(3), a suit to enjoin enforcement ofthe requirement that nominees for statewide elections be supportedby a petition signed by a minimum number of persons from at least50 of the State's 102 counties. This Court's disagreement with thataction is clear, since the Court affirmed the judgment after areview of the merits and concluded that the particular claim therewas without merit. InSouth v. Peters,339 U.S. 276, we affirmed the dismissal of an attack on theGeorgia "county unit" system but founded our action on a groundthat plainly would not have been reached if the lower court lackedjurisdiction of the subject matter, which allegedly existed under28 U.S.C. § 1343(3). The express words of our holding were that

"Federal courts consistently refuse to exercise their equitypowers in cases posing

Page 369 U. S. 204

political issues arising from a state's geographicaldistribution of electoral strength among its politicalsubdivisions."

339 U.S. at339 U. S.277.

We hold that the District Court has jurisdiction of the subjectmatter of the federal constitutional claim asserted in thecomplaint.

IIISTANDING.

A federal court cannot

"pronounce any statute, either of a State or of the UnitedStates, void, because irreconcilable with the Constitution, exceptas it is called upon to adjudge the legal rights of litigants inactual controversies."

Liverpool Steamship Co. v. Commissioners of Emigration,113 U. S. 33,113 U. S. 39.Have the appellants alleged such a personal stake in the outcome ofthe controversy as to assure that concrete adverseness whichsharpens the presentation of issues upon which the court so largelydepends for illumination of difficult constitutional questions?This is the gist of the question of standing. It is, of course, aquestion of federal law.

The complaint was filed by residents of Davidson, Hamilton,Knox, Montgomery, and Shelby Counties. Each is a person allegedlyqualified to vote for members of the General Assembly representinghis county. [Footnote 23]These appellants sued

"on their own behalf and on behalf of all qualified voters oftheir respective counties, and further, on behalf of all voters ofthe State of Tennessee who

Page 369 U. S. 205

are similarly situated. . . . [Footnote 24]"

The appellees are the Tennessee Secretary of State, AttorneyGeneral, Coordinator of Elections, and members of the State Boardof Elections; the members of the State Board are sued in their ownright and also as representatives of the County ElectionCommissioners whom they appoint. [Footnote 25]

Page 369 U. S. 206

We hold that the appellants do have standing to maintain thissuit. Our decisions plainly support this conclusion. Many of thecases have assumed, rather than articulated, the premise indeciding the merits of similar claims. [Footnote 26] AndColegrove v. Green, supra,squarely held that voters who allege facts showing disadvantage tothemselves as individuals have standing to sue. [Footnote 27] A number

Page 369 U. S. 207

of cases decided afterColegrove recognized thestanding of the voters there involved to bring those actions.[Footnote 28]

These appellants seek relief in order to protect or vindicate aninterest of their own, and of those similarly situated. Theirconstitutional claim is, in substance, that the 1901 statuteconstitutes arbitrary and capricious state action, offensive to theFourteenth Amendment in its irrational disregard of the standard ofapportionment prescribed by the State's Constitution or of anystandard, effecting a gross disproportion of representation tovoting population. The injury which appellants assert is that thisclassification disfavors the voters in the counties in which theyreside, placing them in a position of constitutionallyunjustifiable inequalityvis-a-vis voters

Page 369 U. S. 208

in irrationally favored counties. A citizen's right to a votefree of arbitrary impairment by state action has been judiciallyrecognized as a right secured by the Constitution when suchimpairment resulted from dilution by a false tally,cf. UnitedStates v. Classic,313 U. S. 299; orby a refusal to count votes from arbitrarily selected precincts,cf. United States v. Mosley,238 U.S. 383, or by a stuffing of the ballot box,cf. Exparte Siebold,100 U. S. 371;United States v. Saylor,322 U. S. 385.

It would not be necessary to decide whether appellants'allegations of impairment of their votes by the 1901 apportionmentwill ultimately entitle them to any relief in order to hold thatthey have standing to seek it. If such impairment does produce alegally cognizable injury, they are among those who have sustainedit. They are asserting "a plain, direct and adequate interest inmaintaining the effectiveness of their votes,"Coleman v.Miller, 307 U.S. at307 U. S. 438,not merely a claim of "the right, possessed by every citizen, torequire that the Government be administered according to law. . .."Fairchild v. Hughes,258 U. S. 126,258 U. S. 129;compare Leser v. Garnett,258 U.S. 130. They are entitled to a hearing and to theDistrict Court's decision on their claims.

"The very essence of civil liberty certainly consists in theright of every individual to claim the protection of the laws,whenever he receives an injury."

Marbury v.Madison, 1 Cranch 137,5 U. S. 163.

IVJUSTICIABILITY

In holding that the subject matter of this suit was notjusticiable, the District Court relied onColegrove v. Green,supra, and subsequent per curiam cases. [Footnote 29] The

Page 369 U. S. 209

court stated:

"From a review of these decisions, there can be no doubt thatthe federal rule . . . is that the federal courts . . . will notintervene in cases of this type to compel legislativereapportionment."

179 F. Supp. at 826. We understand the District Court to haveread the cited cases as compelling the conclusion that, since theappellants sought to have a legislative apportionment heldunconstitutional, their suit presented a "political question," andwas therefore nonjusticiable. We hold that this challenge to anapportionment presents no nonjusticiable "political question." Thecited cases do not hold the contrary.

Of course, the mere fact that the suit seeks protection of apolitical right does not mean it presents a political question.Such an objection "is little more than a play upon words."Nixon v. Herndon,273 U. S. 536,273 U. S. 540.Rather, it is argued that apportionment cases, whatever the actualwording of the complaint, can involve no federal constitutionalright except one resting on the guaranty of a republican form ofgovernment, [Footnote 30]and that complaints based on that clause have been held to presentpolitical questions which are nonjusticiable.

We hold that the claim pleaded here neither rests upon norimplicates the Guaranty Clause, and that its justiciability istherefore not foreclosed by our decisions of cases involving thatclause. The District Court misinterpretedColegrove v.Green and other decisions of this Court on which it relied.Appellants' claim that they are being denied equal protection isjusticiable, and if

Page 369 U. S. 210

"discrimination is sufficiently shown, the right to relief underthe equal protection clause is not diminished by the fact that thediscrimination relates to political rights."

Snowdell v. Hughes,321 U. S. 1,321 U. S. 11. Toshow why we reject the argument based on the Guaranty Clause, wemust examine the authorities under it. But because there appears tobe some uncertainty as to why those cases did present politicalquestions, and specifically as to whether this apportionment caseis like those cases, we deem it necessary first to consider thecontours of the "political question" doctrine.

Our discussion, even at the price of extending this opinion,requires review of a number of political question cases, in orderto expose the attributes of the doctrine -- attributes which, invarious settings, diverge, combine, appear, and disappear inseeming disorderliness. Since that review is undertaken solely todemonstrate that neither singly nor collectively do these casessupport a conclusion that this apportionment case isnonjusticiable, we, of course, do not explore their implications inother contexts. That review reveals that, in the Guaranty Clausecases and in the other "political question" cases, it is therelationship between the judiciary and the coordinate branches ofthe Federal Government, and not the federal judiciary'srelationship to the States, which gives rise to the "politicalquestion." We have said that,

"In determining whether a question falls within [the politicalquestion] category, the appropriateness under our system ofgovernment of attributing finality to the action of the politicaldepartments and also the lack of satisfactory criteria for ajudicial determination are dominant considerations."

Coleman v. Miller,307 U. S. 433,307 U. S.454-455. The nonjusticiability of a political questionis primarily a function of the separation of powers. Much confusionresults from the capacity of the "political question" label toobscure the need for

Page 369 U. S. 211

case-by-case inquiry. Deciding whether a matter has in anymeasure been committed by the Constitution to another branch ofgovernment, or whether the action of that branch exceeds whateverauthority has been committed, is itself a delicate exercise inconstitutional interpretation, and is a responsibility of thisCourt as ultimate interpreter of the Constitution. To demonstratethis requires no less than to analyze representative cases and toinfer from them the analytical threads that make up the politicalquestion doctrine. We shall then show that none of those threadscatches this case.

Foreign relations: there are sweeping statements to theeffect that all questions touching foreign relations are politicalquestions. [Footnote 31] Notonly does resolution of such issues frequently turn on standardsthat defy judicial application, or involve the exercise of adiscretion demonstrably committed to the executive or legislature,[Footnote 32] but many suchquestions uniquely demand single-voiced statement of theGovernment's views. [Footnote33] Yet it is error to suppose that every case or controversywhich touches foreign relations lies beyond judicial cognizance.Our cases in this field seem invariably to show a discriminatinganalysis of the particular question posed, in terms of the historyof its management by the political branches, of its susceptibilityto judicial handling in the light of its nature and posture in thespecific case, and of the possible consequences

Page 369 U. S. 212

of judicial action. For example, though a court will notordinarily inquire whether a treaty has been terminated, since onthat question, "governmental action . . . must be regarded as ofcontrolling importance," if there has been no conclusive"governmental action," then a court can construe a treaty, and mayfind it provides the answer.Compare Terlinden v. Ames,184 U. S. 270,184 U. S. 285,with21 U. S. NewHaven, 8 Wheat. 464,21 U. S.492-495. [Footnote34] Though a court will not undertake to construe a treaty in amanner inconsistent with a subsequent federal statute, no similarhesitancy obtains if the asserted clash is with state law.Compare Whitney v. Robertson,124 U.S. 190,with Kolovrat v. Oregon,366 U.S. 187.

While recognition of foreign governments so strongly defiesjudicial treatment that, without executive recognition, a foreignstate has been called "a republic of whose existence we knownothing," [Footnote 35] andthe judiciary ordinarily follows the executive as to which nationhas sovereignty over disputed territory, [Footnote 36] once sovereignty over an area ispolitically determined and declared, courts may examine theresulting status and decide independently whether a statute appliesto that area. [Footnote 37]Similarly, recognition of belligerency abroad is an executiveresponsibility, but if the executive proclamations fall short of anexplicit answer, a court may construe them seeking, for example, todetermine whether the situation is such that statutes designed toassure American neutrality have

Page 369 U. S. 213

become operative.The Three Friends,166 U. S.1,166 U. S. 63,166 U. S. 66.Still again, though it is the executive that determines a person'sstatus as representative of a foreign government,Ex parteHitz,111 U. S. 766, theexecutive's statements will be construed where necessary todetermine the court's jurisdiction,In re Baiz,135 U. S. 403.Similar judicial action in the absence of a recognizedlyauthoritative executive declaration occurs in cases involving theimmunity from seizure of vessels owned by friendly foreigngovernments.Compare Ex parte Peru,318 U.S. 578,with Mexico v. Hoffman,324 U. S.30,324 U. S.34-35.

Dates of duration of hostilities: though it has beenstated broadly that "the power which declared the necessity is thepower to declare its cessation, and what the cessation requires,"Commercial Trust Co. v. Miller,262 U. S.51,262 U. S. 57,here too analysis reveals isolable reasons for the presence ofpolitical questions, underlying this Court's refusal to review thepolitical departments' determination of when or whether a war hasended. Dominant is the need for finality in the politicaldetermination, for emergency's nature demands "[a] prompt andunhesitating obedience,"Martin v. Mott,12 Wheat. 19,25 U. S. 30(calling up of militia). Moreover,

"the cessation of hostilities does not necessarily end the warpower. It was stated inHamilton v. Kentucky Distilleries &W. Co.,251 U. S. 146,251 U. S.161, that the war power includes the power 'to remedythe evils which have arisen from its rise and progress,' andcontinues during that emergency.Stewart v.Kahn, 11 Wall. 493,78 U. S.507."

Fleming v. Mohawk Wrecking Co.,331 U.S. 111,331 U. S. 116.But deference rests on reason, not habit. [Footnote 38] The question in a particular casemay not seriously implicate considerations of finality --e.g., a public program of importance

Page 369 U. S. 214

(rent control), yet not central to the emergency effort.[Footnote 39] Further,clearly definable criteria for decision may be available. In suchcase, the political question barrier falls away:

"[A] Court is not at liberty to shut its eyes to an obviousmistake, when the validity of the law depends upon the truth ofwhat is declared. . . . [It can] inquire whether the exigency stillexisted upon which the continued operation of the lawdepended."

Chastleton Corp. v. Sinclair,264 U.S. 543,264 U. S.547-548. [Footnote40]Compare Woods v. Miller Co.,333 U.S. 138. On the other hand, even in private litigationwhich directly implicates no feature of separation of powers, lackof judicially discoverable standards and the drive for evenhandedapplication may impel reference to the political departments'determination of dates of hostilities' beginning and ending.The Protector,12 Wall. 700.

Validity of enactments: inColeman v. Miller,supra, this Court held that the questions of how long aproposed amendment to the Federal Constitution remained open toratification, and what effect a prior rejection had on a subsequentratification, were committed to congressional resolution andinvolved criteria of decision that necessarily escaped the judicialgrasp. [Footnote 41] Similarconsiderations apply to the enacting process: "[t]he respect due tocoequal and independent departments," and the need for finality andcertainty about the status of a statute contribute to judicialreluctance to inquire whether, as passed, it complied with allrequisite formalities.Field v. Clark,143 U.S. 649,143 U. S. 672,143 U. S.676-677;see Leser v. Garnett,258 U.S. 130,258 U. S. 137.But it is not true that courts will never delve

Page 369 U. S. 215

into a legislature's records upon such a quest: if the enrolledstatute lacks an effective date, a court will not hesitate to seekit in the legislative journals in order to preserve the enactment.Gardner v. TheCollector, 6 Wall. 499. The political questiondoctrine, a tool for maintenance of governmental order, will not beso applied as to promote only disorder.

The status of Indian tribes: this Court's deference tothe political departments in determining whether Indians arerecognized as a tribe, while it reflects familiar attributes ofpolitical questions, [Footnote42]United States v.Holliday, 3 Wall. 407,70 U. S. 419,also has a unique element in that

"the relation of the Indians to the United States is marked bypeculiar and cardinal distinctions which exist no where else. . . .[The Indians are] domestic dependent nations . . . in a state ofpupilage. Their relation to the United States resembles that of award to his guardian."

The Cherokee Nation v.Georgia, 5 Pet. 1,30 U. S. 16,30 U. S. 17.[Footnote 43] Yet here, too,there is no blanket rule. While

Page 369 U. S. 216

"'It is for [Congress] . . and not for the courts, to determinewhen the true interests of the Indian require his release from[the] condition of tutelage,' . . . it is not meant by this thatCongress may bring a community or body of people within the rangeof this power by arbitrarily calling them an Indian tribe. . .."

United States v. Sandoval,231 U. S.28,231 U. S. 46.Able to discern what is "distinctly Indian,"ibid., thecourts will strike down

Page 369 U. S. 217

any heedless extension of that label. They will not standimpotent before an obvious instance of a manifestly unauthorizedexercise of power.

It is apparent that several formulations which vary slightlyaccording to the settings in which the questions arise may describea political question, although each has one or more elements whichidentify it as essentially a function of the separation of powers.Prominent on the surface of any case held to involve a politicalquestion is found a textually demonstrable constitutionalcommitment of the issue to a coordinate political department; or alack of judicially discoverable and manageable standards forresolving it; or the impossibility of deciding without an initialpolicy determination of a kind clearly for non judicial discretion;or the impossibility of a court's undertaking independentresolution without expressing lack of the respect due coordinatebranches of government; or an unusual need for unquestioningadherence to a political decision already made; or the potentialityof embarrassment from multifarious pronouncements by variousdepartments on one question.

Unless one of these formulations is inextricable from the caseat bar, there should be no dismissal for nonjusticiability on theground of a political question's presence. The doctrine of which wetreat is one of "political questions," not one of "politicalcases." The courts cannot reject as "no law suit" abonafide controversy as to whether some action denominated"political" exceeds constitutional authority. The cases we havereviewed show the necessity for discriminating inquiry into theprecise facts and posture of the particular case, and theimpossibility of resolution by any semantic cataloguing.

But it is argued that this case shares the characteristics ofdecisions that constitute a category not yet considered, casesconcerning the Constitution's guaranty, in Art. IV,

Page 369 U. S. 218

§ 4, of a republican form of government. A conclusion as towhether the case at bar does present a political question cannot beconfidently reached until we have considered those cases withspecial care. We shall discover that Guaranty Clause claims involvethose elements which define a "political question," and, for thatreason and no other, they are nonjusticiable. In particular, weshall discover that the nonjusticiability of such claims hasnothing to do with their touching upon matters of stategovernmental organization.

Republican form of government:Luther v.Borden, 7 How. 1, though in form simply an actionfor damages for trespass was, as Daniel Webster said in opening theargument for the defense, "an unusual case." [Footnote 44] The defendants, admitting anotherwise tortious breaking and entering, sought to justify theiraction on the ground that they were agents of the establishedlawful government of Rhode Island, which State was then undermartial law to defend itself from active insurrection; that theplaintiff was engaged in that insurrection, and that they enteredunder orders to arrest the plaintiff. The case arose "out of theunfortunate political differences which agitated the people ofRhode Island in 1841 and 1842," 7 How. at48 U. S. 34, andwhich had resulted in a situation wherein two groups laid competingclaims to recognition as the lawful government. [Footnote 45] The plaintiff's right to

Page 369 U. S. 219

recover depended upon which of the two groups was entitled tosuch recognition; but the lower court's refusal to receive evidenceor hear argument on that issue, its charge to the jury that theearlier established or "charter" government was lawful, and theverdict for the defendants were affirmed upon appeal to thisCourt.

Chief Justice Taney's opinion for the Court reasoned as follows:(1) If a court were to hold the defendants' acts unjustifiedbecause the charter government had no legal existence during theperiod in question, it would follow that all of that government'sactions -- laws enacted, taxes collected, salaries paid, accountssettled, sentences passed -- were of no effect, and that "theofficers who carried their decisions into operation [were]answerable as trespassers, if not in some cases as criminals."[Footnote 46] There was, ofcourse, no room for application of any doctrine ofdefacto status to uphold prior acts of an officer not authorizedde jure, for such would have defeated the plaintiff's veryaction. A decision for the plaintiff would inevitably have producedsome significant measure of chaos, a consequence to be avoided ifit could be done without abnegation of the judicial duty to upholdthe Constitution.

(2) No state court had recognized as a judicial responsibilitysettlement of the issue of the locus of state governmentalauthority. Indeed, the courts of Rhode Island had in several casesheld that "it rested with the political power to decide whether thecharter government had been displaced or not," and that thatdepartment had acknowledged no change.

Page 369 U. S. 220

(3) Since "[t]he question relates, altogether, to theconstitution and laws of [the] . . . State," the courts of theUnited States had to follow the state courts' decisions unlessthere was a federal constitutional ground for overturning them.[Footnote 47]

(4) No provision of the Constitution could be or had beeninvoked for this purpose except Art. IV, § 4, the Guaranty Clause.Having already noted the absence of standards whereby the choicebetween governments could be made by a court acting independently,Chief Justice Taney now found further textual and practical reasonsfor concluding that, if any department of the United States wasempowered by the Guaranty Clause to resolve the issue, it was notthe judiciary:

"Under this article of the Constitution, it rests with Congressto decide what government is the established one in a State. For,as the United States guarantee to each State a republicangovernment, Congress must necessarily decide what government isestablished in the State before it can determine whether it isrepublican or not. And when the senators and representatives of aState are admitted into the councils of the Union, the authority ofthe government under which they are appointed, as well as itsrepublican character, is recognized by the proper constitutionalauthority. And its decision is binding on every other department ofthe government, and could not be questioned in a judicial tribunal.It is true that the contest in this case did not last long enoughto bring the matter to this issue, and . . . Congress was notcalled upon to decide the controversy. Yet the right to decide isplaced there, and not in the courts. "

Page 369 U. S. 221

"So, too, as relates to the clause in the above-mentionedarticle of the Constitution, providing for cases of domesticviolence. It rested with Congress, too, to determine upon the meansproper to be adopted to fulfill this guarantee. . . . [B]y the actof February 28, 1795, [Congress] provided, that,"

"in case of an insurrection in any State against the governmentthereof, it shall be lawful for the President of the United States,on application of the legislature of such State or of the executive(when the legislature cannot be convened), to call forth suchnumber of the militia of any other State or States, as may beapplied for, as he may judge sufficient to suppress suchinsurrection."

"By this act, the power of deciding whether the exigency hadarisen upon which the government of the United States is bound tointerfere is given to the President. . . ."

"After the President has acted and called out the militia, is aCircuit Court of the United States authorized to inquire whetherhis decision was right? . . . If the judicial power extends so far,the guarantee contained in the Constitution of the United States isa guarantee of anarchy, and not of order."

"It is true that, in this case, the militia were not called outby the President. But, upon the application of the governor underthe charter government, the President recognized him as theexecutive power of the State and took measures to call out themilitia to support his authority if it should be found necessaryfor the general government to interfere. . . . [C]ertainly no courtof the United States, with a knowledge of this decision, would havebeen justified in recognizing the opposing party as the lawfulgovernment. . . .

Page 369 U. S. 222

In the case of foreign nations, the government acknowledged bythe President is always recognized in the courts of justice. . .."

7 How. at48 U. S.42-44.

Clearly, several factors were thought by the Court inLuther to make the question there "political": thecommitment to the other branches of the decision as to which is thelawful state government; the unambiguous action by the President inrecognizing the charter government as the lawful authority; theneed for finality in the executive's decision, and the lack ofcriteria by which a court could determine which form of governmentwas republican. [Footnote48]

Page 369 U. S. 223

But the only significance thatLuther could have forour immediate purposes is in its holding that the Guaranty Clauseis not a repository of judicially manageable standards which acourt could utilize independently in order to identify a State'slawful government. The Court has since refused to resort to theGuaranty Clause -- which alone had been invoked for the purpose asthe source of a constitutional standard for invalidating stateaction.See Taylor & Marshall v. Beckham (No. 1),178 U. S. 548(claim that Kentucky's resolution of contested gubernatorialelection deprived voters of republican government heldnonjusticiable);Pacific States Tel. Co. v. Oregon,223 U. S. 118(claim that initiative and referendum negated republican governmentheld nonjusticiable);Kiernan v. Portland,223 U.S. 151 (claim that municipal charter amendment permunicipal initiative and referendum negated republican governmentheld nonjusticiable);

Page 369 U. S. 224

Marshall v. Dye,231 U. S. 250(claim that Indiana's constitutional amendment procedure negatedrepublican government held nonjusticiable);O'Neill v.Leamer,239 U. S. 244(claim that delegation to court of power to form drainage districtsnegated republican government held "futile");Ohio ex rel.Davis v. Hildebrant,241 U. S. 565(claim that invalidation of state reapportionment statute perreferendum negates republican government held nonjusticiable);[Footnote 49]MountainTimber Co. v. Washington,243 U. S. 219(claim that workmen's compensation violates republican governmentheld nonjusticiable);Ohio ex rel. Bryant v. Akron MetropolitanPark District,281 U. S. 74 (claimthat rule requiring invalidation of statute by all but one justiceof state court negated republican government held nonjusticiable);Highland Farms Dairy v. Agnew,300 U.S. 608 (claim that delegation to agency of power tocontrol milk prices violated republican government rejected).

Just as the Court has consistently held that a challenge tostate action based on the Guaranty Clause presents no justiciablequestion, so has it held, and for the same reasons, that challengesto congressional action on the ground of inconsistency with thatclause present no justiciable question. InGeorgia v.Stanton, 6 Wall. 50, the State sought by anoriginal bill to enjoin execution of the Reconstruction Acts,claiming that it already possessed "A republican State, in everypolitical, legal, constitutional, and juridical sense," and thatenforcement of the new Acts,

"[i]nstead of keeping the guaranty against a forcible overthrowof its government by foreign invaders or domestic insurgents, . . .is destroying that very government by force. [Footnote 50]"

Congress had clearly refused to

Page 369 U. S. 225

recognize the republican character of the government of thesuing State. [Footnote 51]It seemed to the Court that the only constitutional claim thatcould be presented was under the Guaranty Clause, and Congresshaving determined that the effects of the recent hostilitiesrequired extraordinary measures to restore governments of arepublican form, this Court refused to interfere with Congress'action at the behest of a claimant relying on that very guaranty.[Footnote 52]

In only a few other cases has the Court considered Art. IV, § 4,in relation to congressional action. It has refused to pass on aclaim relying on the Guaranty Clause to establish that Congresslacked power to allow the States to employ the referendum inpassing on legislation redistricting for congressional seats.Ohio ex rel. Davis v. Hildebrant, supra. And it haspointed out that Congress is not required to establish republicangovernment in the territories before they become States, and beforethey have attained a sufficient population to warrant a

Page 369 U. S. 226

popularly elected legislature.Downes v. Bidwell,182 U. S. 244,182 U. S.278-279 (dictum). [Footnote 53]

We come, finally, to the ultimate inquiry whether our precedentsas to what constitutes a nonjusticiable "political question" bringthe case before us under the umbrella of that doctrine. A naturalbeginning is to note whether any of the common characteristicswhich we have been able to identify and label descriptively arepresent. We find none: the question here is the consistency ofstate action with the Federal Constitution. We have no questiondecided, or to be decided, by a political branch of governmentcoequal with this Court. Nor do we risk embarrassment of ourgovernment abroad, or grave disturbance at home [Footnote 54] if we take issue withTennessee as to the constitutionality of her action herechallenged. Nor need the appellants, in order to succeed in thisaction, ask the Court to enter upon policy determinations for whichjudicially manageable standards are lacking. Judicial standardsunder the Equal Protection Clause are well developed and familiar,and it has been open to courts since the enactment of theFourteenth Amendment to determine, if, on the particular facts,they must, that a discrimination reflects no policy, but simplyarbitrary and capricious action.

This case does, in one sense, involve the allocation ofpolitical power within a State, and the appellants

Page 369 U. S. 227

might conceivably have added a claim under the Guaranty Clause.Of course, as we have seen, any reliance on that clause would befutile. But because any reliance on the Guaranty Clause could nothave succeeded, it does not follow that appellants may not be heardon the equal protection claim which, in fact, they tender. True, itmust be clear that the Fourteenth Amendment claim is not soenmeshed with those political question elements which renderGuaranty Clause claims nonjusticiable as actually to present apolitical question itself. But we have found that not to be thecase here.

In this connection, special attention is duePacific StatesTel. Co. v. Oregon,223 U. S. 118. Inthat case, a corporation tax statute enacted by the initiative wasattacked ostensibly on three grounds: (1) due process; (2) equalprotection, and (3) the Guaranty Clause. But it was clear that thefirst two grounds were invoked solely in aid of the contention thatthe tax was invalid by reason of its passage:

"The defendant company does not contend here that it could nothave been required to pay a license tax. It does not assert that itwas denied an opportunity to be heard as to the amount for which itwas taxed, or that there was anything inhering in the tax orinvolved intrinsically in the law which violated any of itsconstitutional rights. If such questions had been raised, theywould have been justiciable, and therefore would have required thecalling into operation of judicial power. Instead, however, ofdoing any of these things, the attack on the statute here made isof a wholly different character. Its essentially political natureis at once made manifest by understanding that the assault whichthe contention here advanced makes it [sic] not on the taxas a tax, but on the State as a State. It is addressed to the

Page 369 U. S. 228

framework and political character of the government by which thestatute levying the tax was passed. It is the government, thepolitical entity, which (reducing the case to its essence) iscalled to the bar of this court not for the purpose of testingjudicially some exercise of power assailed, on the ground that itsexertion has injuriously affected the rights of an individualbecause of repugnancy to some constitutional limitation, but todemand of the State that it establish its right to exist as aState, republican in form."

223 U.S. at223 U. S.150-151.

The due process and equal protection claims were heldnonjusticiable inPacific States not because they happenedto be joined with a Guaranty Clause claim, or because they soughtto place before the Court a subject matter which might conceivablyhave been dealt with through the Guaranty Clause, but because theCourt believed that they were invoked merely in verbal aid of theresolution of issues which, in its view, entailed politicalquestions.Pacific States may be compared with cases suchasMountain Timber Co. v. Washington,243 U.S. 219, wherein the Court refused to consider whether aworkmen's compensation act violated the Guaranty Clause butconsidered at length, and rejected, due process and equalprotection arguments advanced against it, andO'Neill v.Leamer,239 U. S. 244,wherein the Court refused to consider whether Nebraska's delegationof power to form drainage districts violated the Guaranty Clause,but went on to consider and reject the contention that the actionagainst which an injunction was sought was not a taking for apublic purpose.

We conclude, then, that the nonjusticiability of claims restingon the Guaranty Clause, which arises from their embodiment ofquestions that were thought "political," can have no bearing uponthe justiciability of the equal protection claim presented in thiscase. Finally, we

Page 369 U. S. 229

emphasize that it is the involvement in Guaranty Clause claimsof the elements thought to define "political questions," and noother feature, which could render them nonjusticiable.Specifically, we have said that such claims are not heldnonjusticiable because they touch matters of state governmentalorganization. Brief examination of a few cases demonstratesthis.

When challenges to state action respecting matters of "theadministration of the affairs of the State and the officers throughwhom they are conducted" [Footnote 55] have rested on claims of constitutionaldeprivation which are amenable to judicial correction, this Courthas acted upon its view of the merits of the claim. For example, inBoyd v. Nebraska ex rel. Thayer,143 U.S. 135, we reversed the Nebraska Supreme Court'sdecision that Nebraska's Governor was not a citizen of the UnitedStates or of the State, and therefore could not continue in office.InKennard v. Louisiana ex rel. Morgan,92 U. S.480, andFoster v. Kansas ex rel. Johnston,112 U. S. 201, weconsidered whether persons had been removed from public office byprocedures consistent with the Fourteenth Amendment's due processguaranty, and held on the merits that they had. And only last Term,inGomillion v. Lightfoot,364 U.S. 339, we applied the Fifteenth Amendment to strikedown a redrafting of municipal boundaries which effected adiscriminatory impairment of voting rights, in the face of what amajority of the Court of Appeals thought to be a sweepingcommitment to state legislatures of the power to draw and redrawsuch boundaries. [Footnote56]

Gomillion was brought by a Negro who had been aresident of the City of Tuskegee, Alabama, until the municipalboundaries were so recast by the State Legislature

Page 369 U. S. 230

as to exclude practically all Negroes. The plaintiff claimeddeprivation of the right to vote in municipal elections. TheDistrict Court's dismissal for want of jurisdiction and failure tostate a claim upon which relief could be granted was affirmed bythe Court of Appeals. This Court unanimously reversed. This Court'sanswer to the argument that States enjoyed unrestricted controlover municipal boundaries was:

"Legislative control of municipalities, no less than other statepower, lies within the scope of relevant limitations imposed by theUnited States Constitution. . . . The opposite conclusion, urgedupon us by respondents, would sanction the achievement by a Stateof any impairment of voting rights whatever so long as it wascloaked in the garb of the realignment of political subdivisions.'It is inconceivable that guaranties embedded in the Constitutionof the United States may thus be manipulated out ofexistence.'"

364 U.S. at364 U. S.344-345.

To a second argument, thatColegrove v. Green, supra,was a barrier to hearing the merits of the case, the Courtresponded thatGomillion was lifted "out of the so-calledpolitical' arena and into the conventional sphere ofconstitutional litigation" because here was discriminatorytreatment of a racial minority violating the FifteenthAmendment.

"A statute which is alleged to have worked unconstitutionaldeprivations of petitioners' rights is not immune to attack simplybecause the mechanism employed by the legislature is a redefinitionof municipal boundaries. . . . While in form this is merely an actredefining metes and bounds, if the allegations are established,the inescapable human effect of this essay in geometry andgeography is to despoil colored citizens, and only coloredcitizens, of

Page 369 U. S. 231

their theretofore enjoyed voting rights. That was notColegrove v. Green."

"When a State exercises power wholly within the domain of stateinterest, it is insulated from federal judicial review. But suchinsulation is not carried over when state power is used as aninstrument for circumventing a federally protected right."

364 U.S. at364 U. S. 347.[Footnote 57]

We have not overlooked such cases asIn re Sawyer,124 U. S. 200, andWalton v. House of Representatives,265 U.S. 487, which held that federal equity power could notbe exercised to enjoin a state proceeding to remove a publicofficer. But these decisions explicitly reflect only a traditionallimit upon equity jurisdiction, and not upon federal courts' powerto inquire into matters of state governmental organization. This isclear not only from the opinions in those cases, but also fromWhite v. Berry,171 U. S. 366,which, relying onSawyer, withheld federal equity fromstaying removal of afederal officer.Wilson v. NorthCarolina,169 U. S. 586,simply dismissed an appeal from an unsuccessful suit to upset aState's removal procedure, on the ground that the constitutionalclaim presented -- that a jury trial was necessary if the removalprocedure was to comport with due process requirements -- wasfrivolous. Finally, inTaylor and Marshall v. Beckham (No.1),178 U. S. 548,where losing candidates attacked the constitutionality ofKentucky's resolution of a contested gubernatorial election, theCourt refused to consider the merits of a claim posited upon

Page 369 U. S. 232

the Guaranty Clause, holding it presented a political question,but also held on the merits that the ousted candidates had sufferedno deprivation of property without due process of law. [Footnote 58]

Since, as has been established, the equal protection claimtendered in this case does not require decision of any politicalquestion, and since the presence of a matter affecting stategovernment does not render the case nonjusticiable, it seemsappropriate to examine again the reasoning by which the DistrictCourt reached its conclusion that the case was nonjusticiable.

