Lucas v. Colorado General Assembly

    SUPREME COURT OF THE UNITED STATES

No. 508.— October T erm, 1963.

Andres Lucas et al., etc.,
Appellants,

v. On Appeal From the United 
States District Court for 
the District of Colorado.The Forty-Fourth General 

Assembly of the State of 
Colorado et al.

[June 15, 1964.]

M r. Chief Justice W arren delivered the opinion of 
the Court.

Involved in this case is an appeal from a decision of 
the Federal District Court for the District of Colorado 
upholding the validity, under the Equal Protection Clause 
of the Fourteenth Amendment to the Federal Constitu­
tion, of the apportionment of seats in the Colorado Legis­
lature pursuant to the provisions of a constitutional 
amendment approved by the Colorado electorate in 1962.

Appellants, voters, taxpayers and residents of counties 
in the Denver metropolitan area, filed two separate ac­
tions, consolidated for trial and disposition, on behalf of 
themselves and all others similarly situated, in March 
and July 1962, challenging the constitutionality of the 
apportionment of seats in both houses of the Colorado 
General Assembly. Defendants below, sued in their rep­
resentative capacities, included various officials charged 
with duties in connection with state elections. Plaintiffs 
below asserted that Art. V, §§ 45, 46, and 47, of the Colo­
rado Constitution, and the statutes1 implementing those

1 Colo. Rev. Stat. 1953, c. 63, §§ 63-1-1—63-1-6.

I .



2 LUCAS v. COLORADO GENERAL ASSEMBLY.

constitutional provisions, result in gross inequalities and 
disparities with respect to their voting rights. They 
alleged that “ one of the inalienable rights of citizen­
ship . . .  is equality of franchise and vote, and that the 
concept of equal protection of the laws requires that every 
citizen be equally represented in the legislature of his 
State.” Plaintiffs sought declaratory and injunctive re­
lief, and also requested the court to order a constitution­
ally valid apportionment plan into effect for purposes of 
the 1962 election of Colorado legislators. Proponents of 
the current apportionment scheme, which was then to be 
voted upon in a November 1962 referendum as proposed 
Amendment No. 7 to the Colorado Constitution, were per­
mitted to intervene. A three-judge court was promptly 
convened.

On August 10, 1962, the District Court announced its 
initial decision.2 Lisco v. McNichols, 208 F. Supp. 471. 
After holding that it had jurisdiction, that the issues pre­
sented were justiciable, and that grounds for abstention 
were lacking,3 the court below stated that the population

2 The District Court wisely refrained from acting at all until a 
case pending in the Colorado Supreme Court was decided without that 
court passing on the federal constitutional questions relating to Colo­
rado’s scheme of legislative apportionment which were raised in that 
suit. In re Legislative Reapportionmetit, 374 P. 2d 66 (Colo. Sup. 
Ct. 1962). After accepting jurisdiction, the Colorado Supreme Court, 
over a vigorous dissent, ignored the federal constitutional issues and 
instead discussed only the matter of when the Colorado Legislature 
was required, pursuant to the State Constitution, to reapportion 
seats in the General Assembly. The Court concluded that a reap­
portionment measure enacted during the 1963 session of the Colorado 
Legislature, on the basis of 1960 census figures, would, if neither of 
the proposed constitutional amendments relating to legislative appor­
tionment was approved by the voters in November 1962, be in suffi­
cient compliance with the constitutional requirement of periodic 
legislative reapportionment. See also 208 F. Supp., at 474, dis­
cussing the Colorado Supreme Court’s decision in that case.

3 In its initial opinion, the District Court properly concluded that 
the argument that “ the Colorado Supreme Court has preempted juris­



LUCAS v. COLORADO GENERAL ASSEMBLY. 3

disparities among various legislative districts under the 
existing apportionment “ are of sufficient magnitude to 
make out a prima jade case of invidious discrimina­
tion However, because of the imminence of the
primary and general elections, and since two constitu­
tional amendments, proposed through the initiative pro­
cedure and prescribing rather different schemes for legis­
lative apportionment, would be voted upon in the im­
pending election, the District Court continued the cases 
without further action until after the November 1962 
election. Colorado legislators were thus elected in 1962 
pursuant to the provisions of the existing apportionment 
scheme.

At the November 1962 general election, the Colorado 
electorate adopted proposed Amendment No. 7 by a vote 
of 305,700 to 172,725, and defeated proposed Amend­
ment No. 8 by a vote of 311,749 to 149,822. Amend­

diction by first hearing the controversy, is without merit in view of 
the fact that the Supreme Court of Colorado has refrained from even 
considering the issue of the plaintiffs’ federally-guaranteed constitu­
tional rights.”  208 F. Supp., at 475. Continuing, the court below 
correctly held that, under the circumstances, it was not required to 
abstain, and stated:

“The considerations which demand abstinence are not present in the 
instant case. Here, the General Assembly of the State of Colorado 
has repeatedly refused to perform the mandate imposed by the Colo­
rado Constitution to apportion the legislature. The likelihood that 
the unapportioned General Assembly will ever apportion itself now 
appears remote. The Supreme Court of Colorado, while retaining 
jurisdiction of the subject matter of the controversy presented to it, 
has postponed further consideration of the cause until June, 1963. 
Under these circumstances, we must conclude that the parties do not, 
at least at present, have an adequate, speedy and complete remedy 
apart from that asserted in the case at bar and thus grounds for. 
abstention are at this time lacking.” 208 F. Supp., at 476. See
also Davis v. M ann,---- U. S .------ , -------------, decided also this date,
where we discussed the question of abstention by a federal court in 
a state legislative apportionment controversy.



4 LUCAS v. COLORADO GENERAL ASSEMBLY,

ment No. 8, rejected by a majority of the voters, pre­
scribed an apportionment plan pursuant to which seats 
in both houses of the Colorado Legislature would pur­
portedly be apportioned on a population basis.4 Amend­
ment No. 7, on the other hand, provided for the appor­
tionment of the House of Representatives on the basis

4 As stated succinctly by the District Court, in its opinion on the 
merits,

“The defeated Amendment No. 8 proposed a three-man commission 
to apportion the legislature periodically. The commission was to have 
the duty of delineating, revising and adjusting senatorial and repre­
sentative districts. Its actions were to be reviewed by the Colorado 
Supreme Court. The districting was to be on a strict population 
ratio for both the Senate and the House with limited permissible 
variations therefrom.” 219 F. Supp., at 925.

