Davis v. Mann Court Opinion

    SUPREME COURT OF THE UNITED STATES

No. 69.— October T erm, 1963.

Levin Nock Davis, Secretary, 
State Board of Elections, 
et al., Appellants,

On Appeal From the 
United States District 
Court for the Eastern 
District of Virginia.v.

Harrison Mann et al.

[June 15, 1964.]

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

Presented for decision in this case is the validity, under 
the Equal Protection Clause of the Fourteenth Amend­
ment to the Federal Constitution, of the apportionment 
of seats in the legislature of the Commonwealth of 
Virginia.

Plaintiffs below, residents, taxpayers and qualified 
voters of Arlington and Fairfax Counties, filed a com­
plaint on April 9, 1962, in the United States District 
Court for the Eastern District of Virginia, in their own 
behalf and on behalf of all voters in Virginia similarly 
situated, challenging the apportionment of the Virginia 
General-Assembly. Defendants, sued in their representa­
tive capacities, were various officials charged with duties in 
connection with state elections. Plaintiffs claimed rights 
under provisions of the Civil Rights Act, 42 U. S. C. 
§§ 1983, 1988, and asserted jurisdiction under 28 U. S. C. 
§ 1343 (3).

The complaint alleged that the present statutory pro­
visions apportioning seats in the Virginia Legislature, as 
amended in 1962, result in invidious discrimination 
against plaintiffs and “all other voters of the State Sena­
torial and House districts” in which they reside, since

I.



2 DAVIS v. MANN.

voters in Arlington and Fairfax Counties are given sub­
stantially less representation than voters living in other 
parts of the State. Plaintiffs asserted that the discrim­
ination was violative of the Fourteenth Amendment as 
well as the Virginia Constitution, and contended that the 
requirements of the Equal Protection Clause of the Fed­
eral Constitution, and of the Virginia Constitution, could 
be met only by a redistribution of legislative representa­
tion among the counties and independent cities of the 
State “substantially in proportion to their respective pop­
ulations.” Plaintiffs asserted that they “ possess an 
inherent right to vote for members of the General Assem­
bly . . . and to cast votes that are equally effective with 
the votes of every other citizen” of Virginia, and that this 
right was being diluted and effectively denied by the dis­
criminatory apportionment of seats in both houses of the 
Virginia Legislature under the statutory provisions at­
tacked as being unconstitutional. Plaintiffs contended 
that the alleged inequalities and distortions in the alloca­
tion of legislative seats prevented the Virginia Legislature 
from “being a body representative of the people of the 
Commonwealth,” and resulted in a minority of the people 
of Virginia controlling the General Assembly.

The complaint requested the convening of a three- 
judge District Court. With respect to relief, plaintiffs 
sought a declaratory judgment that the statutory scheme 
of legislative apportionment in Virginia, prior as well as 
subsequent to the 1962 amendments, contravenes the 
Equal Protection Clause of the Fourteenth Amendment 
and is thus unconstitutional and void. Plaintiffs also 
requested the issuance of a prohibitory injunction re­
straining defendants from performing their official duties 
relating to the election of members of the General Assem­
bly pursuant to the present statutory provisions. Plain­
tiffs further sought a mandatory injunction requiring 
defendants to conduct the next primary and general elec­



tions for legislators on an at-large basis throughout the 
State.

A three-judge District Court was promptly convened. 
Residents and voters of the City of Norfolk were per­
mitted to intervene as plaintiffs against the original 
defendants and against certain additional defendants, 
election officials in Norfolk. On June 20, 1962, all of the 
plaintiffs obtained leave to amend the complaint by add­
ing an additional prayer for relief which requested that, 
unless the General Assembly “promptly and fairly” reap­
portioned the legislative districts, the Court should 
reapportion the districts by its own order so as to accord 
the parties and others similarly situated “ fair and pro­
portionate” representation in the Virginia Legislature.

