Marshall v Brotherhood of Locomotive Firemen and Enginemen Et Al Petition for a Writ of Certiorari

    SUPREME COURT OF THE UNITED STATES

No. 307.— October T erm , 1963.

Mabel V. Roman, Clerk, 
etc., et al., Appellants, 

v.
Richard Sincock et al.

On Appeal From the United 
States District Court for 
the District of Delaware.

[June 15, 1964.]

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

Presented for decision in this case is the constitutional 
validity, under the Equal Protection Clause of the 
Fourteenth Amendment to the Federal Constitution, 
of the apportionment of seats in the Delaware General 
Assembly.

Shortly after this Court’s decision in Baker v. Carr, 
369 U. S. 186, plaintiffs below, residents, taxpayers and 
qualified voters of New Castle County, Delaware, filed a 
complaint in the United States District Court for the 
District of Delaware, in their own behalf and on behalf 
of all persons similarly situated, challenging the appor­
tionment of the Delaware Legislature. Defendants, sued 
in their representative capacities, were various officials 
charged with the performance of certain duties in con­
nection with state elections. The complaint alleged 
deprivation of rights under the Equal Protection Clause 
of the Fourteenth Amendment, and asserted that the Dis­
trict Court had jurisdiction under the Fourteenth Amend­
ment, 42 U. S. C. §§ 1983 and 1988, and 28 U. S. C. 
§§ 1343 and 2201.

Plaintiffs below alleged that the apportionment of seats 
in the Delaware Legislature resulted in an “ invidious dis­

I .



2 ROMAN v. SINCOCK.

crimination as to the inhabitants of New Castle County 
and the City of Wilmington,” operated to deny them the 
right to cast votes for Delaware legislators “ that are of 
equal effect with that of every other citizen of the State 
of Delaware,” and was arbitrary and capricious in failing 
to provide a reasonable classification of those voting for 
members of the Delaware General Assembly.1 Plaintiffs 
also asserted that they were without any other adequate 
remedy since the existing legislative apportionment was 
frozen into the 1897 Delaware Constitution; that the 
present legislature was dominated by legislators repre­
senting the two less populous counties; that it was, as a 
practical matter, impossible to amend the State Constitu­
tion or convene a constitutional convention for the pur­
pose of reapportioning the General Assembly; and that 
the Delaware Legislature had consistently failed to take 
appropriate action with respect to reapportionment.

Plaintiffs below sought a declaration that Art. II, § 2, 
of the Delaware Constitution, which established the 
apportionment of seats in both houses of the Dela­
ware Legislature, is unconstitutional, and an injunction 
against defendants to prevent the holding of any further 
elections under the existing apportionment scheme. 
Plaintiffs also requested that the District Court either 
reapportion the Delaware Legislature on a population 
basis or, alternatively, direct that the November 1962 
general election be conducted on an at-large basis. A 
three-judge District Court was asked for by plaintiffs, 
and was promptly convened.

On July 25, 1962, the District Court entered an order 
staying the proceedings until August 7, 1962, in order to 
permit the Delaware Legislature to take “some appro­
priate action.” 207 F. Supp. 205. The Court noted that,

1 Interestingly, Art. I, §3, of the Delaware Constitution provides: 
“ All elections shall be free and equal.”



ROMAN v. SINCOCK. 3

since publication of any proposed constitutional amend­
ment at least three months prior to the next general elec­
tion was required under Delaware law,2 it would serve no 
useful purpose to grant a stay beyond August 7, 1962.

On July 30, 1962, the General Assembly approved a 
proposed amendment to the legislative apportionment 
provisions of the Delaware Constitution,3 based upon 
recommendations of a bipartisan reapportionment com­
mittee appointed by the Delaware Governor. Under 
Delaware law this amendment could not, however, be­
come effective unless again approved during the next 
succeeding session of the General Assembly.4