Additionally, under proposed Amendment No. 8, the commission 
would determine a strict population ratio for both the Senate and the 
House by dividing the State’s total population, as ascertained in each 
decennial federal census, by the number of seats assigned to the 
Senate and the House, respectively. No legislative district should 
contain a population per senator or representative of 33%% more 
or less than the strict population ratio, except certain mountainous 
senatorial districts of more than 5,500 square miles in area, but no 
senatorial district was to contain a population of less than 50% of 
the strict population ratio. Senatorial districts should consist of one 
county or two or more contiguous counties, but no county should 
be divided in the formation of a senatorial district. Representative 
districts should consist of one county or two or more contiguous 
counties. Any county apportioned two or more representatives could 
be divided into representative subdistricts, but only after a majority 
of the voters in the county had approved, in a general election, the 
exact method of subdivision and the specific apportionment of rep­
resentatives among the subdistricts and the county at large. A pro­
posal to divide a county into subdistricts could be placed on the ballot 
only by initiative petition in accordance with state law, and only at 
the general elections in 1966 and 1974, and at the general elections 
held each 10 years thereafter. Amendment No. 8, like Amendment 
No. 7, would have required implementing legislation and would not 
have become effective, if adopted, until the 1964 elections.



LUCAS v. COLORADO GENERAL ASSEMBLY. o

of population, but essentially maintained the existing 
apportionment in the Senate, which was based on a com­
bination of population and various other factors.

After the 1962 election the parties amended their 
pleadings so that the cases involved solely a challenge to 
the apportionment scheme established in the newly 
adopted Amendment No. 7. Plaintiffs below requested 
a declaration that Amendment No. 7 was unconstitu­
tional under the Fourteenth Amendment since resulting 
in substantial disparities from population-based repre­
sentation in the Senate, and asked for a decree reappor­
tioning both houses of the Colorado Legislature on a pop­
ulation basis. After an extended trial, at which a variety 
of statistical and testimonial evidence regarding legisla­
tive apportionment in Colorado, past and present, was 
introduced, the District Court, on July 16, 1963, an­
nounced its decision on the merits. Lisco v. Love, 219 
F. Supp. 922. Splitting 2-to-l, the court below con­
cluded that the apportionment scheme prescribed by 
Amendment No. 7 comported with the requirements of 
the Equal Protection Clause, and thus dismissed the con­
solidated actions. In sustaining the validity of the sena­
torial apportionment provided for in Amendment No. 7, 
despite deviations from population-based representation, 
the District Court stated that the Fourteenth Amend­
ment does not require “ equality of population within 
representation districts for each house of a bicameral 
state legislature.” Finding that the disparities from a 
population basis in the apportionment of Senate seats 
were based upon rational considerations, the court below 
stated that the senatorial apportionment under Amend­
ment No. 7 “recognizes population as a prime, but not 
controlling, factor and gives effect to such important con­
siderations as geography, compactness and contiguity of 
territory, accessibility, observance of natural boundaries, 
[and] conformity to historical divisions such as county



6 LUCAS v. COLORADO GENERAL ASSEMBLY.

lines and prior representation districts . . . 5 Stress­
ing also that the apportionment plan had been recently 
adopted by popular vote in a statewide referendum, the 
Court stated:

“ [Plaintiffs’ ] argument that the apportionment of 
the Senate by Amendment No. 7 is arbitrary, in­
vidiously discriminatory, and without any ration­
ality . . . [has been answered by] the voters of 
Colorado . . . .  By adopting Amendment No. 7 
and by rejecting Amendment No. 8, which proposed 
to apportion the legislature on a per capita basis, the 
electorate has made its choice between the conflicting 
principles.” 6

5 219 F. Supp., at 932.
6 Ibid. Continuing, the court below stated:
“ The initiative gives the people of a state no power to adopt a 

constitutional amendment which violates the Federal Constitution. 
Amendment No. 7 is not valid just because the people voted for 
it. . . . [But] the traditional and recognized criteria of equal pro­
tection . . . are arbitrariness, discrimination, and lack of rationality. 
The actions of the electorate are material to the application of the 
criteria. The contention that the voters have discriminated against 
themselves appalls rather than convinces. Difficult as it may be at 
times to understand mass behavior of human beings, a proper recog­
nition of the judicial function precludes a court from holding that 
the free choice of the voters between two conflicting theories of appor­
tionment is irrational or the result arbitrary.

“ The electorate of every county from which the plaintiffs come 
preferred Amendment No. 7. In the circumstances it is difficult to 
comprehend how the plaintiffs can sue to vindicate a public right. 
At the most they present a political issue which they lost. On the 
questions before us we shall not substitute any views which we may 
have for the decision of the electorate. . . . [W ]e decline to act 
as a superelectorate to weigh the rationality of a method of legisla­
tive apportionment adopted by a decisive vote of the people.” Id.. 
at 932-933.

And, earlier in its opinion on the merits, the District Court stated: 
“ With full operation of the one-man, one-vote principle, the Colorado 
electorate by an overwhelming majority approved a constitutional



LUCAS v. COLORADO GENERAL ASSEMBLY. 7

Concluding, the District Court stated:
“ We believe that no constitutional question arises 

as to the actual, substantive nature of apportionment 
if the popular will has expressed itself. . . .  In 
Colorado the liberal provisions for initiation of con­
stitutional amendments permit the people to act—  
and they have done so. If they become dissatisfied 
with what they have done, a workable method of 
change is available. The people are free, within the 
framework of the Federal Constitution, to establish 
the governmental forms which they desire and when 
they have acted the courts should not enter the 
political wars to determine the rationality of such 
action.” 7

In dissenting, District Judge Doyle stated that he 
regarded the senatorial apportionment under Amendment 
No. 7 as irrational and invidiously discriminatory, and 
that the constitutional amendment had not sufficiently 
remedied the gross disparities previously found by the 
District Court to exist in Colorado’s prior apportionment 
scheme. Instead, he stated, the adopted plan freezes 
senatorial apportionment and merely retains the former 
system with certain minor changes. Equality of voting 
power in both houses is constitutionally required, the dis­
sent stated, since there is no logical basis for distinguish­
ing between the two bodies of the Colorado Legislature. 
In rejecting the applicability of the so-called federal 
analogy, Judge Doyle relied on this Court’s decision in

amendment creating a Senate, the membership of which is not ap­
portioned on a strict population basis. By majority process the 
voters have said that minority process in the Senate is what they 
want. A rejection of their choice is a denial of the will of the ma­
jority. If the majority becomes dissatisfied with that which it has 
created, it can make a change at an election in which each vote counts 
the same as every other vote.” Id., at 926-927.