Evidence presented to the District Court by plaintiffs 
included basic figures showing the populations of the var­
ious districts from which senators and delegates are 
elected and the number of seats assigned to each. From 
that data various statistical comparisons were derived. 
Since the 1962 reapportionment measures were enacted 
only two days before the complaint was filed and made 
only small changes in the statutory provisions relat­
ing to legislative apportionment, which had been last 
amended in 1958, the evidence submitted covered both 
the present and the last previous apportionments. De­
fendants introduced various exhibits showing the num­
bers of military and military-related personnel in the City 
of Norfolk and in Arlington and Fairfax Counties, dis­
parities from population-based representation among the 
various States in the Federal Electoral College, and 
results of a comparative study of state legislative appor­
tionment which show Virginia as ranking eighth among 
the States in population-based legislative representative­
ness, as reapportioned in 1962.

On November 28, 1962, the District Court, with one 
judge dissenting, sustained plaintiffs’ claim and entered

DAVIS v. MANN. 3



4 DAVIS v. MANN.

an interlocutory order holding the apportionment of the 
Virginia Legislature violative of the Federal Constitution. 
213 F. Supp. 577. The Court refused to dismiss the case 
or stay its action on the ground, asserted by defendants, 
that plaintiffs should be required first to procure the 
views of the state courts on the validity of the apportion­
ment scheme. Instead, it held that, since neither the 
1962 legislation nor the relevant state constitutional pro­
visions were ambiguous, no question of state law neces­
sitating abstention by the Federal District Court was 
presented. In applying the Equal Protection Clause to 
the Virginia apportionment scheme, the Court stated that, 
although population is the predominant consideration, 
other factors may be of some relevance “ in assaying the 
justness of the apportionment.” Stating that the Fed­
eral Constitution requires a state legislative apportion­
ment to “ accord the citizens of the State substantially 
equal representation,” the Court held that the inequalities 
found in the statistical information relating to the popu­
lation of the State’s various legislative districts, if unex­
plained, sufficiently showed an “ invidious discrimination” 
against plaintiffs and those similarly situated. The Court 
rejected any possibility of different bases of representa­
tion being applicable in the two houses of the Virginia 
Legislature, stating that, in Virginia, each house has “a 
direct, indeed the same, relation to the people,” and that 
the principal present-day justification for bicameralism 
in state legislatures is to insure against precipitate action 
by imposing greater deliberation upon proposed legisla­
tion. Because of the gross inequalities in representation 
among various districts in both houses of the Virginia 
Legislature, the Court put the burden of explanation on 
defendants, and found that they had failed to meet it. 
Consequently, the Court concluded that the discrimina­
tion against Arlington and Fairfax Counties and the City



DAVIS v. MANN. 5

of Norfolk was a grave and “ constitutionally impermis­
sible” deprivation, violative of the Equal Protection 
Clause of the Fourteenth Amendment.

With respect to relief, the Court stated that, while it 
would have preferred that the General Assembly itself 
correct the unconstitutionality of the 1962 apportionment 
legislation, it would not defer deciding the case until after 
the next regular session of the Virginia Legislature in 
January 1964, because senators elected in November 1963 
would hold office until 1968 and delegates elected in 1963 
would serve until 1966. Deferring action would thus re­
sult in unreasonable delay in correcting the injustices in 
the apportionment of the Senate and the House of 
Delegates, concluded the Court.

The District Court’s interlocutory order declared that 
the 1962 apportionment violated the Equal Protection 
Clause and accordingly was void and of no effect. It 
also restrained and enjoined defendants from proceeding 
with the conducting of elections under the 1962 legisla­
tion, but stayed the operation of the injunction until Jan­
uary 31, 1963, so that either the General Assembly could 
act or an appeal could be taken to this Court, provided 
that, if neither of these steps were taken, plaintiffs might 
apply to the District Court for further relief. Finally, 
the court below retained jurisdiction of the case for the 
entry of such orders as might be required.

An appeal to this Court was timely noted by defend­
ants. On application by appellants, T he Chief Justice, 
on December 15, 1962, granted a stay of the District 
Court’s injunction pending final disposition of the case 
by this Court. Because of this stay, the November 1963 
election of members of the Virginia Legislature was 
conducted under the existing statutory provisions. We 
noted probable jurisdiction on June 10, 1963. 374 U. S. 
803.