On August 7, 1962, the District Court entered an order 
refusing to dismiss the suit, and stated that, while it had 
no desire to substitute its judgment for the collective wis­
dom of the Delaware General Assembly in matters of 
legislative apportionment, it had no alternative but to 
proceed promptly in deciding the case. 210 F. Supp. 395. 
Some of the defendants applied for a further stay of pro­
ceedings so that the General Assembly coming into office 
in January 1963 would have an opportunity to approve 
the proposed constitutional amendment. On August 8, 
1962, plaintiffs applied for a preliminary injunction 
against the conducting of the November 1962 general 
election under the existing apportionment provisions. 
Plaintiffs were thereafter permitted to amend their com­
plaint to request that the proposed constitutional amend­
ment also be declared unconstitutional and that the Court

2 See 207 F. Supp., at 207. All of the decisions of the court below 
are reported sub nom. Sincock v. Duffy.

3 By the requisite two-thirds vote in both houses of the General 
Assembly, pursuant to Art. XVI, § 1, of the Delaware Constitution.

4 Under Art. XVI, § 1, of the Delaware Constitution, a constitu­
tional amendment must be passed by a two-thirds vote of both houses 
of successive General Assemblies before becoming part of the State 
Constitution.



order a provisional reapportionment of the Delaware 
Legislature.

On October 16, 1962, the District Court denied both 
the applications for a preliminary injunction and for a 
further stay. 210 F. Supp. 396. Denial of a preliminary 
injunction effectively permitted the holding of the 
November 1962 general election pursuant to the legisla­
tive apportionment provisions of the 1897 Delaware Con­
stitution. After extended pretrial proceedings, the Court, 
on November 27, 1962, entered a pretrial order in which 
the parties agreed to the accuracy of a series of exhibits, 
statistics and various statistical computations. In early 
January 1963, the Delaware General Assembly, elected in 
November 1962, approved the proposed constitutional 
amendment by the requisite two-thirds vote. As a result, 
the amendment to the legislative apportionment provi­
sions of Art. II, § 2, became effective on January 17, 1963, 
since having been passed by two successive General 
Assemblies.5 Trial before the District Court ensued, 
with the expert testimony of various political scientists 
being presented.

On April 17, 1963, the District Court, in an opinion by 
Circuit Judge Biggs, held that Art. II, § 2, of the Dela­
ware Constitution, both before and after the 1963 amend­
ment, resulted in gross and invidious discrimination 
against the plaintiffs and others similarly situated, in vio­
lation of the Equal Protection Clause of the Fourteenth 
Amendment. 215 F. Supp. 169. Stating that “ the 
fundamental issue presented for . . . adjudication is 
whether or not the apportioning of members of the Gen­
eral Assembly of the State of Delaware offends the 
electors of the State because of an alleged debasement of 
their voting rights,” the Court indicated that it would 
pass upon the constitutional validity of both the provi­

4 ROMAN v. SINCOCK.

5 53 Del. Laws, c. 425 (1962); 54 Del. Laws, c. 1 (1963).



sions of the 1897 Constitution and the provisions of the 
1963 constitutional amendment. After considering in 
detail the apportionment of legislative seats under the 
provisions of the 1897 Delaware Constitution, the court 
below concluded that “ the uneven growth of the different 
areas of the State created a condition because of which 
the numbers of inhabitants in representative and sena­
torial districts differed not only on an intercounty but 
also on an intracounty basis.” After discussing the effect 
of the 1963 reapportionment amendment, the District 
Court turned to a consideration of plaintiffs’ claim under 
the Federal Constitution. Stating that the rights as­
serted by plaintiffs are “personal civil rights” of great 
importance, the court below continued:

“ . . . Section 2 of Article II of the Constitution of 
Delaware as it existed prior to the 1963 Amendment 
and as it exists today creates such an inequality in 
voting power, resulting in invidious discrimination, 
as to bring it within the proscription of the Four­
teenth Amendment of the Constitution of the United 
States. . . . This is true as to the apportionment 
of the Senate as well as to the apportionment of the 
House of Representatives of the General Assembly 
of Delaware. While mathematical exactitude in 
apportionment cannot be expected, and indeed is not 
possible in an absolute sense, disparities created by 
Section 2 of Article II, as it was prior to the 1963 
Amendment and as it is now, are of such a startling 
nature as to demonstrate a debasement of franchise 
of individual electors of this State which the Equal 
Protection Clause of the Federal Constitution can­
not tolerate.” 6

