Shipp v TN Department of Employment Security Appellants Reply Brief

    Ko.6

O ctober T e r m , 1961

C h a r les  W . B a ker , e t  al., a ppella n ts

v.
J oe 0 .  C arr, et  al.

ON A PPEAL FROM  TH E  U NITED  S T A T E S  D IST R IC T  COURT FOR  
TH E  M ID D LE D IST R IC T  OF TE N N E SSE E

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE ON 
REARGUMENT1

ARCHIBALD COX,
; Solicitor General,

BURKE MARSHALL,
A ssistan t A ttorney General, 

BRUCE J. TERRIS,
A ssistan t to the Solicitor General, 

HAROLD H. GREENE,
DAVID RUBIN,
HOWARD A. GLICKSTEIN,

Attorneys,
D epartm ent of Justice, W ashington '35, D.C. 

1 This brief replaces tbe original brief on tbe merits filed by the United States.



I N D E X

Opinions below-------- ------------------------ ------------------------
Jurisdiction_________________________________________
Questions presented-------- ------------------------------------------
Statem ent---------------------------------------------------------------
Summary of argument------------------------------------------------
Argument-----------------------------------------------------------------

I. The complaint sufficiently alleges a violation 
of complainants’ rights under the Fourteenth 
Amendment to be within the jurisdiction of the 
district court--------- ------------------------------------

A. The Fourteenth Amendment is violated by
an arbitrary and unreasonable appor­
tionment of seats in a State legislature-_

1. The right to be free from gross
discrimination in the selection 
of a State legislature is a federal 
right protected by the Four­
teenth Amendment-----------------

2. The merits of a challenge to the
constitutionality of a legislative 
apportionment under the Four­
teenth Amendment are ame­
nable to reasoned analysis and 
judicial determination-------------

3. The need for constitutional pro­
tection is urgent because mal­
apportionment of State legisla­
tures is subverting responsible 
State and local government-----

B. The Tennessee legislative apportionment,
as described in the complaint, violates 
the due process and equal protection 
clauses of the Fourteenth Amendment _

C. The jurisdiction of the district court
may be sustained without determining 
whether the complaint states a cause of 
action_____________________________

Paco
1
1
2
2
8

17

21

21

21

25

36

44

48
622455— 61--- 1 (I)



n
Argument—Continued

II. The district court had, and should have exercised, Pane 
jurisdiction over this action to redress an un­
constitutional malapportionment-------------------  50

A. The constitutional issue is not a political
question beyond the jurisdiction of the
federal courts,  -------------------------------  54

1. The decisions of this Court show 
that the court below had juris­
diction_____________________   54

v 2. Colegrove v. Green is distinguishable
from the present case______   62

3. Luther v. Borden, 7 How. 1, and 
similar cases are distinguishable 
from the case at bar__________  65

B. The exercise of sound equitable discretion
requires the federal courts to retain 
jurisdiction and adjudicate the merits of 
the present controversy____ _-_______ 68

1. The merits of the present case are
not difficult to adjudicate with­
out intruding into the legislative 
or political process___________  70

2. The seriousness of the wrong calls
for j udicial action____ _  _____  71

3. Complainants have no remedy out­
side the federal courts________  72

4. There is every likelihood that the
district court can frame effective 
relief without overstepping the
limits of judicial action_______  74

Conclusion--------------------------------------------------------------  85

CITATIONS
Cases:

American Federation of Labor v. Watson, 327 U.S. 582 .  56,
68, 72

Anderson v. Jordan, 343 U.S. 912_________________  58
Armstrong v. Mitten, 95 Colo. 425, 37 p. 2d 757_____  80
Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 161 A.

2d 705— _______________________________ 65,80,82,83



in

Cases—Continued
Attorney General v. Suffolk County Apportionment i*a«

Commr’s, 224 Mass. 598, 113 N.E. 581___________ 27, 81
Baird, People ex rel. v. Board oj Sup’rs., 138 N.Y. 95,

33 N.E. 827______________ —__________________ 27,81
Bell v. Hood, 327 U.S. 678___ ____________________ 49
Board oj Sup’rs. oj County oj Houghton v, Blacker, 92

Mich. 638, 52 N.W. 951___ „___________________  81
Bolling v. Sharpe, 347 U.S. 497___________________  23
Brooks v. State, 162 Ind. 568, 70 N.E. 980__________  81
Browder v. Gayle, 142 F. Supp. 707, affirmed, 352 U.S.

903_______________- __________________________  72
Brown y. Saunders, 159 Va. 28, 166 S.E. 105____ 81, 82, 83
Carroll v. Becker, 285 U.S. 380____________________ 54, 82
Colegrove v. Green, 328 U.S. 549___________________  6, 7,

8, 13, 14, 15, 18, 36, 38, 55, 56, 57, 58, 59, 60, 61, 
62, 63, 64, 69, 70, 75, 79.