We have already noted that the District Court's holding that thesubject matter of this complaint was nonjusticiable relied uponColegrove v. Green, supra, and later cases. Some of thoseconcerned the choice of members of a state legislature, as in thiscase; others, likeColegrove itself and earlierprecedents,Smiley v. Holm,285 U.S. 355,Koenig v. Flynn,285 U.S. 375, andCarroll v. Becker,285 U.S. 380, concerned the choice of Representatives in theFederal Congress.Smiley, Koenig andCarrollsettled the issue in favor of justiciability of questions ofcongressional redistricting. The Court followed these precedents inColegrove, although over the dissent of three of the sevenJustices who participated in that decision. On the issue ofjusticiability, all four Justices comprising a majority relied uponSmiley v. Holm, but, in two opinions, one for threeJustices, 328 U.S. at328 U. S. 566,328 U. S. 568,and a separate one by Mr. Justice Rutledge, 328 U.S. at328 U. S. 564.The argument that congressional redistricting problems presented a"political question" the resolution of which was confided toCongress might have been rested upon Art. I, § 4, Art. I, § 5, Art.I, § 2, and Amendment

Page 369 U. S. 233

XIV, § 2. Mr. Justice Rutledge said:

"But for the ruling inSmiley v. Holm,285 U. S.355, I should have supposed that the provisions of theConstitution, Art. I,§ 4, that 'The Times, Places and Manner ofholding Elections for . . . Representatives, shall be prescribed ineach State by the Legislature thereof; but the Congress may at anytime by Law make or alter such Regulations . . .'; Art. I, § 2[but see Amendment XIV, § 2], vesting in Congress the dutyof apportionment of representatives among the several states'according to their respective Numbers,' and Art. I, § 5, makingeach House the sole judge of the qualifications of its own members,would remove the issues in this case from justiciable cognizance.But, in my judgment, theSmiley case rules squarely to thecontrary, save only in the matter of degree. . . . Assuming thatthat decision is to stand, I think . . . that its effect is to rulethat this Court has power to afford relief in a case of this typeas against the objection that the issues are not justiciable."

328 U.S. at328 U. S.564-565. Accordingly, Mr. Justice Rutledge joined in theconclusion that the case as justiciable, although he held that thedismissal of the complaint should be affirmed. His view wasthat

"The shortness of the time remaining [before forthcomingelections] makes it doubtful whether action could, or would, betaken in time to secure for petitioners the effective relief theyseek. . . . I think, therefore, the case is one in which the Courtmay properly, and should, decline to exercise its jurisdiction.Accordingly, the judgment should be affirmed, and I join in thatdisposition of the cause."

328 U.S. at328 U. S.565-566. [Footnote59]

Page 369 U. S. 234

Article I, § § 2, 4, and 5, and Amendment XIV, § 2, relate onlyto congressional elections, and obviously do not governapportionment of state legislatures. However, our decisions infavor of justiciability even in light of those provisions plainlyafford no support for the District Court's conclusion that thesubject matter of this controversy presents a political question.Indeed, the refusal to award relief inColegrove resultedonly from the controlling view of a want of equity. Nor is anythingcontrary to be found in those per curiams that came afterColegrove. This Court dismissed the appeals inCook v.Fortson andTurman v. Duckworth,329 U.S. 675, as moot.MacDougall v. Green,335 U. S. 281,held only that, in that case, equity would not act to void theState's requirement that there be at least a minimum of support fornominees

Page 369 U. S. 235

for statewide office, over at least a minimal area of the State.Problems of timing were critical inRemmey v. Smith, 342U.S. 916, dismissing for want bf a substantial federal question athree-judge court's dismissal of the suit as prematurely brought,102 F.Supp. 708, and inHartsfield v. Sloan, 357 U.S. 916,denying mandamus sought to compel the convening of a three-judgecourt -- movants urged the Court to advance consideration of theircase,

"[i]nasmuch as the mere lapse of time before this case can bereached in the normal course of . . . business may defeat thecause, and inasmuch as the time problem is due to the inherentnature of the case. . . ."

South v. Peters,339 U. S. 276,likeColegrove, appears to be a refusal to exerciseequity's powers;see the statement of the holding quoted,supra, p.369 U. S. 203.AndCox v. Peters, 342 U.S. 936, dismissed for want of asubstantial federal question the appeal from the state court'sholding that their primary elections implicated no "state action."See 208 Ga. 498,67 S.E.2d 579.But compare Terry v. Adams,345 U.S. 461.

Tedesco v. Board of Supervisors, 339 U.S. 940,indicates solely that no substantial federal question was raised bya state court's refusal to upset the districting of city councilseats, especially as it was urged that there was a rationaljustification for the challenged districting.See 43 So.2d 514. Similarly, inAnderson v. Jordan, 343 U.S. 912, itwas certain only that the state court had refused to issue adiscretionary writ, original mandamus in the Supreme Court. Thathad been denied without opinion, and, of course, it was urged herethat an adequate state ground barred this Court's review. And inKidd v. McCanless, 200 Tenn. 273,292S.W.2d 40, the Supreme Court of Tennessee held that it couldnot invalidate the very statute at issue in the case at bar, butits holding rested on its state law of remedies,i.e., thestate view of

Page 369 U. S. 236

de facto officers, [Footnote 60] and not on any view that the norm forlegislative apportionment in Tennessee is not numbers of qualifiedvoters resident in the several counties. Of course, this Court wasthere precluded by the adequate state ground, and, in dismissingthe appeal, 352 U.S. 920, we citedAnderson, supra, aswell asColegrove. Nor does the Tennessee court's decisionin that case bear upon this, for, just as inSmith v.Holm, 220 Minn. 486, 19 N.W.2d 914, andMagraw v.Donovan, 163 F.Supp. 184,177 F.Supp. 803, a state court's inability to grant relief does notbar a federal court's assuming jurisdiction to inquire into allegeddeprivation of federal constitutional rights. Problems of reliefalso controlled inRadford v. Gary, 352 U.S. 991,affirming the District Court's refusal to mandamus the Governor tocall a session of the legislature, to mandamus the legislature thento apportion, and if they did not comply, to mandamus the StateSupreme Court to do so. AndMatthews v. Handley,361 U. S. 127,affirmed a refusal to strike down the State's gross income taxstatute -- urged on the ground that the legislature wasmalapportioned -- that had rested on the adequacy of availablestate legal remedies for suits involving that tax, includingchallenges to its constitutionality. Lastly,Colegrove v.Barrett, 330 U.S. 804, in which Mr. Justice Rutledge concurredin this Court's refusal to note the appeal from a dismissal forwant of equity, is sufficiently explained by his statement inCook v. Fortson, supra:

"The discretionary exercise or nonexercise of equitable ordeclaratory judgment jurisdiction . . . in one case is notprecedent in another case

Page 369 U. S. 237

where the facts differ."

329 U.S. at329 U. S. 678,n. 8. (Citations omitted.)

We conclude that the complaint's allegations of a denial ofequal protection present a justiciable constitutional cause ofaction upon which appellants are entitled to a trial and adecision. The right asserted is within the reach of judicialprotection under the Fourteenth Amendment.

The judgment of the District Court is reversed, and the cause isremanded for further proceedings consistent with this opinion.

Reversed and remanded.

MR. JUSTICE WHITAKER did not participate in the decision of thiscase.

[Footnote 1]

Public Acts of Tennessee, c. 122 (1901), now Tenn.Code Ann. §§3-101 to 3-107. The full text of the 1901 Act as amended appears inan Appendix to this opinion,post, p.369 U.S. 237

[Footnote 2]

The three-judge court was convened pursuant to the order of asingle district judge, who, after he had reviewed certain decisionsof this Court and found them distinguishable in features "that mayultimately prove to be significant," held that the complaint wasnot so obviously without merit that he would be justified inrefusing to convene a three-judge court.175 F.Supp. 649, 652.

[Footnote 3]

We heard argument first at the 1960 Term and again at this Term,when the case was set over for reargument. 366 U.S. 907.

[Footnote 4]

A county having less than, but at least two-thirds of, thepopulation required to choose a Representative is allocated oneRepresentative.See also Tenn.Const., Art. II, § 6. Acommon and much more substantial departure from the "number ofvoters" or "total population" standard is the guaranty of at leastone seat to each county.See, e.g., Kansas Const., Art. 2,§ 2; N.J.Const., Art. 4, § 3, � 1.

While the Tennessee Constitution speaks of the number of"qualified voters," the exhibits attached to the complaint usefigures based on the number of persons 21 years of age and over.This basis seems to have been employed by the General Assembly inapportioning legislative seats from the outset. The 1870 statuteproviding for the first enumeration, Acts of 1870 (1st Sess.), c.107, directed the courts of the several counties to select aCommissioner to enumerate

"all the male inhabitants of their respective counties, who aretwenty-one years of age and upward, who shall be resident citizensof their counties on the first day of January, 1871. . . ."

Reports compiled in the several counties on this basis weresubmitted to the General Assembly by the Secretary of State andwere used in the first apportionment. Appendix to Tenn.S.J., 1871,41-43. Yet such figures would not reflect the numbers of personsqualified to exercise the franchise under the then-governingqualifications: (a) citizenship; (b) residence in the State 12months, and in the county 6 months; (c) payment of poll taxes forthe preceding year unless entitled to exemption. Acts of 1870 (2dSess.), c. 10. (These qualifications continued at least until after1901.See Shan.Tenn.Code Ann., §§ 1167, 1220 (1896; supp.1904).) Still, when the General Assembly directed the Secretary ofState to do all he could to obtain complete reports from thecounties, the Resolution spoke broadly of "the impossibility of . .. [redistricting] without the census returns of the votingpopulation from each county. . . ." Tenn.S.J., 1871, 46 47, 96. Thefigures also showed a correlation with Federal Census figures for1870. The Census reported 259,016 male citizens 21 and upward inTennessee. Ninth Census of the United States, 1870, Statistics ofthe Population 635 (1872). The Tennessee Secretary of State'sReport, with 15 counties not reported, gave a figure of 237,431.Using the numbers of actual votes in the last gubernatorialelection for those 15 counties, the Secretary arrived at a total of250,025. Appendix to Tenn.S.J., 1871, 41-43. This and subsequenthistory indicate continued reference to Census figures, andfinally, in 1901, abandonment of a state enumeration in favor ofthe use of Census figures.See notes789infra.See alsoWilliams, Legislative Apportionment in Tennessee, 20 Tenn.L.Rev.235, 236, n. 6. It would therefore appear that, unless there is acontrary showing at the trial, appellants' current figures, takenfrom the United States Census Reports, are apposite.

[Footnote 5]

Acts of 1871 (1st Sess.), c. 146.

[Footnote 6]

Act of 1870 (1st Sess.), c. 107.

[Footnote 7]

The statute authorizing the enumeration was Acts of 1881 (1stSess.), c. 124. The enumeration commissioners in the counties wereallowed

"access to the U.S. Census Reports of the enumeration of 1880,on file in the offices of the County Court Clerks of the State, anda reference to said reports by said commissioners shall belegitimate as an auxiliary in the enumeration required. . ."

Ibid., § 4.

The United States Census reported 330,305 male citizens 21 andupward in Tennessee. The Tenth Census of the United States, 1880,Compendium 596 (1883). The Tennessee Secretary of State's Reportgave a figure of 343,817, Tenn.H.J. (1st Extra.Sess.), 1881, 12-14(1882).

The General Assembly was enlarged in accordance with theconstitutional mandate, since the State's population had passed1,500,000. Acts of 1881 (1st Extra.Sess.), c. 5,and see,id., S.J.Res. No. III;see also Tenth Census of theUnited States, 1880, Statistics of the Population 77 (1881). Thestatute apportioning the General Assembly was Acts of 1881 (1stExtra.Sess.), c. 6.

[Footnote 8]

Acts of 1891, c. 22; Acts of 1891 (Extra.Sess.), c. 10.Reference to United States Census figures was allowed just as in1881,see supra,n 7.The United States Census reported 402,476 males 21 and over inTennessee. The Eleventh Census of the United States, 1890,Population (Part I) 781 (1895). The Tennessee Secretary of State'sReport gave a figure of 399,575. 1 Tenn.S.J., 1891, 473 474.

[Footnote 9]

Acts of 1901, S.J.Res. No. 35; Acts of 1901, c. 122. The JointResolution said:

"The Federal census of 1900 has been very recently taken, and,by reference to said Federal census, an accurate enumeration of thequalified voters of the respective counties of the State ofTennessee can be ascertained, and thereby save the expense of anactual enumeration. . . ."

[Footnote 10]

For the history of legislative apportionment in Tennessee,including attempts made since 1901,see Tenn.S.J., 1959,909-930; and "A Documented Survey of Legislative Apportionment inTennessee, 1870-1957," which is attached as exhibit 2 to theintervening complaint of Mayor West of Nashville, both prepared bythe Tennessee State Historian, Dr. Robert H. White. Examples ofpreliminary steps are: in 1911, the Senate called upon theRedistricting Committee to make an enumeration of qualified votersand to use the Federal Census of 1910 as the basis. Acts of 1911,S.J.Res. No. 60, p. 315. Similarly, in 1961, the Senate called forappointment of a select committee to make an enumeration ofqualified voters. Acts of 1961, S.J.Res. No. 47. In 1955, theSenate called for a study of reapportionment. Tenn.S.J., 1955, 224;but see id. at 1403. Similarly, in 1961, the Housedirected the State Legislative Council to study methods ofreapportionment. Acts of 1961, H.J.Res. No. 65.

[Footnote 11]

Twelfth Census of the United States, 1900, Population (Part 1)39 (1901); (Part 2) 202 (1902).

[Footnote 12]

United States Census of Population:1960, General PopulationCharacteristics -- Tennessee, Table 16 (1961).

[Footnote 13]

In the words of one of the intervening complaints, theapportionment was "wholly arbitrary, . . . and, indeed, based uponno lawfully pertinent factor whatever."

[Footnote 14]

The appellants claim that no General Assembly constitutedaccording to the 1901 Act will submit reapportionment proposalseither to the people or to a Constitutional Convention. There is noprovision for popular initiative in Tennessee. Amendments proposedin the Senate or House must first be approved by a majority of allmembers of each House and again by two-thirds of the members in theGeneral Assembly next chosen. The proposals are then submitted tothe people at the next general election in which a Governor is tobe chosen. Alternatively, the legislature may submit to the peopleat any general election the question of calling a convention toconsider specified proposals. Such as are adopted at a conventiondo not, however, become effective unless approved by a majority ofthe qualified voters voting separately on each proposed change oramendment at an election fixed by the convention. Conventions shallnot be held oftener than once in six years. Tenn.Const., Art. XI, §3. Acts of 1951, C. 130, § 3, and Acts of 1957, G. 340, § 3,provided that delegates to the 1953 and 1959 conventions were to bechosen from the counties and floterial districts just as aremembers of the State House of Representatives. The GeneralAssembly's call for a 1953 Constitutional Convention originallycontained a provision "relating to the appointment [sic]of representatives and senators," but this was excised. Tenn.H.J.,1951, 784. A Resolution introduced at the 1959 ConstitutionalConvention and reported unfavorably by the Rules Committee of theConvention was as follows:

"By Mr. Chambliss (of Hamilton County), Resolution No. 12 --Relative to Convention considering reapportionment, which is asfollows: "

"WHEREAS, there is a rumor that this Limited Convention has beencalled for the purpose of postponing for six years a Conventionthat would make a decision as to reapportionment; and WHEREAS thereis pending in the United States Courts in Tennessee a suit underwhich parties are seeking, through decree, to compelreapportionment; and"

"WHEREAS it is said that this Limited Convention, which wascalled for limited consideration, is yet a ConstitutionalConvention within the language of the Constitution as toConstitutional Conventions, forbidding frequent Conventions in thelast sentence of Article Eleven, Section 3, second paragraph, moreoften than each six years, to-wit: "

"'No such Convention shall be held oftener than once in sixyears.'"

"NOW, THEREFORE, BE IT RESOLVED, That it is the consensus ofopinion of the members of this Convention that, since this is aLimited Convention, as hereinbefore set forth, another Conventioncould be had if it did not deal with the matters submitted to thisLimited Convention."

"BE IT FURTHER RESOLVED That it is the consensus of opinion ofthis Convention that a Convention should be called by the GeneralAssembly for the purpose of considering reapportionment in orderthat a possibility of Court enforcement being forced on theSovereign State of Tennessee by the Courts of the NationalGovernment may be avoided."

"BE IT FURTHER RESOLVED That this Convention be adjourned fortwo years to meet again at the same time set forth in the statuteproviding for this Convention, and that it is the consensus ofopinion of this body that it is within the power of the nextGeneral Assembly of Tennessee to broaden the powers of thisConvention and to authorize and empower this Convention to considera proper amendment to the Constitution that will provide, whensubmitted to the electorate, a method of reapportionment."

Tenn.Constitutional Convention of 1959, The Journal and Debates,35, 278.

[Footnote 15]

It is clear that appellants' federal constitutional claims restexclusively on alleged violation of the Fourteenth Amendment. Theirprimary claim is that the 1901 statute violates the EqualProtection Clause of that amendment. There are allegations invokingthe Due Process Clause, but, from the argument and the exhibits, itappears that the Due Process Clause argument is directed at certaintax statutes. Insofar as the claim involves the validity of thosestatutes under the Due Process Clause, we find it unnecessary todecide its merits. And if the allegations regarding the taxstatutes are designed as the framework for proofs as to the effectsof the allegedly discriminatory apportionment, we need not relyupon them to support our holding that the complaint states afederal constitutional claim of violation of the Equal ProtectionClause. Whether, when the issue to be decided is one of theconstitutional adequacy of this particular apportionment, taxationarguments and exhibits as now presented add anything, or whetherthey could add anything however presented, is for the DistrictCourt in the first instance to decide.

The complaint, in addition to the claims under the FederalConstitution, also alleges rights, and the General Assembly'sduties, under the Tennessee Constitution. Since we hold thatappellants have -- if it develops at trial that the facts supportthe allegations -- a cognizable federal constitutional cause ofaction resting in no degree on rights guaranteed or putativelyguaranteed by the Tennessee Constitution, we do not consider, letalone enforce, rights under a State Constitution which go furtherthan the protections of the Fourteenth Amendment. Lastly, we neednot assess the legal significance, in reaching our conclusion, ofthe statements of the complaint that the apportionment effectedtoday under the 1901 Act is "contrary to the philosophy ofgovernment in the United States and all Anglo-Saxon jurisprudence.. . ."

[Footnote 16]

We need not reach the question of indispensable parties, becausethe District Court has not yet decided it.

[Footnote 17]

The accuracy of calling even such dismissals "jurisdictional"was questioned inBell v. Hood.See 327 U.S. at327 U. S.683.

[Footnote 18]

42 U.S.C. § 1983 provides:

"Every person who, under color of any statute, ordinance,regulation, custom, or usage, of any State or Territory, subjects,or causes to be subjected, any citizen of the United States orother person within the jurisdiction thereof to the deprivation ofany rights, privileges, or immunities secured by the Constitutionand laws, shall be liable to the party injured in an action at law,suit in equity, or other proper proceeding for redress."

[Footnote 19]

This Court has frequently sustained District Court jurisdictionunder 28 U.S.C. § 1343(3) or its predecessors to entertain suits toredress deprivations of rights secured against state infringementby the Equal Protection and Due Process Clauses of the FourteenthAmendment.Douglas v. Jeannette,319 U.S. 157;Stefanelli v. Minard,342 U.S. 117;cf. Nixon v. Herndon,273 U.S. 536;Nixon v. Condon,286 U. S.73;Snowden v. Hughes,321 U. S.1;Smith v. Allwright,321 U.S. 649;Monroe v. Pape,365 U.S. 167;Egan v. Aurora,365 U.S. 514.

[Footnote 20]

Since that case was not brought to the Court until after theelection had been held, the Court cited not onlyWood v.Broom, but also directed dismissal for mootness, citingBrownlow v. Schwartz,261 U. S. 216.

[Footnote 21]

Compare Boeing Aircraft Co. v. King County, 330 U.S.803 ("the appeal is dismissed for want of jurisdiction").SeeColeman v. Miller,307 U. S. 433,307 U. S.440.

[Footnote 22]

Matthews did affirm a judgment that may be read as a dismissalfor want of jurisdiction,179 F.Supp. 470. However, the motion to affirm also rested on theground of failure to state a claim upon which relief could begranted.Cf. text following, onMacDougall v.Green.And see textinfra, p.369 U.S. 236.

[Footnote 23]

The Mayor of Nashville suing "on behalf of himself and allresidents of the City of Nashville, Davidson County, . . ." and theCities of Chattanooga (Hamilton County) and Knoxville (KnoxCounty), each suing on behalf of its residents, were permitted tointervene as parties plaintiff. Since they press the same claims asdo the initial plaintiffs, we find it unnecessary to decide whetherthe intervenors would have standing to maintain this action intheir asserted representative capacities.

[Footnote 24]

The complaint also contains an averment that the appellants sue"on their own behalf andon behalf of all other voters inthe State of Tennessee." (Emphasis added.) This may be read toassert a claim that voters in counties allegedly over-representedin the General Assembly also have standing to complain. But it isnot necessary to decide that question in this case.

[Footnote 25]

The duties of the respective appellees are alleged to be asfollows:

"Defendant,Joe C. Carr, is the duly elected, qualifiedand acting Secretary of State of the State of Tennessee, with hisoffice in Nashville in said State, and, as such, he is charged withthe duty of furnishing blanks, envelopes and information slips tothe County Election Commissioners, certifying the results ofelections and maintaining the records thereof, and he is further exofficio charged, together with the Governor and the AttorneyGeneral, with the duty of examining the election returns receivedfrom the County Election Commissioners and declaring the electionresults, by the applicable provisions of the Tennessee CodeAnnotated, and by Chapter 164 of the Acts of 1949, inter alia."

"Defendant,George F. McCanless, is the duly appointedand acting Attorney General of the State of Tennessee, with hisoffice in Nashville in said State, and is charged with the duty ofadvising the officers of the State upon the law, and is made bySection 23-1107 of the Tennessee Code Annotated a necessary partydefendant in any declaratory judgment action where theconstitutionality of statutes of the State of Tennessee isattacked, and he is ex officio charged, together with the Governorand the Secretary of State, with the duty of declaring the electionresults, under Section 2-140 of the Tennessee Code Annotated."

"Defendant,Jerry McDonald, is the duly appointedCoordinator of Elections in the State of Tennessee, with his officein Nashville, Tennessee, and, as such official, is charged with theduties set forth in the public law enacted by the 1959 GeneralAssembly of Tennessee creating said office."

"Defendants,Dr. Sam Coward, James Alexander, andHubert Brooks are the duly appointed and qualified membersconstituting the State Board of Elections, and as such they arecharged with the duty of appointing the Election Commissioners forall the counties of the State of Tennessee, the organization andsupervision of the biennial elections as provided by the Statutesof Tennessee, Chapter 9 of Title 2 of the Tennessee Code Annotated,Sections 2-901,et seq."

"That this action is brought against the aforenamed defendantsin their representative capacities, and that said ElectionCommissioners are sued also as representatives of all of the CountyElection Commissioners in the State of Tennessee, such personsbeing so numerous as to make it impracticable to bring them allbefore the court; that there is a common question of law involved,namely, the constitutionality of Tennessee laws set forth in theTennessee Code Annotated, Section 3-101 through Section 3-109,inclusive; that common relief is sought against all members of saidElection Commissions in their official capacities, it being theduties of the aforesaid County Election Commissioners, within theirrespective jurisdictions, to appoint the judges of elections, tomaintain the registry of qualified voters of said County, certifythe results of elections held in said County to the defendantsState Board of Elections and Secretary of State, and of preparingballots and taking other steps to prepare for and hold elections insaid Counties by virtue of Sections 2-1201 et seq. of TennesseeCode Annotated, and Section 2-301 et seq. of Tennessee CodeAnnotated, and Chapter 164 of the Acts of 1949, inter alia."

The question whether the named defendants are sufficient partiesremains open for consideration on remand.

[Footnote 26]

Smiley v. Holm, supra, at285 U. S. 361("citizen, elector and taxpayer' of the State");Koenig v.Flynn, supra, at285 U. S. 379("`citizens and voters' of the State");Wood v. Broom,supra, at 4 ("citizen of Mississippi, a qualified electorunder its laws, and also qualified to be a candidate for electionas representative in Congress");cf. Carroll v. Becker,supra, (candidate for office).

[Footnote 27]

Mr. Justice Rutledge was of the view that any question ofstanding was settled inSmiley v. Holm, supra; MR. JUSTICEBLACK stated "that appellants had standing to sue, since the factsalleged show that they have been injured as individuals." He reliedonColeman v Miller,307 U. S. 433,307 U. S. 438,307 U. S. 467.@See328 U. S. 328U.S. 564,328 U. S.568.

Commentators have suggested that the following statement in MR.JUSTICE FRANKFURTER s opinion might imply a view that appellantsthere had no standing:

"This is not an action to recover for damage because of thediscriminatory exclusion of a plaintiff from rights enjoyed byother citizens. The basis for the suit is not a private wrong, buta wrong suffered by Illinois as a polity."

328 U.S. at328 U. S. 552.See Jaffe, Standing to Secure Judicial Review: PublicActions, 74 Harv.L.Rev. 1265, 1298 (1961); Lewis, LegislativeApportionment and the Federal Courts, 71 Harv.L.Rev. 1057,1081-1083 (1958). But since the opinion goes on to consider themerits, it seems that this statement was not intended to intimateany view that the plaintiffs in that action lacked standing. Nor dothe cases cited immediately after the above quotation deal withstanding.See especially Lane v. Wilson,307 U.S. 268,307 U. S.272-273.

[Footnote 28]

MacDougall v. Green, supra, at335 U. S. 282("theProgressive Party,' its nominees for United StatesSenator, Presidential Electors, and State offices, and severalIllinois voters");South v. Peters, supra, at339 U. S. 277("residents of the most populous county in the State");Radfordv. Gary, 145 F.Supp. 541, 542 ("citizen of Oklahoma and resident and voter inthe most populous county");Matthews v. Handley, supra,("citizen of the State");see also Hawke v. Smith (No. 1),253 U. S. 221;Leser v. Garnett,258 U. S. 130;Coleman v. Miller,307 U. S. 433,307 U. S.437-446.

[Footnote 29]

Cook v. Fortson,329 U. S. 675;Turman v. Duckworth, ibid.; Colegrove v. Barrett, 330 U.S.804;MacDougall v. Green,335 U.S. 281;South v. Peters,339 U.S. 276;Remmey v. Smith, 342 U.S. 916;Anderson v. Jordan, 343 U.S. 912;Kidd v.McCanless, 352 U.S. 920;Radford v. Cary, 352 U.S.991.

[Footnote 30]

"The United States shall guarantee to every State in this Uniona Republican Form of Government, and shall protect each of themagainst Invasion, and on Application of the Legislature, or of theExecutive (when the Legislature cannot be convened) againstdomestic Violence."

U.S.Const., Art. IV, 4.

[Footnote 31]

E.g.,

"The conduct of the foreign relations of our Government iscommitted by the Constitution to the Executive and Legislative --'the political' -- Departments of the Government, and the proprietyof what may be done in the exercise of this political power is notsubject to judicial inquiry or decision."

Oetjen v. Central Leather Co.,246 U.S. 297,246 U. S.302.

[Footnote 32]

SeeDoe v. Braden,16 How. 635,57 U. S. 657;Taylor v. Morton, 23 Fed.Cas., No. 13,799 (C.C.D.Mass.)(Mr. Justice Curtis),affirmed, 2 Black 481.

[Footnote 33]

SeeDoe v. Braden,16 How. 635,57 U. S.657.

[Footnote 34]

And see Clark v. Allen,331 U.S. 503.

[Footnote 35]

United States v.Klintock, 5 Wheat. 144,18 U. S. 149,See alsoUnited States v.Palmer, 3 Wheat. 610,16 U. S.634-635.

[Footnote 36]

Foster & Elam v.Neilson, 2 Pet. 253,27 U. S. 307,and see38 U. S. SuffolkInsurance Co., 13 Pet. 415,38 U. S.420.

[Footnote 37]

Vermilya-Brown Co. v. Connell,335 U.S. 377,335 U. S. 380;De Lima v. Bidwell,182 U. S. 1,182 U. S.180-200.

[Footnote 38]

See, e.g., Home Building & Loan Assn. v. Blaisdell,290 U. S. 398,290 U. S.426.

[Footnote 39]

Contrast Martin v. Mott, supra.

[Footnote 40]

But cf. Dakota Central Tel. Co. v. South Dakota,250 U. S. 163,250 U. S. 184,250 U. S.187.

[Footnote 41]

Cf. Dillon v. Gloss,256 U. S. 368.See also United States v. Sprague,282 U.S. 716,282 U. S.732.

[Footnote 42]

See alsoFellows v.Blacksmith, 19 How. 366,60 U. S. 372;United States v. Old Settlers,148 U.S. 427,148 U. S. 466,and compare57 U. S.Braden, 16 How. 635,57 U. S.657.

[Footnote 43]

This case, so frequently cited for the broad proposition thatthe status of an Indian tribe is a matter for the politicaldepartments, is, in fact, a noteworthy example of the limited andprecise impact of a political question. The Cherokees brought anoriginal suit in this Court to enjoin Georgia's assertion ofjurisdiction over Cherokee territory and abolition of Cherokeegovernment and laws. Unquestionably the case lay at the vortex ofmost fiery political embroilment.See 1 Warren, TheSupreme Court in United States History (Rev. ed.), 729-779. But inspite of some broader language in separate opinions, all that theCourt held was that it possessed no original jurisdiction over thesuit, for the Cherokees could in no view be considered either aState of this Union or a "foreign state." Chief Justice Marshalltreated the question as one ofde novo interpretation ofwords in the Constitution. The Chief Justice did say that "The actsof our government plainly recognize the Cherokee nation as a state,and the courts are bound by those acts," but here he referred totheir existence "as a state, as a distinct political society,separated from others. . . ." From there he went to "A question ofmuch more difficulty. . . . Do the Cherokees constitute a foreignstate in the sense of the constitution?"Id. at30 U. S. 16. Thus,while the Court referred to "the political" for the decisionwhether the tribe was an entity, a separate polity, it held thatwhether being an entity the tribe had such status as to be entitledto sue originally was a judicially soluble issue: criteria werediscoverable in relevant phrases of the Constitution and in thecommon understanding of the times. As to this issue, the Court wasnot hampered by problems of the management of unusual evidence orof possible interference with a congressional program. Moreover,Chief Justice Marshall's dictum that "It savours too much of theexercise of political power to be within the proper province of thejudicial department,"id. at30 U. S. 20, wasnot addressed to the issue of the Cherokees' status to sue, butrather to the breadth of the claim asserted and the impropriety ofthe relief sought.Compare73 U. S.Stanton, 6 Wall. 50,73 U. S. 77. TheChief Justice made clear that, if the issue of the Cherokees'rights arose in a customary legal context, "a proper case withproper parties," it would be justiciable. Thus, when the samedispute produced a case properly brought, in which the rightasserted was one of protection under federal treaties and laws fromconflicting state law, and the relief sought was the voiding of aconviction under that state law, the Court did void the conviction.Worcester v.Georgia, 6 Pet. 515. There, the fact that the tribewas a separate polity served as a datum contributing to the result,and despite the consequences in a heated federal-state controversyand the opposition of the other branches of the NationalGovernment, the judicial power acted to reverse the State SupremeCourt. An example of similar isolation of a political question inthe decision of a case isLuther v.Borden, 7 How. 1,see infra.

[Footnote 44]

7 How. at 29.And see 11 The Writings and Speeches ofDaniel Webster 217 (1903).

[Footnote 45]

See Mowry, The Dorr War (1901), and its exhaustivebibliography. And for an account of circumstances surrounding thedecision here,see 2 Warren, The Supreme Court in UnitedStates History (Rev. ed.), 185-195.

Dorr himself, head of one of the two groups and held in a RhodeIsland jail under a conviction for treason, had earlier sought adecision from the Supreme Court that his was the lawful government.His application for original habeas corpus in the Supreme Court wasdenied because the federal courts then lacked authority to issuehabeas for a prisoner held under a state court sentence.Ex parte Dorr,3 How. 103.

[Footnote 46]

7 How. at48 U. S. 39.

[Footnote 47]

Id. at48 U. S. 39,48 U. S. 40.

[Footnote 48]

Even though the Court wrote of unrestrained legislative andexecutive authority under this Guaranty, thus making itsenforcement a political question, the Court plainly implied thatthe political question barrier was no absolute:

"Unquestionably a military government, established as thepermanent government of the State, would not be a republicangovernment, and it would be the duty of Congress to overthrowit."

7 How. at48 U. S. 45. Ofcourse, it does not necessarily follow that, if Congress did notact, the Court would. For while the judiciary might be able todecide the limits of the meaning of "republican form," and thus thefactor of lack of criteria might fall away, there would remainother possible barriers to decision because of primary commitmentto another branch, which would have to be considered in theparticular fact setting presented.

That was not the only occasion on which this Court indicatedthat lack of criteria does not obliterate the Guaranty's extremelimits:

"The guaranty is of a republican form of government. Noparticular government is designated as republican, neither is theexact form to be guaranteed in any manner especially designated.Here, as in other parts of the instrument, we are compelled toresort elsewhere to ascertain what was intended."

"The guaranty necessarily implies a duty on the part of theStates themselves to provide such a government. All the States hadgovernments when the Constitution was adopted. In all, the peopleparticipated to some extent, through their representatives electedin the manner specially provided. These governments theConstitution did not change. They were accepted precisely as theywere, and it is, therefore, to be presumed that they were such asit was the duty of the States to provide. Thus, we haveunmistakable evidence of what was republican in form within themeaning of that term as employed in the Constitution."

Minor v.Happersett, 21 Wall. 162,88 U. S.175-176. There, the question was whether a governmentrepublican in form could deny the vote to women.

In re Duncan,139 U. S. 449,upheld a murder conviction against a claim that the relevant codeshad been invalidly enacted. The Court there said:

"By the Constitution, a republican form of government isguaranteed to every State in the Union, and the distinguishingfeature of that form is the right of the people to choose their ownofficers for governmental administration, and pass their own lawsin virtue of the legislative power reposed in representativebodies, whose legitimate acts may be said to be those of the peoplethemselves; but, while the people are thus the source of politicalpower, their governments, National and State, have been limited bywritten constitutions, and they have themselves thereby set boundsto their own power, as against the sudden impulses of meremajorities."

139 U.S. at139 U. S. 461.But the Court did not find any of these fundamental principlesviolated.

[Footnote 49]

But cf. Hawke v. Smith (No. 1),253 U.S. 221;National Prohibition Cases,253 U. S. 350.