After holding that the apportionment of at least one 
house of a bicameral state legislature must be based sub­

ROMAN v. SINCOCK. 5

215 F. Supp., at 184.



6 ROMAN v. SINCOCK.

stantially on population, the District Court rejected the 
relevancy of the so-called federal analogy as a justifica­
tion for departures from a population-based apportion­
ment scheme in the other house of a state legislature. 
Although finding no rational or reasonable basis for the 
Delaware apportionment, either as it previously existed 
or as amended, the Court nevertheless concluded that re­
apportionment was basically a legislative function, and 
that a further opportunity should be given to the General 
Assembly to reapportion itself properly in accordance 
with the requirements of the Fourteenth Amendment. 
After attempting to delineate some guidelines for the 
Delaware Legislature to follow in reapportioning, the 
court below, with an eye toward the impending 1964 elec­
tions, gave the General Assembly until October 1, 1963, 
to adopt a constitutionally valid plan.7 The District 
Court entered a decree declaring Art. II, § 2, of the Dela­
ware Constitution to be unconstitutional, and retained

7 The other two judges both wrote short opinions. Chief District 
Judge Wright indicated that he concurred in the view that Art. II, 
§ 2, of the Delaware Constitution, before and after amendment, was 
unconstitutional, since at least one house of a state legislature must 
be apportioned strictly on a population basis. He indicated that he 
also agreed with the “precatory observation” of Judge Biggs that the 
other house must also be apportioned substantially on a population 
basis.

District Judge Layton concurred in the result reached, finding that 
Art, II, § 2, of the Delaware Constitution, prior to as well as after 
the 1963 amendment, was unconstitutional with respect to the House 
of Representatives. He stated that, since the 1963 amendment con­
tained no severability clause, the whole amendment was unconsti­
tutional because of the provisions relating to the House, and that 
therefore there was no need to consider whether the senatorial provi­
sions were valid. He indicated, however, that he thought that it was 
permissible to apportion one house on a nonpopulation, area basis 
where the other house was apportioned strictly on population, since 
such a system would be patterned on the scheme of representation in 
the Federal Congress.



ROMAN v. SINCOCK.

jurisdiction to order injunctive or other relief if it 
became necessary to do so.

On May 6, 1963, the Supreme Court of Delaware 
advised the Delaware Governor that, notwithstanding the 
holding of the District Court, he should proceed accord­
ing to the provisions of the invalidated 1963 constitu­
tional amendment to proclaim a redistricting plan for 
House of Representatives seats. The Delaware Supreme 
Court’s opinion was predicated on the view that the Dis­
trict Court’s decision was not a final one, since it was 
appealable and since no injunctive relief had been 
granted. Acting on this device, while making reference 
to the District Court’s decision, the Governor, on May 17, 
1963, proclaimed a plan providing for the redistricting of 
certain House districts in accordance with the provisions 
of the 1963 reapportionment amendment. Under these 
circumstances, on May 20,1963, the District Court entered 
an injunction against the holding of any elections for 
General Assembly seats under Art. II, § 2, of the Dela­
ware Constitution, either as it had previously existed or 
as amended, and again reserved jurisdiction to make such 
further orders as it might deem necessary. The District 
Court denied a motion to stay its injunction pending 
appeal, but, on application by defendants below, M r . 
Justice Brennan , on June 27, 1963, stayed the opera­
tion of the District Court’s injunction pending final dis­
position of the case by this Court. Notices of appeal 
from the District Court’s final decree, and from its in­
junction and denial of the motion for a stay, were timely 
filed by defendants. Pursuant to this Court’s Rule 
15 (3), both appeals have been treated as a single case. 
When appellees filed a motion to affirm, appellants 
countered with a motion to advance. On October 21, 
1963, we noted probable jurisdiction and granted 
appellants’ motion to advance. 375 U. S. 877.