7 Id., at 933.



8 LUCAS v. COLORADO GENERAL ASSEMBLY.

Gray v. Sanders, 372 U. S. 368. He concluded that, al­
though absolute equality is a practical impossibility, legis­
lative districting based substantially on population is 
constitutionally required, and that the disparities in the 
apportionment of Senate seats under Amendment No. 7’s 
provisions cannot be rationalized.8

Notices of appeal from the District Court’s decision 
were timely filed, and we noted probable jurisdiction on 
December 9, 1963. 375 U. S. 938.

II.
When this litigation was commenced, apportionment of 

seats in the Colorado General Assembly was based on 
certain provisions of the State Constitution and statutory

8 Additionally, Judge Doyle correctly stated that “ a properly ap­
portioned state legislative body must at least approximate by bona 
fide attempt the creation of districts substantially related to popula­
tion.”  219 F. Supp.,.at 941. With respect to the relatively easy 
availability of the initiative procedure in Colorado, the dissent per­
ceptively pointed out that “ it is of little consolation to an individual 
voter who is being deprived of his rights that he can start a popular 
movement to change the Constitution. This possible remedy is not 
merely questionable, it is for practical purposes impossible.” Id., at 
942. Judge Doyle referred to Amendment No. 7’s provisions relating 
to senatorial apportionment as “ the product of a mechanical and 
arbitrary freezing accomplished by adoption, with slight modification, 
of the unlawful alignments which had existed in the previous statute.” 
Id., at 943. Discussing the majority’s view that geographic and 
economic considerations were relevant in explaining the disparities 
from population-based senatorial representation, he discerningly 
stated that geographic and area factors carry “ little weight when 
considered in the light of modern methods of electronic communica­
tion, modern highways, automobiles and airplanes,” and, with regard 
to economic considerations, that “ economic interests are remarkably 
well represented without special representation,” that “ it is dangerous 
to build into a political system a favored position for a segment of 
the population of the state,”  that “ there exists no practical method of 
ridding ourselves of them,” and that, “ long after the institutions pass, 
the built-in advantage remains even though it is at last only a vestige 
of the dead past.” Ibid.



LUCAS v. COLORADO GENERAL ASSEMBLY. 9

provisions enacted to implement them. Article V, § 45, 
of the Colorado Constitution provided that the legislature 
“ shall revise and adjust the apportionment for senators 
and representatives . . . according to ratios to be fixed 
by law,” at the sessions following the state enumeration 
of inhabitants in 1885 and every 10 years thereafter, and 
following each decennial federal census. Article V, § 46, 
as amended in 1950, stated that “ the senate shall consist 
of not more than thirty-five and the house of not more 
than sixty-five members.” Article V, § 47, provided that:

“ Senatorial and representative districts may be 
altered from time to time, as public convenience may 
require. When a senatorial or representative dis­
trict shall be composed of two or more counties, they 
shall be contiguous, and the district as compact as 
may be. No county shall be divided in the forma­
tion of a senatorial or representative district.”

Article V, § 3, provides that senators shall be elected for 
four-year terms, staggered so that approximately one- 
half of the members of the Senate are elected every two 
years, and that all representatives shall be elected for 
twTo-year terms.

Pursuant to these general constitutional provisions, the 
Colorado General Assembly has periodically enacted 
detailed statutory provisions establishing legislative dis­
tricts and prescribing the apportionment to such districts 
of seats in both houses of the Colorado Legislature. Since 
the adoption of the Colorado Constitution in 1876, the 
General Assembly has been reapportioned or redistricted 
in the following years: 1881, 1891, 1901, 1909, 1913, 1932, 
1953, and, with the adoption of Amendment No. 7, in 
1962.9 The 1932 reapportionment was an initiated

9 Admittedly, the Colorado Legislature has never complied with the 
state constitutional provision requiring the conducting of a decennial 
state census in 1885 and every 10 years thereafter, and of course



10 LUCAS V.  COLORADO GENERAL ASSEMBLY.

measure, adopted because the General Assembly had 
neglected to perform its duty under the State Constitu­
tion. In 1933 the legislature attempted to thwart the 
initiated measure by enacting its own legislative reap­
portionment statute, but the latter measure was held 
unconstitutional by the Colorado Supreme Court.10

The 1953 apportionment scheme, implementing the ex­
isting state constitutional provisions and in effect immedi­
ately prior to the adoption of Amendment No. 7, was con­
tained in several statutory provisions which provided for 
a 35-member Senate and a 65-member House of Repre­
sentatives. Section 63-1-2 of the Colorado Revised 
Statutes established certain population “ ratio” figures 
for the apportionment of Senate and House seats among 
the State’s 63 counties. One Senate seat was to be allo­
cated to each senatorial district for the first 19,000 popu­
lation, with one additional senator for each senatorial 
district for each additional 50,000 persons or fraction over 
48,000. One House seat was to be given to each repre­
sentative district for the first 8,000 population, with one

has never reapportioned seats in the legislature based upon such a 
census. Under Amendment No. 7, sole reliance is placed on the 
federal census, and there is no longer any requirement for the con­
ducting of a decennial state census.

In its initial opinion, the District Court stated that there had been 
only a “modicum of apportionment, either real or purported,” as 
well as “several abortive attempts,”  since Colorado first achieved 
statehood. However, in its later opinion on the merits, the court 
below viewed the situation rather differently, and stated that “ ap­
portionment of the Colorado legislature has not remained static.” 
As indicated by the District Court, in addition to the reapportion­
ments which were effected, “ in 1954 the voters rejected a referred 
apportionment measure and in 1956 rejected an initiated constitu­
tional amendment proposing the reapportionment of both chambers 
of the legislature on a straight population basis.” 219 F. Supp., 
at 930.