[Footnote 50]

6 Wall. at 65-66 [argument of counsel -- omitted].

[Footnote 51]

The First Reconstruction Act opened:

"Whereas no legal State governments . . . now exists[sic] in the rebel States of . . . Georgia [and]Mississippi . . . , and whereas it is necessary that peace and goodorder should be enforced in said States until loyal and republicanState governments can be legally established . . ."

14 Stat. 428.And see 15 Stat. 2, 14.

[Footnote 52]

InMississippi v.Johnson, 4 Wall. 475, the State sought to enjointhe President from executing the Acts, alleging that his role waspurely ministerial. The Court held that the duties were in no senseministerial, and that, although the State sought to compelinaction, rather than action, the absolute lack of precedent forany such distinction left the case one in which "general principles. . . forbid judicial interference with the exercise of Executivediscretion." 4 Wall. at71 U. S. 499.See also Mississippi v. Stanton, 154 U.S. 554,andsee 2 Warren, The Supreme Court in United States History (Rev.ed.), 463.

For another instance of congressional action challenged astransgressing the Guaranty Clause,SeeThe Collector v.Day, 11 Wall. 113,78 U. S.125-126,overruled, Graves v. O'Keefe,306 U. S. 466.

[Footnote 53]

On the other hand, the implication of the Guaranty Clause in acase concerning congressional action does not always precludejudicial action. It has been held that the clause gives Congress nopower to impose restrictions upon a State's admission which wouldundercut the constitutional mandate that the States be on an equalfooting.Coyle v. Smith,221 U. S. 559. AndinTexas v.White, 7 Wall. 700, although Congress haddetermined that the State's government was not republican in form,the State's standing to bring an original action in this Court wassustained.

[Footnote 54]

See infra, p.369 U.S.235, consideringKidd v. McCanless, 352 U.S.920.

[Footnote 55]

Boyd v. Nebraska ex rel. Thayer,143 U.S. 135,143 U. S. 183(Field, J., dissenting).

[Footnote 56]

Gomillion v. Lightfoot, 270 F.2d 594, relying upon,inter alia, Hunter v. Pittsburgh,207 U.S. 161.

[Footnote 57]

The Court's opinion was joined by MR. JUSTICE DOUGLAS, notinghis adherence to the dissents inColegrove andSouthv. Peters, supra, and the judgment was concurred in by MR.JUSTICE WHITTAKER, who wrote that the decision should rest on theEqual Protection Clause, rather than on the Fifteenth Amendment,since there had been not solely a denial of the vote (if there hadbeen that, at all), but also a "fencing out" of a racial group.

[Footnote 58]

No holding to the contrary is to be found inCave v.Newell, 246 U.S. 650, dismissing a writ of error to theSupreme Court of Missouri 272 Mo. 653, 199 S.W. 1014; or inSnowden v. Hughes,321 U. S. 1.

[Footnote 59]

The ground of Mr. Justice Rutledge's vote to affirm is furtherexplained in his footnote 3, 328 U.S. at328 U. S.566:

""The power of a court of equity to act is a discretionary one.. . . Where a federal court of equity is asked to interfere withthe enforcement of state laws, it should do so onlyto preventirreparable injury which is clear and imminent.'"AmericanFederation of Labor v. Watson,327 U.S. 582,327 U. S. 593and cases cited."

No constitutional questions, including the question whethervoters have a judicially enforceable constitutional right to voteat elections of congressmen from districts of equal population,were decided inColegrove. Six of the participatingJustices reached the questions, but divided three to three on theirmerits. Mr. Justice Rutledge believed that it was not necessary todecide them. He said:

"There is [an alternative to constitutional decision] in thiscase. And I think the gravity of the constitutional questionsraised so great, together with the possibilities for collision[with the political departments of the Government], that theadmonition [against avoidable constitutional decision] isappropriate to be followed here. Other reasons support this view,including the fact that, in my opinion, the basic ruling and lessimportant ones inSmiley v. Holm, supra, would otherwisebe brought into question."

328 U.S. at328 U. S.564-565. He also joined with his brethren who shared hisview that the issues were justiciable in considering thatWoodv. Broom,287 U. S. 1, decidedno constitutional questions, but

"the Court disposed of the cause on the ground that the 1929Reapportionment Act, 46 Stat. 21, did not carry forward therequirements of the 1911 Act, 37 Stat. 13, and declined to decidewhether there was equity in the bill."

328 U.S. at328 U. S. 565;see also id. at328 U. S. 573.We agree with this view ofWood v. Broom.

[Footnote 60]

See also Buford v. State Board of Elections, 206 Tenn.480,334S.W.2d 726;State ex rel. Sanborn v. Davidson County Boardof Election Comm'rs, No. 36,391 Tenn.Sup.Ct., Oct. 9, 1954(unreported); 8 Vand.L.Rev. 501 (1955).

|369U.S. 186app|

APPENDIX TO OPINION OF THE COURT

The Tennessee Code Annotated provides for representation in theGeneral Assembly as follows:

"3-101.Composition -- Counties electing one representativeeach. -- The general assembly of the state of Tennessee shallbe composed of thirty-three (33) senators and ninety-nine (99)representatives, to be apportioned among the qualified voters ofthe state as follows: Until the next enumeration and apportionmentof voters each of the following counties shall elect one (1)representative, to wit: Bedford, Blount, Cannon, Carroll, Chester,Cocke Claiborne, Coffee, Crockett, DeKalb, Dickson, Dyer, Fayette,Franklin, Giles, Greene, Hardeman, Hardin, Henry, Hickman, Hawkins,Haywood, Jackson, Lake, Lauderdale, Lawrence, Lincoln, Marion,Marshall, Maury, Monroe, Montgomery, Moore, McMinn, McNairy, Obion,Overton, Putnam, Roane, Robertson, Rutherford, Sevier, Smith,Stewart, Sullivan, Sumner, Tipton Warren, Washington, White,Weakley, Williamson

Page 369 U. S. 238

and Wilson. [Acts 1881 (E.S.), ch. 5, § 1; 1881 (E.S.), ch. 6, §1; 1901, ch. 122, § 2; 1907, ch. 178, §§ 1, 2; 1915, ch. 145;Shan., § 123; Acts 1919, ch. 147, § 1, 2; 1925 Private, ch. 472, §1; Code 1932, § 140; Acts 1935, ch. 150, § 1; 1941, ch. 58, § 1;1945, ch. 68, § 1; C. Supp. 1950, § 140.]"

"3-102.Counties electing two representatives each. --The following counties shall elect two (2) representatives each,to-wit: Gibson and Madison. [Acts 1901, ch. 122, § 3; Shan., § 124;mod.Code 1932, § 141.]"

"3-103.Counties electing three representatives each.-- The following counties shall elect three (3) representativeseach, to-wit: Knox and Hamilton. [Acts 1901, ch. 122, § 4; Shan., §125; Code 1932, § 142.]"

"3-104.Davidson County. -- Davidson county shall electsix (6) representatives. [Acts 1901, ch. 122, § 5; Shan., § 126;Code 1932, § 143.]"

"3-105.Shelby county. -- Shelby county shall electeight (8) representatives. Said county shall consist of eight (8)representative districts, numbered one (1) through eight (8), eachdistrict coextensive with the county, with one (1) representativeto be elected from each district. [Acts 1901, ch. 122, § 6; Shan.,§ 126a1; Code 1932, § 144; Acts 1957, ch. 220, § 1; 1959, ch. 213,§ 1.]"

"3-106.Joint representatives. -- The followingcounties jointly, shall elect one representative, as follows,to-wit: "

"First district -- Johnson and Carter."

"Second district -- Sullivan and Hawkins."

"Third district -- Washington, Greene and Unicoi."

"Fourth district -- Jefferson and Hamblen."

"Fifth district -- Hancock and Grainer."

"Sixth district -- Scott, Campbell, and Union."

"Seventh district -- Anderson and Morgan."

"Eighth district -- Knox and Loudon. "

Page 369 U. S. 239

"Ninth district -- Polk and Bradley."

"Tenth district -- Meigs and Rhea."

"Eleventh district Cumberland, Bledsoe, Saquatchie, Van Burenand Grundy."

"Twelfth district -- Fentress, Pickett, Overton, Clay andPutnam."

"Fourteenth district -- Sumner, Trousdale and Macon."

"Fifteenth district -- Davidson and Wilson."

"Seventeenth district -- Giles, Lewis, Maury and Wayne."

"Eighteenth district -- Williamson, Cheatham and Robertson."

"Nineteenth district -- Montgomery and Houston."

"Twentieth district -- Humphreys and Perry."

"Twenty-first district -- Benton and Decatur."

"Twenty-second district -- Henry, Weakley and Carroll."

"Twenty-third district -- Madison and Henderson."

"Twenty-sixth district -- Tipton and Lauderdale. [Acts 1901, ch.122, § 7; 1907, ch. 178, §§ 1, 2; 1915, ch. 145, §§ 1, 2; Shan., §127; Acts 1919, ch. 147, § 1; 1925 Private, ch. 472, § 2; Code1932, § 145; Acts 1933, ch. 167, 1; 1935, ch. 150, § 2; 1941, ch.58, § 2; 1945, ch. 68, § 2; C. Supp. 1950, § 145; Acts 1957, ch.220, § 2.]"

"3-107.State senatorial districts. -- Until the nextenumeration and apportionment of voters, the following countiesshall comprise the senatorial districts, to-wit: "

"First district -- Johnson, Carter, Unicoi, Greene, andWashington."

"Second district -- Sullivan and Hawkins."

"Third district -- Hancock, Morgan, Grainer, Claiborne, Union,Campbell, and Scott."

"Fourth district -- Cocke, Hamblen, Jefferson, Sevier, andBlount."

"Fifth district -- Knox."

"Sixth district -- Knox, Loudon, Anderson, and Roane

Page 369 U. S. 240

"

"Seventh district -- McMinn, Bradley, Monroe, and Polk."

"Eighth district -- Hamilton."

"Ninth district -- Rhea, Meigs, Bledsoe, Sequatchie, Van Buren,White, and Cumberland."

"Tenth district -- Fentress, Pickett, Clay, Overton, Putnam, andJackson."

"Eleventh district -- Marion, Franklin, Grundy and Warren."

"Twelfth district -- Rutherford, Cannon, and DeKalb."

"Thirteenth district -- Wilson and Smith."

"Fourteenth district -- Sumner, Trousdale and Macon."

"Fifteenth district -- Montgomery and Robertson."

"Sixteenth district -- Davidson."

"Seventeenth district -- Davidson."

"Eighteenth district -- Bedford, Coffee and Moore."

"Nineteenth district -- Lincoln and Marshall."

"Twentieth district -- Maury, Perry and Lewis."

"Twenty-first district -- Hickman, Williamson and Cheatham."

"Twenty-second district -- Giles, Lawrence and Wayne."

"Twenty-third district -- Dickson, Humphreys, Houston andStewart."

"Twenty-fourth district -- Henry and Carroll."

"Twenty-fifth district -- Madison, Henderson and Chester."

"Twenty-sixth district -- Hardeman, McNairy, Hardin, Decatur andBenton."

"Twenty-seventh district -- Gibson."

"Twenty-eighth district -- Lake, Obion and Weakley."

"Twenty-ninth district -- Dyer, Lauderdale and Crockett."

"Thirtieth district -- Tipton and Shelby."

"Thirty-first district -- Haywood and Fayette."

"Thirty-second district -- Shelby

Page 369 U. S. 241

"

"Thirty-third district -- Shelby. [Acts 1901, ch. 122, § 1;1907, ch. 3, § 1; Shan., § 128; Code 1932, § 146; Acts 1945, ch.11, § 1; C. Supp. 1950, § 146.]"

Today's apportionment statute is as enacted in 1901, with minorchanges. For example:

(1) In 1957, Shelby County was raised from 7 1/2 to 8representatives. Acts of 1957, C. 220.See also Acts of1959, c. 213. The 1957 Act, § 2, abolished the Twenty-seventh JointRepresentative District, which had included Shelby and FayetteCounties.

(2) In 1907, Marion County was given a whole House seat insteadof sharing a joint seat with Franklin County. Acts of 1907, c. 178.Acts of 1915, c. 145, repealed that change, restoring thestatus quo ante. And that reversal was itself reversed,Acts of 1919, c. 147.

(3) James County was in 1901 one of five counties in the SeventhState Senate District and one of the three in the Ninth HouseDistrict. It appears that James County no longer exists, but we arenot advised when or how it was dissolved.

(4) In 1945, Anderson and Roane Counties were shifted to theSixth State Senate District from the Seventh, and Monroe and PolkCounties were shifted to the Seventh from the Sixth. Acts of 1945,c. 11.

MR. JUSTICE DOUGLAS, concurring.

While I join the opinion of the Court and, like the Court, donot reach the merits, a word of explanation is necessary. [Footnote 2/1] I put to one side theproblems of "political"

Page 369 U. S. 242

questions involving the distribution of power between thisCourt, the Congress, and the Chief Executive. We have here a phaseof the recurring problem of the relation of the federal courts tostate agencies. More particularly, the question is the extent towhich a State may weight one person's vote more heavily than itdoes another's.

So far as voting rights are concerned, there are large gaps inthe Constitution. Yet the right to vote is inherent in therepublican form of government envisaged by Article IV, Section 4 ofthe Constitution. The House -- and now the Senate -- are chosen bythe people. The time, manner, and place of elections of Senatorsand Representatives are left to the States (Article I, Section 4,Clause 1; Amendment XVII) subject to the regulatory power ofCongress. A "republican form" of government is guaranteed eachState by Article IV, Section 4, and each is likewise promisedprotection against invasion. [Footnote2/2]Ibid.

Page 369 U. S. 243

That the States may specify the qualifications for voters isimplicit in Article I, Section 2, Clause 1, which provides that theHouse of Representatives shall be chosen by the

Page 369 U. S. 244

people and that

"the Electors (voters) in each State shall have theQualifications requisite for Electors (voters) of the most numerousBranch of the State Legislature."

The same provision, contained in the Seventeenth Amendment,governs the election of Senators. Within limits, thosequalifications may be fixed by state law.See Lassiter v.Northampton Election Board,360 U. S. 45,360 U. S. 50-51.Yet, as stated inEx parte Yarbrough,110 U.S. 651,110 U. S.663-664, those who vote for members of Congress do not"owe their right to vote to the State law in any sense which makesthe exercise of the right to depend exclusively on the law of theState." The power of Congress to prescribe the qualifications forvoters, and thus override state law, is not in issue here. It is,however, clear that, by reason of the commands of the Constitution,there are several qualifications that a State may not require.

Race, color, or previous condition of servitude is animpermissible standard by reason of the Fifteenth Amendment, andthat alone is sufficient to explainGomillion v.Lightfoot,364 U. S. 339.See Taper,Gomillion versus Lightfoot (1962),pp.12-17.

Sex is another impermissible standard by reason of theNineteenth Amendment.

There is a third barrier to a State's freedom in prescribingqualifications of voters, and that is the Equal Protection Clauseof the Fourteenth Amendment, the provision invoked here. And so thequestion is, may a State weight the vote of one county or onedistrict more heavily than it weights the vote in another?

The traditional test under the Equal Protection Clause has beenwhether a State has made "an invidious discrimination," as it doeswhen it selects "a particular race or nationality for oppressivetreatment."See Skinner v. Oklahoma,316 U.S. 535,316 U. S. 541.Universal equality is not

Page 369 U. S. 245

the test; there is room for weighting. As we stated inWilliamson v. Lee Optical Co.,348 U.S. 483,348 U. S. 489,"The prohibition of the Equal Protection Clause goes no furtherthan the invidious discrimination."

I agree with my Brother CLARK that, if the allegations in thecomplaint can be sustained, a case for relief is established. Weare told that a single vote in Moore County, Tennessee, is worth 19votes in Hamilton County, that one vote in Stewart or in ChesterCounty is worth nearly eight times a single vote in Shelby or KnoxCounty. The opportunity to prove that an "invidious discrimination"exists should therefore be given the appellants.

It is said that any decision in cases of this kind is beyond thecompetence of courts. Some make the same point as regards theproblem of equal protection in cases involving racial segregation.Yet the legality of claims and conduct is a traditional subject forjudicial determination. Adjudication is often perplexing andcomplicated. An example of the extreme complexity of the task canbe seen in a decree apportioning water among the several States.Nebraska v. Wyoming,325 U. S. 589,325 U. S. 665. Theconstitutional guide is often vague, as the decisions under the DueProcess and Commerce Clauses show. The problem under the EqualProtection Clause is no more intricate.See Lewis,Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev.1057, 1083-1084.

There are, of course, some questions beyond judicial competence.Where the performance of a "duty" is left to the discretion andgood judgment of an executive officer, the judiciary will notcompel the exercise of his discretion one way or the other(Kentucky v.Dennison, 24 How. 66,65 U. S. 109),for to do so would be to take over the office.Cf. FederalCommunications Comm'n. v. Broadcasting Co.,309 U.S. 134,309 U. S.145.

Page 369 U. S. 246

Where the Constitution assigns a particular function wholly andindivisibly [Footnote 2/3] toanother department, the federal judiciary does not intervene.Oetjen v. Central Leather Co.,246 U.S. 297,246 U. S. 302.None of those cases is relevant here.

Page 369 U. S. 247

There is no doubt that the federal courts have jurisdiction ofcontroversies concerning voting rights. The Civil Rights Act givesthem authority to redress the deprivation "under color of any Statelaw" of any "right, privilege or immunity secured by theConstitution of the United States or by any Act of Congressproviding for equal rights of citizens. . . ." 28 U.S.C. § 1343(3).And 28 U.S.C. § 1343(4) gives the federal courts authority to awarddamages or issue an injunction to redress the violation of "any Actof Congress providing for the protection of civil rights, includingtheright to vote." (Italics added.) The element of stateaction covers a wide range. For, as stated inUnited States v.Classic,313 U. S. 299,313 U. S.326:

"Misuse of power, possessed by virtue of state law and madepossible only because the wrongdoer is clothed with the authorityof state law, is action taken 'under color of' state law."

And see Monroe v. Pape,365 U.S. 167.

The right to vote in both federal and state elections wasprotected by the judiciary long before that right received theexplicit protection it is now accorded by § 1343(4). Discriminationagainst a voter on account of race has been penalized (Ex parteYarbrough,110 U. S. 651) orstruck down.Nixon v. Herndon,273 U.S. 536;Smith v. Allwright,321 U.S. 649;Terry v. Adams,345 U.S. 461. Fraudulent acts that dilute the votes ofsome

Page 369 U. S. 248

have long been held to be within judicial cognizance.Exparte Siebold,100 U. S. 371. The"right to have one's vote counted" whatever his race or nationalityor creed was held inUnited States v. Mosley,238 U.S. 383,238 U. S. 386,to be "as open to protection by Congress as the right to put aballot in a box."See also United States v. Classic,supra,313 U. S.324-325;United States v. Saylor,322 U.S. 385.

Chief Justice Holt stated inAshby v. White, 2 Ld.Raym.938, 956 (a suit in which damages were awarded against electionofficials for not accepting the plaintiff's vote, 3 Ld.Raym. 320)that:

"To allow this action will make publick officers more careful toobserve the constitution of cities and boroughs, and not to be sopartial as they commonly are in all elections, which is indeed agreat and growing mischief, and tends to the prejudice of the peaceof the nation."

The same prophylactic effect will be produced here, asentrenched political regimes make other relief as illusory in thiscase as a petition to Parliament inAshby v. White wouldhave been. [Footnote 2/4]

Page 369 U. S. 249

Intrusion of the Federal Government into the election machineryof the States has taken numerous forms -- investigations(Hannah v. Larche,363 U. S. 420);criminal proceedings (Ex parte Siebold, supra; Ex parteYarbrough, supra; United States v. Mosley, supra; United States v.Classic, supra); collection of penalties (Smith v.Allwright, supra); suits for declaratory relief and for aninjunction (Terry v. Adams, supra); suits by the UnitedStates under the Civil Rights Act to enjoin discriminatorypractices.United States v. Raines,362 U. S.17.

As stated by Judge McLaughlin inDyer v. KazuhisaAbe, 138 F.Supp. 220, 236 (an apportionment case in Hawaii which wasreversed and dismissed as moot, 256 F.2d 728):

"The whole thrust of today's legal climate is to endunconstitutional discrimination. It is ludicrous to precludejudicial relief when a mainspring of representative government isimpaired. Legislators have no immunity from the Constitution. Thelegislatures of our land should be made as responsive to theConstitution of the United States as are the citizens who elect thelegislators."

With the exceptions ofColegrove v. Green,328 U.S. 549;MacDougall v. Green,335 U.S. 281;South v. Peters,339 U.S. 276, and the decisions they spawned, the Court hasnever thought that protection of voting rights

Page 369 U. S. 250

was beyond judicial cognizance. Today's treatment of those casesremoves the only impediment to judicial cognizance of the claimsstated in the present complaint.

The justiciability of the present claims being established, anyrelief accorded can be fashioned in the light of well knownprinciples of equity. [Footnote2/5]

Page 369 U. S. 251

[Footnote 2/1]

I feel strongly that many of the cases cited by the Court andinvolving so-called "political" questions were wrongly decided.

In joining the opinion, I do not approve those decisions, butonly construe the Court's opinion in this case as stating anaccurate historical account of what the prior cases have held.

[Footnote 2/2]

The statements inLuther v.Borden, 7 How. 1,48 U. S. 42, thatthis guaranty is enforceable only by Congress or the ChiefExecutive is not maintainable. Of course, the Chief Executive, notthe Court, determines how a State will be protected againstinvasion. Of course, each House of Congress, not the Court, is "theJudge of the Elections, Returns, and Qualifications of its ownMembers." Article I, Section 5, Clause 1. But the abdication of alljudicial functions respecting voting rights (7 How. at48 U. S. 41),however justified by the peculiarities of the charter form ofgovernment in Rhode Island at the time of Dorr's Rebellion, statesno general principle. It indeed is contrary to the cases discussedin the body of this opinion -- the modern decisions of the Courtthat give the full panoply of judicial protection to voting rights.Today we would not say with Chief Justice Taney that it is no partof the judicial function to protect the right to vote of those "towhom it is denied by the written and established constitution andlaws of the State."Ibid.

Moreover, the Court's refusal to examine the legality of theregime of martial law which had been laid upon Rhode Island(id. at48 U. S. 45-46) isindefensible, as Mr. Justice Woodbury maintained in his dissent.Id. at48 U. S. 59etseq. Today we would ask with him:

". . . who could hold for a moment, when the writ of habeascorpus cannot be suspended by the legislature itself, either in thegeneral government or most of the States, without an expressconstitutional permission, that all other writs and laws could besuspended, and martial law substituted for them over the wholeState or country, without any express constitutional license tothat effect, in any emergency?"

Id. at48 U. S. 67.

Justice Woodbury went on to say:

"It would be alarming enough to sanction here an unlimitedpower, exercised either by legislatures, or the executive, orcourts, when all our governments are themselves governments oflimitations and checks, and of fixed and known laws, and the peoplea race above all others jealous of encroachments by those in power.And it is far better that those persons should be without theprotection of the ordinary laws of the land who disregard them inan emergency, and should look to a grateful country for indemnityand pardon, than to allow, beforehand, the whole frame ofjurisprudence to be overturned, and every thing placed at the mercyof the bayonet."

"No tribunal or department in our system of governments ever canbe lawfully authorized to dispense with the laws, like some of thetyrannical Stuarts, or to repeal, or abolish, or suspend the wholebody of them; or, in other words, appoint an unrestrained militarydictator at the head of armed men."

"Whatever stretches of such power may be ventured on in greatcrises, they cannot be upheld by the laws, as they prostrate thelaws and ride triumphant over and beyond them, however the Assemblyof Rhode Island, under the exigency, may have hastily supposed thatsuch a measure in this instance was constitutional. It is but abranch of the omnipotence claimed by Parliament to pass bills ofattainder, belonging to the same dangerous and arbitrary familywith martial law."

Id. at48 U. S.69-70.

What he wrote was later to become the tradition, as expressed byChief Justice Hughes inSterling v. Constantin,287 U. S. 378,287 U. S.401:

"What are the allowable limits of military discretion, andwhether or not they have been overstepped in a particular case, arejudicial questions."

[Footnote 2/3]

The category of the "political" question is, in my view,narrower than the decided cases indicate.

"Even the English courts have held that a resolution of oneHouse of Parliament does not change the law (Stockdale v.Hansard (1839), 9 A. & E. 1, andBowles v. Bank ofEngland (No. 2) [1913] 1 Ch. 57), and these decisions implythat the House of Commons, acting alone, does not constitute the'Parliament' recognised by the English courts."

103 Sol.Jour. 995, 996. The Court inBowles v. Bank ofEngland, [1913] 1 Ch. 57, 84-85, stated:

"By the statute 1 W. & M., usually known as the Bill ofRights, it was finally settled that there could be no taxation inthis country except under authority of an Act of Parliament. TheBill of Rights still remains unrepealed, and no practice or custom,however prolonged, or however acquiesced in on the part of thesubject, can be relied on by the Crown as justifying anyinfringement of its provisions. It follows that, with regard to thepowers of the Crown to levy taxation, no resolution, either of theCommittee for Ways and Means or of the House itself, has any legaleffect whatever. Such resolutions are necessitated by aparliamentary procedure adopted with a view to the protection ofthe subject against the hasty imposition of taxes, and it would bestrange to find them relied on as justifying the Crown in levying atax before such tax is actually imposed by Act of Parliament."

InThe Pocket Veto Case,279 U.S. 655, the Court undertook a review of the vetoprovisions of the Constitution and concluded that the measure inlitigation had not become a law.Cf. Coleman v. Miller,307 U. S. 433.

Georgia v.Stanton, 6 Wall. 50, involved the application ofthe Reconstruction Acts to Georgia -- laws which destroyed by forcethe internal regime of that State. Yet the Court refused to takejurisdiction. That question was no more "political" than a host ofothers we have entertained.See, e.g., Pennsylvania v. WestVirginia,262 U. S. 553;Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579;Alabama v. Texas,347 U.S. 272.

Today would this Court hold nonjusticiable or "political" a suitto enjoin a Governor who, like Fidel Castro, takes everything intohis own hands and suspends all election laws?

Georgia v. Stanton, supra, expresses a philosophy atwar withEx parteMilligan, 4 Wall. 2, andDuncan v.Kahanamoku,327 U. S. 304. Thedominance of the civilian authority has been expressed from thebeginning.SeeWise v.Withers, 3 Cranch 331,7U. S. 337;Sterling v. Constantin, supra,369U.S. 186fn2/2|>note 2.

[Footnote 2/4]

We are told by the National Institute of Municipal Law Officersin anamicus brief:

"Regardless of the fact that, in the last two decades, theUnited States has become a predominantly urban country where wellover two-thirds of the population now lives in cities or suburbs,political representation in the majority of state legislatures is50 or more years behind the times. Apportionments made when thegreater part of the population was located in rural communities arestill determining and undermining our elections."

"As a consequence, the municipality of 1960 is forced tofunction in a horse and buggy environment where there is littlepolitical recognition of the heavy demands of an urban population.These demands will become even greater by 1970, when some 150million people will be living in urban areas."

"The National Institute of Municipal Law Officers has for manyyears recognized the widespread complaint that, by far the greatestpreponderance of state representatives and senators are from ruralareas which, in the main, fail to become vitally interested in theincreasing difficulties now facing urban administrators."

"Since World War II, the explosion in city and suburbanpopulation has created intense local problems in education,transportation, and housing. Adequate handling of these problemshas not been possible to a large extent, due chiefly to thepolitical weakness of municipalities. This situation is directlyattributable to considerable underrepresentation of cities in thelegislatures of most states."

Amicus brief, pp. 2-3.

[Footnote 2/5]

The recent ruling by the Iowa Supreme Court that a legislature,though elected under an unfair apportionment scheme, is nonethelessa legislature empowered to act (Cedar Rapids v. Cox, 252Iowa 948, 964,108 N.W.2d 253,262-263;cf. Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d40) is plainly correct.

There need be no fear of a more disastrous collision betweenfederal and state agencies here than where a federal court enjoinsgerrymandering based on racial lines.See Gomillion v.Lightfoot, supra.

The District Court need not undertake a completereapportionment. It might possibly achieve the goal of substantialequality merely by directing respondent to eliminate the egregiousinjustices. Or its conclusion that reapportionment should be mademay, in itself, stimulate legislative action. That was the resultinAsbury Park Press v. Woolley, 33 N.J. 1,161A.2d 705, where the state court ruled it had jurisdiction:

"If, by reason of passage of time and changing conditions, thereapportionment statute no longer serves its original purpose ofsecuring to the voter the full constitutional value of hisfranchise, and the legislative branch fails to take appropriaterestorative action, the doors of the courts must be open to him.The lawmaking body cannot, by inaction, alter the constitutionalsystem under which it has its own existence."

33 N.J. at 14, 161 A.2d at 711. The court withheld its decisionon the merits in order that the legislature might have anopportunity to consider adoption of a reapportionment act. For thesequelsee Application of Lamb, 67 N.J.Super. 39, 46-47,169 A.2d 822, 825-826.

Reapportionment was also the result inMagraw v.Donovan, 159 F.Supp. 901, where a federal three-judge District Court tookjurisdiction, saying,163 F.Supp. 184, 187:

"Here it is the unmistakable duty of the State Legislature toreapportion itself periodically in accordance with recentpopulation changes. . . . Early in January, 1959, the 61st Sessionof the Minnesota Legislature will convene, all of the members ofwhich will be newly elected on November 4th of this year. The factswhich have been presented to us will be available to them. It isnot to be presumed that the Legislature will refuse to take suchaction as is necessary to comply with its duty under the StateConstitution. We defer decision on all the issues presented(including that of the power of this Court to grant relief) inorder to afford the Legislature full opportunity to 'heed theconstitutional mandate to redistrict.'"

See 177 F.Supp. 803, where the case was dismissed as moot, the StateLegislature having acted.

MR. JUSTICE CLARK, concurring.

One emerging from the rash of opinions with their accompanyingclashing of views may well find himself suffering a mentalblindness. The Court holds that the appellants have alleged a causeof action. However, it refuses to award relief here -- although thefacts are undisputed -- and fails to give the District Court anyguidance whatever. One dissenting opinion, bursting with words thatgo through so much and conclude with so little, contemns themajority action as "a massive repudiation of the experience of ourwhole past." Another describes the complaint as merely assertingconclusory allegations that Tennessee's apportionment is"incorrect," "arbitrary," "obsolete," and "unconstitutional." Ibelieve it can be shown that this case is distinguishable fromearlier cases dealing with the distribution of political power by aState, that a patent violation of the Equal Protection Clause ofthe United States Constitution has been shown, and that anappropriate remedy may be formulated.

II take the law of the case fromMacDougall v. Green,335 U. S. 281(1948), which involved an attack under the Equal Protection Clauseupon an Illinois election statute. The Court decided that case onits merits without hindrance from the "political question"doctrine. Although the statute under attack was upheld, it isclear

Page 369 U. S. 252

that the Court based its decision upon the determination thatthe statute represented a rational state policy. It stated:

"It would be strange indeed, and doctrinaire, for this Court,applying such broad constitutional concepts as due process andequal protection of the laws, to deny a State the power to assure aproper diffusion of political initiative as between its thinlypopulated counties and those having concentrated masses,inview of the fact that the latter have practical opportunities forexerting their political weight at the polls not available to theformer."

Id. at335 U. S. 284.(Emphasis supplied.)

The other cases upon which my Brethren dwell are alldistinguishable or inapposite. The widely heralded case ofColegrove v. Green,328 U. S. 549(1946), was one not only in which the Court was bobtailed, but inwhich there was no majority opinion. Indeed, even the "politicalquestion point" in MR. JUSTICE FRANKFURTER's opinion was no morethan an alternative ground. [Footnote3/1] Moreover, the appellants did not present an equalprotection argument. [Footnote 3/2]While it has served as a Mother Hubbard to most of the subsequentcases, I feel it was in that respect ill-cast, and, for all ofthese reasons, put it to one side. [Footnote 3/3] Likewise,

Page 369 U. S. 253

I do not consider the Guaranty Clause cases based on Art. I, 4,of the Constitution, because it is not invoked here and it involvesdifferent criteria, as the Court's opinion indicates. Cases restingon various other considerations not present here, such asRadford v. Gary, 352 U.S. 991 (1957) (lack of equity);Kidd v. McCanless, 352 U.S. 920 (1956) (adequate stategrounds supporting the state judgment);Anderson v.Jordan, 343 U.S. 912 (1952) (adequate state grounds);Remmey v. Smith, 342 U.S. 916 (1952) (failure to exhauststate procedures), are, of course, not controlling. Finally, theGeorgia county unit system cases, such asSouth v. Peters,339 U. S. 276(1950), reflect the viewpoint ofMacDougall, i.e., torefrain from intervening where there is some rational policy behindthe State's system. [Footnote3/4]

IIThe controlling facts cannot be disputed. It appears from therecord that 37% of the voters of Tennessee elect 20 of the 33Senators, while 40% of the voters elect 63 of the 99 members of theHouse. But this might not, on its face, be an "invidiousdiscrimination,"Williamson v. Lee Optical of Oklahoma,348 U. S. 483,348 U. S. 489(1955), for a "statutory discrimination will not be set aside ifany state of facts reasonably may be conceived to justify it."McGowan v. Maryland,366 U. S. 420,366 U. S. 426(1961).

It is true that the apportionment policy incorporated inTennessee's Constitution,i.e., statewide numericalequality of representation with certain minor qualifications,[Footnote 3/5] is a rational one.On a county-by-county comparison

Page 369 U. S. 254

a districting plan based thereon naturally will have disparitiesin representation due to the qualifications. But this, to my mind,does not raise constitutional problems, for the overall policy isreasonable. However, the root of the trouble is not in Tennessee'sConstitution, for admittedly its policy has not been followed. Thediscrimination lies in the action of Tennessee's Assembly inallocating legislative seats to counties or districts created byit. Try as one may, Tennessee's apportionment just cannot be madeto fit the pattern cut by its Constitution. This was the finding ofthe District Court. The policy of the Constitution referred to bythe dissenters, therefore, is of no relevance here. We must examinewhat the Assembly has done. [Footnote3/6] The frequency and magnitude of the inequalities in thepresent districting admit of no policy whatever. An examination ofTable I accompanying this opinion,post, p.369 U.S. 262, conclusively reveals thatthe apportionment picture in Tennessee is a topsy-turvical ofgigantic proportions. This is not to say that some of the disparitycannot be explained, but, when the entire table is examined --comparing the voting strength of counties of like population aswell as contrasting that of the smaller with the larger counties --it leaves but one conclusion, namely that Tennessee's apportionmentis a crazy quilt without rational basis. At the risk of beingaccused of picking out a few of the horribles I shall allude to aseries of examples that are taken from Table I.