7



8 ROMAN v. SINCOCK.

II.
Under the provisions of the 1897 Delaware Constitu­

tion relating to legislative apportionment, in force when 
this litigation was commenced, the State was geographi­
cally divided into 17 Senate and 35 House districts for 
the purpose of electing members of the Delaware Legis­
lature. Delaware senators serve four-year terms, with 
approximately half of the senators elected every two 
years, and all representatives are elected for two-year 
terms. Qualified voters in each Senate and House dis­
trict elect one senator and one representative, under the 
1897 Constitution’s apportionment plan. Delaware is 
comprised of only three counties, and only one sizable 
metropolitan area—Wilmington. Under the 1897 ap­
portionment, five senatorial districts and 10 representa­
tive districts were allocated to Kent County, to Sussex 
County, and to “rural” New Castle County (that part 
of the county outside of the City of Wilmington), and 
Wilmington was given two senatorial and five repre­
sentative districts. The number and boundaries of both 
the senatorial and representative districts were specifi­
cally fixed and described in the constitutional provisions, 
and no provision was made for their alteration. When 
the constitutional provisions were adopted, the popula­
tion of the State of Delaware was approximately 180,000, 
with about 32,000 living in Kent County, 38,000 residing 
in Sussex County, and 105,000 living in New Castle 
County (of whom about 70,000 lived in the City of 
Wilmington). By 1960, the total population of Dela­
ware had increased to 446,292, of which 307,446 resided 
in New Castle County, 95,827 in Wilmington and 211,619 
in “rural” New Castle County. And, under the 1960 
census figures, 65,651 lived in Kent County and 73,195 
resided in Sussex County.



ROMAN v. SINCOCK. 9

Under the 1897 apportionment scheme, as perpetuated 
over 65 years later, Senate districts ranged in population 
from 4,177 to 64,820, resulting in a maximum population- 
variance ratio, between the most populous and least pop­
ulous Senate districts, of about 15-to-l. Senatorial dis­
tricts in Kent and Sussex Counties were consistently much 
smaller in population than those in New Castle County, 
with the exception of one New Castle County district 
which, with a population of only 4,177, was the smallest 
senatorial district in the State.8 Only 22% of the State’s 
total population resided in districts electing a majority 
of the members of the 17-member Senate, applying I960 
census figures to the senatorial apportionment scheme 
existing when this litigation was commenced.

Representative districts ranged in population, as of 
1960, from 1,643 to 58,228, under Art. II, § 2, of the 1897 
Delaware Constitution, resulting in a maximum popula­
tion-variance ratio, in the Delaware House, of about 35- 
to-1. Again, the average population of House districts in 
Kent and Sussex Counties was significantly smaller than 
that of those in New Castle County, although several of 
the “rural” New Castle County districts were among the 
smallest in the State. Applying 1960 census figures to 
the 1897 apportionment scheme, with respect to the Del­
aware House, the 18 most sparsely populated representa­
tive districts, containing only about 18.5% of the State’s 
total 1960 population, elected a majority of the members 
of the House of Representatives.9 Persons living in the

8 Included in the District Court’s opinion is a chart showing the 
population of the 17 senatorial districts established by Art. II, § 2, 
of the 1897 Delaware Constitution, and tracing the population changes 
in each during the period 1930-1960. 215 F. Supp., at 176.

9 A chart showing the population of the 35 representative districts 
established by Art. II, § 2, of the 1897 Delaware Constitution, and 
tracing the population changes in each during the period 1890-1960, 
is included in the District Court’s opinion. 215 F. Supp., at 174-175.



10 ROMAN v. SINCOCK.

six most populous representative districts, 233,718, more 
than one-half of the total state population, had only the 
same voting power, under the 1897 Constitution’s scheme, 
as those 16,552 persons living in the six least populous dis­
tricts, with respect to electing members of the Delaware 
House.10 Serious disparities in the population of dis­
tricts, both House and Senate, within each county were 
also presented in the district population figures considered 
by the District Court.11

Evidence before the District Court showed that, despite 
repeated attempts to reapportion the legislature or to 
call a constitutional convention for that purpose, the Del­
aware Legislature had consistently failed to take any ac­
tion to change the existing apportionment of legislative 
seats. No initiative and referendum procedure exists in 
Delaware.12 Legislative apportionment has been tradi­
tionally provided for wholly by constitutional provisions 
in Delaware, and a concurrence of two-thirds of both 
houses of two consecutive state legislatures is required

10 And, as pointed out by the court below, under the apportionment 
of House seats contained in Art. II, § 2, of the Delaware Constitution, 
“ The inhabitants of the 18 least populated representative districts 
are less in number than those of the two districts having the heaviest 
concentration of population; nonetheless, the former elect 18 repre­
sentatives in the House of Representatives, while the latter elect 2 
representatives in the House of Representatives of the Delaware 
General Assembly.”  215 F. Supp., at 176.