10 Armstrong v. Mitten, 95 Colo. 425, 37 P. 2d 757 (1934). See 
note 24, infra.



LUCAS v. COLORADO GENERAL ASSEMBLY. 11

additional representative for each House district for each 
additional 25,000 persons or fraction over 22,400. Sec­
tions 63-1-3 and 63-1-6 established 25 senatorial dis­
tricts and 35 representative districts, respectively, and 
allocated the 35 Senate seats and 65 House seats among 
them according- to the prescribed population ratios. No 
counties were divided in the formation of senatorial or 
representative districts, in compliance with the constitu­
tional proscription. Thus, senators and representatives 
in those counties entitled to more than one seat in one or 
both bodies were elected at large by all of the county’s 
voters. The City and County of Denver was given eight 
Senate seats and 17 House seats, and Pueblo County was 
allocated two Senate seats and four House seats. Other 
populous counties were also given more than one Senate 
and House seat each. Certain counties were entitled to 
separate representation in either or both of the houses, 
and were given one seat each. Sparsely populated 
counties were combined in multicounty districts.

Under the 1953 apportionment scheme, applying 1960 
census figures, 29.8% of the State’s total population lived 
in districts electing a majority of the members of the 
Senate, and 32.1% resided in districts electing a majority 
of the House members. Maximum population-variance 
ratios of approximately 8-to-l existed between the most 
populous and least populous districts in both the Senate 
and the House. One senator represented a district con­
taining 127,520 persons, while another senator had only 
17,481 people in his district. The smallest representa­
tive district had a population of only 7,867, while an­
other district was given only two House seats for a popu­
lation of 127,520. In discussing the 1953 legislative ap­
portionment scheme, the District Court, in its initial 
opinion, stated that “ factual data presented at the trial 
reveals the existence of gross and glaring disparity in 
voting strength as between the several representative and



12 LUCAS v. COLORADO GENERAL ASSEMBLY.

senatorial districts,” and that “ the inevitable effect . . . 
[of the existing apportionment provisions] has been to 
develop severe disparities in voting strength with the 
growth and shift of population.” 11

Amendment No. 7 provides for the establishment of a 
General Assembly composed of 39 senators and 65 repre­
sentatives, with the State divided geographically into 39 
senatorial and 65 representative districts, so that all seats 
in both houses are apportioned among single-member 
districts.12 Responsibility for creating House districts 
“as nearly equal in population as may be” is given to the 
legislature. Allocation of senators among the counties 
follows the existing scheme of districting and apportion­
ment, except that one sparsely populated county is de­
tached from populous Arapahoe County and joined with 
four others in forming a senatorial district, and one addi­
tional senator is apportioned to each of the counties of 
Adams, Arapahoe, Boulder and Jefferson. Within coun­
ties given more than one Senate seat, senatorial districts 
are to be established by the legislature “ as nearly equal 
in population as may be.” 13 Amendment No. 7 also pro­

11 208 F. Supp., at 474, 475.
12 Amendment No. 7 is set out as Appendix A to the District 

Court’s opinion on the merits, 219 F. Supp., at 933-934, and provides 
for the repeal of the existing Art. V, §§ 45, 46 and 47, and the adoption 
of “new Sections 45, 46, 47 and 48 of Article V,” which are set out 
verbatim in the Appendix to this opinion.

Additionally, the provisions of proposed Amendment No. 8, re­
jected by the Colorado electorate, are set out as Appendix B to the 
District Court’s opinion on the merits. 219 F. Supp., at 934-935. 
See the discussion of Amendment No. 8’s provisions in note 4, supra.

13 In addition to establishing House districts, the legislation enacted 
by the Colorado General Assembly in early 1963, in implementation 
of Amendment No. 7’s provisions, also divided counties apportioned 
more than one Senate seat into single-member districts. Amendment 
No. 7, in contrast to Amendment No. 8, explicitly provided for dis­
tricting, with respect to both Senate and House seats, in multimem­



LUCAS v. COLORADO GENERAL ASSEMBLY. 13

vides for a revision of representative districts, and of 
senatorial districts within counties given more than one 
Senate seat, after each federal census, in order to main­
tain conformity with the prescribed requirements.14 
Pursuant to this constitutional mandate, the Colorado 
Legislature, in early 1963, enacted a statute establishing 
65 representative districts and creating senatorial districts 
in counties given more than one Senate seat.15 Under 
the newly adopted House apportionment plan, districts in 
which about 45.1% of the State’s total population reside 
are represented by a majority of the members of that 
body. The maximum population-variance ratio, be­
tween the most populous and least populous House 
districts, is approximately 1.7-to-l. The court below 
concluded that the House was apportioned as nearly on 
a population basis as was practicable, consistent with 
Amendment No. 7’s requirement that “no part of one 
county shall be added to another county or part of another 
county” in the formation of a legislative district, and 
directed its concern solely to the question of whether the

ber counties. The rejected amendment, on the other hand, made no 
provision at all for districting within counties given more than one 
Senate seat, and allowed subdistricting of House seats only upon 
specific approval of such a plan by a county’s voters. Thus, Amend­
ment No. 8 would at least in part have perpetuated the extremely 
objectionable feature of the existing apportionment scheme, under 
which legislators in multimember counties were elected at large from 
the county as a whole.

14 As stated by the District Court, “ Mandatory provisions [of 
Amendment No. 7] require the revision of representative districts 
and of senatorial districts within counties apportioned more than 
one senator after each Federal Census.” 219 F. Supp., at 925. Under 
the provisions of Amendment No. 7, eight counties are given more 
than one Senate seat, and 14 of the 39 senatorial districts are com­
prised of more than one county.

15 Colo. Laws 1963, c. 143, pp. 520-532, referred to as House Bill 
No. 65.



14 LUCAS v. COLORADO GENERAL ASSEMBLY.

deviations from a population basis in the apportionment 
of Senate seats were rationally justifiable.16

Senatorial apportionment, under Amendment No. 7, 
involves little more than adding four new Senate seats 
and distributing them to four populous counties in the 
Denver area, and in substance perpetuates the existing 
senatorial apportionment scheme.17 Counties contain­
ing only 33.2% of the State’s total population elect a ma­
jority of the 39-member Senate under the provisions of 
Amendment No. 7. Las Animas County, with a 1960 
population of only 19,983, is given one Senate seat, while 
El Paso County, with 143,742 persons, is allotted only 
two Senate seats. Thus, the maximum population-vari­
ance ratio, under the revised senatorial apportionment, is 
about 3.6-to-l.18 Denver and the three adjacent subur­

16 As stated by the court below, “The Colorado legislature met in 
January, 1963, and passed a statute, H. B. 65, implementing Amend­
ment No. 7. No question is raised concerning the implementing leg­
islation.” 219 F. Supp., at 924-925. Again the District Court 
stated: “The cases now before the court do not present the issues 
as they existed prior to the apportionment made by Amendment No. 
7. . . . [T]he then-existing disparities in each chamber were severe, 
the defendants presented no evidence to sustain the rationality of 
the apportionment, and witnesses for the intervenors, while defending 
the apportionment of the Senate, recognized the malapportionment 
of the House. The change by Amendment No. 7 was such as to 
require a trial de novo and we are concerned with the facts as finally 
presented.” Id., at 928.