As is admitted, there is a wide disparity of voting strengthbetween the large and small counties. Some

Page 369 U. S. 255

samples are: Moore County has a total representation of two[Footnote 3/7] with a population(2,340) of only one-eleventh of Rutherford County (25,316) with thesame representation; Decatur County (5,563) has the samerepresentation as Carter (23,303) though the latter has four timesthe population; likewise, Loudon County (13,264), Houston (3,084),and Anderson County (33,990) have the same representation,i.e., 1.25 each. But it is said that, in this illustrationall of the underrepresented counties contain municipalities of over10,000 population, and they therefore should be included under the"urban" classification, rationalizing this disparity as an attemptto effect a rural-urban political balance. But in so doing, one iscaught up in the backlash of his own bull whip, for many countieshave municipalities with a population exceeding 10,000, yet thesame invidious discrimination is present. For example:

County Population Representation

Carter. . . . . . . . . . . . . . 23,303 1.10

Maury . . . . . . . . . . . . . . 24,556 2.25

Washington. . . . . . . . . . . . 36,967 1.93

Madison . . . . . . . . . . . . . 37,245 3.50

Page 369 U. S. 256

Likewise, counties with no municipality of over 10,000 suffer asimilar discrimination:

County Population Representation

Grundy. . . . . . . . . . . . . . 6,540 O.95

Chester . . . . . . . . . . . . . 6,391 2.00

Cumberland. . . . . . . . . . . . 9,593 O.63

Crockett. . . . . . . . . . . . . 9,676 2.00

Loudon. . . . . . . . . . . . . . 13,264 1.25

Fayette. . . . . . . . . . . . . . 13,577 2.50

This could not be an effort to attain political balance betweenrural and urban populations. Since discrimination is present amongcounties of like population, the plan is neither consistent norrational. It discriminates horizontally creating gross disparitiesbetween rural areas themselves as well as between urban areasthemselves, [Footnote 3/8] stillmaintaining the wide vertical disparity already pointed out betweenrural and urban.

It is also insisted that the representation formula used above(see369U.S. 186fn3/7|>n. 7) is "patently deficient" because "iteliminates from consideration the relative voting power of thecounties that are joined together in a single election district."This is a strange claim coming from those who rely on theproposition that "the voice of every voter" need not have"approximate equality." Indeed, representative government, as theysay, is not necessarily one of "bare numbers." The use of floterialdistricts in our political system is not ordinarily based on thetheory that the floterial representative is splintered among thecounties of his district per relative population. His function isto represent the whole district. However, I shall meet the chargeon its own ground and by use of its "adjusted

Page 369 U. S. 257

total representation'" formula show that the presentapportionment is loco. For example, compare some "urban" areas oflike population, using the HARLAN formula:

County Population Representation

Washington. . . . . . . . . . . . 36,967 2.65

Madison . . . . . . . . . . . . . 37,245 4.87

Carter. . . . . . . . . . . . . . 23,303 1.48

Greene. . . . . . . . . . . . . . 23,649 2.05

Maury . . . . . . . . . . . . . . 24,556 3.81

Coffee. . . . . . . . . . . . . . 13,406 2.32

Hamblen . . . . . . . . . . . . . 14,090 1.07

And now, using the same formula, compare some so-called "rural"areas of like population:

County Population Representation

Moore . . . . . . . . . . . . . . 2,340 1.23

Pickett . . . . . . . . . . . . . 2,565 .22

Stewart . . . . . . . . . . . . . 5,238 1.60

Cheatham. . . . . . . . . . . . . 5,263 .74

Chester . . . . . . . . . . . . . 6,391 1.36

Grundy. . . . . . . . . . . . . . 6,540 .69

Smith . . . . . . . . . . . . . . 8,731 2.04

Unicoi. . . . . . . . . . . . . . 8,787 .40

And for counties with similar representation but with grossdifferences in population, take:

County Population Representation

Sullivan. . . . . . . . . . . . . 55,712 4.07

Maury . . . . . . . . . . . . . . 24,556 3.81

Blount. . . . . . . . . . . . . . 30,353 2.12

Coffee. . . . . . . . . . . . . . 13,406 2.32

These cannot be "distorted effects," for here the same formulaproposed by the dissenters is used and the result is even "acrazier" quilt.

Page 369 U. S. 258

The truth is that -- although this case has been here for twoyears and has had over six hours' argument (three times theordinary case) and has been most carefully considered over and overagain by us in Conference and individually -- no one, not even theState nor the dissenters, has come up with any rational basis forTennessee's apportionment statute.

No one -- except the dissenters advocating the HARLAN "adjustedtotal representation'" formula -- contends that mathematicalequality among voters is required by the Equal Protection Clause.But certainly there must be some rational design to a State'sdistricting. The discrimination here does not fit any pattern -- asI have said, it is but a crazy quilt. My Brother HARLAN contendsthat other proposed apportionment plans contain disparities.Instead of chasing those rabbits, he should first pause long enoughto meet appellants' proof of discrimination by showing that, infact, the present plan follows a rational policy. Not being able todo this, he merely counters with such generalities as "classiclegislative judgment," no "significant discrepancy," and "deminimis departures." I submit that even a casual glance at thepresent apportionment picture shows these conclusions to beentirely fanciful. If present representation has a policy at all,it is to maintain thestatus quo of invidiousdiscrimination at any cost. Like the District Court, I concludethat appellants have met the burden of showing "Tennessee is guiltyof a clear violation of the state constitution and of the [federal]rights of the plaintiffs. . . ."

IIIAlthough I find the Tennessee apportionment statute offends theEqual Protection Clause, I would not consider intervention by thisCourt into so delicate a field if there were any other reliefavailable to the people of Tennessee. But the majority of thepeople of Tennessee have no

Page 369 U. S. 259

"practical opportunities for exerting their political weight atthe polls" to correct the existing "invidious discrimination."Tennessee has no initiative and referendum. I have searcheddiligently for other "practical opportunities" present under thelaw. I find none other than through the federal courts. Themajority of the voters have been caught up in a legislative straitjacket. Tennessee has an "informed, civically militant electorate"and "an aroused popular conscience," but it does not sear "theconscience of the people's representatives." This is because thelegislative policy has riveted the present seats in the Assembly totheir respective constituencies, and by the votes of theirincumbents a reapportionment of any kind is prevented. The peoplehave been rebuffed at the hands of the Assembly; they have triedthe constitutional convention route, but since the call mustoriginate in the Assembly it, too, has been fruitless. They havetried Tennessee courts with the same result, [Footnote 3/9] and Governors have fought the tide only toflounder. It is said that there is recourse in Congress, andperhaps that may be, but, from a practical standpoint, this iswithout substance. To date, Congress has never undertaken such atask in any State. We therefore must conclude that the people ofTennessee are stymied, and, without judicial intervention, will besaddled with the present discrimination in the affairs of theirstate government.

IVFinally, we must consider if there are any appropriate modes ofeffective judicial relief. The federal courts are, of course, notforums for political debate, nor should they

Page 369 U. S. 260

resolve themselves into state constitutional conventions orlegislative assemblies. Nor should their jurisdiction be exercisedin the hope that such a declaration as is made today may have thedirect effect of bringing on legislative action and relieving thecourts of the problem of fashioning relief. To my mind, this wouldbe nothing less than blackjacking the Assembly into reapportioningthe State. If judicial competence were lacking to fashion aneffective decree, I would dismiss this appeal. However, like theSolicitor General of the United States, I see no such difficulty inthe position of this case. One plan might be to start with theexisting assembly districts, consolidate some of them, and awardthe seats thus released to those counties suffering the mostegregious discrimination. Other possibilities are present, andmight be more effective. But the plan here suggested would at leastrelease the strangle hold now on the Assembly and permit it toredistrict itself.

In this regard, the appellants have proposed a plan based on therationale of statewide equal representation. Not believing thatnumerical equality of representation throughout a State isconstitutionally required, I would not apply such a standard,albeit a permissive one. Nevertheless, the dissenters attack it bythe application of the HARLAN "adjustedtotal representation'"formula. The result is that some isolated inequalities are shown,but this, in itself, does not make the proposed plan irrational, orplace it in the "crazy quilt" category. Such inequalities, as thedissenters point out in attempting to support the presentapportionment as rational, are explainable. Moreover, there is norequirement that any plan have mathematical exactness in itsapplication. Only where, as here, the total picture revealsincommensurables of both magnitude and frequency can it be saidthat there is present an invidious discrimination.

Page 369 U. S.261

In view of the detailed study that the Court has given thisproblem, it is unfortunate that a decision is not reached on themerits. The majority appears to hold, at leastsubsilentio, that an invidious discrimination is present, but itremands to the three-judge court for it to make what is certain tobe that formal determination. It is true that Tennessee has notfiled a formal answer. However, it has filed voluminous papers andmade extended arguments supporting its position. At no time has itbeen able to contradict the appellants' factual claims; it hasoffered no rational explanation for the present apportionment;indeed, it has indicated that there are none known to it. As I haveemphasized, the case proceeded to the point before the three-judgecourt that it was able to find an invidious discriminationfactually present, and the State has not contested that holdinghere. In view of all this background, I doubt if anything more canbe offered or will be gained by the State on remand, other thantime. Nevertheless, not being able to muster a court to dispose ofthe case on the merits, I concur in the opinion of the majority andacquiesce in the decision to remand. However, in fairness, I dothink that Tennessee is entitled to have my idea of what it faceson the record before us, and the trial court some light as to howit might proceed.

As John Rutledge (later Chief Justice) said 175 years ago in thecourse of the Constitutional Convention, a chief function of theCourt is to secure the national rights. [Footnote 3/10] Its decision today supports theproposition for which our forebears fought and many died, namelythat, to be fully conformable to the principle of right, the formof government must be representative. [Footnote 3/11] That is the keystone upon which ourgovernment was founded

Page 369 U. S. 262

and lacking which no republic can survive. It is well for thisCourt to practice self-restraint and discipline in constitutionaladjudication, but never in its history have those principlesreceived sanction where the national rights of so many have been soclearly infringed for so long a time. National respect for thecourts is more enhanced through the forthright enforcement of thoserights, rather than by rendering them nugatory through theinterposition of subterfuges. In my view, the ultimate decisiontoday is in the greatest tradition of this Court.

TABLE I

bwm:

Present to Proposed to

Present total tal repre- tal represen-

representation sentation tation (appel-

using using J. lants' plan),

1950 voting J. Clark's Harlan's using J. Har-

County population formula formula lan's formula

Van Buren. . . . . 2,039 .63 .23 .11

Moore. . . . . . . 2,340 2.00 1.23 .18

Pickett. . . . . . 2,565 .70 .22 .24

Sequatchie. . . . 2,904 .63 .33 .19

Meigs. . . . . . . 3,039 .93 .48 .17

Houston. . . . . . 3,084 1.25 .46 .24

Trousdale. . . . . 3,351 1.33 .43 .12

Lewis. . . . . . . 3,413 1.25 .39 .25

Perry. . . . . . . 3,711 1.50 .71 .40

Bledsoe. . . . . . 4,198 .63 .49 .24

Clay . . . . . . . 4,528 .70 .40 .42

Union. . . . . . . 4,600 .76 .37 .45

Hancock. . . . . . 4,710 .93 .62 .49

Stewart. . . . . . 5,238 1.75 1.60 .41

Cheatham . . . . . 5,263 1.33 .72 .20

Cannon . . . . . . 5,341 2.00 1.43 .52

Decatur. . . . . . 5,563 1.10 .79 .52

Lake . . . . . . . 6,252 2.00 1.44 .41

Chester. . . . . . 6,391 2.00 1.36 .19

Grundy . . . . . . 6,540 .95 .69 .43

Humphreys. . . . . 6,588 1.25 1.39 .72

Johnson. . . . . . 6,649 1.10 .42 .43

Page 369 U. S. 263

Jackson. . . . . . 6,719 1.50 1.43 .63

De Kalb. . . . . . 6,984 2.00 1.56 .68

Benton . . . . . . 7,023 1.10 1.01 .66

Fentress . . . . . 7,057 .70 .62 .64

Grainer. . . . . . 7, 125 .93 .94 .65

Wayne. . . . . . . 7, 176 1.25 .69 .76

Polk . . . . . . . 7,330 1.25 .68 .73

Hickman. . . . . . 7,598 2.00 1.85 .80

Macon. . . . . . . 7,974 1.33 1.01 .61

Morgan . . . . . . 8,308 .93 .59 .75

Scott. . . . . . . 8,417 .76 .68 .62

Smith. . . . . . . 8,731 2.50 2.04 .67

Unicoi . . . . . . 8,787 .93 .40 .63

Rhea . . . . . . . 8,937 .93 1.42 .21

White. . . . . . . 9,244 1.43 1.69 .90

Overton. . . . . . 9,474 1.70 1.83 .89

Harding. . . . . . 9,577 1.60 1.61 .93

Cumberland . . . . 9,593 .63 1.10 .87

Crockett . . . . . 9,676 2.00 1.66 .63

Henderson. . . . . 10,199 1.50 .78 .96

Marion . . . . . . 10,998 1.75 1.73 .72

Marshall . . . . . 11,288 2.50 2.28 .84

Dickson. . . . . . 11,294 1.75 2.29 1.23

Jefferson. . . . . 11,359 1.10 .87 1.03

McNairy. . . . . . 11,601 1.60 1.74 1.13

Cocke. . . . . . . 12,572 1.60 1.46 .89

Sevier . . . . . . 12,793 1.60 1.47 .69

Claiborne. . . . . 12,799 1.43 1.61 .34

Monroe . . . . . . 12,884 1.75 1.68 1.30

Loudon . . . . . . 13,264 1.25 .28 .52

Warren . . . . . . 13,337 1.75 1.89 1.68

Coffee . . . . . . 13,406 2.00 2.32 1.68

Hardeman . . . . . 13,565 1.60 1.86 1.11

Fayette. . . . . . 13,577 2.50 2.48 1.11

Haywood. . . . . . 13,934 2.50 2.52 1.69

Williamson . . . . 14,064 2.33 2.96 1.71

Page 369 U. S. 264

Hamblen. . . . . . 14,090 1.10 1.07 1.67

Franklin . . . . . 14,297 1.75 1.95 1.73

Lauderdale . . . . 14,413 2.50 2.45 1.73

Bedford. . . . . . 14,732 2.00 1.45 1.74

Lincoln. . . . . . 15,092 2.50 2.72 1.77

Henry. . . . . . . 15,465 2.83 2.76 1.73

Lawrence . . . . . 15,847 2.00 2.22 1.81

Giles. . . . . . . 15,935 2.25 2.54 1.81

Tipton . . . . . . 15,944 3.00 1.68 1.13

Robertson. . . . . 16,456 2.83 2.62 1.85

Wilson . . . . . . 16,459 3.00 3.03 1.21

Carroll. . . . . . 16,472 2.83 2.88 1.82

Hawkins. . . . . . 16,900 3.00 1.93 1.82

Putnam . . . . . . 17,071 1.70 2.50 1.86

Campbell . . . . . 17,477 .76 1.40 1.94

Roane. . . . . . . 17,639 1.75 1.26 1.30

Weakley. . . . . . 18,007 2.33 2.63 1.85

Bradley. . . . . . 18,273 1.25 1.67 1.92

McMinn . . . . . . 18,347 1.75 1.97 1.92

Obion. . . . . . . 18,434 2.00 2.30 1.94

Dyer . . . . . . . 20,062 2.00 2.36 2.32

Sumner . . . . . . 20,143 2.33 3.56 2.54

Carter . . . . . . 23,303 1.10 1.48 2.55

Greene . . . . . . 23,649 1.93 2.05 2.68

Maury. . . . . . . 24,556 2.25 3.81 2.85

Rutherford . . . . 25,316 2.00 3.02 2.39

Montgomery . . . . 26,284 3.00 3.73 3.06

Gibson . . . . . . 29,832 5.00 5.00 2.86

Blount . . . . . . 30,353 1.60 2.12 2.19

Anderson . . . . . 33,990 1.25 1.30 3.62

Washington . . . . 36,967 1.93 2.65 3.45

Madison. . . . . . 37,245 3.50 4.87 3.69

Sullivan . . . . . 55,712 3.00 4.07 5.57

Hamilton . . . . . 131,971 6.00 6.00 15.09

Knox . . . . . . . 140,559 7.25 8.96 15.21

Davidson . . . . . 211,930 12.50 12.93 21.57

Shelby . . . . . . 312,345 15.50 16.85 31.59

Page 369 U. S. 265

ewm:

[Footnote 3/1]

The opinion stated at 551 that the Court "could also dispose ofthis case on the authority ofWood v. Broom [287 U.S. 1(1932)]."Wood v. Broom involved only the interpretationof a congressional reapportionment Act.

[Footnote 3/2]

Similarly, the Equal Protection Clause was not invoked inTedesco v. Board of Supervisors, 339 U.S. 940 (1950).

[Footnote 3/3]

I do not read the later case ofColegrove v. Barrett,330 U.S. 804 (1947), as having rejected the equal protectionargument adopted here. That was merely a dismissal of an appealwhere the equal protection point was mentioned along with attacksunder three other constitutional provisions, two congressionalActs, and three state constitutional provisions.

[Footnote 3/4]

Georgia based its election system on a consistent combination ofpolitical units and population, giving six unit votes to the eightmost populous counties, four unit votes to the 30 counties next inpopulation, and two unit votes to each of the remainingcounties.

[Footnote 3/5]

See Part I of the Appendix to MR. JUSTICE HARLAN'sdissent,post, p.369U.S. 341.

[Footnote 3/6]

It is suggested that the districting is not unconstitutionalsince it was established by a statute that was constitutional whenpassed some 60 years ago. But many Assembly Sessions since thattime have deliberately refused to change the original act, and, inany event, "[a] statute [constitutionally] valid when enacted maybecome invalid by change in the conditions to which it is applied."Nashville, C. & St.L. R. Co. v. Walters,294 U.S. 405,294 U. S. 415(1935).

[Footnote 3/7]

"Total representation" indicates the combined representation inthe State Senate (33 members) and the State House ofRepresentatives (99 members) in the Assembly of Tennessee. Assuminga county has one representative, it is credited in this calculationwith 1/99. Likewise, if the same county has one-third of a senateseat, it is credited with another 1/99, and thus such a county, inour calculation, would have a "total representation" of two; if acounty has one representative and one-sixth of a senate seat, it iscredited with 1.5/99, or 1.50. It is this last figure that I usehere in an effort to make the comparisons clear. The 1950, ratherthan the 1960 census of voting population, is used to avoid thecharge that use of 1960 tabulations might not have allowedsufficient time for the State to act. However, the 1960 picture iseven more irrational than the 1950 one.

[Footnote 3/8]

Of course, this was not the case in the Georgia county unitsystem,South v. Peters, supra, or the Illinois initiativeplan,MacDougall v. Green, supra, where recognizedpolitical units having independent significance were given minimumpolitical weight.

[Footnote 3/9]

It is interesting to note that state judges often rest theirdecisions on the ground that this Court has precluded adjudicationof the federal claim.See, e.g., Scholle v. Secretary ofState, 360 Mich. 1,104 N.W.2d63 (1960).

[Footnote 3/10]

1 Farrand, The Records of the Federal Convention of 1787,124.

[Footnote 3/11]

Kant, Perpetual Peace.

MR. JUSTICE STEWART, concurring.

The separate writings of my dissenting and concurring Brothersstray so far from the subject of today's decision as to convey, Ithink, a distressingly inaccurate impression of what the Courtdecides. For that reason, I think it appropriate, in joining theopinion of the Court, to emphasize in a few words what the opiniondoes and does not say.

The Court today decides three things, and no more:

"(a) that the court possessed jurisdiction of the subjectmatter; (b) that a justiciable cause of action is stated upon whichappellants would be entitled to appropriate relief, and (c). . .that the appellants have standing to challenge the Tennesseeapportionment statutes."

Ante, pp.369 U. S.197-198.

The complaint in this case asserts that Tennessee's system ofapportionment is utterly arbitrary -- without any possiblejustification in rationality. The District Court did not reach themerits of that claim, and this Court quite properly expresses noview on the subject. Contrary to the suggestion of my BrotherHARLAN, the Court does not say or imply that "state legislaturesmust be so structured as to reflect with approximate equality thevoice of every voter."Post, p.369 U.S. 332. The Court does not say orimply that there is anything in the Federal Constitution

"to prevent a State, acting not irrationally, from choosing anyelectoral legislative structure it thinks best suited to theinterests, temper, and customs of its people."

Post p.369 U.S.334. And, contrary to the suggestion of my Brother DOUGLAS,the Court most assuredly does not decide the question, "may a Stateweight the vote of one county or one district more heavily than itweights the vote in another?"Ante, p.369 U.S. 244.

InMacDougall v. Green,335 U.S. 281, the Court held that the Equal Protection Clausedoes not

"deny a State the power to assure a proper diffusion ofpolitical initiative

Page 369 U. S. 266

as between its thinly populated counties and those havingconcentrated masses, in view of the fact that the latter havepractical opportunities for exerting their political weight at thepolls not available to the former."

335 U.S. at335 U. S. 284.In case after case arising under the Equal Protection Clause, theCourt has said what it said again only last Term -- that

"the Fourteenth Amendment permits the States a wide scope ofdiscretion in enacting laws which affect some groups of citizensdifferently than others."

McGowan v. Maryland,366 U. S. 420,366 U. S. 425.In case after case arising under that Clause, we have also saidthat "the burden of establishing the unconstitutionality of astatute rests on him who assails it."Metropolitan CasualtyIns. Co. v. Brownell,294 U. S. 580,294 U. S.584.

Today's decision does not turn its back on these settledprecedents. I repeat, the Court today decides only: (1) that theDistrict Court possessed jurisdiction of the subject matter; (2)that the complaint presents a justiciable controversy; (3) that theappellants have standing. My Brother CLARK has made a convincingprima facie showing that Tennessee's system ofapportionment is, in fact, utterly arbitrary -- without anypossible justification in rationality. My Brother HARLAN has, withimagination and ingenuity, hypothesized possibly rational bases forTennessee's system. But the merits of this case are not before usnow. The defendants have not yet had an opportunity to be heard indefense of the State's system of apportionment; indeed, they havenot yet even filed an answer to the complaint. As in other cases,the proper place for the trial is in the trial court, not here.

MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins,dissenting.

The Court today reverses a uniform course of decisionestablished by a dozen cases, including one by which the very claimnow sustained was unanimously rejected

Page 369 U. S. 267

only five years ago. The impressive body of rulings thus castaside reflected the equally uniform course of our political historyregarding the relationship between population and legislativerepresentation -- a wholly different matter from denial of thefranchise to individuals because of race, color, religion or sex.Such a massive repudiation of the experience of our whole past inasserting destructively novel judicial power demands a detailedanalysis of the role of this Court in our constitutional scheme.Disregard of inherent limits in the effective exercise of theCourt's "judicial Power" not only presages the futility of judicialintervention in the essentially political conflict of forces bywhich the relation between population and representation has timeout of mind been, and now is, determined. It may well impair theCourt's position as the ultimate organ of "the supreme Law of theLand" in that vast range of legal problems, often stronglyentangled in popular feeling, on which this Court must pronounce.The Court's authority -- possessed of neither the purse nor thesword -- ultimately rests on sustained public confidence in itsmoral sanction. Such feeling must be nourished by the Court'scomplete detachment, in fact and in appearance, from politicalentanglements and by abstention from injecting itself into theclash of political forces in political settlements.

A hypothetical claim resting on abstract assumptions is now forthe first time made the basis for affording illusory relief for aparticular evil even though it foreshadows deeper and morepervasive difficulties in consequence. The claim is hypothetical,and the assumptions are abstract, because the Court does notvouchsafe the lower courts -- state and federal -- guidelines forformulating specific, definite, wholly unprecedented remedies forthe inevitable litigations that today's umbrageous disposition isbound to stimulate in connection with politically motivatedreapportionments in so many States. In

Page 369 U. S. 268

such a setting, to promulgate jurisdiction in the abstract ismeaningless. It is as devoid of reality as "a brooding omnipresencein the sky," for it conveys no intimation what relief, if any, aDistrict Court is capable of affording that would not invitelegislatures to play ducks and drakes with the judiciary. For thisCourt to direct the District Court to enforce a claim to which theCourt has over the years consistently found itself required to denylegal enforcement and, at the same time, to find it necessary towithhold any guidance to the lower court how to enforce thisturnabout, new legal claim, manifests an odd -- indeed an esoteric-- conception of judicial propriety. One of the Court's supportingopinions, as elucidated by commentary, unwittingly affords adisheartening preview of the mathematical quagmire (apart fromdivers judicially inappropriate and elusive determinants) intowhich this Court today catapults the lower courts of the countrywithout so much as adumbrating the basis for a legal calculus as ameans of extrication. Even assuming the indispensable intellectualdisinterestedness on the part of judges in such matters, they donot have accepted legal standards or criteria or even reliableanalogies to draw upon for making judicial judgments. To chargecourts with the task of accommodating the incommensurable factorsof policy that underlie these mathematical puzzles is to attribute,however flatteringly, omnicompetence to judges. The Framers of theConstitution persistently rejected a proposal that embodied thisassumption, and Thomas Jefferson never entertained it.

Recent legislation, creating a district appropriately describedas "an atrocity of ingenuity," is not unique. Considering the grossinequality among legislative electoral units within almost everyState, the Court naturally shrinks from asserting that, indistricting, at least substantial equality is a constitutionalrequirement enforceable

Page 369 U. S. 269

by courts.* Room continuesto be allowed for weighting. This, of course, implies thatgeography, economics, urban-rural conflict, and all the othernon-legal factors which have throughout our history entered intopolitical districting are to some extent not to be ruled out in theundefined vista now opened up by review in the federal courts ofstate reapportionments. To some extent -- aye, there's the rub. Ineffect, today's decision empowers the courts of the country todevise what should constitute the proper composition of thelegislatures of the fifty States. If state courts should for onereason or another find themselves unable to discharge this task,the duty of doing so is put on the federal courts or on this Court,if State views do not satisfy this Court's notion of what is properdistricting.

We were soothingly told at the bar of this Court that we neednot worry about the kind of remedy a court could effectivelyfashion once the abstract constitutional right to have courts passon a statewide system of electoral districting is recognized as amatter of judicial rhetoric, because legislatures would heed theCourt's admonition. This is not only a euphoric hope. It implies asorry

Page 369 U. S. 270

confession of judicial impotence in place of a frankacknowledgment that there is not under our Constitution a judicialremedy for every political mischief, for every undesirable exerciseof legislative power. The Framers, carefully and with deliberateforethought, refused so to enthrone the judiciary. In thissituation, as in others of like nature, appeal for relief does notbelong here. Appeal must be to an informed, civically militantelectorate. In a democratic society like ours, relief must comethrough an aroused popular conscience that sears the conscience ofthe people's representatives. In any event, there is nothingjudicially more unseemly nor more self-defeating than for thisCourt to makein terrorem pronouncements, to indulge inmerely empty rhetoric, sounding a word of promise to the ear sureto be disappointing to the hope.

This is the latest in the series of cases in which the EqualProtection and Due Process Clauses of the Fourteenth Amendment havebeen invoked in federal courts as restrictions upon the power ofthe States to allocate electoral weight among the votingpopulations of their various geographical subdivisions. [Footnote 4/1] The present action, which

Page 369 U. S. 271

comes here on appeal from an order of a statutory three-judgeDistrict Court dismissing amended complaints seeking declaratoryand injunctive relief, challenges the provisions of Tenn.Code Ann.,1955, §§ 3-101 to 3-109, which apportion state representative andsenatorial seats among Tennessee's ninety-five counties.

The original plaintiffs, citizens and qualified voters entitledto vote for members of the Tennessee Legislature in the severalcounties in which they respectively reside, bring this action intheir own behalf and "on behalf of all other voters in the State ofTennessee," or, as they alternatively assert,

"on behalf of all qualified voters of their respective counties,and further, on behalf of all voters of the State of Tennessee whoare similarly situated."

The cities of Knoxville and Chattanooga, and the Mayor ofNashville -- on his own behalf as a qualified voter and, pursuantto an authorizing resolution by the Nashville City Council, as arepresentative of all the city's residents -- were permitted tointervene as parties plaintiff. [Footnote 4/2] The defendants are executive officialscharged with statutory duties in connection with state elections.[Footnote 4/3]

Page 369 U. S. 272

The original plaintiffs' amended complaint avers, in substance,the following. [Footnote 4/4] TheConstitution of the State of Tennessee declares that "electionsshall be free and equal," provides that no qualifications otherthan age, citizenship and specified residence requirements shall beattached to the right of suffrage, and prohibits denying to anyperson the suffrage to which he is entitled except upon convictionof an infamous crime. Art. I, § 5; Art. IV, § 1. It requires anenumeration of qualified voters within every term of ten yearsafter 1871 and an apportionment of representatives and senatorsamong the several counties or districts according to the number ofqualified voters in each [Footnote4/5] at the time of each decennial

Page 369 U. S. 273

enumeration. Art. II, §§ 4, 5, 6. Notwithstanding theseprovisions, the State Legislature has not reapportioned itselfsince 1901. The Reapportionment Act of that year, Tenn.Acts 1901,c. 122, now Tenn.Code Ann., 1955, §§ 3-101 to 3-109, [Footnote 4/6] was unconstitutional whenenacted, because not preceded by the required enumeration ofqualified voters and because it allocated legislative seatsarbitrarily, unequally and discriminatorily, as measured by the1900 federal census. Moreover, irrespective of the question of itsvalidity in 1901, it is asserted that the Act became"unconstitutional and obsolete" in 1911 by virtue of the decennialreapportionment requirement of the Tennessee Constitution.Continuing a "purposeful and systematic plan to discriminateagainst a geographical class of persons," recent TennesseeLegislatures have failed, as did their predecessors, to enactreapportionment legislation, although a number of bills providingfor reapportionment have been introduced. Because of populationshifts since 1901, the apportionment fixed by the Act of that yearand still in effect is not proportionate to population, denies tothe counties in which the plaintiffs

Page 369 U. S. 274

live an additional number of representatives to which they areentitled, and renders plaintiffs' votes "not as effective as thevotes of the voters residing in other senatorial and representativedistricts. . . ." Plaintiffs

"suffer a debasement of their votes by virtue of the incorrect,arbitrary, obsolete and unconstitutional apportionment of theGeneral Assembly . . . ,"

and the totality of the malapportionment's effect -- whichpermits a minority of about thirty-seven percent of the votingpopulation of the State to control twenty of the thirty-threemembers of Tennessee's Senate, and a minority of forty percent ofthe voting population to control sixty-three of the ninety-ninemembers of the House -- results in "a distortion of theconstitutional system" established by the Federal and StateConstitutions, prevents the General Assembly "from being a bodyrepresentative of the people of the State of Tennessee, . . ." andis "contrary to the basic principle of representative government .. . ," and "contrary to the philosophy of government in the UnitedStates and all Anglo-Saxon jurisprudence. . . ."

Exhibits appended to the complaint purport to demonstrate theextent of the inequalities of which plaintiffs complain. Based upon"approximate voting population," [Footnote 4/7] these set forth figures showing that theState

Page 369 U. S. 275

Senator from Tennessee's most populous senatorial districtrepresents five and two-tenths times the number of votersrepresented by the Senator from the least populous district, whilethe corresponding ratio for most and least populous House districtsis more than eighteen to one. The General Assembly thus apportionedhas discriminated against the underrepresented counties and infavor of the overrepresented counties in the collection anddistribution of various taxes and tax revenues, notably in thedistribution of school and highway improvement funds, [Footnote 4/8] this discrimination being"made possible and effective" by the Legislature's failure toreapportion itself. Plaintiffs conclude that election of the StateLegislature pursuant to the apportionment fixed by the 1901 Actviolates the Tennessee Constitution and deprives them of dueprocess of law and of the equal protection of the laws guaranteedby the Fourteenth Amendment. Their prayer below was for adeclaratory judgment striking down the Act, an injunctionrestraining defendants from any acts necessary to the holding ofelections in the districts prescribed by Tenn.Code Ann., 1955, §§3-101 to 3-109, until such time as the legislature is reapportioned"according to the

Page 369 U. S. 276

Constitution of the State of Tennessee," and an order directingdefendants to declare the next primary and general elections formembers of the Tennessee Legislature on an at-large basis -- thethirty-three senatorial candidates and the ninety-ninerepresentative candidates receiving the highest number of votes tobe declared elected. [Footnote4/9]

Motions to dismiss for want of jurisdiction of the subjectmatter and for failure to state a claim were made and granted,179 F.Supp. 824, the District Court relying upon this Court's seriesof decisions beginning withColegrove v. Green,328 U. S. 549,rehearing denied, 329 U.S. 825,motion for reargumentbefore the full bench denied, 329 U.S. 828. The original andintervening plaintiffs bring the case here on appeal. 364 U.S. 898.In this Court they have altered their request for relief,suggesting a "step-by-step approach." The first step is a remand tothe District Court with directions to vacate the order dismissingthe complaint and to enter an order retaining jurisdiction,providing "the necessary spur to legislative action. . . ." If thisproves insufficient, appellants will ask the "additional spur" ofan injunction prohibiting elections under the 1901 Act or adeclaration of the Act's unconstitutionality, or both. Finally, allother means failing, the District Court is invited by theplaintiffs, greatly daring, to order an election at large orredistrict the State itself or through a master. The SolicitorGeneral of the United States, who has filed a briefamicusand argued in favor of reversal, asks the Court on this appeal tohold only that the District Court has "jurisdiction," and mayproperly exercise it to entertain the plaintiffs' claims on themerits. This would leave to that court after remand the questionsof the challenged statute's

Page 369 U. S. 277

constitutionality and of some undefined, unadumbrated relief inthe event a constitutional violation is found. After an argument atthe last Term, the case was set down for reargument, 366 U.S. 907,and heard this Term.