6 DAVIS v. MANN.

II.
The Virginia Constitution provides for a Senate of not 

more than 40 nor less than 33 members, in Art. IV, § 41, 
and for a House of Delegates of not more than 100 nor 
less than 90 seats, in Art. IV, § 42. Senators are elected 
quadrennially and delegates biennially. At all relevant 
times, state statutes have fixed the number of senators 
at 40 and the number of delegates at 100. Pursuant to 
the state constitutional requirement of legislative reap­
portionment at least decenially, contained in Art. IV, 
§ 43, the General Assembly has reapportioned senatorial 
and House seats in 1932, 1942, and 1952, as well as in 
1962, and in 1958 the apportionment statutes were 
amended.1 The Virginia Constitution contains no ex­

1 Reapportionment in 1952 was accomplished only after the Gov­
ernor convened a special session of the Virginia Legislature for that 
purpose, since the legislature had adjourned without enacting any 
statutes reallocating representation. In anticipation of the constitu­
tional mandate to reapportion in 1962, the Virginia Governor, in 
January 1961, appointed a commission on redistricting. In doing 
its work, this commission employed the assistance of the Bureau of 
Public Administration of the University of Virginia. Suggesting that 
Senate and House districts should be, as nearly as practicable, equal 
in population, the Bureau submitted two alternative plans for the 
apportionment of the House and three alternative plans for the 
apportionment of Senate seats. These plans all followed the various 
criteria traditionally considered in previous apportionments, and 
complied with the constitutionally prescribed size limitations on both 
of the houses. In late 1961, the commission filed its report recom­
mending a redistricting plan different from any of the plans submitted 
by the Bureau. Its plan, based more on political compromise than 
any of the Bureau’s suggested plans, deviated further from popula­
tion-based representation than any of the Bureau’s proposals. At 
its 1962 regular session, the Virginia General Assembly completely 
disregarded both the commission report and the plans prepared by 
the Bureau, and adopted apportionment schemes of its own for each 
house, in practical effect making only minimal changes in the exist­
ing statutory provisions. These enactments, of course, are the ones 
principally complained of by appellees in this litigation.



DAVIS v. MANN. 7

press standards, however, for the apportionment of legis­
lative representation, and leaves the task of establishing 
districts solely up to the discretion of the legislature.

With respect to political subdivisions, Virginia has 98 
counties and 32 independent cities. Despite the absence 
of any specific provisions in the State Constitution, popu­
lation has generally been traditionally regarded as the 
most important factor for legislative consideration in 
reapportioning and redistricting. Because cities and 
counties have consistently not been split or divided for 
purposes of legislative representation, multimember dis­
tricts have been utilized for cities and counties whose 
populations entitle them to more than a single representa­
tive, resulting in there always being less than 100 dele­
gate districts and less than 40 senatorial districts. And, 
because of a tradition of respecting the integrity of the 
boundaries of cities and counties in drawing district lines, 
districts have been constructed only of combinations of 
counties and cities and not by pieces of them. This has 
resulted in the periodic utilization of floterial districts 2

2 The term “ floterial district” is used to refer to a legislative dis­
trict which includes within its boundaries several separate districts 
or political subdivisions which independently would not be entitled 
to additional representation but whose conglomerate population 
entitles the entire area to another seat in the particular legislative 
body being apportioned. See Baker v. Carr, 369 II. S. 186, 256 
(Clark, J., concurring). As an example, the City of Lynchburg, 
with a 1960 population of 54,790, is itself allocated one seat in the 
Virginia House of Delegates under the 1962 apportionment plan. 
Amherst County, with a population of only 22,953, is not given any 
independent representation in the Virginia House. But the City of 
Lynchburg and Amherst County are combined in a floterial dis­
trict with a total population of 77,743. Presumably, it was felt 
that Lynchburg was entitled to some additional representation in 
the Virginia House, since its population significantly exceeded the 
ideal House district size of 36,669. However, since Lynchburg’s 
population did not approach twice that figure, it was apparently 
decided that Lynchburg was not entitled, by itself, to an added seat. 
Adjacent Amherst County, with a population substantially smaller



8 DAVIS v. MANN.

where contiguous cities or counties cannot be combined 
to yield population totals reasonably close to a popula­
tion ratio figure determined by dividing the State’s total 
population by the number of seats in the particular legis­
lative body. Various other factors, in addition to popu­
lation, which have historically been considered by Vir­
ginia Legislatures in enacting apportionment statutes 
include compactness and contiguity of territory in form­
ing districts, geographic and topographic features, and 
community of interests among people in various districts.