Cook y. Fortson, 329 U.S. 675_____________________  55, 56
Cox y. Peters, 342 U.S. 936_______________________  58
Deitrick v. Greaney, 309 U.S. 190_________________  83
D ’Oench, Duhme& Co. v. F.D.I.C., 315 U.S. 447____ 83
Denney v. State, 144 Ind. 503, 42 N.E. 929_________  81
Donovan v. Suffolk County Apportionment Com’rs, 225

Mass. 55, 133 N.E. 7 4 0 - . - - . ,__________________  81
Dyer v. Kazuhisa Abe, 138 F. Supp. 220___________ 79, 80
Errington v. Aynsly, 2 Dick. 692---------------------------- 69
Giddings v. Blacker, 93 Mich. 1, 52 N.W. 944_______27, 81
Gomillion v. Lightjoot, 364 U.S. 339------------  12, 14, 22, 33,

34, 44, 47, 48, 51, 59, 60, 61
Griffin v. Illinois, 351 U.S. 12____________________  10, 24
Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271 _ _ 12,

20, 49
Hartsjield v. Sloan, 357 U.S. 916__________________  59
Hawke v. Smith (No. 1), 253 U.S. 221_____________  52
Hebert v. Louisiana, 272 U.S. 312______ __________ _ 25, 33
Holmberg v. Armbrecht, 327 U.S. 392_______________ 68
Johnson v. Stevenson, 170 F. 2d 108_______________  58
Jones y. Freeman, 193 Okla. 554, 146 P. 2d 564_____  81
Kidd v. McCanless, 200 Tenn. 273, 292 S.W. 2d 40,

appeal dismissed, 352 U.S. 920— 15, 38, 58, 59, 67, 68, 72,82
Koenig v. Flynn, 285 U.S. 375_______________ _____52, 54
Lane v. Wilson, 307 U.S. 268____________________ 72



IV

Cases—Continued Page
Leser v .  Garnett, 258 U.S. 130-.._____ _____________ . 52
Luther v. Borden, 7 How. 1_________________  15, 65, 66, 67
MacDougall v. Green, 335 U.S. 281____  28, 34, 56, 57, 58, 69
Magraw v. Donovan, 159 F. Supp. 901___ _______ 65, 79, 80
M artin v. Creasy, 360 U.S. 219____________________ 73
Matthews v. Rodgers, 284 U.S. 521_________________ 73
Merrill v. Mitchell, 257 Mass. 184, 153 N.E. 562____  8
Miner smile School District v. Gobitis, 310 U.S. 586___ 35
Moran v. Bowley, 347 111. 148, 179 N.E. 526________  80
M unn  v. Illinois, 94 U.S. 113______________________ 22
Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362. _ 46
New State Ice Co. v. Liebmann, 285 U.S. 262_______  40
Nixon v. Condon, 286 U.S. 73__________________48, 51, 67
Nixon v. Herndon, 273 U.S. 536___________________ 22
Norton v. Whiteside, 239 U.S. 144_________________  50
Pacific Telephone Co. v. Oregon, 223 U.S. 118_______ 65, 66
Palko v. Connecticut, 302 U.S. 319______________ 10, 24, 25
Parker v. State, 133 Ind. 178, 32 N.E. 836__________ 81
Pennsylvania v. Williams, 294 U.S. 176____ _________ 68
People ex rel. Baird v. Board of Sup’rs, 138 N.Y. 95,

33 N.E. 827___ _______________________________ 81
Radford v. Gary, 352 U.S. 991_____________________ 58
Ragland v. Anderson, 125 Ky. 141,100 S.W. 865.__. 26, 27, 81
Railroad Commission v. Pullman Co., 312 U.S. 496__ 72, 73
Remmey v. Smith, 342 U.S. 916______ _____________ 58
Rogers v. Morgan, 127 Neb. 456, 256 N.W. 1_________  81
Shaw v. Adkins, 202 Ark. 856,153 S.W. 2d 415_______  80
Sherill, In  re, 188 N.Y. 185, 81 N.E. 124_____________ 81
Smiley v. Holm, 285 U.S. 355_________  13, 52, 54, 55, 56, 82
Smith v. Allwright, 321 U.S. 649_______________ _ 22, 51, 67
Snyder v. Massachusetts, 291 U.S. 97_______________ 25
Sola Electric Co. v .  Jefferson Electric Co., 317 U.S.

173. _______________________ __________________68,83
South y . Peters, 339 U.S. 276___________ _______14, 57, 58
State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146

S.W. 40______________________________________  8
State ex. rel. Lamb v. Cunningham, 81 Wis., 440, 51

N.W. 724_______ ______________________________ ' 81
Stiglitz v. Schardien, 239 Ky. 799,40 S.W. 2d 315__ 27, 52, 81
United States v. Anchor Coal Co., 279 U.S. 812________ 56
United States v. Carotene Products Co., 304 U.S. 144. _ 34
United States v. Classic, 313 U.S. 299______________  24



V

Cases—Continued Page
United States v. Saylor, 322 U.S. 385----------------------  24
Water Service Co. v. City of Redding, 304 U.S. 252----- 50
West Virginia State Board of Education v. Barnette,

319 U.S. 624_______________________________—  35
Wiley v. Sinkler, 179 U.S. 58---------------->----------------  51
Williams v. Sec’y of State, 145 Mich. 447, 108 N.W.