11 The 35 representative districts tended to follow generally the 
boundaries of a “hundred,”  a geographical subdivision of counties 
in Delaware since its founding, and the 17 senatorial districts, which 
were also described in a detailed fashion in Art. II, § 2, of the 1897 
Delaware Constitution, were composed either of two representative 
districts each or two or more hundreds or portions of hundreds.

12 For a discussion of the lack of federal constitutional significance
of the presence or absence of an available political remedy, see Lucas 
v. The Forty-Fourth General Assembly of the State of Colorado, 
—  U. S . ------------, decided also this date.



11
in order to amend the State Constitution.13 The Del­
aware General Assembly may also, by a two-thirds vote, 
submit to the State’s voters the question of whether to 
hold a constitutional convention.14

Under the 1963 amendment to Art. II, § 2, of the Del­
aware Constitution, the size of the Senate is increased 
from 17 to 21 members, and the four added seats are 
allotted equally to Kent and Sussex Counties, giving each 
of the State’s three counties seven senators.15 The added 
senators are to be elected at large from districts compris­
ing about one-half of the House districts in each of the 
two counties. As a result of this change, each voter in 
Kent and Sussex Counties is entitled to vote for two sena­
tors and one representative. With respect to the House 
of Representatives, the amendment provides that each 
existing representative district with a population in excess 
of 15,000 persons is to be allotted an additional representa­
tive for each additional 15,000 persons or major fraction 
thereof. The boundaries of the original 35 representative 
districts are not affected, and districts receiving additional 
representatives are to be divided, by a redistricting com­
mission headed by the Governor, so that each of the new 
districts elects one representative.16 The net effect of 
the 1963 amendment, as regards immediate changes in 
House representation, is to allot 10 additional representa­

13 Under Art. XVI, § 1, of the Delaware Constitution.
14 Under Art. X VI, § 2, of the Delaware Constitution.
15 A chart showing the composition of the Senate and the popula­

tion of each of the 21 senatorial districts under the 1963 amendment 
is included in the District Court’s opinion. 215 F. Supp., at 181.

16 Included in the District Court’s opinion are charts indicating 
the effect of the 1963 amendment on the representation of New Castle 
County in the House of Representatives and showing the composition 
of the Delaware House, as reapportioned, including the population 
of each of its 45 districts under 1960 census figures. 215 F Supp 
at 179-180.

ROMAN v. SINCOCK.



12 ROMAN v. SINCOCK.

tives to various districts in New Castle County, increas­
ing the size of the House to 45 members. Representation 
of Kent and Sussex Counties is to be unaffected. Under 
the revised apportionment, the maximum population- 
variance ratio is reduced to about 12-to-l with respect to 
the House, but remains about 15-to-l in the Senate. A 
majority of the members of the House would be elected, 
under the 1963 amendment, from districts with only 
about 28% of the State’s total population. And, since 
the 1963 amendment added two Senate seats each for the 
two smaller counties, the change in senatorial apportion­
ment would result in two-thirds of the Senate being 
elected from districts where only about 31% of the State’s 
population reside. About 21% of the State’s population 
would be represented by a majority of the members of the 
Delaware Senate, under the 1963 reapportionment.

The 1963 amendment also provided that, if a constitu­
tional convention were to be called, the number of dele­
gates and the method of their election were not to be af­
fected by the amended apportionment provisions, and, for 
the purpose of any future constitutional convention, the 
representative districts were to elect delegates on the basis 
of the apportionment provided by Art. II, § 2, as it existed 
prior to the amendment. Thus, the number of constitu­
tional convention delegates would continue to be 41, one 
from each of the 35 representative districts provided for 
under the 1897 scheme, with two elected at large from 
each of the three counties.17

III.
In Reynolds v. Sims,---- U. S . ------ , decided also this

date, we held that the Equal Protection Clause requires 
that seats in both houses of a bicameral state legislature 
must be apportioned substantially on a population basis.