17 Appendix C to the District Court’s opinion on the merits con­
tains a chart of the senatorial districts created under Amendment 
No. 7’s provisions, showing the population of and the counties in­
cluded in each. 219 F. Supp., at 935-938.

18 Included as Appendix D to the District Court’s opinion on 
the merits is a chart showing the ratios of population per senator in 
each district to the population of the least populous senatorial dis­
trict, as established by Amendment No. 7 and the implementing 
statutory provisions dividing counties given more than one Senate 
seat into separate senatorial districts. 219 F. Supp., at 939.



LUCAS v. COLORADO GENERAL ASSEMBLY. 15

ban counties contain about one-half of the State’s total 
1960 population of 1,753,947, but are given only 14 out 
of 39 senators. The Denver, Pueblo, and Colorado 
Springs metropolitan areas, containing 1,191,832 persons, 
about 68%, or over two-thirds of Colorado’s popula­
tion, elect only 20 of the State’s 39 senators, barely a 
majority. The average population of Denver’s eight 
senatorial districts, under Amendment No. 7, is 61,736, 
while the five least populous districts contain less than 
22,000 persons each. Divergences from population-based 
representation in the Senate are growing continually 
wider, since the underrepresented districts in the Denver, 
Pueblo, and Colorado Springs metropolitan areas are rap­
idly gaining in population, while many of the overrepre­
sented rural districts have tended to decline in population 
continuously in recent years.19

19 Appellants have repeatedly asserted that equality of population 
among districts has been the traditional basis of legislative apportion­
ment in both houses of the Colorado General Assembly. They 
pointed out that both houses of the territorial legislature established 
by Congress in the organic act creating the territory of Colorado in 
1861 were expressly required to be apportioned on a population 
basis. And, they contended, the legislative districts established for 
the apportionment of the 26 Senate and 49 House seats in the first 
General Assembly after Colorado became a State were virtually all 
substantially equal in population. Referring to the language of the 
Colorado Supreme Court in Armstrong v. Mitten, 95 Colo. 425, 37 
P. 2d 757 (1934), they urged that no basis other than population has 
ever been recognized for apportioning representation in either house 
of the Colorado Legislature. Appellees, on the other hand, have con­
sistently contended that population “ ratio” figures have been used 
in apportioning seats in both houses since 1881, requiring propor­
tionately more population to obtain additional legislative representa­
tion. Since the Colorado Supreme Court’s statements in Armstrong 
regarding population as the basis of legislative representation plainly 
assumed the existence of an underlying population ratio scheme, its 
language can hardly be read out of context to support the proposition 
that absolute equality of population among districts has been the



16 LUCAS v. COLORADO GENERAL ASSEMBLY.

III.
Several aspects of this case serve to distinguish it from 

the other cases involving state legislative apportionment 
also decided this date. Initially, one house of the Colo­
rado Legislature is at least arguably apportioned substan­
tially on a population basis under Amendment No. 7 and 
the implementing statutory provisions. Under the ap­
portionment schemes challenged in the other cases, on the 
other hand, clearly neither of the houses in any of the 
state legislatures is apportioned sufficiently on a popu­
lation basis so as to be constitutionally sustainable. 
Additionally, the Colorado scheme of legislative appor­
tionment here attacked is one adopted by a majority 
vote of the Colorado electorate almost contempora­
neously with the District Court’s decision on the merits 
in this litigation. Thus, the plan at issue did not result 
from prolonged legislative inaction. However, the Colo­
rado General Assembly, in spite of the state constitu­
tional mandate for periodic reapportionment, has enacted 
only one effective legislative apportionment measure in 
the past 50 years.20

historical basis of legislative apportionment in Colorado. For a 
short discussion of legislative apportionment in Colorado, including 
the adoption of Amendment No. 7 and the instant litigation, see 
Note, 35 TJ. of Colo. L. Rev. 431 (1963).

20 In 1953 the Colorado General Assembly enacted the legislative 
apportionment scheme in effect when this litigation was commenced. 
Prior to 1953, the last effective apportionment of legislative repre­
sentation by the General Assembly itself was accomplished in 1913. 
The 1932 measure was an initiated act, adopted by a vote of the 
Colorado electorate. Although the legislature enacted a statutory 
plan in 1933, in an attempt to nullify the effect of the 1932 initiated 
act, that measure was held invalid and unconstitutional, as a matter 
of state law, by the Colorado Supreme Court. See note 24, infra. 
And the 1962 adoption of the apportionment scheme contained in 
proposed constitutional Amendment No. 7 resulted, of course, not 
from legislative action, but from a vote of the Colorado electorate



LUCAS v. COLORADO GENERAL ASSEMBLY. 17

As appellees have correctly pointed out, a majority of 
the voters in every county of the State voted in favor of 
the apportionment scheme embodied in Amendment No. 
7’s provisions, in preference to that contained in pro­
posed Amendment No. 8, which, subject to minor devia­
tions, would have based the apportionment of seats in 
both houses on a population basis. However, the choice 
presented to the Colorado electorate, in voting on these 
two proposed constitutional amendments, was hardly as 
clear-cut as the court below regarded it. One of the 
most undesirable features of the existing apportionment 
scheme was the requirement that, in counties given more 
than one seat in either or both of the houses of the Gen­
eral Assembly, all legislators must be elected at large 
from the county as a whole. Thus, under the existing 
plan, each Denver voter was required to vote for eight 
senators and 17 representatives. Ballots were long and 
cumbersome, and an intelligent choice among candidates 
for seats in the legislature was made quite difficult. No 
identifiable constituencies within the populous counties 
resulted, and the residents of those areas had no single 
member of the Senate or House elected specifically to 
represent them. Rather, each legislator elected from a 
multimember county represented the county as a wdiole.21 
Amendment No. 8, as distinguished from Amendment 
No. 7, while purportedly basing the apportionment of

approving the initiated measure. The 1963 statutory provisions 
were enacted by the General Assembly simply in order to comply 
with Amendment No. 7’s mandate for legislative implementation.