749__________________________________________ 27,81
Wood v. Broom, 287 U.S. 1_________________  55, 57, 58, 69
Ex parte Yarbrough, 110 U.S. 651------------------------- -- 51

Constitutions:
United States Constitution:

Article I, Section 4----------------------------------------  14, 62
Article I, Section 5-------------- ----------------------- 5, 14, 62
Fourteenth Amendment---------------------------------  5,

9, 10, 11, 12, 18, 21, 22, 23, 25, 44, 45, 48, 50, 51, 
60, 62, 72, 74, 84, 85, 86.

Fourteenth Amendment, Section 5------------------ 62, 74
Alaska Constitution:

Article VI, Sections 3, 5-7------------------------------  39
Hawaii Constitution:

Article III, Section 4____________________  39
Tennessee Constitution:

Article I, Section 1------ - —  --------------------------  5
Article I, Section 5----------------------------------------  5
Article II, Sections 4, 5, 6----------------------------- 3, 5, 75
Article X I :

Section 3-----------------------------------------------32, 74
Sections 8, 16-----------------------------------------  5

Statutes:
Civil Rights Act of April 20, 1871, Section 1, 17

Stat. 13-------------------------------------------- ------------- 2, 51
Civil Rights Act of 1957, 71 Stat. 637--------------------- 15, 63
Civil Rights Act of 1960, 74 Stat. 86------------------------ 15, 63
46 Stat. 26 (1929), as amended, 2 U.S.C. 2(a)----------  37
74 Stat. 90___ - _________________________________  63
8 U.S.C. (1946 ed.) 43___________________________  58
28 U.S.C. 1343----- --------------------------------- 3, 7, 13, 50, 63
28 U.S.C. 2 2 8 1 --- - - - ---------     5
28 U.S.C. 2284_______________________________—  7
42 U.S.C. 1983------------------------------------- -----------2> 3) 51
42 U.S.C. 1988-----------    3
Tennessee Code Ann., Sections 3—101 to 3—109—  ----- 3,

4, 5, 6, 67, 72



VI

Miscellaneous: pw
Annotation, 2 A.L.R. 1337_________________________  81
Baker, Rural Versus Urban Political Power (1955)____  40
Celler, Congressional Apportionment—Past, Present, 

and Future, 17 Law & Contemp. Prob., 268 (1952). 26
Chafee, Bills of Peace with Multiple Parties, 45 Harv.

L. Rev. 1297 (1932)___________________________  73
106 Cong. Rec. (daily ed., 1960):

13828-13829__________     37
13831-13833________________________________  39
13836 ... -------------. . . . . --------------------------------39,42
13840______________________________________  42

2 Cooley, Constitutional Limitations (8th ed., 1927).. 35
The Exploding Metropolis (written by the Editors of

Fortune, 1957)__________   42
Hearings on Standards for Congressional Districts 

(Apportionment) before Subcommittee No. 2 of the 
House Judiciary Committee, 86th Cong., 1st Sess__ 38

H. Doc. No. 46, 87th Cong., 1st Sess____ __________37, 38
H. Rep. No. 2533, House Committee on Government

Operations, 85th Cong., 2d Sess_________________  43
Kennedy, The Shame of the States, N.Y. Times Maga­

zine, M ay 18, 1958_-_________   41
Lewis, Legislative Apportionment and the Federal 

Courts, 71 Harv. L. Rev. 1057 (1958)... 38, 39, 65, 79, 80 
Mencken, A  Carnival of Buncombe 160 (Moos ed., 1956) 

(reprinted from the Baltimore Evening Sun, July
23, 1928)________________________    41

Merry, Minority Rule: Challenge to Democracy, Chris­
tian Science Monitor, October 2, 1958___________ 39, 42

New York Times, February 2, 1961_______________  82
Note, Constitutional Right to Congressional Districts

of Equal Population, 56 Yale L.J. 127 (1946).___  26
Pomeroy, Specific Performance of Contracts (3d e d .) ... 69
Strout, The Next Election Is Already Rigged, Harper’s

(November 1959)_____________ _____________ 42, 43
S.J. Res. 215, S. 3781, and S. 3782, 86th Cong., 2d

Sess---------------------------------------- ----------------------- 63
Tabor, The Gerrymandering of State and Federal Legis­

lative Districts, 16 Md. L. Rev. 277 (1956)__:_____  26
U.S. Commission on Intergovernmental Relations,

Report to the President (1955)____ _________  40, 42, 43
Washington Post, March 4, 1961__________________  41



Jjtt the Jkprcmt Cfotrrt of t o  United sta tes
O ctober T e r m , 1961

No. 6
C h a rles  W . B a k er , et  a l ., a ppella n ts

v.
J oe C. C arr, et  a l .