17 Under Art. XVI, § 2, of the Delaware Constitution.



ROMAN v. SINCOCK. 13

Neither of the houses of the Delaware General Assembly, 
either before or after the 1963 constitutional amendment, 
was so apportioned. Thus, we hold that the District 
Court correctly found the Delaware legislative apportion­
ment constitutionally invalid, and affirm the decisions 
below.

For the reasons stated in our opinion in Reynolds™ 
appellants’ reliance upon the so-called federal analogy to 
justify the deviations from a population basis in the 
apportionment of seats in the Delaware Legislature is 
misplaced.18 19 And appellants’ argument that the Dela­
ware apportionment scheme should be upheld since Con­

18 See Reynolds v. Sims,-----U. S., a t --------------- .
19 That the three Delaware counties may have possessed some 

attributes of limited sovereignty prior to the inception of Delaware 
at a State provides no basis for applying the federal analogy to leg­
islative apportionment in Delaware while holding it inapplicable in 
other States. Whatever the role of counties in Delaware during the 
colonial period, they never have had those aspects of sovereignty 
which the States possessed when our federal system of government 
was adopted. And it could hardly be contended that Delaware’s 
counties retained any elements of sovereign power, when the State 
was formed, that at all compare with those retained by the States 
under our Federal Constitution. See 215 F. Supp., at 186, where 
the District Court stated that “ there never was much and there is 
now no sovereignty in the Counties of Delaware . . . .”

Additionally, the Delaware legislative apportionment scheme here 
challenged, even after the 1963 constitutional amendment, fails to 
resemble the plan of representation in the Federal Congress in several 
significant respects: the Delaware House of Representatives is plainly 
not apportioned in accordance with population, and senators in Del­
aware are not chosen as representatives of counties. Although, under 
the 1963 amendment, each county is given an equal number of sen­
ators, the 21 senators are chosen one each from the 21 senatorial 
districts, seven per county, established solely for the purpose of their 
election. Each Delaware senator represents his district and not the 
county in which the district is located. Members of the Federal 
Senate are of course elected from a State at large, and represent the 
entire State.



14 ROMAN v. SINCOCK.

gress has admitted various States into the Union although 
the apportionment of seats in their legislatures was based 
on factors other than population is also unconvincing.20 
In giving the Delaware Legislature an opportunity to 
adopt a constitutionally valid plan of legislative appor­
tionment, and in deferring decision until after the Novem­
ber 1962 general election, because of the imminence of 
that election and the disruptive effect which its decision 
might have had, the District Court acted in a wise and 
temperate manner. And the court below did not err in 
granting injunctive relief after it had become apparent 
that, despite its decree holding that the 1963 constitu­
tional amendment reapportioning seats in the Delaware 
Legislature failed to comply with federal constitutional 
requirements, no further reapportionment by the Dela­
ware General Assembly was probable.

Our affirmance of the decision below is not meant to 
indicate approval of the District Court’s attempt to state 
in mathematical language the constitutionally permis­
sible bounds of discretion in deviating from apportion­
ment according to population.21 In our view the prob­
lem does not lend itself to any such uniform formula, and 
it is neither practicable nor desirable to establish rigid 
mathematical standards for evaluating the constitutional 
validity of a state legislative apportionment scheme 
under the Equal Protection Clause. Rather, the proper 
judicial approach is to ascertain whether, under the par­
ticular circumstances existing in the individual State 
whose legislative apportionment is at issue, there has

“° See the discussion of and the reasons for rejecting this argument 
in Reynolds v. Sims,----U. S., a t ------ .

21 The court below suggested that population-variance ratios 
smaller than 1% -to-l would presumably comport with minimal con­
stitutional requisites, while ratios in excess thereof would necessarily 
involve deviations from population-based apportionment too extreme 
to be constitutionally sustainable. See 215 F. Supp., at 190.