21 We do not intimate that apportionment schemes which provide 
for the at-large election of a number of legislators from a county, 
or any political subdivision, are constitutionally defective. Rather, 
we merely point out that there are certain aspects of electing legis­
lators at large from a county as a whole that might well make the 
adoption of such a scheme undesirable to many voters residing in 
multimember counties.



18 LUCAS v. COLORADO GENERAL ASSEMBLY.

seats in both houses on a population basis, would have per­
petuated, for all practical purposes, this debatable feature 
of the existing scheme. Under Amendment No. 8, sena­
tors were to be elected at large in those counties given 
more than one Senate seat, and no provision was made 
for subdistricting within such counties for the purpose 
of electing senators. Representatives were also to be 
elected at large in multimember counties pursuant to the 
provisions of Amendment No. 8, at least initially, al­
though subdistricting for the purpose of electing House 
members was permitted if the voters of a multimember 
county specifically approved a representative subdistrict­
ing plan for that county. Thus, neither of the proposed 
plans was, in all probability, wholly acceptable to the 
voters in the populous counties, and the assumption of 
the court below that the Colorado voters made a definitive 
choice between two contrasting alternatives and indicated 
that “minority process in the Senate is what they want” 
does not appear to be factually justifiable.

Finally, this case differs from the others decided this 
date in that the initiative device provides a practicable 
political remedy to obtain relief against alleged legis­
lative malapportionment in Colorado.22 An initiated

22 Article Y, § 1, of the Colorado Constitution provides that “ the 
people reserve to themselves the power to propose laws and amend­
ments to the constitution and to enact or reject the same at the polls 
independent of the general assembly . . . and further establishes 
the specific procedures for initiating proposed constitutional amend­
ments or legislation.

Twenty-one States make some provsion for popular initiative. 
Fourteen States provide for the amendment of state constitutional 
provisions through the process of initiative and referendum. See The 
Council of State Governments, The Book of the States 1962-1963, 
14 (1962). Seven States allow the use of popular initiative for the 
passage of legislation but not constitutional amendments. Both types 
of initiative and referendum may, of course, be relevant to legislative 
reapportionment. See Report of Advisory Commission on Inter­



LUCAS v. COLORADO GENERAL ASSEMBLY. 19

measure proposing a constitutitonal amendment or a stat­
utory enactment is entitled to be placed on the ballot if 
the signatures of 8% of those voting for the Secretary of 
State in the last election are obtained. No geographical 
distribution of petition signers is required. Initiative 
and referendum has been frequently utilized throughout 
Colorado’s history.23 Additionally, Colorado courts have 
traditionally not been hesitant about adjudicating con­
troversies relating to legislative apportionment.24 How­

governmental Relations, Apportionment of State Legislatures 57 
(1962). In some States the initiative process is ineffective and cum­
bersome, while in others, such as Colorado, it is a practicable and 
frequently utilized device.

In addition to the initiative device, Art. V, § 1, of the Colorado 
Constitution provides that, upon the timely filing of a petition signed 
by 5%  of the State’s voters or at the instance of the legislature, the 
Colorado electorate reserves the power of voting upon legislative 
enactments in a statewide referendum at the next general election.

23 Amendment of the Colorado Constitution can be accomplished, 
in addition to resort to the initiative and referendum device, through 
a majority vote of the electorate on an amendment proposed by the 
General Assembly following a favorable vote thereon “by two-thirds 
of all the members elected to each house” of the Colorado Legislature, 
pursuant to Art. X IX , § 2, of the Colorado Constitution. Addi­
tionally, a constitutional convention can be convened, upon the favor­
able recommendation of two-thirds of the members elected to each 
house of the General Assembly, if the electorate approves of the call­
ing of such a convention to “ revise, alter or amend” the State Con­
stitution, under Art. X IX , § 1, of the Colorado Constitution. Pur­
suant to Art. X IX , § 1, “ the number of members of the convention 
shall be twice that of the senate and they shall be elected in the same 
manner, at the same places, and in the same districts.”

24 See Armstrong v. Mitten, 95 Colo. 425, 37 P. 2d 757 (1934), 
where the Colorado Supreme Court held that a 1933 statute, enacted 
by the legislature to effectively nullify the 1932 initiated act reappor­
tioning legislative representation, was void under the state constitu­
tional provisions. In finding the legislative measure invalid, the 
Colorado court stated that “ redistricting must be done with due re­
gard to the requirement that representation in the General Assembly 
shall be based upon population,”  and that “ the legislative act in



20 LUCAS v. COLORADO GENERAL ASSEMBLY.

ever, the Colorado Supreme Court, in its 1962 decision 
discussed previously in this opinion,25 refused to consider 
or pass upon the federal constitutional questions, but 
instead held only that the Colorado General Assembly 
was not required to enact a reapportionment statute until 
the following legislative session.26

I Y .

In Reynolds v. Sims,----- IJ. S. -----, decided also this
date, we held that the Equal Protection Clause requires 
that both houses of a bicameral state legislature must be 
apportioned substantially on a population basis. Of 
course, the court below assumed, and the parties appar­
ently conceded, that the Colorado House of Representa­
tives, under the statutory provisions enacted by the Colo­
rado Legislature in early 1963 pursuant to Amendment 
No. 7’s dictate that the legislature should create 65 House 
districts “ as nearly equal in population as may be,” is 
now apportioned sufficiently on a population basis to 
comport with federal constitutional requisites. We need 
not pass on this question, since the apportionment of 
Senate seats, under Amendment No. 7, clearly involves 
departures from population-based representation too

question is void because it violates section 45 of article 5 of the Con­
stitution, which requires the reapportionment to be made on the 
basis of population, as disclosed by the census, and according to 
ratios to be fixed by law.” Stating that “ it is clear that ratios, after 
having been fixed under section 45, . . . cannot be changed until 
after the next census,” the Colorado Supreme Court concluded that 
“ the legislative act attempts to confer upon some districts a repre­
sentation that is greater, and upon others a representation that is 
less, than they are entitled to under the Constitution.” Id., at 428, 
37 P. 2d, at 758.