ON A PP E A L FROM TH E  U NITED  S T A T E S  D IST R IC T  COURT FOR  
TH E  M ID D LE D IST R IC T  OF TE N N E SSE E

brief for the united states as amicus curiae on
REARGUMENT1

OPINIONS BELOW

The opinion of Judge Miller of the District Court 
for the Middle District of Tennessee on convening a 
three-judge district court (R. 88) is reported at 175 
F. Supp. 649. The opinion of the three-judge district 
court (R. 214) is reported at 179 P. Supp. 824.

j u r i s d i c t i o n

The order of the three-judge district court dismiss­
ing the complaint was entered on February 4, 1960 
(R. 220-221). Notice of appeal to this Court was 
filed on March 29, 1960 (R. 310). Probable jurisdic­
tion was noted on November 21, 1960 (R. 314). The 
jurisdiction of this Court rests on 28 U.S.C. 1253.

1 This brief replaces the original brief on the merits filed by 
the United States.

(1)



2
QUESTIONS PRESENTED

1. Whether federal courts have jurisdiction to con­
sider claims of denial of equal protection under the 
Fourteenth Amendment, with respect to the right to 
vote, resulting from malapportionment of State legis­
latures.

2. Whether rights under the Fourteenth Amend­
ment are violated by gross and unreasonable malap­
portionment of State legislatures.

3. Whether, in the circumstances of this case, the 
district court should be permitted to exercise its 
equitable discretion to consider the merits of appel­
lants’ claims.

STATEMENT

This action was brought on May 18, 1959, in the 
District Court for the Middle District of Tennessee 
by certain of the appellants (hereinafter referred to 
as the “original plaintiffs”), citizens of and qualified 
voters in the State of Tennessee (R. 3), on their own 
behalf, on behalf of all qualified voters in their re­
spective counties (R. 6), and on behalf of all Ten­
nessee voters who were similarly situated (R. 6). The 
action was brought against appellees, the Tennessee 
Secretary of State, the Attorney General of Ten­
nessee, the Tennessee Co-Ordinator of Elections, and 
the Members of the Tennessee State Board of Elec­
tions in their representative capacities (R. 4-5). The 
complaint asserted rights under 42 TJ.S.C. 19832 (R. 
1-2), which provides for suits in equity or other 
proper proceedings to redress deprivations of federal

2 This provision originated as Section 1 of the Civil Eights Act 
of April 20,1871,17 Stat. 13.



3

constitutional rights under color of State authority, 
and claimed that the district court had jurisdiction 
under 28 U.S.C. 1343(3)3 (R. 2).

The complaint alleged that the Constitution of Ten­
nessee (Article II, Sections 4, 5, and 6) provides for 
a maximum of 99 members of the House of Repre­
sentatives and 33 members of the Senate and directs 
the General Assembly4 to allocate, at least every ten 
years, the Senators and Representatives among the 
several counties or districts “according to the number 
of qualified voters in each” (R. 7-8). The complaint 
further alleged that, despite these mandatory re­
quirements, no reapportionment had been made by the 
legislature since the Act of 19015 (R. 10); that, al­
though many demands had been made upon the legis­
lature to reapportion in accordance with the com­
mand of the State constitution (R. 14), and although 
many bills had been introduced in the legislature to 
accomplish this purpose (R. 15; R. 32-38; see also Ex. 
2 to Intervening Complaint, R. 126-160), the appor-

3 That section grants federal district courts jurisdiction over 
civil actions commenced to redress any deprivations, under color 
of state authority, of federal constitutional or statutory rights. 
The plaintiffs also asserted rights under 42 TJ.S.C. 1988 (R. 
1-2), which provides that state law may be applied by federal 
district courts in cases involving civil rights (including cases 
arising under 42 U.S.C. 1983) if federal law is inadequate to 
provide a remedy.

4 The General Assembly is the official name of the legislature 
of the State of Tennessee. Term. Const., Art. I I .

5 Tenn. Code Ann., Sections 3-101, to 3-109. The complaint 
was later amended to include the allegation that the Act of 
1901 was in violation of the State constitution when drawn be­
cause it was passed without the enumeration of voters required 
by the State constitution (R. 86-87).



4
tionment of seats in the legislature remained as fixed 
by the Act of 1901 (R. 9-10). Another allegation 
was that, during the period intervening between the 
Act of 1901 and the year 1950, the population of the 
State of Tennessee grew from 2,021,000 to 3,292,000, 
but the groAvth had been very uneven between coun­
ties (R. 10). As a result, it was alleged, the counties 
in which the original plaintiffs resided wrere entitled 
to additional representatives (R. 11-12, 21; Ex. B, 
R. 22), but were denied this right because the distribu­
tion of legislative seats was not in accordance with 
the number of voters in each of the counties and dis­
tricts (R. 12; Ex. C, R. 24; Ex. I), R. 26). I t  was 
alleged that, under the existing apportionment, “a mi­
nority of approximately 37 percent of the voting 
population of the State now controls twenty of the 
thirty-three members of the senate” (R. 13; Ex. E, R. 
28), and “a minority of 40 percent of the voting 
population of the State now controls sixty-three of 
the ninety-nine members of the House of Represent­
atives” (R. 13; Ex. E, R. 30).