IIn sustaining appellants' claim, based on the FourteenthAmendment, that the District Court may entertain this suit, thisCourt's uniform course of decision over the years is overruled ordisregarded. Explicitly it begins withColegrove v. Green,supra, decided in 1946, but its roots run deep in the Court'shistoric adjudicatory process.

Colegrove held that a federal court should notentertain an action for declaratory and injunctive relief toadjudicate the constitutionality, under the Equal Protection Clauseand other federal constitutional and statutory provisions, of astate statute establishing the respective districts for the State'selection of Representatives to the Congress. Two opinions werewritten by the four Justices who composed the majority of the sevensitting members of the Court. Both opinions joining in the resultinColegrove v. Green agreed that considerations werecontrolling which dictated denial of jurisdiction, though not inthe strict sense of want of power. While the two opinions show adivergence of view regarding some of these considerations, thereare important points of concurrence. Both opinions demonstrate apredominant concern, first, with avoiding federal judicialinvolvement in matters traditionally left to legislative policymaking; second, with respect to the difficulty -- in view of thenature of the problems of apportionment and its history in thiscountry -- of drawing on or devising judicial standards forjudgment, as opposed to legislative determinations, of the partwhich mere numerical equality among voters should play as acriterion for the allocation of

Page 369 U. S. 278

political power; and, third, with problems of findingappropriate modes of relief -- particularly, the problem ofresolving the essentially political issue of the relative merits ofat-large elections and elections held in districts of unequalpopulation.

The broad applicability of these considerations -- summarized inthe loose shorthand phrase, "political question" -- in casesinvolving a State's apportionment of voting power among itsnumerous localities has led the Court, since 1946, to recognizetheir controlling effect in a variety of situations. (In all thesecases, decision was by a full Court.) The "political question"principle as applied inColegrove has found wideapplication commensurate with its function as "one of the rulesbasic to the federal system and this Court's appropriate placewithin that structure."Rescue Army v. Municipal Court,331 U. S. 549,331 U. S. 570.InColegrove v. Barrett, 330 U.S. 804, litigants broughtsuit in a Federal District Court challenging as offensive to theEqual Protection Clause Illinois' state legislative apportionmentlaws. They pointed to state constitutional provisions requiringdecennial reapportionment and allocation of seats in proportion topopulation, alleged a failure to reapportion for more thanforty-five years -- during which time extensive population shiftshad rendered the legislative districts grossly unequal -- andsought declaratory and injunctive relief with respect to allelections to be held thereafter. After the complaint was dismissedby the District Court, this Court dismissed an appeal for want of asubstantial federal question. A similar District Court decision wasaffirmed here inRadford v. Gary, 352 U.S. 991. Andcf. Remmey v. Smith, 342 U.S. 916. InTedesco v. Boardof Supervisors, 339 U.S. 940, the Court declined to hear, forwant of a substantial federal question, the claim that the divisionof a municipality into voting districts of unequal population forthe selection for councilmen fell

Page 369 U. S. 279

afoul of the Fourteenth Amendment, and inCox v.Peters, 342 U.S. 936,rehearing denied, 343 U.S. 921,it found no substantial federal question raised by a state court'sdismissal of a claim for damages for "devaluation" of plaintiff'svote by application of Georgia's county unit system in a primaryelection for the Democratic gubernatorial candidate. The sameGeorgia system was subsequently attacked in a complaint fordeclaratory judgment and an injunction; the federal district judgedeclined to take the requisite steps for the convening of astatutory three-judge court, and this Court, inHartsfield v.Sloan, 357 U.S. 916, denied a motion for leave to file apetition for a writ of mandamus to compel the district judge toact. InMacDougall v. Green,335 U.S. 281,335 U. S. 283,the Court noted that "[t]o assume that political power is afunction exclusively of numbers is to disregard the practicalitiesof government," and, citing theColegrove cases, declinedto find in "such broad constitutional concepts as due process andequal protection of the laws,"id. at335 U. S. 284,a warrant for federal judicial invalidation of an Illinois statuterequiring as a condition for the formation of a new political partythe securing of at least two hundred signatures from each of fiftycounties. And inSouth v. Peters,339 U.S. 276, another suit attacking Georgia's county unitlaw, it affirmed a District Court dismissal, saying:

"Federal courts consistently refuse to exercise their equitypowers in cases posing political issues arising from a state'sgeographical distribution of electoral strength among its politicalsubdivisions."

Id. at339 U. S.277.

Of course, it is important to recognize particular, relevantdiversities among comprehensively similar situations. Appellantsseek to distinguish several of this Court's prior decisions on oneor another ground --Colegrove v.

Page 369 U. S. 280

Green on the ground that federal, not state,legislative apportionment was involved;Remmey v. Smith onthe ground that state judicial remedies had not been tried;Radford v. Gary on the ground that Oklahoma has theinitiative, whereas Tennessee does not. It would only darkencounsel to discuss the relevance and significance of each of theseassertedly distinguishing factors here and in the context of thisentire line of cases. Suffice it that they do not serve todistinguishColegrove v. Barrett, supra, which is on allfours with the present case, or to distinguishKidd v.McCanless, 352 U.S. 920, in which the full Court withoutdissent, only five years ago, dismissed, on authority ofColegrove v. Green andAnderson v. Jordan, 343U.S. 912, an appeal from the Supreme Court of Tennessee in which aprecisely similar attack was made upon the very statute nowchallenged. If the weight and momentum of an unvarying course ofcarefully considered decisions are to be respected, appellants'claims are foreclosed not only by precedents governing the exactfacts of the present case, but are themselves supported byauthority the more persuasive in that it gives effect to theColegrove principle in distinctly varying circumstances inwhich state arrangements allocating relative degrees of politicalinfluence among geographic groups of voters were challenged underthe Fourteenth Amendment.

IITheColegrove doctrine, in the form in which repeateddecisions have settled it, was not an innovation. It representslong judicial thought and experience. From its earliest opinions,this Court has consistently recognized a class of controversieswhich do not lend themselves to judicial standards and judicialremedies. To classify the various instances as "politicalquestions" is, rather, a form

Page 369 U. S. 281

of stating this conclusion than revealing of analysis. [Footnote 4/10] Some of the cases solabelled have no relevance here. But from others emerge unifyingconsiderations that are compelling.

1. The cases concerning war or foreign affairs, for example, areusually explained by the necessity of the country's speaking withone voice in such matters. While this concern alone undoubtedlyaccounts for many of the decisions, [Footnote 4/11] others do not fit the pattern. It wouldhardly embarrass the conduct of war were this Court to determine,in connection with private transactions between litigants, the dateupon which war is to be deemed terminated. But the Court hasrefused to do so.See, e.g.,79 U. S. 12Wall. 700;Brown v.Hiatts, 15 Wall. 177;Adger v.Alston, 15 Wall. 555;Williams v. Bruffy,96 U. S. 176,96 U. S.192-193. It does not suffice to explain such cases asLudecke v. Watkins,335 U. S. 160 --deferring to political determination the question of the durationof war for purposes of the Presidential power to deport alienenemies -- that judicial intrusion would seriously

Page 369 U. S. 282

impede the President's power effectively to protect thecountry's interests in time of war. Of course, this is true; butthe precise issue presented is the duration of the time of warwhich demands the power.Cf.25 U. S. Mott,12 Wheat.19;Lamar v. Browne,92 U. S.187,92 U. S. 193;Hamilton v. Kentucky Distilleries & Warehouse Co.,251 U. S. 146;Kahn v. Anderson,255 U. S. 1. Andeven for the purpose of determining the extent of congressionalregulatory power over the tribes and dependent communities ofIndians, it is ordinarily for Congress, not the Court, to determinewhether or not a particular Indian group retains thecharacteristics constitutionally requisite to confer the power.[Footnote 4/12]E.g.,70 U. S.Holliday, 3 Wall. 407;Tiger v. Western InvestmentCo.,221 U. S. 286;United States v. Sandoval,231 U. S.28. A controlling factor in such cases is that, decisionrespecting these kinds of complex matters of policy beingtraditionally committed not to courts but to the political agenciesof government for determination by criteria of politicalexpediency, there exists no standard ascertainable by settledjudicial experience or process by reference to which a politicaldecision affecting the question at issue between the parties can bejudged. Where the question arises in the course of a litigationinvolving primarily the adjudication of other issues between thelitigants, the Court accepts as a basis for adjudication thepolitical departments' decision of it. But where its determinationis the sole function to be served by the exercise of the judicialpower, the Court will not entertain the action.SeeChicago& Southern Air Lines, Inc., v. Waterman S.S.Corp.,

Page 369 U. S. 283

333 U. S. 103. Thedominant consideration is "the lack of satisfactory criteria for ajudicial determination. . . ." Mr. Chief Justice Hughes, for theCourt, inColeman v. Miller,307 U.S. 433,307 U. S.454-455.Compare45 U. S.Rogers, 4 How. 567,45 U. S. 572,with31 U. S.Georgia, 6 Pet. 515. [Footnote4/13]

This may be, like so many questions of law, a matter of degree.Questions have arisen under the Constitution to which adjudicationgives answer although the criteria for decision are less thanunwavering bright lines. Often, in these cases, illumination wasfound in the federal structures established by, or the underlyingpresuppositions of, the Constitution. With respect to suchquestions, the Court has recognized that, concerning a particularpower of Congress put in issue, ". . . effective restraints on itsexercise must proceed from political, rather than from judicialprocesses."Wickard v. Filburn,317 U.S. 111,317 U. S. 120.It is also true that, even regarding the duration of war and thestatus of Indian tribes, referred to above as subjects ordinarilycommitted exclusively to the nonjudicial branches, the Court hassuggested that some limitations exist upon the range within whichthe decisions of those branches will be permitted to go unreviewed.See United States v. Sandoval, supra, at231 U. S. 46;cf. Chastleton Corp. v. Sinclair,264 U.S. 543. But this is merely to acknowledge thatparticular circumstances may differ so greatly in degree as todiffer thereby in kind, and that, although within a certain rangeof cases on a continuum, no standard of distinction can be found totell between them, other cases will fall above or below the range.The doctrine of political questions, like any other, is not to

Page 369 U. S. 284

be applied beyond the limits of its own logic, with all thequiddities and abstract disharmonies it may manifest.Seethe disposition of contentions based on logically distorting viewsofColegrove v. Green andHunter v. Pittsburgh,207 U. S. 161, inGomillion v. Lightfoot,364 U. S. 339.

2. The Court has been particularly unwilling to intervene inmatters concerning the structure and organization of the politicalinstitutions of the States. The abstention from judicial entry intosuch areas has been greater even than that which marks the Court'sordinary approach to issues of state power challenged under broadfederal guarantees.

"We should be very reluctant to decide that we had jurisdictionin such a case, and thus in an action of this nature to superviseand review the political administration of a state government byits own officials and through its own courts. The jurisdiction ofthis court would only exist in case there had been . . . such aplain and substantial departure from the fundamental principlesupon which our government is based that it could with truth andpropriety be said that, if the judgment were suffered to remain,the party aggrieved would be deprived of his life, liberty orproperty in violation of the provisions of the FederalConstitution."

Wilson v. North Carolina,169 U.S. 586,169 U. S. 596.See Taylor and Marshall v. Beckham (No. 1),178 U.S. 548;Walton v. House of Representatives,265 U. S. 487;Snowden v. Hughes,321 U. S. 1.Cf.In re Sawyer,124 U. S. 200,124 U. S.220-221.

Where, however, state law has made particular federal questionsdeterminative of relations within the structure of stategovernment, not in challenge of it, the Court has resolved suchnarrow, legally defined questions in proper proceedings.SeeBoyd v. Nebraska ex rel. Thayer,143 U.S. 135. In such instances, there is no conflict betweenstate policy and the exercise of federal judicial

Page 369 U. S. 285

power. This distinction explains the decisions inSmiley v.Holm,285 U. S. 355;Koenig v. Flynn,285 U. S. 375, andCarroll v. Becker,285 U. S. 380, inwhich the Court released state constitutional provisionsprescribing local lawmaking procedures from misconceivedrestriction of superior federal requirements. Adjudication of thefederal claim involved in those cases was not one demanding theaccommodation of conflicting interests for which no readilyaccessible judicial standards could be found.See McPherson v.Blacker,146 U. S. 1, inwhich, in a case coming here on writ of error from the judgment ofa state court which had entertained it on the merits, the Courttreated as justiciable the claim that a State could notconstitutionally select its presidential electors by districts, butheld that Art. II, § 1, cl. 2, of the Constitution left the mode ofchoosing electors in the absolute discretion of the States.Cf.Pope v. Williams,193 U. S. 621;Breedlove v. Suttles,302 U. S. 277. Toread with literalness the abstracted jurisdictional discussion intheMcPherson opinion reveals the danger of conceptions of"justiciability" derived from talk, and not from the effectivedecision in a case. In probing beneath the surface of cases inwhich the Court has declined to interfere with the actions ofpolitical organs of government, of decisive significance iswhether, in each situation, the ultimate decision has been tointervene or not to intervene.Compare the reliance inSouth v. Peters,339 U. S. 276, onMacDougall v. Green,335 U. S. 281, andthe "jurisdictional" form of the opinion inWilson v. NorthCarolina,169 U. S. 586,169 U. S. 596,supra.

3. The cases involving Negro disfranchisement are no exceptionto the principle of avoiding federal judicial intervention intomatters of state government in the absence of an explicit and clearconstitutional imperative. For here the controlling command ofSupreme Law is plain and unequivocal. An end of discriminationagainst

Page 369 U. S. 286

the Negro was the compelling motive of the Civil War Amendments.The Fifteenth expresses this in terms, and it is no less true ofthe Equal Protecting Clause of the Fourteenth.Slaughter-HouseCases, 16 Wall. 36,83 U. S. 67-72;Strauder v. West Virginia,100 U.S. 303,100 U. S.306-307;Nixon v. Herndon,273 U.S. 536,273 U. S. 541.Thus, the Court, in cases involving discrimination against theNegro's right to vote, has recognized not only the action at lawfor damages, [Footnote 4/14] but,in appropriate circumstances, the extraordinary remedy ofdeclaratory or injunctive relief. [Footnote 4/15]Schnell v. Davis, 336 U.S. 933;Terry v. Adams,345 U. S. 461.[Footnote 4/16] Injunctions inthese cases, it should be noted, would not have restrainedstatewide general elections.Compare Giles v. Harris,189 U. S. 475.

4. The Court has refused to exercise its jurisdiction to pass on"abstract questions of political power, of sovereignty, ofgovernment."Massachusetts v. Mellon,262 U.S. 447,262 U. S. 485.See Texas v. Interstate Commerce Commission,258 U.S. 158,258 U. S. 162;New Jersey v. Sargent,269 U. S. 328,269 U. S. 337.The "political question" doctrine, in this aspect, reflects thepolicies underlying the requirement of "standing": that thelitigant who would challenge official

Page 369 U. S. 287

action must claim infringement of an interest particular andpersonal to himself, as distinguished from a cause ofdissatisfaction with the general frame and functioning ofgovernment -- a complaint that the political institutions are awry.See Stearns v. Wood,236 U. S. 75;Fairchild v. Hughes,258 U. S. 126;United Public Workers v. Mitchell,330 U. S.75,330 U.S.89-91. What renders cases of this kind nonjusticiable is notnecessarily the nature of the parties to them, for the Court hasresolved other issues between similar parties; [Footnote 4/17] nor is it the nature of the legalquestion involved, for the same type of question has beenadjudicated when presented in other forms of controversy. [Footnote 4/18] The crux of the matter isthat courts are not fit instruments of decision where what isessentially at stake is the composition of those large contests ofpolicy traditionally fought out in nonjudicial forums, by whichgovernments and the actions of governments are made and unmade.SeeTexas v.White, 7 Wall. 700;White v.Hart, 13 Wall. 646;Phillips v. Payne,92 U. S. 130;Marsh v. Burroughs, 1 Woods 463, 471-472 (Bradley, CircuitJustice);cf. Wilson v. Shaw,204 U. S.24;but see Coyle v. Smith,221 U.S. 559. Thus, where the Cherokee Nation sought by anoriginal motion to restrain the State of Georgia from theenforcement of laws which assimilated Cherokee territory to theState's counties, abrogated Cherokee law, and abolished Cherokeegovernment, the Court held that such a claim was not judiciallycognizable.Cherokee Nation v.Georgia, 5 Pet. 1. [Footnote 4/19] And inGeorgia

Page 369 U. S. 288

v. Stanton, 6 Wall.73U. S. 50, the Court dismissed for want of jurisdiction abill by the State of Georgia seeking to enjoin enforcement of theReconstruction Acts on the ground that the command by militarydistricts which they established extinguished existing stategovernment and replaced it with a form of government unauthorizedby the Constitution: [Footnote4/20]

"That these matters, both as stated in the body of the bill andin the prayers for relief, call for the judgment of the court uponpolitical questions, and upon rights not of persons or property,but of a political character, will hardly be denied. For the rightsfor the protection of which our authority is invoked are the rightsof sovereignty, of political jurisdiction, of government, ofcorporate existence as a State, with all its constitutional powersand privileges. No case of private rights or private propertyinfringed, or in danger of actual or threatened infringement, ispresented by the bill, in a judicial form, for the judgment of thecourt."

Id. at73 U. S. 77.[Footnote 4/21]

Page 369 U. S. 289

5. The influence of these converging considerations -- thecaution not to undertake decision where standards meet for judicialjudgment are lacking, the reluctance to interfere with matters ofstate government in the absence of an unquestionable andeffectively enforceable mandate, the unwillingness to make courtsarbiters of the broad issues of political organization historicallycommitted to other institutions and for whose adjustment thejudicial process is ill-adapted -- has been decisive of the settledline of cases, reaching back more than a century, which holds thatArt. IV, § 4, of the Constitution, guaranteeing to the States "aRepublican Form of Government," [Footnote 4/22] is not enforceable through the courts.E.g., O'Neill v. Leamer,239 U. S. 244;Mountain Timber Co. v. Washington,243 U.S. 219;Cochran v. Board of Education,281 U. S. 370;Highland Farms Dairy, Inc., v. Anew,300 U.S. 608. [Footnote4/23] Claims resting on this specific

Page 369 U. S. 290

guarantee of the Constitution have been held nonjusticiablewhich challenged state distribution of powers between thelegislative and judicial branches,Ohio ex rel. Bryant v. AkronMetropolitan Park District,281 U. S. 74, statedelegation of power to municipalities,Kiernan v. Portland,Oregon,223 U. S. 151,state adoption of the referendum as a legislative institution,Ohio ex rel. Davis v. Hildebrant,241 U.S. 565,241 U. S. 569,and state restriction upon the power of state constitutionalamendment,Marshall v. Dye,231 U.S. 250,231 U. S.256-257. The subject was fully considered inPacificStates Telephone & Telegraph Co. v. Oregon,223 U.S. 118, in which the Court dismissed for want ofjurisdiction a writ of error attacking a state license tax statuteenacted by the initiative, on the claim that this mode oflegislation was inconsistent with a Republican Form of Governmentand violated the Equal Protection Clause and other federalguarantees. After noting

". . . the ruinous destruction of legislative authority inmatters purely political which would necessarily be occasioned bygiving sanction

Page 369 U. S. 291

to the doctrine which underlies and would be necessarilyinvolved in sustaining the propositions contended for, [Footnote 4/24]"

the Court said:

". . . [The] essentially political nature [of this claim] is atonce made manifest by understanding that the assault which thecontention here advanced makes it [sic] not on the tax asa tax, but on the State as a State. It is addressed to theframework and political character of the government by which thestatute levying the tax was passed. It is the government, thepolitical entity, which (reducing the case to its essence) iscalled to the bar of this court not for the purpose of testingjudicially some exercise of power assailed, on the ground that itsexertion

Page 369 U. S. 292

has injuriously affected the rights of an individual because ofrepugnancy to some constitutional limitation, but to demand of theState that it establish its right to exist as a State, republicanin form."

Id. at223 U. S.150-151.

The starting point of the doctrine applied in these cases is, ofcourse,Luther v.Borden, 7 How. 1. The case arose out of the DorrRebellion in Rhode Island in 1841-1842. Rhode Island, at the timeof the separation from England, had not adopted a new constitution,but had continued, in its existence as an independent State, underits original royal Charter, with certain statutory alterations.This frame of government provided no means for amendment of thefundamental law; the right of suffrage was to be prescribed bylegislation, which limited it to freeholders. In the 1830's,largely because of the growth of towns in which there developed apropertied class whose means were not represented by freeholdestates, dissatisfaction arose with the suffrage qualifications ofthe charter government. In addition, population shifts had caused adated apportionment of seats in the lower house to yieldsubstantial numerical inequality of political influence, even amongqualified voters. The towns felt themselves underrepresented, andagitation began for electoral reform. When the charter governmentfailed to respond, popular meetings of those who favored thebroader suffrage were held and delegates elected to a conventionwhich met and drafted a state constitution. This constitutionprovided for universal manhood suffrage (with certainqualifications), and it was to be adopted by vote of the people atelections at which a similarly expansive franchise obtained. Thisnew scheme of government was ratified at the polls and declaredeffective by the convention, but the government elected andorganized under it, with Dorr at its head, never came to power.The

Page 369 U. S. 293

charter government denied the validity of the convention, theconstitution and its government and, after an insignificantskirmish, routed Dorr and his followers. It meanwhile provided forthe calling of its own convention, which drafted a constitutionthat went peacefully into effect in 1843. [Footnote 4/25]

Luther v. Borden was a trespass action brought by oneof Dorr's supporters in a United States Circuit Court to recoverdamages for the breaking and entering of his house. The defendantsjustified under military orders pursuant to martial law declared bythe charter government, and plaintiff, by his reply, joined issueon the legality of the charter government subsequent to theadoption of the Dorr constitution. Evidence offered by theplaintiff tending to establish that the Dorr government was therightful government of Rhode Island was rejected by the CircuitCourt; the court charged the jury that the charter government waslawful, and, on a verdict for defendants, plaintiff brought a writof error to this Court.

The Court, through Mr. Chief Justice Taney, affirmed. Afternoting that the issue of the charter government's legality had beenresolved in that government's favor by the state courts of RhodeIsland -- that the state courts, deeming the matter a political oneunfit for judicial determination, had declined to entertain attacksupon the existence and authority of the charter government -- theChief Justice held that the courts of the United States must followthose of the State in this regard.Id. at48 U. S. 39-40. Itwas recognized that the compulsion to follow

Page 369 U. S. 294

state law would not apply in a federal court in the face of asuperior command found in the Federal Constitution,ibid.,but no such command was found. The Constitution, the Court said --referring to the Guarantee Clause of the Fourth Article --

". . . as far as it has provided for an emergency of this kind,and authorized the general government to interfere in the domesticconcerns of a State, has treated the subject as political in itsnature, and placed the power in the hands of that department."

Id. at48 U. S. 42.

"Under this article of the Constitution, it rests with Congressto decide what government is the established one in a State. For,as the United States guarantee to each State a republicangovernment, Congress must necessarily decide what government isestablished in the State before it can determine whether it isrepublican or not. And when the senators and representatives of aState are admitted into the councils of the Union, the authority ofthe government under which they are appointed, as well as itsrepublican character, is recognized by the proper constitutionalauthority. And its decision is binding on every other department ofthe government, and could not be questioned in a judicial tribunal.It is true that the contest in this case did not last long enoughto bring the matter to this issue, and as no senators orrepresentatives were elected under the authority of the governmentof which Mr. Dorr was the head, Congress was not called upon todecide the controversy. Yet the right to decide is placed there,and not in the courts."

Ibid. [Footnote4/26]

Page 369 U. S. 295

In determining this issue nonjusticiable, the Court wassensitive to the same considerations to which its later decisionshave given the varied applications already discussed. It advertedto the delicacy of judicial intervention into the very structure ofgovernment. [Footnote 4/27] Itacknowledged that tradition had long entrusted questions of thisnature to nonjudicial processes, [Footnote 4/28] and that judicial processes wereunsuited to their decision. [Footnote4/29] The absence of guiding standards for judgment wascritical, for the question whether the Dorr constitution had beenrightfully adopted depended, in part, upon the extent of thefranchise to be recognized -- the very point of contention overwhich rebellion had been fought.

". . . [I]f the Circuit Court had entered upon this inquiry, bywhat rule could it have determined the qualification of voters uponthe adoption or rejection of the proposed constitution, unlessthere was some previous law of the State to guide it? It is theprovince of a court to expound the law, not to make it. Andcertainly it is no part of the judicial functions of any court ofthe United States to prescribe the qualification of voters in aState, giving the right to those to whom it is denied by thewritten and established constitution and laws of the State, ortaking it away from those to whom it is given; nor has it the rightto determine what political privileges

Page 369 U. S. 296

the citizens of a State are entitled to, unless there is anestablished constitution or law to govern its decision."

Id. at48 U. S. 41.

Mr. Justice Woodbury (who dissented with respect to the effectof martial law) agreed with the Court regarding theinappropriateness of judicial inquiry into the issues:

"But, fortunately for our freedom from political excitements injudicial duties, this court can never with propriety be called onofficially to be the umpire in questions merely political. Theadjustment of these questions belongs to the people and theirpolitical representatives, either in the State or generalgovernment. These questions relate to matters not to be settled onstrict legal principles. They are adjusted rather by inclination --or prejudice or compromise, often. Some of them succeed or aredefeated even by public policy alone, or mere naked power, ratherthan intrinsic right. . . ."

"Another evil, alarming and little foreseen, involved inregarding these as questions for the final arbitrament of judgeswould be that, in such an event. all political privileges andrights would, in a dispute among the people, depend on our decisionfinally. . . . [D]isputed points in making constitutions, dependingoften, as before shown, on policy, inclination, popular resolves,and popular will, . . . if the people, in the distribution ofpowers under the constitution, should ever think of making judgessupreme arbiters in political controversies, when not selected bynor, frequently, amenable to them, nor at liberty to follow suchvarious considerations in their judgments as belong to merepolitical questions, they will dethrone themselves and lose one oftheir own invaluable birthrights; building up in this way --slowly, but surely -- a new sovereign power in the

Page 369 U. S. 297

republic, in most respects irresponsible and unchangeable forlife, and one more dangerous, in theory at least, than the worstelective oligarchy in the worst of times. . . ."

Id. at48 U. S. 51-53.[Footnote 4/30]

IIIThe present case involves all of the elements that have made theGuarantee Clause cases nonjusticiable. It is, in effect, aGuarantee Clause claim masquerading under a different label. But itcannot make the case more fit for judicial action that appellantsinvoke the Fourteenth Amendment, rather than Art. IV, § 4, where,in fact, the gist of their complaint is the same -- unless it canbe found that the Fourteenth Amendment speaks with greaterparticularity to their situation. We have been admonished to avoid"the tyranny of labels."Snyder v. Massachusetts,291 U. S. 97,291 U. S. 114.Art. IV, § 4, is not committed by express constitutional terms toCongress. It is the nature of the controversies arising under it,nothing else, which has made it judicially unenforceable. Ofcourse, if a controversy falls within judicial power, it depends"on how he [the plaintiff] casts his action,"Pan AmericanPetroleum Corp. v. Superior Court,366 U.S. 656,366 U. S. 662,whether he brings himself within a jurisdictional statute. Butwhere judicial competence is wanting, it cannot be created byinvoking one clause of the Constitution rather than another. Whenwhat was essentially a Guarantee Clause claim was sought to belaid, as well, under the Equal Protection Clause inPacificStates Telephone & Telegraph Co. v. Oregon, supra, theCourt had no difficulty in "dispelling

Page 369 U. S. 298

any mere confusion resulting from forms of expression andconsidering the substance of things. . . ." 223 U.S. at223 U. S.140.

Here, appellants attack "the State as a State," precisely as itwas perceived to be attacked in the Pacific States case,id. at223 U. S. 150.Their complaint is that the basis of representation of theTennessee Legislature hurts them. They assert that "a minority nowrules in Tennessee," that the apportionment statute results in a"distortion of the constitutional system," that the GeneralAssembly is no longer "a body representative of the people of theState of Tennessee," all "contrary to the basic principle ofrepresentative government. . . ." Accepting appellants' ownformulation of the issue, one can know this handsaw from a hawk.Such a claim would be nonjusticiable not merely under Art. IT, § 4,but under any clause of the Constitution, by virtue of the veryfact that a federal court is not a forum for political debate.Massachusetts v. Mellon, supra.

But appellants, of course, do not rest on this claimsimpliciter. In invoking the Equal Protection Clause, theyassert that the distortion of representative government complainedof is produced by systematic discrimination against them, by way of"a debasement of their votes. . . ." Does this characterization,with due regard for the facts from which it is derived, addanything to appellants' case? [Footnote 4/31]

At first blush, this charge of discrimination based onlegislative underrepresentation is given the appearance of

Page 369 U. S. 299

a more private, less impersonal, claim than the assertion thatthe frame of government is askew. Appellants appear asrepresentatives of a class that is prejudiced as a class, incontradistinction to the polity in its entirety. However, thediscrimination relied on is the deprivation of what appellantsconceive to be their proportionate share of political influence.This, of course, is the practical effect of any allocation of powerwithin the institutions of government. Hardly any distribution ofpolitical authority that could be assailed as rendering governmentnonrepublican would fail similarly to operate to the prejudice ofsome groups, and to the advantage of others, within the bodypolitic. It would be ingenuous not to see, or consciously blind todeny, that the real battle over the initiative and referendum, orover a delegation of power to local, rather than statewideauthority, is the battle between forces whose influence isdisparate among the various organs of government to whom power maybe given. No shift of power but works a corresponding shift inpolitical influence among the groups composing a society.

What, then, is this question of legislative apportionment?Appellants invoke the right to vote and to have their votescounted. [Footnote 4/32] But theyare permitted to vote, and their votes are counted. They go to thepolls, they cast their ballots, they send their representatives tothe state

Page 369 U. S. 300

councils. Their complaint is simply that the representatives arenot sufficiently numerous or powerful -- in short, that Tennesseehas adopted a basis of representation with which they aredissatisfied. Talk of "debasement" or "dilution" is circular talk.One cannot speak of "debasement" or "dilution" of the value of avote until there is first defined a standard of reference as towhat a vote should be worth. What is actually asked of the Court inthis case is to choose among competing bases of representation --ultimately, really, among competing theories of politicalphilosophy -- in order to establish an appropriate frame ofgovernment for the State of Tennessee, and thereby for all theStates of the Union.

In such a matter, abstract analogies which ignore the facts ofhistory deal in unrealities; they betray reason. This is not a casein which a State has, through a device however oblique andsophisticated, denied Negroes or Jews or redheaded persons a vote,or given them only a third or a sixth of a vote. That wasGomillion v. Lightfoot,364 U. S. 339.What Tennessee illustrates is an old and still widespread method ofrepresentation -- representation by local geographical division,only in part respective of population -- in preference to others,others, forsooth, more appealing. Appellants contest this choice,and seek to make this Court the arbiter of the disagreement. Theywould make the Equal Protection Clause the charter of adjudication,asserting that the equality which it guarantees comports, if notthe assurance of equal weight to every voter's vote, at least thebasic conception that representation ought to be proportionate topopulation, a standard by reference to which the reasonableness ofapportionment plans may be judged.

To find such a political conception legally enforceable in thebroad and unspecific guarantee of equal protection is to rewritethe Constitution.See Luther v. Borden, supra. Certainly"equal protection" is no more secure

Page 369 U. S. 301

a foundation for judicial judgment of the permissibility ofvarying forms of representative government than is "RepublicanForm." Indeed, since "equal protection of the laws" can only meanan equality of persons standing in the same relation to whatevergovernmental action is challenged, the determination whethertreatment is equal presupposes a determination concerning thenature of the relationship. This, with respect to apportionment,means an inquiry into the theoretic base of representation in anacceptably republican state. For a court could not determine theequal protection issue without, in fact, first determining theRepublican Form issue, simply because what is reasonable for equalprotection purposes will depend upon what frame of government,basically, is allowed. To divorce "equal protection" from"Republican Form" is to talk about half a question.

The notion that representation proportioned to the geographicspread of population is so universally accepted as a necessaryelement of equality between man and man that it must be taken to bethe standard of a political equality preserved by the FourteenthAmendment -- that it is, in appellants' words "the basic principleof representative government" -- is, to put it bluntly, not true.However desirable and however desired by some among the greatpolitical thinkers and framers of our government, it has never beengenerally practiced, today or in the past. It was not the Englishsystem, it was not the colonial system, it was not the systemchosen for the national government by the Constitution, it was notthe system exclusively or even predominantly practiced by theStates at the time of adoption of the Fourteenth Amendment, it isnot predominantly practiced by the States today. Unless judges, thejudges of this Court, are to make their private views of politicalwisdom the measure of the Constitution -- views which, in allhonesty, cannot but give the appearance, if not reflect thereality, of

Page 369 U. S. 302

involvement with the business of partisan politics soinescapably a part of apportionment controversies -- the FourteenthAmendment, "itself a historical product,"Jackman v. RosenbaumCo.,260 U. S. 22,260 U. S. 31,provides no guide for judicial oversight of the representationproblem.