25 See note 2, supra.
26 In re Legislative Reapportionment, 374 P. 2d 66 (Colo. Sup. Ct. 

1962). Even so, the Colorado court stated that “ it is abundantly 
clear that this court has jurisdiction . . . . ’’ Id., at 69. See note 
2, supra.



LUCAS v. COLORADO GENERAL ASSEMBLY. 21

extreme to be constitutionally permissible, and there is 
no indication that the apportionment of the two houses 
of the Colorado General Assembly, pursuant to the 1962 
constitutional amendment, is severable.27 We therefore 
conclude that the District Court erred in holding the leg­
islative apportionment plan embodied in Amendment 
No. 7 to be constitutionally valid. Under neither 
Amendment No. 7’s plan, nor, of course, the previous 
statutory scheme, is the overall legislative representation 
in the two houses of the Colorado Legislature sufficiently 
grounded on population to be constitutionally sustainable 
under the Equal Protection Clause.28

27 See The Maryland Committee for Fair Representation v. Tawes,
----  U. S. -— , -----, decided also this date, where we discussed the
need for considering the apportionment of seats in both houses of a 
bicameral state legislature in evaluating the constitutionality of a 
state legislative apportionment scheme, regardless of what matters 
were raised by the parties and decided by the court below. Consist­
ent with this approach, in determining whether a good faith effort to 
establish districts substantially equal in population has been made, 
a court must necessarily consider a State’s legislative apportionment 
scheme as a whole. Only after an evaluation of an apportionment 
plan in its totality can a court determine whether there has been 
sufficient compliance with the requisites of the Equal Protection 
Clause. Deviations from a strict population basis, so long rationally 
justifiable, may be utilized to balance a slight overrepresentation of a 
particular area in one house with a minor underrepresentation of that 
area in the other house. But, on the other hand, disparities from 
population-based representation, though minor, may be cumulative 
instead of offsetting where the same areas are disadvantaged in both 
houses of a state legislature, and may therefore render the appor­
tionment scheme at least constitutionally suspect. Of course, 
the court below can properly take into consideration the present 
apportionment of seats in the House in determining what steps 
must be taken in order to achieve a plan of legislative apportionment 
in Colorado that sufficiently comports with federal constitutional 
requirements.

28 See Reynolds v. Sims, ----  U. S., at -----, where we discussed
some of the underlying reasons for our conclusion that the Equal



22 LUCAS v. COLORADO GENERAL ASSEMBLY.

Except as an interim remedial procedure justifying a 
court in staying its hand temporarily, we find no signifi­
cance in the fact that a nonjudicial, political remedy may 
be available for the effectuation of asserted rights to equal 
representation in a state legislature. Courts sit to adju­
dicate controversies involving alleged denials of consti­
tutional rights. While a court sitting as a court of equity 
might be justified in temporarily refraining from the issu­
ance of injunctive relief in an apportionment case in order 
to allow for resort to an available political remedy, such 
as initiative and referendum, individual constitutional 
rights cannot be deprived, or denied judicial effectuation, 
because of the existence of a non judicial remedy through 
which relief against the alleged malapportionment, which 
the individual voters seek, might be achieved. An indi­
vidual’s constitutionally protected right to cast an equally 
weighted vote cannot be denied even by a vote of a 
majority of a State’s electorate, if the apportionment 
scheme adopted by the voters fails to measure up to the 
requirements of the Equal Protection Clause. Mani­
festly, the fact that an apportionment plan is adopted in 
a popular referendum is insufficient to sustain its con­
stitutionality or to induce a court of equity to refuse to 
act. As stated by this Court in West Virginia State Bd. 
of Educ. v. Barnette, 319 U. S. 624, 638, “ One’s right to 
life, liberty, and property . . . and other fundamental 
rights may not be submitted to vote; they depend, on the 
outcome of no elections.” 29 A citizen’s constitutional 
rights can hardly be infringed simply because a majority

Protection Clause requires that seats in both houses of a state legis­
lature must be apportioned substantially on a population basis in 
order to comport with federal constitutional requisites.

29 And, as stated by the court in Hall v. St. Helena Parish School 
Bd., 197 F. Supp. 649, 659 (D. C. E. D. La. 1961), aff’d, 368 U. S. 
515, “ No plebiscite can legalize an unjust discrimination.”



LUCAS v. COLORADO GENERAL ASSEMBLY. 23

of the people choose to do so.30 We hold that the fact 
that a challenged legislative apportionment plan was ap­
proved by the electorate is without federal constitutional 
significance, if the scheme adopted fails to satisfy the 
basic requirements of the Equal Protection Clause, as 
delineated in our opinion in Reynolds v. Sims. And we 
conclude that the fact that a practicably available politi­
cal remedy, such as initiative and referendum, exists 
under state law provides justification only for a court of 
equity to stay its hand temporarily while recourse to such 
a remedial device is attempted or while proposed initiated 
measures relating to legislative apportionment are pend­
ing and will be submitted to the State’s voters at the next 
election.

30 In refuting the majority’s reliance on the fact that Amendment 
No. 7 had been adopted by a vote of the Colorado electorate, Judge 
Doyle, in dissenting below, stated:

“The protection of constitutional rights is not.to be approached 
either pragmatically or expediently, and though the fact of enactment 
of a constitutional provision by heavy vote of the electorate produces 
pause and generates restraint we can not, true to our oath, uphold 
such legislation in the face of palpable infringement of rights. Thus, 
state racial legislation would unquestionably enjoy overwhelming 
electorate approval in certain of our states, yet no one would argue 
that this factor could compensate for manifest inequality. It is too 
clear for argument that constitutional law is not a matter of majority 
vote. Indeed, the entire philosophy of the Fourteenth Amendment 
teaches that it is personal rights which are to be protected against 
the will of the majority. The rights which are here asserted are 
the rights of the individual plaintiffs to have their votes counted 
equally with those of other voters. . . .  [T ]o  say that a majority 
of the voters today indicate a desire to be governed by a minority, is 
to avoid the issue which this court is asked to resolve. It is no 
answer to say that the approval of the polling place necessarily 
evidences a rational plan. The plaintiffs have a right to expect that 
the cause will be determined in relation to the standards of equal 
protection. Utilization of other or different standards denies them 
full measure of justice.”  219 F. Supp., at 944.