The complaint asserted that, when all the in­
equalities in Tennessee electoral districts were taken 
together, the result was to prevent the Tennessee 
General Assembly, as presently composed, “from being 
a body representative of the people of the State of 
Tennessee” (R. 13), and that a minority ruled in 
Tennessee by virtue of its control of both Houses of 
the General Assembly, contrary to the Tennessee Con­
stitution, and ‘To the philosophy of govermnent in the 
United States and all Anglo-Saxon jurisprudence in 
which the legislature has the power to make law only



5

because it has the power and duty to represent the 
people” 6 (R. 13). As a result of the inequality of 
representation, it was alleged, there had been con­
tinuous and systematic discrimination by the legisla­
ture against the original plaintiffs and others 
similarly situated with respect to the allocation of the 
burdens and benefits of taxation (R. 16-18). The 
complaint concluded that the original plaintiffs, “and 
others similarly situated, suffer a debasement of their 
votes by virtue of the incorrect, arbitrary, obsolete 
and unconstitutional apportionment,” in violation of 
their right to the equal protection of the laws required 
by the Tennessee Constitution,7 and that, “ [b]y a 
purposeful and systematic plan to discriminate against 
a geographical class of persons * * they were 
denied the due process and equal protection of the 
laws guaranteed by the Fourteenth Amendment to 
the Constitution of the United States (R. 12, 19).

The complaint requested that a district court of 
three judges be convened pursuant to 28 U.S.C. 2281, 
and that the three-judge court (1) declare unconstitu­
tional, as violative of the equal protection and due 
process clauses of the Fourteenth Amendment, “the 
present legislative apportionment of the State of Ten­
nessee” ; (2) declare the reapportionment Act of 1901 
and the implementing provisions of the Tennessee 
Code violative of the State constitution and the Four­
teenth Amendment; (3) restrain the appellees from

6 Tenn. Const., Art. I, Section 1, states that “all power is in­
herent in the people.”

7 Tenn. Const., Art. I , Section 5; Art. I I ,  Sections 1-6; Art. 
X I, Sections 8, 16.



6

holding elections for members of the Tennessee legisla­
ture under the districts as established by the 1901 Act 
until such time as the legislature reapportioned the 
districts in accordance with the Tennessee Constitu­
tion; and (4) direct the appellees to hold the next 
elections for members of the Teimessee legislature on 
an at-large basis, with the thirty-three candidates for 
the State Senate receiving the highest number of votes 
declared elected to the State Senate, and the ninety- 
nine candidates for the House of Representatives 
receiving the highest number of votes elected to the 
House (R. 19-20).

On June 8 and 12, 1959, the appellees filed motions 
to dismiss the complaint for lack of jurisdiction over 
the subject matter, failure to state a claim upon which 
relief could be granted, and failure to join indispen­
sable parties (R. 46-47). On June 17, 1959, appellees 
filed a motion to dismiss the action without assem­
bling a three-judge court, upon the ground that no 
substantial federal question was raised (R. 48). This 
motion was denied on July 31, 1959, by Judge Miller 
of the district court (R. 94). Judge Miller’s opinion 
stated that he was “not prepared to say that the fed­
eral question invoked is so obviously without merit 
that the complaint should not even be referred to a 
three-judge court for consideration” (R. 90), or that 
the decision in Colegrove v. Green, 328 U.S. 549, nec­
essarily “ close[d] the door to relief in the present 
case” 8 (R. 90). Judge Miller said further that there

8 In  Colegrove, the Court sustained the dismissal of an action 
by qualified voters to restrain the holding of congressional elec­
tions in Illinois under the provisions of an Illinois law deter-



7
were ‘differences between [Colegrove] and the pres­
ent [ease] that may ultimately prove to be “ signifi­
cant” (R. 91), and observed that “ [t]he situation is 
such that if there is no judicial remedy there would 
appear to be no * * * remedy at all” (R. 91). 
Since in cases involving legislative reapportionment 
“ [i]t can certainly be said that generally there has 
been no unanimity of opinion among the justices of 
the Supreme Court either as to the result to be 
reached or as to the grounds for refusing interven­
tion,” Judge Miller stated that “a court of equity 
should at least be willing from time to time to re­
evaluate the problem and to re-explore the possibili­
ties of devising an appropriate and effective 
remedy—a remedy which would safeguard the in­
tegrity of the state government and at the same time 
protect and enforce the rights of the individual cit­
izen” (R. 93-94). Accordingly, pursuant to 28 
U.S.C. 2284, he sent notice of the pendency of the ac­
tion to the Chief Judge of the Court of Appeals of 
the Sixth Circuit (R. 94), and on August 10, 1959, a 
three-judge court was convened (R. 94-95).