1.Great Britain. Writing in 1958, Professor W. J. M.Mackenzie aptly summarized the British history of the principle ofrepresentation proportioned to population:

"'Equal electoral districts' formed part of the programme ofradical reform in England in the 1830's, the only part of thatprogramme which has not been realised. [Footnote 4/33]"

Until the late nineteenth century, the sole base ofrepresentation (with certain exceptions not now relevant) was thelocal geographical unit: each county or borough returned its fixednumber of members, usually two for the English units, regardless ofpopulation. [Footnote 4/34] Priorto the Reform Act of 1832, this system was marked by the almosttotal disfranchisement of the populous northern industrial centers,which had grown to significant size at the advent of the IndustrialRevolution and had not been granted borough representation, and bythe existence of the rotten borough, playing its substantial partin the Crown's struggle for continued control of the Commons.[Footnote 4/35] In 1831, tensouthernmost English counties, numbering three and a quartermillion people, had two hundred and thirty-five parliamentaryrepresentatives, while the six northernmost counties, with morethan three and a half million people, had sixty-eight. [Footnote 4/36] It was said that onehundred and eighty persons appointed three hundred and

Page 369 U. S. 303

fifty members in the Commons. [Footnote 4/37] Less than a half century earlier,Madison, in the Federalist, had remarked that half the House wasreturned by less than six thousand of the eight million people ofEngland and Scotland. [Footnote4/38]

The Act of 1832, the product of a fierce partisan politicalstruggle and the occasion of charges of gerrymandering not withoutfoundation, [Footnote 4/39]effected eradication of only the most extreme numericalinequalities of the unreformed system. It did not adopt theprinciple of representation based on population, but merelydisfranchised certain among the rotten borough and enfranchisedmost of the urban centers -- still quite without regard to theirrelative numbers. [Footnote 4/40]In the wake of the Act, there remained substantial electoralinequality: the boroughs of Cornwall were represented sixteen timesas weightily, judged by population, as the county's easterndivision; the average ratio of seats to population in tenagricultural counties was four and a half times that in tenmanufacturing divisions; Honiton, with about three thousandinhabitants, was equally represented with Liverpool, which had fourhundred thousand. [Footnote 4/41]In 1866, apportionment by population began to be advocatedgenerally in the House, but was not made the basis of theredistribution of 1867, although the act of that year did apportionrepresentation more evenly, gauged by the population standard.[Footnote 4/42] Population shiftsincreased the surviving inequalities; by 1884, the representationratio

Page 369 U. S. 304

in many small boroughs was more than twenty-two times that ofBirmingham or Manchester, forty-to-one disparities could be foundelsewhere, and, in sum, in the 1870's and 1880's, a fourth of theelectorate returned two-thirds of the members of the House.[Footnote 4/43]

The first systematic English attempt to distribute seats bypopulation was the Redistribution Act of 1885. [Footnote 4/44] The statute still left ratios ofinequality of as much as seven to one, [Footnote 4/45] which had increased to fifteen to one by1912. [Footnote 4/46] In 1918,Parliament again responded to "shockingly bad" conditions ofinequality, [Footnote 4/47] andto partisan political inspiration, [Footnote 4/48] by redistribution. [Footnote 4/49] In 1944, redistribution was put ona periodic footing by the House of Commons (Redistribution ofSeats) Act of that year, [Footnote4/50] which committed a continuing primary responsibility forreapportioning the Commons to administrative agencies (BoundaryCommissions for England, Scotland, Wales and Northern Ireland,respectively). [Footnote 4/51]The Commissions, having regard to certain rules prescribed fortheir guidance, are to prepare at designated intervals reports forthe Home Secretary's submission to Parliament, along with the draftof an Order in Council to give effect to the

Page 369 U. S. 305

Commissions' recommendations. The districting rules adopt thebasic principle of representation by population, although theprinciple is significantly modified by directions to respect localgeographic boundaries as far as practicable, and by discretion totake account of special geographical conditions, including thesize, shape and accessibility of constituencies. Under the original1944 Act, the rules provided that (subject to the exercise of thediscretion respecting special geographical conditions and to regardfor the total size of the House of Commons as prescribed by theAct) so far as practicable, the single-member districts should notdeviate more than twenty-five percent from the electoral quota(population divided by number of constituencies). However,apparently at the recommendation of the Boundary Commission forEngland, the twenty-five percent standard was eliminated as toorestrictive in 1947, and replaced by the flexible provision thatconstituencies are to be as near the electoral quota aspracticable, a rule which is expressly subordinated both to theconsideration of special geographic conditions and to that ofpreserving local boundaries. [Footnote 4/52] Free of the twenty-five percent rule,the Commissions drew up plans of distribution in which inequalitiesamong the districts run, in ordinary cases, as high as two to oneand, in the case of a few extraordinary constituencies, three toone. [Footnote 4/53] The actionof the Boundary Commission for England was twice challenged in thecourts in 1954 -- the claim being that the Commission had violatedstatutory rules

Page 369 U. S. 306

prescribing the standards for its judgment -- and, in bothcases, the Judges declined to intervene. InHammersmith BoroughCouncil v. Boundary Commission for England, [Footnote 4/54] Harman, J., was of opinion that thenature of the controversy and the scheme of the Acts made thematter inappropriate for judicial interference, and inHarperv. Home Secretary, [Footnote4/55] the Court of Appeal, per Evershed, M.R., quoting Harman,J., with approval, adverting to the wide range of discretionentrusted to the Commission under the Acts, and remarking thedelicate character of the parliamentary issues in which it wassought to engage the court, reached the same conclusion. [Footnote 4/56]

The House of Commons (Redistribution of Seats) Act, 1958,[Footnote 4/57] made two furtheramendments to the law. Responsive to the recommendation of theBoundary Commission for England, [Footnote 4/58] the interval permitted betweenCommission reports was more than doubled, to a new maximum offifteen years. [Footnote 4/59]And at the suggestion of the same Commission that

"[i]t would ease the future labours of the Commission and removemuch local irritation if Rule 5 [requiring that the electorate ofeach constituency be as near the electoral quota as practicable]were to be so amended as to allow us to make recommendationspreserving thestatus quo in any area where such a courseappeared to be desirable and not inconsistent

Page 369 U. S. 307

with the broad intention of the Rules, [Footnote 4/60]"

the Commissions were directed to consider the inconveniencesattendant upon the alteration of constituencies, and the local tieswhich such alteration might break. The Home Secretary's view ofthis amendment was that it worked to erect "a presumption againstmaking changes unless there is a very strong case for them."[Footnote 4/61]

2.The Colonies and the Union. For the guidingpolitical theorists of the Revolutionary generation, the Englishsystem of representation, in its most salient aspects of numericalinequality, was a model to be avoided, not followed. [Footnote 4/62] Nevertheless, the basicEnglish principle of apportioning representatives among the localgovernmental entities, towns or counties, rather than among unitsof approximately equal population, had early taken root in thecolonies. [Footnote 4/63] Insome, as in Massachusetts and Rhode Island, numbers of electorswere taken into account, in a rough fashion, by allottingincreasing fixed quotas of representatives to several towns orclasses of towns graduated by population, but in most of thecolonies, delegates were allowed to the local units without respectto numbers. [Footnote 4/64] Thisresulted in grossly unequal electoral units. [Footnote 4/65] The representation ratio in oneNorth Carolina county was more than eight times that, in another.[Footnote 4/66] Moreover,American rotten boroughs had appeared, [Footnote 4/67] and apportionment was made an instrumentfirst in the political

Page 369 U. S. 308

struggles between the King or the royal governors and thecolonial legislatures, [Footnote4/68] and, later, between the older tidewater regions in thecolonies and the growing interior. [Footnote 4/69] Madison, in the Philadelphia Convention,adverted to the "inequality of the Representation in theLegislatures of particular States, . . ." [Footnote 4/70] arguing that it was necessary to conferon Congress the power ultimately to regulate the times, places andmanner of selecting Representatives, [Footnote 4/71] in order to forestall theoverrepresented counties' securing themselves a similaroverrepresentation in the national councils. The example of SouthCarolina, where Charleston's overrepresentation was a continuingbone of contention between the tidewater and the back country, wascited by Madison in the Virginia Convention and by King in theMassachusetts Convention, in support of the same power, and Kingalso spoke of the extreme numerical inequality arising fromConnecticut's town representation system. [Footnote 4/72]

Such inequalities survived the constitutional period. The UnitedStates Constitution itself did not largely adopt the principle ofnumbers. Apportionment of the national legislature among the Stateswas one of the most difficult problems for the Convention;[Footnote 4/73] its solution --involving State representation in the Senate [Footnote 4/74] and the three-fifths compromise inthe House [Footnote 4/75] -- leftneither chamber apportioned proportionately to population.

Page 369 U. S. 309

Within the States, electoral power continued to be allotted tofavor the tidewater. [Footnote4/76] Jefferson, in his Notes on Virginia, recorded the "veryunequal" representation there: individual counties differing inpopulation by a ratio of more than seventeen to one elected thesame number of representatives, and those nineteen thousand ofVirginia's fifty thousand men who lived between the falls of therivers and the seacoast returned half the State's senators andalmost half its delegates. [Footnote4/77] In South Carolina in 1790, the three lower districts,with a white population of less than twenty-nine thousand, electedtwenty senators and seventy assembly members; while, in theuplands, more than one hundred and eleven thousand white personselected seventeen senators and fifty-four assemblymen. [Footnote 4/78]

In the early nineteenth century, the demands of the interiorbecame more insistent. The apportionment quarrel in Virginia was amajor factor in precipitating the calling of a constitutionalconvention in 1829. Bitter animosities racked the convention,threatening the State with disunion. At last, a compromise whichgave the three hundred and twenty thousand people of the westthirteen senators, as against the nineteen senators returned by thethree hundred sixty-three thousand people of the east, commandedagreement. It was adopted at the polls, but left the westerncounties so dissatisfied that there were threats of revolt andrealignment with the State of Maryland. [Footnote 4/79]

Maryland, however, had her own numerical disproportions. In1820, one representative vote in Calvert County

Page 369 U. S. 310

was worth five in Frederick County, and almost two hundredthousand people were represented by eighteen members, while fiftythousand others elected twenty. [Footnote 4/80] This was the result of the countyrepresentation system of allotment. And, except for Massachusetts,which, after a long struggle, did adopt representation bypopulation at the mid-century, a similar town representationprinciple continued to prevail in various forms throughout NewEngland, with all its attendant, often gross, inequalities.[Footnote 4/81]

3.The States at the time of ratification of the FourteenthAmendment, and those later admitted. The several stateconventions throughout the first half of the nineteenth centurywere the scenes of fierce sectional and party strifes respectingthe geographic allocation of representation. [Footnote 4/82] Their product was a wide variety ofapportionment methods which recognized the element of population indiffering ways and degrees. Particularly pertinent to appraisal ofthe contention that the Fourteenth Amendment embodied a standardlimiting the freedom of the States with regard to the principlesand bases of local legislative apportionment is an examination ofthe apportionment provisions of the thirty-three States whichratified the Amendment between 1866 and 1870, at their respectivetimes of ratification. These may be considered in two groups: (A)the ratifying States other than the ten Southern States whoseconstitutions, at the time of ratification or shortly thereafter,were the work of the Reconstruction Act conventions; [Footnote 4/83] and

Page 369 U. S. 311

(B) the ten Reconstruction-Act States. All thirty-three aresignificant, because they demonstrate how unfounded is theassumption that the ratifying States could have agreed on astandard apportionment theory or practice, and how baseless thesuggestion that, by voting for the Equal Protection Clause, theysought to establish a test mold for apportionment which -- ifappellants' argument is sound -- struck downsub silentionot a few of their own state constitutional provisions. But theconstitutions of the ten Reconstruction Act States have an addedimportance, for it is scarcely to be thought that the Congresswhich was so solicitous for the adoption of the FourteenthAmendment as to make the readmission of the late rebel States toCongress turn on their respective ratifications of it, would haveapproved constitutions which -- again, under appellants' theory --contemporaneously offended the Amendment.

A. Of the twenty-three ratifying States of the first group,seven or eight had constitutions which demanded or allowedapportionment of both houses on the basis of population, [Footnote 4/84] unqualifiedly or with onlyqualifications respecting the preservation of local boundaries.[Footnote 4/85] Three

Page 369 U. S. 312

more apportioned on what was essentially a population base, butprovided that, in one house, counties having a specified fractionof a ratio -- a moiety or two-thirds -- should have arepresentative. [Footnote 4/86]Since each of these three States limited the size of theirchambers, the fractional rule could operate -- and, at least inMichigan, has, in fact, operated [Footnote 4/87] -- to produce substantial numericalinequalities

Page 369 U. S. 313

in favor of the sparsely populated counties. [Footnote 4/88] Iowa favored her small counties bythe rule that no more than four counties might be combined in arepresentative district, [Footnote4/89] and New York and Kansas compromised population and countyrepresentation principles by assuring every county, regardless ofthe number of its inhabitants, at least one seat in theirrespective Houses. [Footnote4/90]

Ohio and Maine recognized the factor of numbers by a differentdevice. The former gave a House representative to each countyhaving half a ratio, two representatives for a ratio andthree-quarters, three representatives for three ratios, and asingle additional representative for each additional ratio.[Footnote 4/91] The latter, afterapportioning among counties on a population base, gave each town offifteen hundred inhabitants one representative, each town of threethousand, seven hundred and fifty inhabitants two representatives,and so on in increasing intervals to twenty-six thousand, twohundred and fifty inhabitants -- towns of that size or largerreceiving the maximum permitted number of representatives: seven.[Footnote 4/92] The departurefrom numerical equality under these systems is apparent: in Maine,assuming the incidence of towns in

Page 369 U. S. 314

all categories, representative ratios would differ by factors oftwo and a half to one, at a minimum. Similarly, Missouri gave eachof its counties, however small, one representative, tworepresentatives for three ratios, three representatives for sixratios, and one additional representative for each three ratiosabove six. [Footnote 4/93] NewHampshire allotted a representative to each town of one hundred andfifty ratable male polls of voting age and one more representativefor each increment of three hundred above that figure; [Footnote 4/94] its Senate was notapportioned by population, but among districts based on theproportion of direct taxes paid. [Footnote 4/95] In Pennsylvania, the basis ofapportionment in both houses was taxable inhabitants, and in theHouse, every county of at least thirty-five hundred taxables had arepresentative, nor could more than three counties be joined informing a representative district; while, in the Senate, no city orcounty could have more than four of the State's twenty-five tothirty-three senators. [Footnote4/96]

Finally, four States apportioned at least one House with noregard whatever to population. In Connecticut, [Footnote 4/97] and Vermont [Footnote 4/98] representation in the House was on atown basis; Rhode Island gave one senator to each of its towns orcities, [Footnote 4/99] and NewJersey one to each of its counties. [Footnote 4/100]

Page 369 U. S. 315

Nor, in any of these States, was the other House apportioned ona strict principle of equal numbers: Connecticut gave each of itscounties a minimum of two senators [Footnote 4/101] and Vermont, one; [Footnote 4/102] New Jersey assured each county arepresentative; [Footnote4/103] and, in Rhode Island, which gave at least onerepresentative to each town or city, no town or city could havemore than one-sixth of the total number in the House. [Footnote 4/104]

B. Among the ten late Confederate States affected by theReconstruction Acts, in only four did it appear that apportionmentof both state legislative houses would or might be based strictlyon population. [Footnote 4/105]In North Carolina, [Footnote4/106] South Carolina, [Footnote 4/107] Louisiana, [Footnote 4/108] and Alabama, [Footnote 4/109] each county (in the case of Louisiana,each parish) was assured at least one seat in the lower Houseirrespective of numbers -- a distribution which exhausted,respectively,

Page 369 U. S. 316

on the basis of the number of then-existing counties,three-quarters, one-quarter, two-fifths and three-fifths of themaximum possible number of representatives, before a single seatwas available for assignment on a population basis, and, in SouthCarolina, moreover, the Senate was composed of one member electedfrom each county, except that Charleston sent two. [Footnote 4/110] In Florida's House,each county had one seat guaranteed and an additional seat forevery thousand registered voters up to a maximum of fourrepresentatives, [Footnote4/111] while Georgia, whose Senate seats were distributed amongforty-four single member districts each composed of threecontiguous counties, [Footnote4/112] assigned representation in its House as follows: threeseats to each of the six most populous counties, two to each of thethirty-one next most populous, one to each of the remainingninety-five. [Footnote 4/113]As might be expected, the "one representative per county" minimumpattern has proved incompatible with numerical equality, [Footnote 4/114] and Georgia's

Page 369 U. S. 317

county-clustering system has produced representative ratiodisparities, between the largest and smallest counties, of morethan sixty to one. [Footnote4/115]

C. The constitutions [Footnote4/116] of the thirteen States which Congress admitted to theUnion after the ratification of the Fourteenth Amendment showed asimilar pattern. Six of them required or permitted apportionment ofboth Houses by population, subject only to qualificationsconcerning local boundaries. [Footnote 4/117] Wyoming, apportioning by population,guaranteed to each of its counties at least one seat in each House,[Footnote 4/118] and Idaho,which prescribed (after the first legislative session) thatapportionment should be "as may be provided by law," gave eachcounty at least one representative. [Footnote 4/119] In Oklahoma, House members wereapportioned among counties so as to give one

Page 369 U. S. 318

seat for half a ratio, two for a ratio and three-quarters, andone for each additional ratio up to a maximum of sevenrepresentatives per county. [Footnote 4/120] Montana required reapportionment ofits House on the basis of periodic enumerations according to ratiosto be fixed by law, [Footnote4/121] but its counties were represented as counties in theSenate, each county having one senator. [Footnote 4/122] Alaska [Footnote 4/123] and Hawaii [Footnote 4/124] each apportioned a number of senatorsamong constitutionally fixed districts; their respective Houseswere to be periodically reapportioned by population, subject to amoiety rule in Alaska [Footnote4/125] and to Hawaii's guarantee of one representative to eachof four constitutionally designated areas. [Footnote 4/126] The Arizona Constitution assignedrepresentation to each county in each house, giving one or twosenators and from one to seven representatives to each, and makingno provision for reapportionment. [Footnote 4/127]

Page 369 U. S. 319

4.Contemporary apportionment. Detailed recent studiesare available to describe the present-day constitutional andstatutory status of apportionment in the fifty States. [Footnote 4/128] They demonstrate adecided twentieth-century trend away from population as theexclusive base of representation. Today, only a dozen stateconstitutions provide for periodic legislative reapportionment ofboth houses by a substantially unqualified application of thepopulation standard, [Footnote4/129] and only about a dozen more prescribe suchreapportionment for even a single chamber.

"Specific provision for county representation in at least onehouse of the state legislature has been increasingly adopted sincethe end of the 19th century. [Footnote 4/130]"

More than twenty States now guarantee each county at least oneseat in one of their houses regardless of population, and in nineothers county or town units are given equal representation in onelegislative branch, whatever the number of each unit's inhabitants.Of course, numerically considered, "These provisions invariablyresult in over-representation of the least populated areas."[Footnote 4/131] And in aneffort to curb the political dominance of metropolitan regions, atleast ten States now limit the maximum entitlement of any singlecounty (or, in some cases, city)

Page 369 U. S. 320

in one legislative house -- another source of substantialnumerical disproportion. [Footnote4/132]

Moreover, it is common knowledge that the legislatures have notkept reapportionment up to date, even where state constitutions interms require it. [Footnote4/133] In particular, the pattern of according greater percapita representation to rural, relatively sparsely populated areas-- the same pattern which finds expression in various stateconstitutional provisions, [Footnote 4/134] and which has been given effect inEngland and elsewhere [Footnote4/135] -- has, in some of the States, been made the law bylegislative inaction in the face of

Page 369 U. S. 321

population shifts. [Footnote4/136] Throughout the country, urban and suburban areas tend tobe given higher representation ratios than do rural areas.[Footnote 4/137]

The stark fact is that, if, among the numerous widely varyingprinciples and practices that control state legislativeapportionment today, there is any generally prevailing feature,that feature is geographic inequality in relation to the populationstandard. [Footnote 4/138]Examples could be endlessly multiplied. In New Jersey, countiesof

Page 369 U. S. 322

thirty-five thousand and of more than nine hundred and fivethousand inhabitants respectively each have a single senator.[Footnote 4/139] Representativedistricts in Minnesota range from 7,290 inhabitants to 107,246inhabitants. [Footnote 4/140]Ratios of senatorial representation in California vary as much astwo hundred and ninety-seven to one. [Footnote 4/141] In Oklahoma, the range is ten to onefor House constituencies and roughly sixteen to one for Senateconstituencies. [Footnote4/142] Colebrook, Connecticut -- population 592 -- elects twoHouse representatives; Hartford -- population 177,397 -- alsoelects two. [Footnote 4/143]The first, third and fifth of these examples are the products ofconstitutional provisions which subordinate population to regionalconsiderations in apportionment; the second is the result oflegislative inaction; the fourth derives from both constitutionaland legislative sources. A survey made in 1955, in sum, revealsthat less than thirty percent of the population inhabit districtssufficient to elect a House majority in thirteen States and aSenate majority in nineteen States. [Footnote 4/144] These figures show more thanindividual variations from a generally accepted standard ofelectoral equality. They show that there is not -- as there hasnever been -- a standard by

Page 369 U. S. 323

which the place of equality as a factor in apportionment can bemeasured.

Manifestly, the Equal Protection Clause supplies no clearerguide for judicial examination of apportionment methods than wouldthe Guarantee Clause itself. Apportionment, by its character, is asubject of extraordinary complexity, involving -- even after thefundamental theoretical issues concerning what is to be representedin a representative legislature have been fought out or compromised-- considerations of geography, demography, electoral convenience,economic and social cohesions or divergencies among particularlocal groups, communications, the practical effects of politicalinstitutions like the lobby and the city machine, ancienttraditions and ties of settled usage, respect for proven incumbentsof long experience and senior status, mathematical mechanics,censuses compiling relevant data, and a host of others. [Footnote 4/145]

Page 369 U. S. 324

Legislative responses throughout the country to thereapportionment demands of the 1960 Census have glaringly confirmedthat these are not factors that lend themselves to evaluations of anature that are the staple of judicial determinations or for whichjudges are equipped to adjudicate by legal training or experienceor native wit. And this is the more so true because, in everystrand of this complicated, intricate web of values meet thecontending forces of partisan politics. [Footnote 4/146] The practical significance ofapportionment is that the next election results may differ becauseof it. Apportionment battles are overwhelmingly party orintra-party contests. [Footnote4/147] It will add a virulent source of friction and tension infederal-state relations to embroil the federal judiciary in them.[Footnote 4/148]

Page 369 U. S. 325

IVAppellants, however, contend that the federal courts may providethe standard which the Fourteenth Amendment lacks by reference tothe provisions of the constitution of Tennessee. The argument isthat, although the same or greater disparities of electoralstrength may be suffered to exist immune from federal judicialreview in States where they result from apportionment legislationconsistent with state constitutions, the Tennessee Legislature maynot abridge the rights which, on its face, its own constitutionappears to give, without by that act denying equal protection ofthe laws. It is said that the law of Tennessee, as expressed by thewords of its written constitution, has made the basic choice amongpolicies in favor of representation proportioned to population, andthat it is no longer open to the State to allot its voting power onother principles.

This reasoning does not bear analysis. Like claims invokingstate constitutional requirement have been rejected here, and forgood reason. It is settled that whatever federal consequences mayderive from a discrimination worked by a state statute must be thesame as if the same discrimination were written into the

Page 369 U. S. 326

State's fundamental law.Nashville, C. & St.L. R. Co. v.Browning,310 U. S. 362.And see Castillo v. McConnico,168 U.S. 674;Coulter v. Louisville & N. R. Co.,196 U. S. 599,196 U. S.608-609;Owensboro Waterworks Co. v. Owensboro,200 U. S. 38;Hebert v. Louisiana,272 U. S. 312,272 U. S.316-317;Snowden v. Hughes,321 U. S.1,321 U. S. 11.Appellants complain of a practice which, by their own allegations,has been the law of Tennessee for sixty years. They allege that theApportionment Act of 1901 created unequal districts when passed,and still maintains unequal districts. They allege that theLegislature has, since 1901, purposefully retained unequaldistricts. And the Supreme Court of Tennessee has refused toinvalidate the law establishing these unequal districts.Kiddv. McCanless, 200 Tenn. 273,292S.W.2d 40;appeal dismissed here in 352 U.S. 920. Inthese circumstances, what was said in theBrowning case,supra, at310 U. S. 369,clearly governs this case:

". . . Here, according to petitioner's own claim, all the organsof the state are conforming to a practice, systematic, unbroken formore than forty years, and now questioned for the first time. Itwould be a narrow conception of jurisprudence to confine the notionof 'laws' to what is found written on the statute books, and todisregard the gloss which life has written upon it. Settled statepractice cannot supplant constitutional guarantees, but it canestablish what is state law. The Equal Protection Clause did notwrite an empty formalism into the Constitution. Deeply embeddedtraditional ways of carrying out state policy, such as those ofwhich petitioner complains, are often tougher and truer law thanthe dead words of the written text. . . . [T]he Equal ProtectionClause is not a command of candor. . . . "

Page 369 U. S. 327

Tennessee's law and its policy respecting apportionment are what60 years of practice show them to be, not what appellants cull fromthe unenforced and, according to its own judiciary, unenforceablewords of its Constitution. The statute comes here on the samefooting, therefore, as would the apportionment laws of New Jersey,California or Connecticut, [Footnote 4/149] and is unaffected by its supposedrepugnance to the state constitutional language on which appellantsrely. [Footnote 4/150]

In another aspect, however, theKidd v. McCanless case,supra, introduces a factor peculiar to this litigation,which only emphasizes the duty of declining the exercise of federaljudicial jurisdiction. In all of the apportionment cases which havecome before the Court, a consideration which has been weighty indetermining their nonjusticiability has been the difficulty orimpossibility of devising effective judicial remedies in this classof case. An injunction restraining a general election unless thelegislature reapportions would paralyze the critical centers of aState's political system and threaten political dislocation whoseconsequences are not foreseeable. A declaration devoid

Page 369 U. S. 328

of implied compulsion of injunctive or other relief would be anidle threat. [Footnote 4/151]Surely a Federal District Court could not itself remap the State:the same complexities which impede effective judicial review ofapportionmenta fortiori make impossible a court'sconsideration of these imponderables as an original matter. And thechoice of elections at large, as opposed to elections by district,however unequal the districts, is a matter of sweeping politicaljudgment having enormous political implications, the nature andreach of which are certainly beyond the informed understanding of,and capacity for appraisal by, courts.

In Tennessee, moreover, the McCanless case has closed offseveral among even these unsatisfactory and dangerous modes ofrelief. That case was a suit in the state courts attacking the 1901Reapportionment Act and seeking a declaration and an injunction ofthe Act's enforcement or, alternatively, a writ of mandamuscompelling state election officials to hold the elections at large,or, again alternatively, a decree of the court reapportioning theState. The Chancellor denied all coercive relief, but entertainedthe suit for the purpose of rendering a declaratory judgment. Itwas his view that, despite an invalidation of the statute underwhich the present legislature was elected, that body would continueto possessde facto authority to reapportion, and that,therefore, the maintaining of the suit did not threaten thedisruption of the government. The Tennessee Supreme Court agreedthat no coercive relief could be granted; in particular, it said,"There is no provision of law for election of our General Assemblyby an election at large over the State." 200 Tenn. at 277, 292S.W.2d at 42. Thus, a legislature elected at

Page 369 U. S. 329

large would not be the legally constituted legislative authorityof the State. The court reversed, however, the Chancellor'sdetermination to give declaratory relief, holding that the groundof demurrer which asserted that a striking down of the statutewould disrupt the orderly process of government should have beensustained:

"(4) It seems obvious, and we therefore hold, that, if the Actof 1901 is to be declared unconstitutional, then thedefacto doctrine cannot be applied to maintain the presentmembers of the General Assembly in office. If the Chancellor iscorrect in holding that this statute has expired by the passage ofthe decade following its enactment, then, for the same reason, allprior apportionment acts have expired by a like lapse of time, andare nonexistent. Therefore, we would not only not have any existingmembers of the General Assembly, but we would have no apportionmentact whatever under which a new election could be held for theelection of members to the General Assembly."

"* * * *"

"The ultimate result of holding this Act unconstitutional byreason of the lapse of time would be to deprive us of the presentLegislature and the means of electing a new one and ultimatelybring about the destruction of the State itself."

200 Tenn. at 281-282, 292 S.W.2d at 44.

A federal court enforcing the Federal Constitution is not, to besure, bound by the remedial doctrines of the state courts. But itmust consider as pertinent to the propriety or impropriety ofexercising its jurisdiction those state law effects of its decreewhich it cannot itself control. A federal court cannot provide theauthority requisite to make a legislature the proper governing bodyof the State of Tennessee. And it cannot be doubted that thestriking

Page 369 U. S. 330

down of the statute here challenged on equal protection grounds,no less than on grounds of failure to reapportion decennially,would deprive the State of all valid apportionment legislation and-- under the ruling inMcCanless -- deprive the State ofan effective law-based legislative branch. Just suchconsiderations, among others here present, were determinative inLuther v. Borden and the Oregon initiative cases.[Footnote 4/152]

Although the District Court had jurisdiction in the veryrestricted sense of power to determine whether it could adjudicatethe claim, the case is of that class of political controversywhich, by the nature of its subject, is unfit for federal judicialaction. The judgment of the District Court, in dismissing thecomplaint for failure to state a claim on which relief can begranted, should therefore be affirmed.

* It is worth reminding that the problem of legislativeapportionment is not one dividing North and South. Indeed, in thepresent House of Representatives, for example, Michigan'scongressional districts are far less representative of the numbersof inhabitants, according to the 1960 census, than are Louisiana's.Michigan's Sixteenth District, which is 93.1% urban, contains802,994 persons, and its Twelfth, which is 47.6% urban, contains177,431 -- one-fifth as many persons. Louisiana's most populousdistrict, the Sixth, is 53.6% urban and contains 536,029 persons,and its least populous, the Eighth, 36.7% urban, contains 263,850-- nearly half. Gross disregard of any assumption that ourpolitical system implies even approximation to the notion thatindividual votes in the various districts within a State shouldhave equal weight is as true,e.g., of California,Illinois, and Ohio as it is of Georgia.See United StatesDepartment of Commerce, Census Release, February 24, 1962,CB62-23.

[Footnote 4/1]

See Wood v. Broom,287 U. S. 1;Colegrove v. Green,328 U. S. 549,rehearing denied, 329 U.S. 825,motion for reargumentbefore the full bench denied, 329 U.S. 828;Cook v.Fortson,329 U. S. 675,rehearing denied, 329 U.S. 829;Turman v.Duckworth,329 U. S. 675,rehearing denied, 329 U.S. 829;Colegrove v.Barrett, 330 U.S. 804;MacDougall v. Green,335 U. S. 281;South v. Peters,339 U. S. 276;Tedesco v. Board of Supervisors, 339 U.S. 940;Remmeyv. Smith, 342 U.S. 916;Cox v. Peters, 342 U.S. 936,rehearing denied, 343 U.S. 921;Anderson v.Jordan, 343 U.S. 912;Kidd v. McCanless, 352 U.S.920;Radford v. Gary, 352 U.S. 991;Hartsfield v.Sloan, 357 U.S. 916;Matthews v. Handley,361 U. S. 127;Perry v. Folsom, 144 F.Supp. 874 (D.C.N.D.Ala.);Magraw v.Donovan, 163 F.Supp. 184 (D.C.D. Minn.);cf. Dyer v. KazuhisaAbe, 138 F.Supp. 220 (D.C.D. Hawaii).And see Keogh v. Neely, 50F.2d 685 (C.A. 7th Cir.).

[Footnote 4/2]

Although the motion to intervene by the Mayor of Nashvilleasserted an interest in the litigation in only a representativecapacity, the complaint which he subsequently filed set forth thathe was a qualified voter who also sued in his own behalf. Themunicipalities of Knoxville and Chattanooga purport to representtheir residents. Since the claims of the municipal intervenors donot differ materially from those of the parties who sue asindividual voters, the Court need not now determine whether themunicipalities are proper parties to this proceeding.See,e.g., Stewart v. Kansas City,239 U. S.14.

[Footnote 4/3]

The original complaint named as defendants Tennessee's Secretaryof State, Attorney General, Coordinator of Elections, and the threemembers of the State Board of Elections, seeking to make the Boardmembers representatives of all the State's County ElectionCommissioners. The prayer in an intervening complaint by the Cityof Knoxville, that the Commissioners of Elections of Knox County beadded as parties defendant seems not to have been acted on by thecourt below. Defendants moved to dismiss,inter alia, onthe ground of failure to join indispensable parties, and they arguein this Court that only the County Election Commissioners of theninety-five counties are the effective administrators ofTennessee's elections laws, and that none of the defendants havesubstantial duties in connection therewith. The District Courtdeferred ruling on this ground of the motion. Inasmuch as itinvolves questions of local law more appropriately decided byjudges sitting in Tennessee than by this Court, and since, in anyevent, the failure to join County Election Commissioners in thisaction looking to prospective relief could be corrected, ifnecessary, by amendment of the complaints, the issue does notconcern the Court on this appeal.

[Footnote 4/4]

Jurisdiction is predicated upon R.S. § 1979, 42 U.S.C. § 1983,and 28 U.S.C. § 1343(3).

[Footnote 4/5]

However, counties having two-thirds of the ratio required for aRepresentative are entitled to seat one member in the House, andthere are certain geographical restrictions upon the formation ofSenate districts. The applicable provisions of Article II of theTennessee Constitution are:

"Sec. 4. Census. -- An enumeration of the qualifiedvoters, and an apportionment of the Representatives in the GeneralAssembly, shall be made in the year one thousand eight hundred andseventy-one, and within every subsequent term of ten years."

"Sec. 5. Apportionment of representatives. -- Thenumber of Representatives shall, at the several periods of makingthe enumeration, be apportioned among the several counties ordistricts, according to the number of qualified voters in each, andshall not exceed seventy-five, until the population of the Stateshall be one million and a half, and shall never exceedninety-nine; Provided that any county having two-thirds of theratio shall be entitled to one member."

"Sec. 6. Apportionment of senators. -- The number ofSenators shall, at the several periods of making the enumeration,be apportioned among the several counties or districts according tothe number of qualified electors in each, and shall not exceedone-third the number of representatives. In apportioning theSenators among the different counties, the fraction that may belost by any county or counties, in the apportionment of members tothe House of Representatives shall be made up to such county orcounties in the Senate as near as may be practicable. When adistrict is composed of two or more counties, they shall beadjoining, and no county shall be divided in forming a district."

[Footnote 4/6]

It is alleged that certain amendments to the Act of 1901 madeonly minor modifications of that Act, adjusting the boundaries ofindividual districts in a manner not material to plaintiffs'claims.