ROMAN v. SINCOCK. 15
been a faithful adherence to a plan of population-based 
representation, with such minor deviations only as may 
occur in recognizing certain factors that are free from any 
taint of arbitrariness or discrimination.

Apart from what we said in Reynolds, we express no 
view on questions relating to remedies at the present 
time.22 Regardless of the requirements of the Delaware 
Constitution 23 and the fact that legislative apportionment 
has traditionally been considered a constitutional matter 
in Delaware, the delay inherent in following the state 
constitutional prescription for approval of constitutional 
amendments by two successive General Assemblies can­

22 See Reynolds v. Sims,-----U. S., a t ------ .
23 Particularly Art. XVI, § 1, which requires the approval by suc­

cessive state legislatures before a proposed constitutional amendment 
can be adopted.

In its initial opinion, incident to its order granting a limited stay, 
the District Court suggested that the Delaware Legislature might 
desire to amend the State Constitution so as to make legislative 
apportionment a statutory instead of a constitutional matter, in order 
to obviate the delay inherently involved in complying with the re­
quirement of the Delaware Constitution that constitutional amend­
ments must be approved by two successive General Assemblies before 
becoming effective. 207 F. Supp., at 206-207. In this manner, the 
District Court suggested, if the Delaware Legislature’s attempt at 
reapportionment should be found deficient under the Federal Con­
stitution, the General Assembly elected in November 1962 would be 
free, under state law, to proceed expeditiously with the enactment 
of a revised statutory reapportionment plan consonant with the re­
quirements of the Equal Protection Clause. Unfortunately, the Del­
aware Legislature failed to act on the Court’s suggestion, and instead 
proposed the constitutional amendment hereinbefore discussed, which 
was approved by two consecutive state legislatures in late 1962 and 
in early 1963. However, in its opinion on the merits, the District 
Court intimated that, with the Delaware constitutional provisions 
relating to legislative apportionment declared invalid, the Delaware 
Legislature could “ then proceed to pass an apportionment statute 
meeting the requirements of the Fourteenth Amendment . . . .”  215 
F. Supp., at 191.



16 ROMAN v. SINCOCK.

not be allowed to result in an impermissible depriva­
tion of appellees’ right to an adequate voice in the 
election of legislators to represent them. Acting under 
general equitable principles, the court below must now de­
termine whether it would be advisable, so as to avoid a 
possible disruption of state election processes and permit 
additional time for the Delaware Legislature to adopt a 
constitutionally valid apportionment scheme, to allow the 
1964 election of Delaware legislators to be conducted pur­
suant to the provisions of the 1963 constitutional amend­
ment, or whether those factors are insufficient to justify 
any further delay in the effectuation of appellants’ con­
stitutional rights. We therefore affirm the decisions of 
the District Court here appealed from, 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.

M r . Justice Clark concurs in the affirmance for the 
reasons stated in his concurring opinion in Reynolds v. 
Sims,-----U. S . ------ , decided this date.



SUPEEME COUET OF THE UNITED STATES

No. 307.— October T erm , 1963.

Mabel V. Roman, Clerk, 
etc., et al., Appellants, 

v.
Richard Sincock et al.

On Appeal From the United 
States District Court for 
the District of Delaware.

[June 15, 1964.]

M r. Justice Stewart.

In this case the appellees showed that the apportion­
ment of seats among the districts represented in the 
Delaware House of Representatives and within the 
counties represented in the Delaware Senate, apparently 
reflects “no policy, but simply arbitrary and capricious 
action.” The appellants have failed to dispel this show­
ing by suggesting any possible rational explanation for 
these aspects of Delaware’s system of legislative appor­
tionment. Accordingly, for the reasons stated in my dis­
senting opinion in Lucas v. The Forty-Fourth General
Assembly of the State of Colorado, ante, p . ---- , I would
affirm the judgment of the District Court insofar as it 
holds that Delaware’s system of apportionment violates 
the Equal Protection Clause.

Dissenting opinion by M r. Justice H arlan printed in 
Nos. 23, 27 and 41.