On February 4, 1960, after other appellants, in­
cluding Mayor Ben West of the City of Nashville, 
Tennessee,9 and the City of Chattanooga, Tennessee,

mining congressional districts. Judge Miller referred to the 
fact that, in Colegrove, the Illinois legislature, in failing to 
redistrict, had not violated any specific provision of its own 
constitution, and that there was ample power in Congress to 
redistrict the state if existing districts had become inequitable.

9 West’s intervening complaint asserted that the district court 
had jurisdiction under 28 U.S.C. 1343(4) as well as 28 U.S.C, 
1343(3) (R. 103).



8

had. been allowed to intervene as plaintiffs (R. 97,
99) , and bad filed complaints in intervention (R. 98,
100) , the three-judge court entered an order dismiss­
ing the complaint on the grounds that the court 
lacked jurisdiction of the subject matter and the com­
plaint failed to state a claim upon which relief could 
be granted (R. 220). Prior to entering this order, 
the court rendered an opinion asserting that “ the 
federal rule, as enunciated and applied by the Su­
preme Court, is that the federal courts, whether from 
a lack of jurisdiction or from the inappropriateness 
of the subject matter for judicial consideration, will 
not intervene in cases of this type to compel legisla­
tive reapportionment” (R. 216). For this reason, 
the court declared that it had “ no right to intervene 
or to grant the relief prayed for” (R. 220).

The case came to this Court on direct appeal and 
this Court noted probable jurisdiction (364 U.S. 898). 
After briefing and oral argument the Court set the 
case for reargument on October 9, 1961 (366 U.S. 
907).

SUMMARY OF ARGUMENT

Appellants claim that their rights under the Four­
teenth Amendment are denied by the arbitrary and 
unreasonable apportionment of their State legislature. 
They assert that they, as a geographical class, have 
been the victims of a gross discrimination which has 
gravely diluted the value of their franchise. The 
court below dismissed the complaint on the ground 
that the case involves a political question and that 
therefore it was without jurisdiction, citing Cole- 
grove v. Green, 328 U.S. 549.



9

The view that legislative malapportionment raises 
exclusively political questions seems to rest upon (1) 
doubt as to whether the fair allocation of legislative 
seats is sufficiently amenable to rational analysis to 
be suitable for judicial review and (2) doubts con­
cerning the effectiveness of judicial remedies. We 
submit that, although there is wide scope for the play 
of political considerations in the area of legislative 
apportionment, the interests deserving constitutional 
recognition are sufficiently identifiable to permit the 
rational analysis requisite for constitutional adjudi­
cation. We further submit that the remedies avail­
able to federal courts are sufficient to preclude a 
hard-and-fast rule denying jurisdiction. We believe 
that the legislative apportionment in Tennessee is so 
grossly discriminatory as to violate the Fourteenth 
Amendment and that judicial relief is available 
against this violation. Neither question, however, re­
quires a final decision at this stage, for the dis­
missal—for want of jurisdiction and not for failure 
to state a substantive cause of action—can be affirmed 
only if some rigid doctrine deprives the federal courts 
of jurisdiction to redress any malapportionment, how­
ever gross and however susceptible to a judicial 
remedy it may be. I t  is sufficient for the federal 
courts to assume jurisdiction that the complaint state 
a colorable claim under the Fourteenth Amendment 
and that a judicial remedy appears merely possible. 
I f  it is later shown that no judicial remedy can in 
fact be fashioned, the court can exercise its equitable 
discretion to dismiss.



10

I
The complaint in this case sufficiently alleges a 

violation of complainants’ rights under the Four­
teenth Amendment to be within the jurisdiction of 
the district court.

A. The Fourteenth Amendment is violated by an 
arbitrary and unreasonable apportionment of seats 
in a State legislature.

1. This Court has repeatedly invalidated discrim­
inations against a class of voters based on race. The 
prohibitions of the Fourteenth Amendment are not 
confined to discriminations based on race, but extend 
to arbitrary and capricious action against other 
groups. Thus, a geographical classification may be 
so irrational as to violate the Fourteenth Amendment.

Although a wide discretion is left to the States, 
State legislation with respect to legislative appor­
tionment nevertheless must conform to the Four­
teenth Amendment. I t must be “rooted in reason” 
Griffin v. Illinois, 351 U.S. 12, 21 (Mr. Justice Frank­
furter concurring), i.e., it must not create classifica­
tions so arbitrary as to violate the equal protection 
clause. Similarly, the due process clause prohibits 
malapportionment so gross as to deprive persons of 
a fair share in choosing their own government, for 
this would “ violate a ‘principle of justice so rooted in 
the traditions and conscience of our people as to be 
ranked as fundamental’ ” (Palko v. Connecticut, 302 
U.S. 319, 325).