24 LUCAS v. COLORADO GENERAL ASSEMBLY.

Because of the imminence of the November 1962 elec­
tion, and the fact that two initiated proposals relating to 
legislative apportionment would be voted on by the 
State’s electorate at that election, the District Court 
properly stayed its hand and permitted the 1962 election 
of legislators to be conducted pursuant to the existing 
statutory scheme. But appellees’ argument, accepted by 
the court below, that the apportionment of the Colorado 
Senate, under Amendment No. 7, is rational because it 
takes into account a variety of geographical, historical, 
topographic and economic considerations fails to provide 
an adequate justification for the substantial disparities 
from population-based representation in the allocation of 
Senate seats to the disfavored populous areas.31 And any 
attempted reliance on the so-called federal analogy is 
factually as well as constitutionally without merit.32

31 In its opinion on the merits, the District Court stated: “ By the
admission of states into the Union with constitutions creating bi­
cameral legislatures, membership to which is not apportioned on a 
population basis, Congress has rejected the principle of equal repre­
sentation as a constitutional requirement.”  219 F. Supp., at 927- 
928. For the reasons stated in our opinion in Reynolds v. Sims, 
----  U. S., at -----, we find this argument unpersuasive as a justi­
fication for the deviations from population in the apportionment of 
seats in the Colorado Senate under the provisions of Amendment 
No. 7. Also, the court below stated that the disparities from popu­
lation-based senatorial representation were necessary in order to 
protect “ insular minorities” and to accord recognition to “ the state’s 
heterogeneous characteristics.” Such rationales are, of course, in­
sufficient to justify the substantial deviations from population in 
the apportionment of seats in the Colorado Senate under Amend­
ment in No. 7, under the views stated in our opinion in Reynolds.

32 See Reyyiolds v. Sims, ----- U. S., at ---- ---------, discussing and
rejecting the applicability of the so-called federal analogy to state 
legislative apportionment matters. As stated in the dissent below, 
“ It would appear that there is no logical basis for distinguishing be­
tween the lower and the upper house—that the equal protection 
clause applies to both since no valid analogy can be drawn between



LUCAS v. COLORADO GENERAL ASSEMBLY. 25

Since the apportionment of seats in the Colorado Leg­
islature, under the provisions of Amendment No. 7, fails 
to comport with the requirements of the Equal Protec­
tion Clause, the decision below must be reversed. Be­
yond what we said in our opinion in Reynolds™ we ex­
press no view on questions relating to remedies at the 
present time. On remand, the District Court must now 
determine whether the imminence of the 1964 primary 
and general elections requires that utilization of the 
apportionment scheme contained in the constitutional 
amendment be permitted, for purposes of those elections, 
or whether the circumstances in Colorado are such that 
appellants’ right to cast adequately weighted votes for 
members of the State Legislature can practicably be 
effectuated in 1964. Accordingly, we reverse the deci­
sion of the court below and remand the case for further 
proceedings consistent with the views stated here and in 
our opinion in Reynolds v. Sims.

It is so ordered.

the United States Congress” and state legislatures. 219 F. Supp., 
at 940-941. Additionally, the apportionment scheme embodied in 
the provisions of Amendment No. 7 differs significantly from the plan 
for allocating congressional representation among the states. Al­
though the Colorado House of Representatives is arguably appor­
tioned on a population basis, and therefore resembles the Federal 
House, senatorial seats are not apportioned to counties or political 
subdivisions in a manner that at all compares with the allocation of 
two seats in the Federal Senate to each state.

33 See Reynolds v. Sims, —  U. S., at -— .



APPENDIX.

Amendment No. 7, approved by a vote of the Colorado 
electorate in November 1962, appears in Colo. Laws 1963, 
c. 312, p. 1045 et seq., and, in relevant part, provides as 
follows:

“ Sections 45, 46, and 47 of Article V of the Consti­
tution of Colorado are hereby repealed and new sec­
tions 45, 46, 47 and 48 of Article V are adopted, to 
read as follows:

“ Section 45. GENERAL ASSEMBLY. The gen­
eral assembly shall consist of 39 members of the 
senate and 65 members of the house, one to be elected 
from each senatorial and representative district. 
Districts of the same house shall not overlap. All 
districts shall be as compact as may be and shall con­
sist of contiguous whole general election precincts. 
No part of one county shall be added to another 
county or part of another county in forming a dis­
trict. When a district includes two or more counties 
they shall be contiguous.

“ S ection  46. H O U SE  OF R E P R E S E N T A ­
TIVES. The state shall be divided into 65 repre­
sentative districts which shall be as nearly equal in 
population as may be.

“ Section 47. SENATE. The state shall be di­
vided into 39 senatorial districts. The apportion­
ment of senators among the counties shall be the 
same as now provided by 63-1-3 of Colorado Re­
vised Statutes 1953, which shall not be repealed or 
amended other than in numbering districts, except 
that the counties of Cheyenne, Elbert, Kiowa, Kit 
Carson and Lincoln shall form one district, and one 
additional senator is hereby apportioned to each of 
the counties of Adams, Arapahoe, Boulder and Jef- 

26



LUCAS v. COLORADO GENERAL ASSEMBLY. 27

ferson. Within a county to which there is appor­
tioned more than one senator, senatorial districts 
shall be as nearly equal in population as may be.

“Section 48. REVISION OF DISTRICTS. At 
the regular session of the general assembly of 1963 
and each regular session next following official pub­
lication of each Federal enumeration of the popula­
tion of the State, the general assembly shall imme­
diately alter and amend the boundaries of all repre­
sentative districts and of those senatorial districts 
within any county to which there is apportioned 
more than one senator to conform to the require­
ments of Sections 45, 46 and 47 of this Article V. 
After 45 days from the beginning of each such regu­
lar session, no member of the general assembly shall 
be entitled to or earn any compensation or receive 
any payments on account of salary or expenses, and 
the members of any general assembly shall be in­
eligible for election to succeed themselves in office, 
until such revisions have been made. Until the 
completion of the terms of the representatives elected 
at the general election held in November of 1962 
shall have expired, the apportionment of senators 
and representatives and the senatorial and repre­
sentative districts of the general assembly shall be as 
provided by law.”

Dissenting opinion by Mr. Justice Harlan printed in 
Nos. 23, 27 and 41. Dissenting opinion by M r. Justice 
Stewart with whom Mr. Justice Clark joins and dis­
senting opinion by Mr. Justice Clark printed in No. 20.



(