Section 24-14 of the Virginia Code, as amended in 1962, 
provides for the apportionment of the Virginia Senate, 
and divides the State into 36 senatorial districts for the 
allocation of the 40 seats in that body. With a total 
state population of 3,966,949, according to the 1960 cen­
sus, and 40 Senate seats, the ideal ratio would be one 
senator for each 99,174 persons. Under the 1962 statute, 
however, Arlington County is given but one senator for 
its 163,401 persons, only .61 of the representation to which 
it would be entitled on a strict population basis. The 
City of Norfolk has only .65 of its ideal share of senatorial 
representation, with two senators for a population of 
305,872. And Fairfax County (including the cities of 
Fairfax and Falls Church), with two senators for 285,194 
people, has but .70 of its ideal representation in the Vir­
ginia Senate. In comparison, the smallest senatorial 
district, with respect to population, has only 61,730, and 
the next smallest 63,703.3 Thus, the maximum popula­

than the ideal district size, was presumably felt not to be entitled 
to a separate House seat. The solution was the creation of a floterial 
district comprised of the two political subdivisions, thereby according 
Lynchburg additional representation and giving Amherst County a 
voice in the Virginia House, without having to create separate addi­
tional districts for each of the two political subdivisions.

3 In illustrating the disparities from population-based representa­
tion in the apportionment of Senate seats, the District Court included



DAVIS v. MANN. 9

tion-variance ratio between the most populous and least 
populous senatorial districts is 2.65-to-l. Under the 
1962 senatorial apportionment, applying 1960 population 
figures, approximately 41.1% of the State’s total popula­
tion reside in districts electing a majority of the members 
of that body.4

Apportionment of seats in the Virginia House of Dele­
gates is provided for in § 24-12 of the Virginia Code, as 
amended in 1962, which creates 70 House districts and 
distributes the 100 House seats among them. Dividing 
the .State’s total 1960 population by 100 results in an 
ideal ratio of one delegate for each 39,669 persons. Fair­
fax County, with a population of 285,194, is allocated 
only three House seats under the 1962 apportionment 
provisions, however, thus being given only .42 of its ideal 
representation. While the average population per dele­
gate in Fairfax County is 95,064, Wythe County, with 
only 21,975 persons, and Shenandoah County, with a 
population of only 21,825, are each given one seat in the 
Virginia House.5 The maximum population-variance

in its opinion a chart showing the composition (by counties and cities) 
and populations of, and the number of senators allotted to, the var­
ious senatorial districts, and comparing these figures with the sena­
torial representation given Arlington, Fairfax and Norfolk. 213 F. 
Supp., at 581-582.

4 Appellees have pointed out, however, that, since seats in the 
Virginia Legislature are reapportioned decennially, and since the 
allegedly underrepresented districts are those whose populations are 
increasing more rapidly than the allegedly overrepresented ones, the 
disparities from population-based representation, in both houses of 
the Virginia Legislature, will continually increase throughout the 
10-year period until the next reapportionment.

5 In discussing deviations from population-based representation in 
the allocation of seats in the House of Delegates, the District Court 
included, as part of its opinion, a chart showing the populations of and 
the number of seats given to certain House districts, and comparing 
these figures with the House representation accorded Arlington, Fair­
fax and Norfolk. 213 F. Supp., at 582-584.



10 DAVIS v. MANN.

ratio, between the most populous and least populous 
House districts, is thus 4.36-to-l. The City of Norfolk, 
with 305,872 people, is given only six House seats, and 
Arlington County, with a population of 163,401, is allo­
cated only three. Under the 1962 reapportionment of 
the House of Delegates, 40.5% of the State’s population 
live in districts electing a majority of the House mem­
bers. Twenty-seven House districts have more than 
three times the representation of the people of Fairfax 
County, 12 districts have twice the representation of 
Arlington County, and six, twice that of Norfolk.

No adequate political remedy to obtain legislative 
reapportionment appears to exist in Virginia.6 7 8 No ini­
tiative procedure is provided for under Virginia law. 
Amendment of the State Constitution or the calling of 
a constitutional convention initially requires the vote of 
a majority of both houses of the Virginia General Assem­
bly.7 Only after such legislative approval is obtained is 
such a measure submitted to the people for a referendum 
vote. Legislative apportionment questions do not ap­
pear to have been traditionally regarded as non justiciable 
by Virginia state courts, however,8 and appellees could

6 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 Colo­
rado, ---- U. S . -------------- , decided also this date.