[Footnote 4/7]

The exhibits do not reveal the source of the population figureswhich they set forth, but it appears that the figures were takenfrom the United States Census of Population, 1950, Volume II, Part42 (Tennessee), Table 41, at 76-91. These census figures representthe total population over twenty-one years of age in each Tennesseecounty; they do not purport to enumerate "qualified voters" or"qualified electors," the measure of apportionment prescribed bythe Tennessee Constitution.See369U.S. 186fn4/5|>note 5,supra. To qualify to vote inTennessee, in addition to fulfilling the age requirement, anindividual must be a citizen of the United States, a resident ofthe State for twelve months and of the county where he offers hisvote for six months next preceding the election, and must not beunder the disqualification attaching to conviction for certainoffenses. Tenn.Code Ann., 1955, §§ 2-201, 2-205. The statisticsfound in the United States Census of Population, 1950, Volume II,Part 42 (Tennessee), Table 42, at 92-97, suggest that the residencerequirement, in particular, may be an unknown variable ofconsiderable significance. Appellants do not suggest a means bywhich a court, on the basis of the federal census figures, candetermine the number of qualified voters in the various Tennesseecounties.

[Footnote 4/8]

The "county aid funds" derived from a portion of a stategasoline privilege tax, for example, are distributed among thecounties as follows: one-half equally among the ninety-fivecounties, one-quarter on the basis of area, one-quarter on thebasis of population, to be used by county authorities in thebuilding, repairing and improving of county roads and bridges.Tenn.Code Ann., 1955, § 54-403. Appellants urge that thisdistribution is discriminatory.

[Footnote 4/9]

Plaintiffs also suggested, as an alternative to at-largeelections, that the District Court might itself redistrict theState. They did not, however, expressly pray such relief.

[Footnote 4/10]

See Bickel, Foreword: The Passive Virtues, 75Harv.L.Rev. 40, 45et seq. (1961).

[Footnote 4/11]

See, e.g.,16 U. S.Palmer, 3 Wheat. 610,16 U. S. 634,16 U. S. 635;The DivinaPastora, 4 Wheat. 52;Williamsv. Suffolk Ins. Co., 13 Pet. 415;Kennett v.Chambers, 14 How. 38;Doe v.Braden, 16 How. 635;Jones v. UnitedStates,137 U. S. 202;Terlinden v. Ames,184 U. S. 270;Charlton v. Kelly,229 U. S. 447;Oetjen v. Central Leather Co.,246 U.S. 297;Ex parte Peru,318 U.S. 578;Clark v. Allen,331 U.S. 503.Compare27 U. S.Neilson, 2 Pet. 253,with31 U. S.Arredondo, 6 Pet. 691. Of course, judgment concerning the"political" nature of even a controversy affecting the Nation'sforeign affairs is not a simple mechanical matter, and certain ofthe Court's decisions have accorded scant weight to theconsideration of unity of action in the conduct of externalrelations.Compare Vermilya-Brown Co. v. Connell,335 U. S. 377,with United States v. Pink,315 U.S. 203.

[Footnote 4/12]

Obviously, this is the equivalent of saying that thecharacteristics are not "constitutionally requisite" in ajudicially enforceable sense. The recognition of their necessity asa condition of legislation is left, as is observance of certainother constitutional commands, to the conscience of the nonjudicialorgans.Cf.65 U. S.Dennison, 24 How. 66.

[Footnote 4/13]

Also compare theColeman caseand UnitedStates v. Sprague,282 U. S. 716,with Hawke v. Smith (No. 1),253 U.S. 221.See the National Prohibition Cases,253 U. S. 350, andconsider the Court's treatment of the several contentions inLeser v. Garnett,258 U. S. 130.

[Footnote 4/14]

E.g., Myers v. Anderson,238 U.S. 368;Nixon v. Condon,286 U. S.73;Lane v. Wilson,307 U.S. 268;Smith v. Allwright,321 U.S. 649. The action for damages for improperly rejectingan elector's vote had been given by the English law since the timeofAshby v. White, 1 Brown's Cases in Parliament 62; 2Ld.Raym. 938; 3 Ld.Raym. 320, a case which, in its own day,precipitated an intra-parliamentary war of major dimensions.See 6 Hansard, Parliamentary History of England (1810),225-324, 376-436. Prior to the racial discrimination cases, thisCourt had recognized the action, by implication, in dictum inSwafford v. Templeton,185 U. S. 487, andWiley v. Sinkler,179 U. S. 58, bothrespecting federal elections.

[Footnote 4/15]

Cf. Gomillion v. Lightfoot,364 U.S. 339.

[Footnote 4/16]

By statute, an action for preventive relief is now given theUnited States in certain voting cases. 71 Stat. 637, 42 U.S.C. §1971(c), amending R.S. § 2004.See United States v.Raines,362 U. S. 17;United States v. Thomas,362 U. S. 58.

[Footnote 4/17]

Compare37 U. S.Massachusetts, 12 Pet. 657, and cases following,with73 U. S.Stanton, 6 Wall. 50.

[Footnote 4/18]

Compare31 U. S.Georgia, 6 Pet. 515,with30 U. S.Georgia, 5 Pet. 1,30 U. S. 20,30 U. S. 28 (Mr.Justice Johnson, concurring),30 U. S. 51 and30 U. S. 75 (Mr.Justice Thompson, dissenting).

[Footnote 4/19]

This was an alternative ground of Chief Justice Marshall'sopinion for the Court.Id. at30 U. S. 20. Thequestion which Marshall reserved as "unnecessary to decide,"ibid., was not the justiciability of the bill in thisaspect, but the "more doubtful" question whether that "part of thebill which respects the land occupied by the Indians, and prays theaid of the court to protect their possession," might beentertained.Ibid. Mr. Justice Johnson, concurring, foundthe controversy nonjusticiable, and would have put the rulingsolely on this ground,id. at30 U. S. 28, andMr. Justice Thompson, in dissent, agreed that much of the matter inthe bill was not fit for judicial determination.Id. at30 U. S. 51,30 U. S. 75.

[Footnote 4/20]

Cf.71 U. S.Johnson, 4 Wall. 475.

[Footnote 4/21]

Considerations similar to those which determined theCherokee Nation case andGeorgia v. Stanton nodoubt explain the celebrated decision inNabob of the Carnaticv. East India Co., 1 Ves.jun. *371; 2 Ves.jun. *56, ratherthan any attribution of a portion of British sovereignty, inrespect of Indian affairs, to the company. The reluctance of theEnglish Judges to involve themselves in contests of factionalpolitical power is of ancient standing. InThe Duke of York'sClaim to the Crown, 5 Rotuli Parl. 375, printed in Wambaugh,Cases on Constitutional Law (1915), 1, the role which the Judgeswere asked to play appears to have been rather that of advocatesthan of judges, but the answer which they returned to the Lordsrelied on reasons equally applicable to either role.

[Footnote 4/22]

"The United States shall guarantee to every State in this Uniona Republican Form of Government, and shall protect each of themagainst Invasion, and on Application of the Legislature, or of theExecutive (when the Legislature cannot be convened) againstdomestic Violence."

[Footnote 4/23]

Cf. the cases holding that the Fourteenth Amendmentimposes no such restriction upon the form of a State's governmentalorganization as will permit persons affected by government actionto complain that, in its organization principles of separation ofpowers have been violated.E.g., Dreyer v. Illinois,187 U. S. 71;Soliah v. Heskin,222 U. S. 522;Houck v. Little River Drainage District,239 U.S. 254. The same consistent refusal of this Court tofind that the Federal Constitution restricts state power to designthe structure of state political institutions is reflected in thecases rejecting claims arising out of the States' creation,alteration, or destruction of local subdivisions or their powers,insofar as these claims are made by the subdivisions themselves,see Laramie County v. Albany County,92 U. S.307;Pawhuska v. Pawhuska Oil & Gas Co.,250 U. S. 394;Trenton v. New Jersey,262 U. S. 182;Risty v. Chicago, R.I. & P. R. Co.,270 U.S. 378,270 U. S.389-390;Williams v. Mayor and City Council ofBaltimore,289 U. S. 36, or bythe whole body of their residents who share only a general,undifferentiated interest in their preservation.See Hunter v.Pittsburgh,207 U. S. 161. Thepolicy is also given effect by the denial of "standing" to personsseeking to challenge state action as infringing the interest ofsome separate unit within the State's administrative structure -- adenial which precludes the arbitrament by federal courts of whatare only disputes over the local allocation of government functionsand powers.See, e.g., Smith v. Indiana,191 U.S. 138;Braxton County Court v. West Virginia,208 U. S. 192;Marshall v. Dye,231 U. S. 250;Stewart v Kansas City,239 U. S. 14.

[Footnote 4/24]

223 U.S. at223 U. S.141.

". . . [T]he contention, if held to be sound, would necessarilyaffect the validity not only of the particular statute which isbefore us, but of every other statute passed in Oregon since theadoption of the initiative and referendum. And, indeed, thepropositions go further than this, since, in their essence, theyassert that there is no governmental function, legislative orjudicial, in Oregon, because it cannot be assumed, if theproposition be well founded, that there is at one and the same timeone and the same government which is republican in form and not ofthat character."

Compare48 U. S. Borden,7 How. 1,48 U. S.38-39:

". . . For, if this court is authorized to enter upon thisinquiry as proposed by the plaintiff, and it should be decided thatthe charter government had no legal existence during the period oftime above mentioned -- if it had been annulled by the adoption ofthe opposing government -- then the laws passed by its legislatureduring that time were nullities, its taxes wrongfully collected,its salaries and compensation to its officers illegally paid, itspublic accounts improperly settled, and the judgments and sentencesof its courts in civil and criminal cases null and void, and theofficers who carried their decisions into operation answerable astrespassers, if not, in some cases, as criminals."

"When the decision of this court might lead to such results, itbecomes its duty to examine very carefully its own powers before itundertakes to exercise jurisdiction."

[Footnote 4/25]

See Bowen, The Recent Contest in Rhode Island (1844);Frieze, A Concise History of the Efforts to Obtain an Extension ofSuffrage in Rhode Island; From the Year 1811 to 1842 (2d ed. 1842);Mowry, The Dorr War (1901); Wayland, The Affairs of Rhode Island(2d ed. 1842).

[Footnote 4/26]

The Court reasoned, with respect to the guarantee againstdomestic violence also contained in Art. IV, § 4, that this, too,was an authority committed solely to Congress; that Congress hadempowered the President, not the courts, to enforce it, and that itwas inconceivable that the courts should assume a power to makedeterminations in the premises which might conflict with those ofthe Executive. It noted further that, in fact, the President hadrecognized the governor of the charter government as the lawfulauthority in Rhode Island, although it had been unnecessary to callout the militia in his support.

[Footnote 4/27]

See369U.S. 186fn4/24|>note 24,supra.

[Footnote 4/28]

Id. at48 U. S. 39,48 U. S.46-47.

[Footnote 4/29]

Id. at48 U. S.41-42.

[Footnote 4/30]

In evaluating the Court's determination not to inquire into theauthority of the charter government, it must be remembered that,throughout the country, Dorr "had received the sympathy of theDemocratic press. His cause, therefore, became distinctly a partyissue." 2 Warren, The Supreme Court in United States History (Rev.ed.1937), 186.

[Footnote 4/31]

Appellants also allege discrimination in the legislature'sallocation of certain tax burdens and benefits. Whether or not suchdiscrimination would violate the Equal Protection Clause if the taxstatutes were challenged in a proper proceeding,see Dane v.Jackson,256 U. S. 589;cf. Nashville, C. & St.L. R. Co. v. Wallace,288 U. S. 249,288 U. S. 268,these recitative allegations do not affect the nature of thecontroversy which appellants' complaints present.

[Footnote 4/32]

Appellants would find a "right" to have one's ballot counted onauthority ofUnited States v. Mosley,238 U.S. 383;United States v. Classic,313 U.S. 299;United States v. Saylor,322 U.S. 385. All that these cases hold is that conspiraciesto commit certain sharp election practices which, in a federalelection, cause ballots not to receive the weight which the lawhas, in fact, given them, may amount to deprivations of theconstitutionally secured right to vote for federal officers.But see United States v. Bathgate,246 U.S. 220. The cases do not so much as suggest that thereexists a constitutional limitation upon the relative weight towhich the law might properly entitle respective ballots, even infederal elections.

[Footnote 4/33]

Mackenzie, Free Elections (1958) (hereafter, Mackenzie),108.

[Footnote 4/34]

Ogg, English Government and Politics (2d ed.1936) (hereafterOgg), 248-250, 257; Seymour, Electoral Reform in England and Wales(1915) (hereafter, Seymour), 46-47.

[Footnote 4/35]

Ogg 257-259; Seymour 45-52; Carpenter, The Development ofAmerican Political Thought (1930) (hereafter, Carpenter),45-46.

[Footnote 4/36]

Ogg 258.

[Footnote 4/37]

Seymour 51.

[Footnote 4/38]

The Federalist, No. 56 (Wright ed.1961), at 382.Compare Seymour 49. This takes account of the restrictedfranchise as well as the effect of the local unit apportionmentprinciple.

[Footnote 4/39]

Seymour 52-76.

[Footnote 4/40]

Ogg 264-265; Seymour 318-319.

[Footnote 4/41]

For these and other instances of gross inequality,seeSeymour 320-325.

[Footnote 4/42]

Seymour 333-346; Ogg 265.

[Footnote 4/43]

Seymour 349, 490-491.

[Footnote 4/44]

Seymour 489-518.

[Footnote 4/45]

Mackenzie 108;see also Seymour 513-517.

[Footnote 4/46]

Ogg 270.

[Footnote 4/47]

Ogg 253.

[Footnote 4/48]

Ogg 270-271.

[Footnote 4/49]

Ogg 273-274.

[Footnote 4/50]

7 & 8 Geo. VI, c. 41. The 1944 Act was amended by the HouseOf Commons (Redistribution Of Seats) Act, 1947, 10 & 11 Geo.VI, c. 10, and the two, with other provisions, were consolidated inthe House Of Commons (Redistribution Of Seats) Act, 1949, 12 &13 Geo. VI, c. 66, since amended by the House Of Commons(Redistribution Of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26.

[Footnote 4/51]

See generally Butler, The Redistribution Of Seats, 33Public Administration 125 (1955).

[Footnote 4/52]

See369U.S. 186fn4/50|>note 50,supra. However,Commissions are given discretion to depart from the strictapplication of the local boundary rule to avoid excessivedisparities between the electorate of a constituency and theelectoral quota, or between the electorate of a constituency andthat of neighboring constituencies. For detailed discussion,see Craig, Parliament and Boundary Commissions, [1959]Public Law 23.See also Butler,supra,369U.S. 186fn4/51|>note 51, at 127.

[Footnote 4/53]

Mackenzie 108, 113.

[Footnote 4/54]

The Times, Dec. 15, 1954, p. 4, cols 3-4.

[Footnote 4/55]

[1955] 1 Ch. 238.

[Footnote 4/56]

The court reserved the question whether a judicial remedy mightbe found in a case in which it appeared that a Commission hadmanifestly acted in complete disregard of the Acts.

[Footnote 4/57]

369U.S. 186fn4/50|>Note 50,supra.

[Footnote 4/58]

First Periodical Report of the Boundary Commission for England[Cmd. 9311] (1954), 4, par.19.

[Footnote 4/59]

Under the 1949 Act,see369U.S. 186fn4/50|>note 50,supra, the intervalsbetween reports were to be not less than three nor more than sevenyears, with certain qualifications. The 1958 Act raised the minimumto ten and the maximum to fifteen years.

[Footnote 4/60]

First Periodical Report,supra,369U.S. 186fn4/58|>note 58, at 4, par. 20.

[Footnote 4/61]

582 H.C.Deb. (5th ser.1957-1958), 30.

[Footnote 4/62]

See The Federalist, No. 56,supra,369U.S. 186fn4/38|>note 38; Tudor, Life of James Otis (1823),188-190.

[Footnote 4/63]

Griffith, The Rise and Development of the Gerrymander (1907)(hereafter, Griffith), 23-24.

[Footnote 4/64]

Luce, Legislative Principles (1930) (hereafter, Luce),336-342.

[Footnote 4/65]

Griffith 25

[Footnote 4/66]

Griffith 15-16, n. 1.

[Footnote 4/67]

Griffith 28.

[Footnote 4/68]

Carpenter 48-49, 54; Griffith 26, 28-29; Luce 339-340.

[Footnote 4/69]

Carpenter 87; Griffith 26-29, 31.

[Footnote 4/70]

II Farrand, Records of the Federal Convention (1911), 241.

[Footnote 4/71]

The power was provided. Art. I, § 4, cl. 1.

[Footnote 4/72]

III Elliot's Debates (2d ed. 1891), 367; IIid. at50-51.

[Footnote 4/73]

See Madison, in I Farrand,op. cit. supra,369U.S. 186fn4/70|>note 70, at 321: "The great difficulty liesin the affair of Representation, and if this could be adjusted, allothers would be surmountable."

[Footnote 4/74]

See The Federalist, No. 62 (Wright ed.1961), at408-409.

[Footnote 4/75]

See The Federalist, No. 54,id. at369-374.

[Footnote 4/76]

Carpenter 130.

[Footnote 4/77]

Jefferson, Notes on the State of Virginia (Peden ed.1955),118-119.See also II writings of Thomas Jefferson(Memorial ed.1903), 160-162.

[Footnote 4/78]

Carpenter 139-140.

[Footnote 4/79]

Griffith 102-104

[Footnote 4/80]

Griffith 104-105

[Footnote 4/81]

Luce 343-350. Bowen,supra,369U.S. 186fn4/25|>note 25, at 17-18, records that, in 1824Providence County, having three-fifths of Rhode Island'spopulation, elected only twenty-two of its seventy-tworepresentatives, and that the town of Providence, more than doublethe size of Newport, had half Newport's number ofrepresentatives.

[Footnote 4/82]

Carpenter 130-137; Luce 364-367; Griffith 116-117.

[Footnote 4/83]

See 14 Stat. 428; 15 Stat. 2, 14, 41.

[Footnote 4/84]

Various indices of population were employed among the Stateswhich took account of the factor of numbers. Some counted allinhabitants,e.g., N.J.Const., 1844, Art. IV, § 3; some,only white inhabitants,e.g., Ill.Const., 1848, Art. III,§ 8; some, male inhabitants over twenty-one,e.g.,Ind.Const., 1851, Art. IV, §§ 4-5; some, qualified voters,e.g., Tenn.Const., 1834, Art. II, §§ 4 to 6; some excludedaliens,e.g., N.Y.Const., 1846, Art. III, §§ 4, 5 (anduntaxed persons of color); some excluded untaxed Indians andmilitary personnel,e.g., Neb.Const., 1866-1867, Art. II,§ 3. For present purposes, these differences, although notunimportant as revealing fundamental divergences in representationtheory, will be disregarded.

[Footnote 4/85]

Ore.Const., 1857, Art. IV, §§ 5, 6, 7; Ill.Const., 1848, Art.III, §§ 8, 9; Ind.Const., 1851, Art. IV, §§ 4, 5, 6; Minn.Const.,1857, Art. IV, § 2; Wis.Const., 1848, Art. IV, §§ 3 to 5;Mass.Const., 1780, Amends. XXI, XXII; Neb.Const., 1866-1867, Art.II, § 3. All of these but Minnesota made provision for periodicreapportionment. Nevada's Constitution of 1864, Art. XV, § 13,provided that the federal censuses and interim state decennialenumerations should serve as the bases of representation for bothhouses, but did not expressly require either numerical equality orreapportionment at fixed intervals .

Several of these constitutions contain provisions which forbidsplitting counties or which otherwise require recognition of localboundaries.See, e.g., the severe restriction inIll.Const., 1848, Art. III, § 9. Such provisions will almostinevitably produce numerical inequalities.See, forexample, University of Oklahoma, Bureau of GovernmentResearch, Legislative Apportionment in Oklahoma (1956), 21-23.However, because their effect in this regard will turn onidiosyncratic local factors, and because other constitutionalprovisions are a more significant source of inequality, theseprovisions are here disregarded.

[Footnote 4/86]

Tenn.Const., 1834, Art. II, §§ 4 to 6 (two-thirds of a ratioentitles a county to one representative in the House); W.Va.Const.,1861-1863, Art. IV, §§ 4, 5, 7, 8, 9 (one-half of a ratio entitlesa county to one representative in the House); Mich.Const., 1850,Art. IV, §§ 2 to 4 (one-half of a ratio entitles each countythereafter organized to one representative in the House). In Oregonand Iowa, a major-fraction rule applied which gave a House seat notonly to counties having a moiety of a single ratio, but to allcounties having more than half a ratio in excess of the multiple ofa ratio. Ore.Const., 1857, Art. IV, § 6,369U.S. 186fn4/85|>note 85,supra; Iowa Const., 1857,Art. III, §§ 33, 34, 35, 37,369U.S. 186fn4/89|>note 89,infra.

[Footnote 4/87]

See Bone, States Attempting to Comply withReapportionment Requirements, 17 Law & Contemp.Prob. 387, 391(1952).

[Footnote 4/88]

It also appears, although the section is not altogether clear,that the provisions of West Virginia's Constitution controllingapportionment of senators would operate in favor of the State'sless populous regions by limiting any single county to a maximum oftwo senators. W.Va.Const., 1861-1863, Art. IV, § 4.

[Footnote 4/89]

Iowa Const., 1857, Art. III, §§ 33, 34, 35, 37.

[Footnote 4/90]

N.Y.Const., 1846, Art. III, §§ 4, 5 (except Hamilton County);Kan.Const., 1859, Art. 2, § 2; Art. 10. The Kansas provisionsrequire periodic apportionment based on censuses, but do not interms demand equal districts.

[Footnote 4/91]

Ohio Const., 1851, Art. XI, §§ 1 to 5.See Art. XI, §§6 to 9 for Senate apportionment.

[Footnote 4/92]

Me.Const., 1819, Art. IV, Pt. First, §§ 2, 3.See Art.IV, Pt. Second, § 2, for Senate apportionment based on numbers.

[Footnote 4/93]

Mo.Const., 1865, Art. IV, §§ 2, 7, 8.See Art. IV, §§ 4to 8, for Senate apportionment based on numbers.

[Footnote 4/94]

Towns smaller than one hundred and fifty, if so situated that itwas "very inconvenient" to join them to other towns for votingpurposes, might be permitted by the legislature to send arepresentative.

[Footnote 4/95]

N.H.Const., 1792, Pt. Second, §§ IX to XI; Pt. Second, §XXVI.

[Footnote 4/96]

Pa.Const., 1838, as amended, Art. I, §§ 4, 6, 7.

[Footnote 4/97]

Conn.Const., 1818, Art. Third, § 3.

[Footnote 4/98]

Vt.Const., 1793, c. II, § 7.

[Footnote 4/99]

R.I.Const., 1842, Art. VI, § 1.

[Footnote 4/100]

N.J.Const., 1844, Art. IV, § 2, cl. One.

[Footnote 4/101]

Conn.Const., 1818, Amend. II.

[Footnote 4/102]

Vt.Const., 1793, Amend. 23.

[Footnote 4/103]

N.J.Const., 1844, Art. IV, § 3, cl. One

[Footnote 4/104]

R I.Const., 1842, Art. V, § 1.

[Footnote 4/105]

Ark.Const., 1868, Art. V, §§ 8, 9; Va.Const., 1864, Art. IV, § 6(this constitution was in effect when Virginia ratified theFourteenth Amendment); Va.Const., 1870, Art. V, § 4 (this wasVirginia's Reconstruction Act convention constitution);Miss.Const., 1868, Art. IV, §§ 33 to 35; Tex.Const., 1868, Art.III, §§ 11, 34. The Virginia Constitutions and Texas' provisionsfor apportioning its lower chamber do not, in terms, requireequality of numbers, although they call for reapportionmentfollowing a census. In Arkansas, the legislature was authorized,but not commanded, to reapportion periodically; it is not clearthat equality was required.

[Footnote 4/106]

N.C.Const., 1868, Art. II, §§ 6, 7.See Art. II, § 5,for Senate apportionment based on numbers.

[Footnote 4/107]

S.C.Const., 1868, Art. I, § 34; Art. II, §§ 4 to 6.

[Footnote 4/108]

La.Const., 1868, Tit. II, Arts. 20, 21.See Tit. II,Arts. 28 to 30, for Senate apportionment based on numbers.

[Footnote 4/109]

Ala.Const., 1867, Art. VIII, § 1.See Art. VIII, § 3,for Senate apportionment based on numbers.

[Footnote 4/110]

S.C.Const., 1868, Art. II, § 8.

[Footnote 4/111]

Fla.Const., 1868, Art. XIV, par. 1.See Art. XIV, par.2, for Senate apportionment.

[Footnote 4/112]

Ga.Const., 1868, Art. III, § 2. The extent of legislativeauthority to alter these districts is unclear, but it appears thatthe structure of three contiguous counties for each of forty-fourdistricts is meant to be permanent.

[Footnote 4/113]

Ga.Const., 1868, Art. III, § 3. The extent of legislativeauthority to alter the apportionment is unclear, but it appearsthat the three-tiered structure is meant to be permanent.

[Footnote 4/114]

See, e.g., Durfee, Apportionment of Representation inthe Legislature: A Study of State Constitutions, 43 Mich.L.Rev.1091, 1097 (1945); Short, States That Have Not Met TheirConstitutional Requirements, 17 Law & Contemp.Prob. 377 (1952);Harvey, Reapportionments of State Legislatures -- LegalRequirements, 17 Law & Contemp.Prob. 364, 370 (1952). For anexcellent case study of numerical inequalities deriving solely froma "one member per county" minimum provision in Ohio,seeAumann, Rural Ohio Hangs On, 46 Nat.Mun.Rev. 189, 191-192(1957).

[Footnote 4/115]

Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571,574 (1955). (This is the effect of a later Georgia constitutionalprovision, Ga.Const., 1945, § 2-1501, substantially similar to thatof 1868.) The same three-tiered system has subsequently beenadopted in Florida, Fla.Const., 1885, Art. VII, §§ 3, 4, where itseffects have been inequalities of the order of eighty to one. Dauerand Kelsay,supra, at 575, 587.

[Footnote 4/116]

The constitutions discussed are those under which the new Statesentered the Union.

[Footnote 4/117]

Colo.Const., 1876, Art. V, §§ 45, 47; N.D.Const., 1889, Art. 2,§§ 29, 35; S.D.Const., 1889, Art. III, § 5; Wash.Const., 1889, Art.II, §§ 3, 6; Utah Const., 1895, Art. IX, §§ 2, 4; N.M.Const., 1911,Art. IV, following § 41. The Colorado and Utah Constitutionsprovide for reapportionment "according to ratios to be fixed bylaw" after periodic census and enumeration. In New Mexico, thelegislature is authorized, but not commanded, to reapportionperiodically. North Dakota does not, in terms, demand equality inHouse representation; members are to be assigned among the severalsenatorial districts, which are of equal population.

[Footnote 4/118]

Wyo, Const., 1889, Art. III, Legislative Department, § 3; Art.III, Apportionment, §§ 2, 3.

[Footnote 4/119]

Idaho Const., 1889, Art. III, § 4.

[Footnote 4/120]

Okla.Const., 1907, Art. V, § 10(b) to (j).See Art. V,§§ 9(a), 9(b) for Senate apportionment based on numbers.

[Footnote 4/121]

Mont.Const., 1889, Art. VI, §§ 2, 3

[Footnote 4/122]

Mont.Const., 1889, Art. V, § 4; Art. VI, § 4. The effectiveprovisions are, first, that there shall be no more than one senatorfrom each county, and, second, that no senatorial district shallconsist of more than one county.

[Footnote 4/123]

Alaska Const., 1956, Art. VI, § 7; Art. XIV, § 2. The exactboundaries of the districts may be modified to conform to changesin House districts, but their numbers of senators and theirapproximate perimeters are to be preserved.

[Footnote 4/124]

Hawaii Const., 1950, Art. III, § 2

[Footnote 4/125]

Alaska Const., 1956, Art. VI, §§ 3, 4, 6. The method of equalproportions is used.

[Footnote 4/126]

Hawaii Const., 1950, Art. III, § 4. The method of equalproportions is used, and, for sub-apportionment within the four"basic" areas, a form of moiety rule obtains.

[Footnote 4/127]

Ariz.Const., 1910, Art. IV, Pt. 2, § 1. On the basis of 1910census figures, this apportionment yielded, for example, asenatorial ratio differential of more than four to one betweenMohave and Cochise or between Mohave and Maricopa Counties. IIThirteenth Census of the United States (1910), 71-73.

[Footnote 4/128]

The pertinent state constitutional provisions are set forth intabular form in XIII Book of the States (1960-1961), 54-58, andGreenfield, Ford and Emery, Legislative Reapportionment: Californiain National Perspective (University of California, Berkeley, 1959),81-85. An earlier treatment, now outdated in several respects butstill useful, is Durfee,supra,369U.S. 186fn4/114|>note 114.See discussions inHarvey,supra,369U.S. 186fn4/114|>note 114; Shull, Political and PartisanImplications of State Legislative Apportionment, 17 Law &Contemp.Prob. 417, 418-421 (1952).

[Footnote 4/129]

Nebraska's unicameral legislature is included in this count.

[Footnote 4/130]

Greenfield, Ford and Emery,supra,369U.S. 186fn4/128|>note 128, at 7.

[Footnote 4/131]

Harvey,supra,369U.S. 186fn4/114|>note 114, at 367.See Tabor, TheGerrymandering of State and Federal Legislative Districts, 16Md.L.Rev. 277, 282-283 (1956).

[Footnote 4/132]

See, e.g., Mather and Ray, The Iowa SenatorialDistricts Can Be Reapportioned -- A Possible Plan, 39 Iowa L.Rev.535, 536-537 (1954).

[Footnote 4/133]

See, e.g., Walter, Reapportionment and UrbanRepresentation, 195 Annals of the American Academy of Political andSocial Science 11, 12-13 (1938); Bone,supra,369U.S. 186fn4/87|>note 87. Legislative inaction and stateconstitutional provisions rejecting the principle of equal numbershave both contributed to the generally prevailing numericalinequality of representation in this country.CompareWaltersupra, with Baker, One Vote, One Value, 47Nat.Mun.Rev. 16, 18 (1958).

[Footnote 4/134]

See, e.g., Griffith 116-117; Luce 364-367, 370;Merriam, American Political Ideas (1929), 244-245; Legislation,Apportionment of the New York State Senate, 31 St. John's L.Rev.335, 341-342 (1957).

[Footnote 4/135]

In 1947, the Boundary Commission for England,

". . . impressed by the advantages of accessibility [that largecompact urban regions] . . . enjoy over widely scattered ruralareas . . . , came to the conclusion that they could convenientlysupport electorates in excess of the electoral quota, and would, inthe majority of cases, prefer to do so, rather than sufferseverance of local unity for parliamentary purposes"

-- that, "in general, urban constituencies could moreconveniently support large electorates than rural constituencies. .. ." Initial Report of the Boundary Commission for England [Cmd.7260] (1947), 5.See also Mackenzie 110-111; De Grazia,General Theory of Apportionment, 17 Law & Contemp.Prob. 256,261-262 (1952).

[Footnote 4/136]

See Walter,supra,369U.S. 186fn4/133|>note 133; Walter, Reapportionment of StateLegislative Districts, 37 Ill.L.Rev. 20, 37-38 (1942). Theurban-rural conflict is often the core of apportionmentcontroversy.See Durfee,supra,369U.S. 186fn4/114|>note 114, at 1093-1094; Short,supra,369U.S. 186fn4/114|>note 114, at 381.

[Footnote 4/137]

Baker, Rural Versus Urban Political Power (1955), 11-19;MacNeil, Urban Representation in State Legislatures, 18 StateGovernment 59 (1945); United States Conference of Mayors,Government Of the People, By the People, For the People(ca.1947).

[Footnote 4/138]

See, in addition to the authorities cited in notes369U.S. 186fn4/130|>130,369U.S. 186fn4/131|>131,369U.S. 186fn4/136|>136 and369U.S. 186fn4/137|>137,supra, and369U.S. 186fn4/140|>140 to369U.S. 186fn4/144|>144,infra (all containing otherexamples than those remarked in text), Hurst, The Growth ofAmerican Law, The Law Makers (1950), 41-42; American PoliticalScience Assn., Committee on American Legislatures, American StateLegislatures (Zeller ed.1954), 34-35; Gosnell, Democracy, TheThreshold of Freedom (1948), 179-181; Lewis, LegislativeApportionment and the Federal Courts, 71 Harv.L.Rev. 1057,1059-1064 (1958); Friedman, Reapportionment Myth, 49 Nat.Civ.Rev.184, 185-186 (1960); 106 Cong.Rec. 14901-14916 (remarks of SenatorClark and supporting materials); H.R.Rep. No. 2533, 85th Cong., 2dSess. 24; H.R.Doc. No.198, 84th Cong., 1st Sess. 38-40; Hadwiger,Representation in the Missouri General Assembly, 24 Mo.L.Rev. 178,180-181 (1959); Hamilton, Beardsley and Coats, LegislativeReapportionment in Indiana: Some Observations and a Suggestion, 35Notre Dame Law. 368-370 (1960); Corter, Pennsylvania PondersApportionment, 32 Temple L.Q. 279, 283-288 (1959). Concerning theclassical gerrymander,see Griffith,passim; Luce395-404; Brooks, Political Parties and Electoral Problems (3ded.1933), 472-481. For foreign examples of numerical disproportion,see Hogan, Election and Representation (1945), 95; Finer,Theory and Practice of Modern Government (Rev. ed.1949),551-552.

[Footnote 4/139]

Baker,supra,369U.S. 186fn4/137|>note 137, at 11. Recent New Jerseylegislation provides for reapportionment of the State's lower Houseby executive action following each United States census subsequentto that of 1960. N.J.Laws 1961, c. 1. The apportionment is to bemade on the basis of population, save that each county is assuredat least one House seat. In the State's Senate, however, byconstitutional command, each county elects a single senator,regardless of population. N.J.Const., 1947, Art. IV, § II, par.1.

[Footnote 4/140]

Note, 42 Minn.L.Rev. 617, 618-619 (1958).

[Footnote 4/141]

Greenfield, Ford and Emery,supra,369U.S. 186fn4/128|>note 128, at 3.