2. The merits of a challenge to the constitutionality 
of a legislative apportionment under the Fourteenth 
Amendment are amenable to reasoned analysis and



11

judicial determination. While the Amendment’s 
guarantees do not lend themselves to mathematical 
formulas, the starting point must be per capita 
equality of representation, a fundamental American 
ideal. Since, however, political power is not a func­
tion of numbers alone, other desiderata may also be 
recognized, such as political subdivisions and geo­
graphic areas.

Where a malapportionment is challenged under the 
equal protection or due process clause, the initial step 
is to inquire whether it has any asserted justification 
or any coherent purpose beyond the perpetuation of 
past political power. I f  none can be asserted and 
the discrimination is gross, the apportionment vio­
lates the Fourteenth Amendment. If  a justification 
were asserted, further inquiry would be required in 
order to determine whether this justification resulted 
in a reasonable classification and violated no “prin­
ciple of justice so rooted in the traditions and con­
science of our people as to be ranked as funda­
mental.” This process of adjudicating the constitu­
tionality of a State legislative apportionment does not 
call for the exercise of a different function or require 
the Court to proceed in a different manner than in 
the resolution of other due process and equal protec­
tion issues.

3. The need for constitutional protection is urgent, 
because malapportionment is subverting responsible 
State and local government. Malapportionment in 
State legislatures is markedly more severe than Con­
gressional Malapportionment, and is becoming 
increasingly worse. I t has had the widespread

622455— 61----2



12

consequence of disabling the States from meeting 
burgeoning urban needs.

B. Tennessee’s legislative apportionment, as de­
scribed in the complaint, violates the equal protection 
and due process clauses of the Fourteenth Amend­
ment. The complaint alleges that a minority of 37 
percent of the voting population control twenty of 
the thirty-three members of the Senate, and a minor­
ity of 40 percent of the voting population controls 
sixty-three of the ninety-nine members of the House 
of Representatives. No justification for so gross a 
departure from the basic ideal of political equality 
has even been suggested by the appellees. Thus, this 
case is hardly distinguishable from Gomillion v. 
Lightfoot, 364 U.S. 339, where this Court struck 
down a State attempt to draw the boundary lines of 
a political subdivision because the State showed no 
rational justification to rebut the plaintiffs’ claim of 
racial discrimination.

C. I t is unnecessary, however, to determine 
whether the complaint states a cause of action in 
order to hold that the district court had jurisdiction. 
“ [I]f the bill * * * makes a claim that if well 
founded is within the jurisdiction of the Court it is 
within that jurisdiction whether well founded or not.” 
Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 
271, 273. The only exceptions to this doctrine 
are where the federal claim is patently frivolous or 
made solely to obtain federal jurisdiction. Whatever 
its ultimate merit, the complaint here is squarely 
founded on the Fourteenth Amendment and presents 
a substantial claim.



13

I I
The district court had, and should have exercised, 

jurisdiction over this action to redress an unconstitu­
tional apportionment. General jurisdiction is clearly- 
conferred by 28 U.S.C. 1343 which gives the district 
courts jurisdiction of any civil action to secure redress 
for a violation of constitutional rights under color of 
State authority. Appellants have standing to bring 
this action for they seek to vindicate personal rights. 
This Court has recognized that voters have standing 
to assert either that they have been denied the right 
to vote entirely or that they must vote pursuant 
to an invalid State apportionment of Congressional 
Representatives.

A. The constitutional issue is not a political ques­
tion beyond the jurisdiction of the federal courts.

1. The Court has never held that apportionment 
cases necessarily raise non-justiciable questions. 
Rather, it has passed on the merits of apportionment 
systems. E.g., Smiley v. Holm, 285 U.S. 355. Cole- 
grove v. Green, supra, does not hold to the contrary. 
Admittedly, three Justices would have held there that 
apportionment of Representatives is a political ques­
tion beyond the power of federal courts to decide, but 
a majority of the participating Justices (Mr. Justice 
Rutledge concurring, and the three dissenting Jus­
tices) took the view that the federal courts do have 
such power. Mr. Justice Rutledge, whose vote in 
this respect was dispositive of the case, concluded 
that, under Smiley v. Holm (328 U.S. at 565), “ this 
Court has power to afford relief in a case of this



14
In no subsequent apportionment case does this 

Court appear to have held that the federal courts lack 
power to adjudicate the constitutionality of appor­
tionment systems. In South v. Peters, 339 U.S. 276, 
the Court stated that the “ [fjederal courts consist­
ently refuse to exercise their equity powers * * *”— 
not that no power exists. In a series of later cases, 
the Court has refused to entertain the issue of 
malapportionment on the merits without indicating 
the basis of its decision. And, just last term, in Go- 
million v. Lightfoot, supra, the Court held that the 
power of a State to fix boundaries of its political 
subdivisions cannot be exercised in such a way as to 
deprive a person of his right to vote because of race.