7 Va. Const., Art. XV, §§ 196, 197.
8 In Brown v. Saunders, 159 Va. 28, 166 S. E. 105 (1932), the 

Supreme Court of Appeals of Virginia held that a congressional dis­
tricting statute enacted by the Virginia Legislature was invalid since 
it conflicted with Art. IV, § 55, of the State Constitution, which 
requires congressional districts to have “as nearly as practicable, an 
equal number of inhabitants.” Of course, involved in that case was 
a specific state constitutional requirement relating to congressional 
districting, whereas no such detailed state requirements exist with 
respect to apportionment of seats in the Virginia Legislature. Appel­
lants have argued, however, that this decision indicates that Virginia



DAVIS v. MANN. 11

possibly have sought and obtained relief in a state court 
as well as in a Federal District Court.9

III.
In Reynolds v. Sim s,-----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. 
Neither of the houses of the Virginia General Assembly, 
under the 1962 statutory provisions here attacked, is ap­
portioned sufficiently on a population basis to be consti­
tutionally sustainable. Accordingly, we hold that the 
District Court properly found the Virginia legislative 
apportionment invalid.

Appellants’ contention that the court below should have 
abstained so as to permit a state court to decide the ques­
tions of state law involved in this litigation is without 
merit. Where a federal court’s jurisdiction is properly 
invoked, and the relevant state constitutional and statu­
tory provisions are plain and unambiguous, there is no 
necessity for the federal court to abstain pending deter­
mination of the state law questions in a state court. 
McNeese v. Board of Education, 373 U. S. 668. This is 
especially so where, as here, no state proceeding had been

courts will also adjudicate questions relating to the validity of the 
State’s legislative apportionment scheme under the provisions of the 
Federal Constitution.

9 However, in Tyler v. Davis, a case involving a suit instituted on 
March 26, 1963, almost four months after the District Court’s deci­
sion in the instant case, the Circuit Court of the City of Richmond 
dismissed, on the merits, an action challenging the apportionment of 
seats in the Virginia Legislature. Although the state court found 
that it had jurisdiction and that the questions raised were justiciable 
in nature, it dismissed the complaint on the ground that plaintiffs had 
failed to show that the scheme for apportioning seats in the Virginia 
Legislature was an invidiously discriminatory one violative of the 
Equal Protection Clause.



12 DAVIS v. MANN.

instituted or was pending when the District Court’s juris­
diction was invoked. We conclude that the court below 
did not err in refusing to dismiss the proceeding or stay 
its action pending recourse to the state courts.

Undoubtedly, the situation existing in Virginia, with 
respect to legislative apportionment, differs not insignifi­
cantly from that in Alabama. In contrast to Alabama, 
in Virginia the legislature has consistently reapportioned 
itself decennially as required by the State Constitution. 
Nevertheless, state legislative malapportionment, whether 
resulting from prolonged legislative inaction or from 
failure to comply sufficiently with federal constitutional 
requisites, although reapportionment is accomplished 
periodically, falls equally within the proscription of the 
Equal Protection Clause.

We reject appellants’ argument that the underrepresen­
tation of Arlington, Fairfax and Norfolk is constitution­
ally justifiable since it allegedly resulted in part from the 
fact that those areas contain large numbers of military 
and military-related personnel. Discrimination against 
a class of individuals, merely because of the nature of 
their employment, without more being shown, is consti­
tutionally impermissible. Additionally, no showing was 
made that the Virginia Legislature in fact took such a 
factor into account in allocating legislative representa­
tion.10 And state policy, as evidenced by Virginia’s elec­
tion laws, actually favors and fosters voting by military 
and military-related personnel.11 Furthermore, even if

10 See 213 F. Supp., at 584.
11 Virginia’s election laws enable persons in the armed forces to 

vote without registration or payment of poll tax. Va. Code Ann., 
1950 (Repl. Vol. 1964) §24-23.1. While the literal language of this 
provision grants the privilege to those “ on active service . . .  in time 
of war,” the Virginia State Board of Electors is applying it currently. 
Although the mere stationing of military personnel in the State does 
not give them residence, Virginia election officials interpret the appli-



DAVIS v. MANN. 13

such persons were to be excluded in determining the pop­
ulations of the various legislative districts, the discrimi­
nation against the disfavored areas would hardly be satis­
factorily explained, because, after deducting military and 
military-related personnel, the maximum population- 
variance ratios would still be 2.22-to-1 in the Senate and 
3.53-to-l in the House.