[Footnote 4/142]

University of Oklahoma, Bureau of Government Research, TheApportionment Problem in Oklahoma (1959), 16-29.

[Footnote 4/143]

1 Labor's Economic Rev. 89, 96 (1956).

[Footnote 4/144]

Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571,572, 574 (1955).

[Footnote 4/145]

See the Second Schedule to the House of Commons(Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, asamended by the House of Commons (Redistribution of Seats) Act,1958, 6 & 7 Eliz. II, c. 26, § 2, and the English experiencedescribed in text at notes369U.S. 186fn4/50|>50 to 61,supra.See alsothe Report of the Assembly Interim Committee on Elections andReapportionment, California Assembly (1951) (hereafter, CaliforniaCommittee Report), 37:

"The geographic -- the socioeconomic -- the desires of thepeople -- the desires of the elected officeholders -- the desiresof political parties -- all these can and do legitimately operatenot only within the framework of the 'relatively equal inpopulation districts' factor, but also within the factors ofcontiguity and compactness. The county and Assembly line legalrestrictions operate outside the framework of theoretically 'equalin population districts.' All the factors might conceivably havethe same weight in one situation; in another, some factors might beconsiderably more important than others in making the finaldetermination."

A Virginia legislative committee adverted to

". . . many difficulties such as natural topographical barriers,divergent business and social interests, lack of communication byrail or highway, and disinclinations of communities to breaking uppolitical ties of long standing, resulting in some cases ofdistricts requesting to remain with populations more than theiraverages, rather than have their equal representation with thechanged conditions."

Report of the Joint Committee on the Reapportionment of theState into Senatorial and House Districts, Virginia GeneralAssembly, House of Delegates, H. Doc. No. 9 (1922), 1-2. And theTennessee State Planning Commission, concerning the problem ofcongressional redistricting in 1950, spoke of a

"tradition [which] relates to the sense of belonging --loyalties to groups and items of common interest with friends andfellow citizens of like circumstance, environment or region."

Tennessee State Planning Commission, Pub. No. 222, Redistrictingfor Congress (1950), first page.

[Footnote 4/146]

See, e.g., California Committee Report at 52.

". . . [T]he reapportionment process is, by its very nature,political. . . . There will be politics in reapportionment as longas a representative form of government exists. . . ."

"It is impossible to draw a district boundary line without thatline's having some political significance. . . ."

[Footnote 4/147]

See, e.g., S, Celler, Congressional Apportionment --Past, Present, and Future, 17 Law & Contemp.Prob. 268 (1952),speaking of the history of congressional apportionment:

". . . A mere reading of the debates [from the ConstitutionalConvention down to contemporary Congresses] on this question ofapportionment reveals the conflicting interests of the large andsmall states and the extent to which partisan politics permeatesthe entire problem."

[Footnote 4/148]

See Standards for Congressional Districts(Apportionment), Hearings before Subcommittee No. 2 of theCommittee on the Judiciary, House of Representatives, 86th Cong.,1st Sess. 23, concerning a proposed provision for judicialenforcement of certain standards in the laying out ofdistricts:

"Mr. KASEM. You do not think that that [a provision embodyingthe language: 'in as compact form as practicable'] might result ina decision depending upon the political inclinations of thejudge?"

"Mr. CELLER. Are you impugning the integrity of our Federaljudiciary?"

"Mr. KASEM. No; I just recognize their human frailties."

For an instance of a court torn, in fact, or fancy, over thepolitical issues involved in reapportionment,see State ex rel.Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017, and especiallythe dissenting opinion of Higbee, J., 290 Mo. at 613, 235 S.W. at1037.

[Footnote 4/149]

See text at notes369U.S. 186fn4/139|>139-143,supra.

[Footnote 4/150]

Decisions of state courts which have entertained apportionmentcases under their respective state constitutions do not, of course,involve the very different considerations relevant to federaljudicial intervention. State court adjudication does not involvethe delicate problems of federal-state relations which would inherein the exercise of federal judicial power to impose restrictionsupon the States' shaping of their own governmental institutions.Moreover, state constitutions generally speak with a specificitytotally lacking in attempted utilization of the generalities of theFourteenth Amendment to apportionment matters. Some expresslycommit apportionment to state judicial review,see, e.g.,N.Y.Const., 193, Art. III, § 5, and, even where they do not, theydo precisely fix the criteria for judicial judgment respecting theallocation of representative strength within the electorate.See, e.g., Asbury Park Press. Inc., v. Woolley, 33 N.J. 1,161 A.2d705.

[Footnote 4/151]

Appellants' suggestion that, although no relief may need begiven, jurisdiction ought to be retained as a "spur" to legislativeaction does not merit discussion.

[Footnote 4/152]

See369U.S. 186fn4/24|>note 24,supra.

Dissenting opinion of MR. JUSTICE HARLAN, whom MR. JUSTICEFRANKFURTER joins.

The dissenting opinion of MR. JUSTICE FRANKFURTER, in which Ijoin, demonstrates the abrupt departure the majority makes fromjudicial history by putting the federal courts into this area ofstate concerns -- an area which, in this instance, the Tennesseestate courts themselves have refused to enter.

It does not detract from his opinion to say that the panorama ofjudicial history it unfolds, though evincing a steadfast underlyingprinciple of keeping the federal courts out of these domains, has atendency, because of variants in expression, to becloud analysis ina given case. With due respect to the majority, I think that hashappened here.

Once one cuts through the thicket of discussion devoted to"jurisdiction," "standing," "justiciability," and "political

Page 369 U. S. 331

question," there emerges a straightforward issue which, in myview, is determinative of this case. Does the complaint disclose aviolation of a federal constitutional right, in other words, aclaim over which a United States District Court would havejurisdiction under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983? Themajority opinion does not actually discuss this basic question,but, as one concurring Justice observes, seems to decide it"sub silentio."Ante, p.369 U.S. 261. However, in my opinion,appellants' allegations, accepting all of them as true, do not,parsed down or as a whole, show an infringement by Tennessee of anyrights assured by the Fourteenth Amendment. Accordingly, I believethe complaint should have been dismissed for "failure to state aclaim upon which relief can be granted." Fed.Rules Civ.Proc., Rule12(b)(6).

It is at once essential to recognize this case for what it is.The issue here relates not to a method of state electoralapportionment by which seats in the federal House ofRepresentatives are allocated, but solely to the right of a Stateto fix the basis of representation in its own legislature. Until itis first decided to what extent that right is limited by theFederal Constitution, and whether what Tennessee has done or failedto do in this instance runs afoul of any such limitation, we neednot reach the issues of "justiciability" or "political question" orany of the other considerations which in such cases asColegrove v. Green,328 U. S. 549, ledthe Court to decline to adjudicate a challenge to a stateapportionment affecting seats in the federal House ofRepresentatives, in the absence of a controlling Act of Congress.See also Wood v. Broom,287 U. S. 1.

The appellants' claim in this case ultimately rests entirely onthe Equal Protection Clause of the Fourteenth Amendment. It isasserted that Tennessee has violated the Equal Protection Clause bymaintaining, in effect, a

Page 369 U. S. 332

system of apportionment that grossly favors in legislativerepresentation the rural sections of the State as against its urbancommunities. Stripped to it's essentials, the complaint purports toset forth three constitutional claims of varying breadth:

"(1) The Equal Protection Clause requires that each vote cast instate legislative elections be given approximately equalweight."

"(2) Short of this, the existing apportionment of statelegislators is so unreasonable as to amount to an arbitrary andcapricious act of classification on the part of the TennesseeLegislature, which is offensive to the Equal ProtectionClause."

"(3) In any event, the existing apportionment is renderedinvalid under the Fourteenth Amendment because it flies in the faceof the Tennessee Constitution."

For reasons given in MR. JUSTICE FRANKFURTER's opinion,ante pp.369 U.S.325-327, the last of these propositions is manifestlyuntenable, and need not be dealt with further. I turn to the othertwo.

II can find nothing in the Equal Protection Clause or elsewherein the Federal Constitution which expressly or impliedly supportsthe view that state legislatures must be so structured as toreflect with approximate equality the voice of every voter. Notonly is that proposition refuted by history, as shown by my BrotherFRANKFURTER, but it strikes deep into the heart of our federalsystem. Its acceptance would require us to turn our backs on theregard which this Court has always shown for the judgment of statelegislatures and courts on matters of basically local concern

Page 369 U. S. 333

In the last analysis, what lies at the core of this controversyis a difference of opinion as to the function of representativegovernment. It is surely beyond argument that those who have theresponsibility for devising a system of representation maypermissibly consider that factors other than bare numbers should betaken into account. The existence of the United States Senate isproof enough of that. To consider that we may ignore the TennesseeLegislature's judgment in this instance because that body was theproduct of an asymmetrical electoral apportionment would, ineffect, be to assume the very conclusion here disputed. Hence, wemust accept the present form of the Tennessee Legislature as theembodiment of the State's choice, or, more realistically, itscompromise, between competing political philosophies. The federalcourts have not been empowered by the Equal Protection Clause tojudge whether this resolution of the State's internal politicalconflict is desirable or undesirable, wise or unwise.

With respect to state tax statutes and regulatory measures, forexample, it has been said that the

"day is gone when this Court uses the . . . Fourteenth Amendmentto strike down state laws . . . because they may be unwise,improvident, or out of harmony with a particular school ofthought."

Williamson v. Lee Optical Co.,348 U.S. 483,348 U. S. 488.I would think it all the more compelling for us to follow thisprinciple of self-restraint when what is involved is the freedom ofa State to deal with so intimate a concern as the structure of itsown legislative branch. The Federal Constitution imposes nolimitation on the form which a state government may take other thangenerally committing to the United States the duty to guarantee toevery State "a Republican Form of Government." And, as my BrotherFRANKFURTER so conclusively proves (ante pp.369 U.S. 308-317), no intention to fiximmutably the

Page 369 U. S. 334

means of selecting representatives for state governments couldhave been in the minds of either the Founders or the draftsmen ofthe Fourteenth Amendment.

In short, there is nothing in the Federal Constitution toprevent a State, acting not irrationally, from choosing anyelectoral legislative structure it thinks best suited to theinterests, temper, and customs of its people. I would have thoughtthis proposition settled byMacDougall v. Green,335 U. S. 281, inwhich the Court observed (at p.335 U. S. 283)that to "assume that political power is a function exclusively ofnumbers is to disregard the practicalities of government," andreaffirmed bySouth v. Peters,339 U.S. 276. A State's choice to distribute electoralstrength among geographical units, rather than according to acensus of population, is certainly no less a rational decision ofpolicy than would be its choice to levy a tax on property, ratherthan a tax on income. Both are legislative judgments entitled toequal respect from this Court.

IIThe claim that Tennessee's system of apportionment is sounreasonable as to amount to a capricious classification of votingstrength stands up no better under dispassionate analysis.

The Court has said time and again that the Equal ProtectionClause does not demand of state enactments either mathematicalidentity or rigid equality.E.g., Allied Stores of Ohio v.Bowers,358 U. S. 522,358 U. S.527-528, and authorities there cited;McGowan v.Maryland,366 U. S. 420,366 U. S.425-426. All that is prohibited is "invidiousdiscrimination" bearing no rational relation to any permissiblepolicy of the State.Williamson v. Lee Optical Co., supra,at348 U. S. 489.And in deciding whether such discrimination has been practiced by aState, it must be borne in mind that a "statutory discriminationwill not be set aside if any state of facts reasonably may beconceived

Page 369 U. S. 335

to justify it."McGowan v. Maryland, supra. It is notinequality alone that calls for a holding of unconstitutionality;only if the inequality is based on an impermissible standard maythis Court condemn it.

What then is the basis for the claim made in this case that thedistribution of state senators and representatives is the productof capriciousness or of some constitutionally prohibited policy? Itis not that Tennessee has arranged its electoral districts with adeliberate purpose to dilute the voting strength of one race,cf. Gomillion v. Lightfoot,364 U.S. 339, or that some religious group is intentionallyunderrepresented. Nor is it a charge that the legislature hasindulged in sheer caprice by allotting representatives to eachcounty on the basis of a throw of the dice, or of some otherdeterminant bearing no rational relation to the question ofapportionment. Rather, the claim is that the State Legislature hasunreasonably retained substantially the same allocation of senatorsand representatives as was established by statute in 1901, refusingto recognize the great shift in the population balance betweenurban and rural communities that has occurred in the meantime.

It is further alleged that, even as of 1901, the apportionmentwas invalid in that it did not allocate state legislators among thecounties in accordance with the formula set out in Art. II, § 5, ofthe Tennessee Constitution. In support of this, the appellants havefurnished a Table which indicates that, as of 1901, six countieswere overrepresented and 11 were underrepresented. But that Table,in fact, shows nothing in the way of significant discrepancy; inthe instance of each county, it is only one representative who iseither lacking or added. And it is further perfectly evident thatthe variations are attributable to nothing more than thecircumstance that the then enumeration of voters resulted infractional remainders with respect to which the precise formula ofthe Tennessee Constitution was, in some

Page 369 U. S. 336

instances, slightly disregarded. Unless suchde minimisdepartures are to be deemed of significance, these statisticscertainly provide no substantiation for the charge that the 1901apportionment was arbitrary and capricious. Indeed, they show thecontrary.

Thus, reduced to its essentials, the charge of arbitrariness andcapriciousness rests entirely on the consistent refusal of theTennessee Legislature over the past 60 years to alter a pattern ofapportionment that was reasonable when conceived.

A Federal District Court is asked to say that the passage oftime has rendered the 1901 apportionment obsolete to the pointwhere its continuance becomes vulnerable under the FourteenthAmendment. But is not this matter one that involves a classiclegislative judgment? Surely it lies within the province of a statelegislature to conclude that an existing allocation of senators andrepresentatives constitutes a desirable balance of geographical anddemographical representation, or that, in the interest of stabilityof government, it would be best to defer for some further time theredistribution of seats in the state legislature.

Indeed, I would hardly think it unconstitutional if a statelegislature's expressed reason for establishing or maintaining anelectoral imbalance between its rural and urban population were toprotect the State's agricultural interests from the sheer weight ofnumbers of those residing in its cities. A State may, after all,take account of the interests of its rural population in thedistribution of tax burdens,e.g., American Sugar Rfg. Co. v.Louisiana,179 U. S. 89, andrecognition of the special problems of agricultural interests hasrepeatedly been reflected in federal legislation,e.g.,Capper-Volstead Act, 42 Stat. 388; Agricultural Adjustment Act of1938, 52 Stat. 31. Even the exemption of agricultural activitiesfrom state criminal statutes of otherwise general application hasnot been deemed offensive to the Equal Protection Clause.

Page 369 U. S. 337

Tigner v. Texas,310 U. S. 141.Does the Fourteenth Amendment impose a stricter limitation upon aState's apportionment of political representatives to its centralgovernment? I think not. These are matters of local policy, on thewisdom of which the federal judiciary is neither permitted norqualified to sit in judgment.

The suggestion of my Brother FRANKFURTER that courts lackstandards by which to decide such cases as this is relevant notonly to the question of "justiciability," but also, and perhapsmore fundamentally, to the determination whether any cognizableconstitutional claim has been asserted in this case. Courts areunable to decide when it is that an apportionment originally validbecomes void because the factors entering into such a decision arebasically matters appropriate only for legislative judgment. And solong as there exists a possible rational legislative policy forretaining an existing apportionment, such a legislative decisioncannot be said to breach the bulwark against arbitrariness andcaprice that the Fourteenth Amendment affords. Certainly, with alldue respect, the facile arithmetical argument contained in Part IIof my Brother CLARK's separate opinion (ante, pp.369 U.S. 253-258) providesno tenable basis for considering that there has been such a breachin this instance. (See the369U.S. 186app2|>Appendix to this opinion.)

These conclusions can hardly be escaped by suggesting thatcapricious state action might be found were it to appear that amajority of the Tennessee legislators, in refusing to considerreapportionment, had been actuated by self-interest in perpetuatingtheir own political offices or by other unworthy or impropermotives. SinceFletcher v.Peck, 6 Cranch 87, was decided many years ago, ithas repeatedly been pointed out that it is not the business of thefederal courts to inquire into the personal motives of legislators.E.g., Arizona v. California,283 U.S. 423,283 U. S. 455& n. 7. The function of the federal judiciary ends in

Page 369 U. S. 338

matters of this kind once it appears, as I think it does here onthe undisputed facts, that the state action complained of couldhave rested on some rational basis. (See the369U.S. 186app2|>Appendix to this opinion.)

It is my view that the majority opinion has failed to point toany recognizable constitutional claim alleged in this complaint.Indeed, it is interesting to note that my Brother STEWART is atpains to disclaim for himself, and to point out that the majorityopinion does not suggest, that the Federal Constitution requires ofthe States any particular kind of electoral apportionment, stillless that they must accord to each voter approximately equal votingstrength. Concurring opinion,ante, p.369 U.S. 265. But that being so, what,may it be asked, is left of this complaint? Surely the bareallegations that the existing Tennessee apportionment is"incorrect," "arbitrary," "obsolete" and "unconstitutional" --amounting to nothing more than legal conclusions -- do notthemselves save the complaint from dismissal.See Snowden v.Hughes,321 U. S. 1;Collins v. Hardyman,341 U. S. 651. Nordo those allegations shift to the appellees the burden of provingtheconstitutionality of this state statute; as is socorrectly emphasized by my Brother STEWART (ante, p.369 U.S. 266), this Courthas consistently held in cases.arising under the Equal ProtectionClause that

"'the burden of establishing theunconstitutionality ofa statute rests on him who assails it.'Metropolitan CasualtyIns. Co. v. Brownell,294 U. S. 580,294 U. S.584."

(Emphasis added.) Moreover, the appellants do not suggest thatthey could show at a trial anything beyond the matters previouslydiscussed in this opinion, which add up to nothing in the way of asupportable constitutional challenge against this statute. Andfinally, the majority's failure to come to grips with the questionwhether the complaint states a claim cognizable under the FederalConstitution -- an issue necessarily presented by appellees' motionto dismiss --

Page 369 U. S. 339

does not, of course, furnish any ground for permitting thisaction to go to trial.

From a reading of the majority and concurring opinions one willnot find it difficult to catch the premises that underlie thisdecision. The fact that the appellants have been unable to obtainpolitical redress of their asserted grievances appears to beregarded as a matter which should lead the Court to stretch to findsome basis for judicial intervention. While the Equal ProtectionClause is invoked, the opinion for the Court notably eschewsexplaining how, consonant with past decisions, the undisputed factsin this case can be considered to show a violation of thatconstitutional provision. The majority seems to have accepted theargument, pressed at the bar, that, if this Court merely assertsauthority in this field, Tennessee and other "malapportioning"States will quickly respond with appropriate political action, sothat this Court need not be greatly concerned about the federalcourts becoming further involved in these matters. At the sametime, the majority has wholly failed to reckon with what the futuremay hold in store if this optimistic prediction is not fulfilled.Thus, what the Court is doing reflects more an adventure injudicial experimentation than a solid piece of constitutionaladjudication. Whether dismissal of this case should have been forwant of jurisdiction or, as is suggested inBell v. Hood,327 U. S. 678,327 U. S.682-683, for failure of the complaint to state a claimupon which relief could be granted, the judgment of the DistrictCourt was correct.

In conclusion, it is appropriate to say that one need not agree,as a citizen, with what Tennessee has done or failed to do in orderto deprecate, as a judge, what the majority is doing today. Thoseobservers of the Court who see it primarily as the last refuge forthe correction of all inequality or injustice, no matter what itsnature or source, will no doubt applaud this decision and itsbreak

Page 369 U. S. 340

with the past. Those who consider that continuing nationalrespect for the Court's authority depends in large measure upon itswise exercise of self-restraint and discipline in constitutionaladjudication will view the decision with deep concern.

I would affirm.

|369U.S. 186app2|

APPENDIX TO OPINION OF MR. JUSTICE HARLAN

THE INADEQUACY OF ARITHMETICAL FORMULAS AS MEASURES

OF THE RATIONALITY OF TENNESSEE'S APPORTIONMENT

Two of the three separate concurring opinions appear to concedethat the Equal Protection Clause does not guarantee to each statevoter a vote of approximately equal weight for the StateLegislature. Whether the existing Tennessee apportionment isconstitutional is recognized to depend only on whether it can find"any possible justification in rationality" (ante, p.369 U.S. 265); it is to bestruck down only if "the discrimination here does not fit anypattern" (ante, p.369U.S. 258).

One of the concurring opinions, that of my Brother STEWART,suggests no reasons which would justify a finding that the presentdistribution of state legislators is unconstitutionally arbitrary.The same is true of the majority opinion. My Brother CLARK, on theother hand, concludes that "the apportionment picture in Tennesseeis a topsy-turvical of gigantic proportions" (ante, p.369 U.S. 254), solely onthe basis of certain statistics presented in the text of hisseparate opinion and included in a more extensive Table appendedthereto. In my view, that analysis is defective not only becausethe "total representation" formula set out in footnote 7 of theopinion (ante, p.369U.S. 255), rests on faulty mathematical foundations, but,more basically, because the approach taken wholly

Page 369 U. S. 341

ignores all other factors justifying a legislative determinationof the sort involved in devising a proper apportionment for a StateLegislature.

In failing to take any of such other matters into account and infocusing on a particular mathematical formula which, as will beshown, is patently unsound, my Brother CLARK's opinion has, Isubmit, unwittingly served to bring into bas-relief the veryreasons that support the view that this complaint does not state aclaim on which relief could be granted. For in order to warrantholding a state electoral apportionment invalid under the EqualProtection Clause, a court, in line with well establishedconstitutional doctrine, must find thatnone of thepermissible policies andnone of the possible formulas onwhich it might have been based could rationally justify particularinequalities.

IAt the outset, it cannot be denied that the apportionment rulesexplicitly set out in the Tennessee Constitution are rational.These rules are based on the following obviously permissible policydeterminations: (1) to utilize counties as electoral units; (2) toprohibit the division of any county in the composition of electoraldistricts; (3) to allot to each county that has a substantialvoting population -- at least two-thirds of the average votingpopulation per county -- a separate "direct representative"; (4) tocreate "floterial" districts (multi-county representativedistricts) made up of more than one county, and (5) to require thatsuch districts be composed of adjoining counties. [Footnote 5/1] Such a framework unavoidably

Page 369 U. S. 342

leads to unreliable arithmetic inequalities under anymathematical formula whereby the counties' "total representation"is sought to be measured. It particularly results in egregiouslydeceptive disparities if the formula proposed in my Brother CLARK'sopinion is applied.

That formula computes a county's "total representation" byadding (1) the number of "direct representatives" the county isentitled to elect; (2) a fraction of any other seats in theTennessee House which are allocated to that county jointly with oneor more others in a "floterial district"; (3) triple the number ofsenators the county is entitled to elect alone, and (4) triple afraction of any seats in the Tennessee Senate which are allocatedto that county jointly with one or more others in a multi-countysenatorial district. The fractions used for items (2) and (4) arecomputed by allotting to each county in a combined district anequal share of the House or Senate seat,regardless of thevoting population of each of the counties that make up the electiondistrict. [Footnote 5/2]

Page 369 U. S. 343

This formula is patently deficient in that it eliminates fromconsideration the relative voting power of the counties that arejoined together in a single election district. As a result, theformula unrealistically assigns to Moore County one-third of asenator, in addition to its direct representative (ante,p.369 U.S. 255), althoughit must be obvious that Moore's voting strength in the EighteenthSenatorial District is almost negligible. Since Moore County couldcast only 2,340 votes of a total eligible vote of 30,478 in thesenatorial district, it should in truth be considered asrepresented by one-fifteenth of a senator. Assuming,arguendo, that any "total representation" figure is ofsignificance, Moore's "total representation" should be 1.23, not 2.[Footnote 5/3]

The formula suggested by my Brother CLARK must be adjustedregardless whether one thinks, as I assuredly do not, that theFederal Constitution requires that each vote be given equal weight.The correction is necessary simply to reflect the real facts ofpolitical life. It may, of course, be true that the floterialrepresentative's "function

Page 369 U. S. 344

is to represent the whole district" (ante, p.369 U.S. 256). But can itbe gainsaid that, so long as elections within the district aredecided not by a county unit system, in which each county casts onevote, but, by adding the total number of individual votes cast foreach candidate, the concern of the elected representatives willprimarily be with the most populous counties in the district?

III do not mean to suggest that any mathematical formula, albeitan "adjusted" one, would be a proper touchstone to measure therationality of the present or of appellants' proposed apportionmentplan. For, as the Table appended to my Brother CLARK's opinion soconclusively shows, whether one applies the formula he suggests orone that is adjusted to reflect proportional voting strength withinan election district, no plan of apportionment consistent with theprincipal policies of the Tennessee Constitution could provideproportionately equal "total representation" for each ofTennessee's 95 counties. The pattern suggested by the appellants inExhibits "A" and "B" attached to their complaint is said to be a"fair distribution" which accords with the Tennessee Constitution,and under which each of the election districts representsapproximately equal voting population. But even when tested by the"adjusted" formula, the plan reveals gross "total representation"disparities that would make it appear to be a "crazy quilt." Forexample, Loudon County, with twice the voting population ofHumphreys County, would have less representation than Humphreys andabout one-third the representation of Warren County, which has only73 more voters. Among the more populous counties, similardiscrepancies would appear. Although Anderson County has onlysomewhat over 10% more voters than Blount County, it would have

Page 369 U. S. 345

approximately 75% more representation. And Blount would haveapproximately two-thirds the representation of Montgomery County,which has about 13% less voters. [Footnote 5/4]

IIIThe fault with a purely statistical approach to the case at handlies not with the particular mathematical formula used, but in thefailure to take account of the fact that a multitude of legitimatelegislative policies, along with circumstances of geography anddemography, could account for the seeming electoral disparitiesamong counties. The principles set out in the TennesseeConstitution are just some of those that were deemed significant.Others may have been considered and accepted by those entrustedwith the responsibility for Tennessee's apportionment. And, for thepurposes of judging constitutionality under the Equal ProtectionClause, it must be remembered that what is controlling on the issueof "rationality" is not what the State Legislature mayactually have considered, but what it may bedeemed to have considered.

For example, in the list of "horribles" cited by my BrotherCLARK (ante, p.369 U.S.255), all the "underrepresented" counties are semi-urban:all contain municipalities of over 10,000 population. [Footnote 5/5] This is not to say, however,that the

Page 369 U. S. 346

presence of any such municipality within a county necessarilydemands that its proportional representation be reduced in order torender it consistent with an "urban versus rural" plan ofapportionment. Other considerations may intervene and outweigh theLegislature's desire to distribute seats so as to achieve a properbalance between urban and rural interests. The size of a county, interms of its total area, may be a factor. [Footnote 5/6] Or the location within a county of somemajor industry may be thought to call for dilution of votingstrength. [Footnote 5/7] Again, thecombination of certain smaller counties with their more heavilypopulated neighbors in senatorial or "floterial" districts mayresult in apparent arithmetic inequalities. [Footnote 5/8]

More broadly, the disparities in electoral strength among thevarious counties in Tennessee, both those relied upon by my BrotherCLARK and others, may be

Page 369 U. S. 347

accounted for by various economic, [Footnote 5/9] political, [Footnote 5/10] and geographic [Footnote 5/11] considerations. No allegation is made bythe appellants that the existing apportionment is the result of anyother forces than are always at work in any legislative process,and the record, briefs, and arguments in this Court themselvesattest to the fact that the appellants could put forward nothingfurther at a trial.

By disregarding the wide variety of permissible legislativeconsiderations that may enter into a state electoral apportionment,my Brother CLARK has turned a highly complex process into anelementary arithmetical puzzle.

Page 369 U. S. 348

It is only by blinking reality that such an analysis can standand that the essentially legislative determination can be made thesubject of judicial inquiry.

IVApart from such policies as those suggested which would sufficeto justify particular inequalities, there is a furtherconsideration which could rationally have led the TennesseeLegislature, in the exercise of a deliberate choice, to maintainthestatus quo. Rigidity of an apportionment pattern maybe as much a legislative policy decision as is a provision forperiodic reapportionment. In the interest of stability, a State maywrite into its fundamental law a permanent distribution oflegislators among its various election districts, thus foreverignoring shifts in population. Indeed, several States have achievedthis result by providing for minimum and maximum representationfrom various political subdivisions such as counties, districts,cities, or towns.See Harvey, Reapportionments of StateLegislatures -- Legal Requirements, 17 Law & Contemp.Probs.(1952), 364, 368-372.

It is said that one cannot find any rational standard in whatthe Tennessee Legislature has failed to do over the past 60 years.But surely one need not search far to find rationality in theLegislature's continued refusal to recognize the growth of theurban population that has accompanied the development of industryover the past half decade. The existence of slight disparitiesbetween rural areas does not overcome the fact that the foremostapparent legislative motivation has been to preserve the electoralstrength of the rural interests notwithstanding shifts inpopulation. And I understand it to be conceded by at least some ofthe majority that this policy is not

Page 369 U. S. 349

rendered unconstitutional merely because it favors ruralvoters.

Once the electoral apportionment process is recognized for whatit is -- the product of legislative give-and-take and of compromiseamong policies that often conflict -- the relevant constitutionalprinciples at once put these appellants out of the federalcourts.

[Footnote 5/1]

The relevant provisions of the Tennessee Constitution are Art.II, §§ 5 and 6:

"Sec. 5.Apportionment of representatives. -- Thenumber of Representatives shall, at the several periods of makingthe enumeration, be apportioned among the several counties ordistricts, according to the number of qualified voters in each, andshall not exceed seventy-five, until the population of the Stateshall be one million and a half, and shall never exceedninety-nine; Provided, that any county having two-thirds of theratio shall be entitled to one member."

"Sec. 6.Apportionment of senator. -- The number ofSenators shall, at the several periods of making the enumeration,be apportioned among the several counties or districts according tothe number of qualified electors in each, and shall not exceedone-third the number of representatives. In apportioning theSenators among the different counties, the fraction that may belost by any county or counties, in the apportionment of members tothe House of Representatives, shall be made up to such county orcounties in the Senate, as near as may be practicable. When adistrict is composed of two or more counties, they shall beadjoining, and no counties shall be divided in forming adistrict."

[Footnote 5/2]

This formula is not clearly spelled out in the opinion, but itis necessarily inferred from the figures that are presented. KnoxCounty, for example, is said to have a "total representation" of7.25. It elects (1) three direct representatives (value 3.00); (2)one representative from a two-county district (value .50); (3) onedirect senator (value 3.00), and (4) one senator in a four-countydistrict (value .75).See Appendix to opinion of MR.JUSTICE CLARK,ante pp.369 U.S. 262-264.

[Footnote 5/3]

If this "adjusted" formula for measuring "total representation"is applied to the other "horribles" cited in the concurring opinion(ante, p.369 U.S.255), it reveals that these counties -- which purportedlyhave equal "total representation" but distinctly unequal votingpopulation -- do not have the same "total representation" at all.Rather than having the same representation as Rutherford County,Moore County has only about 40% of what Rutherford has. DecaturCounty has only 55% of the representation of Carter County. WhileLoudon and Anderson Counties are substantially underrepresented,this is because of their proximity to Knox County, which outweighstheir votes in the Sixth Senatorial District and in the EighthFloterial District.

[Footnote 5/4]

These disparities are as serious, if not more so, when myBrother CLARK's formula is applied to the appellants' proposal. Forexample, if the seven counties chosen by him as illustrative areexamined as they would be represented under the appellants'distribution, Moore County, with a voting population of 2,340, isgiven more electoral strength than Decatur County, with a votingpopulation of 5,563. Carter County (voting population 23,302) has20% more "total representation" than Anderson County (votingpopulation 33,990), and 33% more than Rutherford County (votingpopulation 25,316).

[Footnote 5/5]

Murfreesboro, Rutherford County (pop. 16,017); Elizabethton,Carter County (pop. 10,754); Oak Ridge, Anderson County (pop.7,387). Tennessee Blue Book, 1960, pp.143-149.

[Footnote 5/6]

For example, Carter and Washington Counties are eachapproximately 60% as large as Maury and Madison Counties in termsof square miles, and this may explain the disparity between their"total representation" figures.

[Footnote 5/7]

For example, in addition to being "semi-urban," Blount County isthe location of the City of Alcoa, where the Aluminum Company ofAmerica has located a large aluminum smelting and rolling plant.This may explain the difference between its "total representation"and that of Gibson County, which has no such large industry andcontains no municipality as large as Maryville.

[Footnote 5/8]

For example, Chester County (voting population 6,391) is one ofthose that is presently said to be overrepresented. But under theappellants' proposal, Chester would be combined with populousMadison County in a "floterial district" and with four others,including Shelby County, in a senatorial district. Consequently,its total representation according to the Appendix to my BrotherCLARK's opinion would be .19. (Ante, p.369 U.S. 262.) This would have theeffect of disenfranchising all the county's voters. Similarly, RheaCounty's almost 9,000 voters would find their voting strength sodiluted as to be practically nonexistent.

[Footnote 5/9]

For example, it is primarily the eastern portion of the Statethat is complaining of malapportionment (along with the Cities ofMemphis and Nashville). But the eastern section is where industryis principally located and where population density, even outsidethe large urban areas, is highest. Consequently, if Tennessee isapportioning in favor of its agricultural interests, asconstitutionally it was entitled to do, it would necessarily reducerepresentation from the east.

[Footnote 5/10]

For example, sound political reasons surely justify limiting thelegislative chambers to workable numbers; in Tennessee, the Houseis set at 99 and the Senate at 33. It might have been deemeddesirable, therefore, to set a ceiling on representation from anysingle county so as not to deprive others of individualrepresentation. The proportional discrepancies among the fourcounties with large urban centers may be attributable to aconscious policy of limiting representation in this manner.

[Footnote 5/11]

For example, Moore County is surrounded by four counties each ofwhich has sufficient voting population to exceed two-thirds of theaverage voting population per county (which is the standardprescribed by the Tennessee Constitution for the assignment of adirect representative), thus qualifying for direct representatives.Consequently Moore County must be assigned a representative of itsown, despite its small voting population, because it cannot bejoined with any of its neighbors in a multi-county district, andthe Tennessee Constitution prohibits combining it with nonadjacentcounties.See369U.S. 186fn5/1|>note 1,supra.