We also reject appellants’ claim that the Virginia appor­
tionment is sustainable as involving an attempt to bal­
ance urban and rural power in the legislature. Not only 
does this explanation lack legal merit, but it also fails to 
conform to the facts. Some Virginia urban areas, such 
as Richmond, by comparison with Arlington, Fairfax and 
Norfolk, appear to be quite adequately represented in the 
General Assembly. And, for the reasons stated in 
Reynolds,12 in rejecting the so-called federal analogy, and 
in Gray v. Sanders, 372 U. S. 368, 378, appellants’ reli­
ance on an asserted analogy to the deviations from popu­
lation in the Federal Electoral College is misplaced. The 
fact that the maximum variances in the populations of 
various state legislative districts are less than the extreme 
deviations from a population basis in the composition of 
the Federal Electoral College fails to provide a con­
stitutionally cognizable basis for sustaining a state ap­
portionment scheme under the Equal Protection Clause.

We find it unnecessary and inappropriate to discuss 
questions relating to remedies at the present time.13

cable statutory provisions to mean that residence for military per­
sonnel is determined in the same manner as for all other citizens. 
Military personnel and members of their families who have been resi­
dents of Virginia for a year, residents of a county, city or town for 
six months, and residents of a precinct for 30 days are entitled to 
vote. Military personnel are not included in the categories of persons 
disabled from voting. Va. Code Ann., 1950 (Repl. Vol. 1964) § 24-18.

12 See Reynolds v. Sims,---- U. S., a t -------------- .
13 See id., a t ---- .



14 DAVIS v. MANN.

Since the next election of Virginia legislators will not 
occur until 1965, ample time remains for the Virginia 
Legislature to enact a constitutionally valid reapportion­
ment scheme for purposes of that election. After the 
District Court has provided the Virginia Legislature with 
an adequate opportunity to enact a valid plan, it can 
then proceed, should it become necessary, to grant relief 
under equitable principles to insure that no further elec­
tions are held under an unconstitutional scheme. Since 
the District Court stated that it was retaining jurisdic­
tion and that plaintiffs could seek further appropriate 
relief, the court below presumably intends to take further 
action should the Virginia Legislature fail to act promptly 
in remedying the constitutional defects in the State’s leg­
islative apportionment plan. We therefore affirm the 
judgment of the District Court on the merits of this liti­
gation, and remand the case for further proceedings con­
sistent 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. 
Sim s,----  U. S. -----, decided this date.



SUPREME COURT OF THE UNITED STATES

No. 69.— October T erm, 1963.

Levin Nock Davis, Secretary, 
State Board of Elections, 
et al., Appellants,

On Appeal From the 
United States District 
Court for the Eastern 
District of Virginia.v.

Harrison Mann et al.

[June 15, 1964.]

M r. Justice Stewart.
In this case, the District Court recognized that “ pop­

ulation is not . . . the sole or definitive measure of 
districts when taken by the Equal Protection Clause.” 
213 F. Supp., at 584. In reaching its decision the court 
made clear that it did not “ intend to say that there can­
not be wide differences of population in districts if a sound 
reason can be advanced for the discrepancies.” Id,., at 
585. The District Court, however, could find “no ra­
tional basis for the disfavoring of Arlington, Fairfax and 
Norfolk.” Ibid. In my opinion the appellants have 
failed to show that the trial court erred in reaching this 
conclusion. Accordingly, in keeping with the view ex­
pressed in my dissenting opinion in Lucas v. The Forty- 
Fourth General Assembly of The State of Colorado, I 
would affirm the District Court’s judgment holding that 
to the extent a state legislative apportionment plan is con­
clusively shown to have no rational basis, such a plan 
violates the Equal Protection Clause.

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