2. In any event Colegrove v. Green is distinguish­
able from the present ease, both because of important 
distinctions and because its rationale has been under­
mined by subsequent developments.

Colegrove dealt with apportionment of Congres­
sional districts. The opinion of Mr. Justice Frank­
furter states that the power of Congress to consider 
Congressional apportionment is exclusive, relying on 
the power of the House of Representatives to judge 
the qualifications of its own members under Article I, 
Section 5, and of Congress to regulate the holding of 
elections under Article I, Section 4. Article I, Sec­
tions 4 and 5, are obviously not relevant here. Con­
gressional power to enact “ appropriate legislation” 
under the Fourteenth Amendment is not comparable 
since this Court has always dealt with any violation 
of the Fourteenth Amendment without awaiting im-



15

plementing legislation beyond the general statute con­
ferring jurisdiction.

The Civil Rights Acts of 1957 and 1960, both
enacted subsequent to Colegrove, also show that the 
election process is not to be regarded as exclusively 
political in nature. In both Acts Congress empha­
sized the national policy of relying on the judiciary 
as the organ through which the right to vote is to be 
made fully effective.

Another important factor on which reliance was 
placed in the opinion of Mr. Justice Frankfurter in 
the Colegrove case was the difficulty of finding an effec­
tive and appropriate remedy. But, as we will see, 
there is every reason to believe that appropriate judi­
cial remedies can be applied in the present case.

3. Luther v. Borden, 7 How. 1, and similar cases 
are distinguishable because here the complainants do 
not challenge the legitimacy of any previously chosen 
legislature or the validity of any of its enactments. 
ISTor is there even any need to decide upon the legiti­
macy of the present legislature. Although the Su­
preme Court of Tennessee expressed the fear that 
sustaining a legal challenge to the existing apportion­
ment act would leave Tennessee without a legislature 
to enact a new apportionment act (Kidd v. McCan- 
less, 200 Tenn. 273, 292 S.W. 2d 40, appeal dismissed, 
352 U.S. 920), the Court in this case need simply hold 
that future elections under the existing apportionment 
act would be invalid. This Court, moreover, is not



16

bound by State court decisions concerning the legal 
consequences of a federal decree.

I l l
The exercise of sound equitable discretion requires 

the federal courts to retain jurisdiction and adjudi­
cate the merits of the present controversy. There are 
compelling circumstances to invoke the chancellor’s 
conscience.

1. The merits of this case can be adjudicated with­
out intruding into the legislative or political process. 
There is no need here to consider whether there is any 
rational and constitutional justification for Tennes­
see’s grossly unequal apportionment. For Tennessee 
has offered no basis for making its apportionment 
other than the equal representation required by its 
constitution; and the present apportionment is grossly 
unequal. In these circumstances, the constitutional 
question is no harder for a court to answer than other 
constitutional questions which the courts have been 
adjudicating for decades.

2. The seriousness of the wrong calls for judicial 
action. I t is only a slight exaggeration to say that 
one-third of the voters of Tennessee rule the other two- 
thirds in the enactment of legislation.

3. The complainants have no judicial remedy out­
side of the federal courts because they have exhausted 
their remedies in the State courts. They have no 
political remedies in Tennessee, moreover, as shown 
by the history of inaction, the improbability that the 
Tennessee legislators will vote to surrender their 
power, and the fact that only the legislature can call 
a constitutional convention.



17

4. Effective judicial relief can be provided here 
without overstepping the limits of appropriate judi­
cial action. The Tennessee constitution provides 
guidelines for proper apportionment. In order to 
achieve a more equitable apportionment, only a few 
changes, which are clearly indicated by the rules laid 
down by the Tennessee constitution, need be made in 
each house. Alternatively, the court could order an 
election at large or one of several other remedies. 
But it is unlikely that it would even be necessary for 
the court to order any relief. Recent cases show that 
State legislatures often reapportion themselves when 
faced with the likelihood of judicial action. Since 
there are excellent political reasons for a legislature 
to prefer reapportioning itself, a judicial determina­
tion that the existing apportionment is unconstitu­
tional, reserving action as to the proper remedy, is 
very likely to result in prompt legislative action.

ARGUMENT

This case involves the most basic right in a democ­
racy, the right to fair representation in one's own 
government. According to the complaint—and at this 
stage of the case the allegations of the complaint 
must be accepted as true—the Tennessee legislature 
has not been reapportioned since 1901, contrary to 
the explicit terms of the State constitution, which 
requires reapportionment every ten years. The result 
is gross discrimination against voters in several parts 
of the State. A single vote in Moore County is worth 
nineteen votes in Hamilton County in electing mem­
bers of the State House of Representatives. A vote in



18

Stewart or Chester Comity has almost eight times the 
weight of a vote in Shelby or Knox Comity. Thirty- 
seven percent of the voting population elects sixty per­
cent of the State Senate—twenty of thirty-three mem­
bers. Forty percent of the voters elects sixty-three 
percent of the House of Representatives—sixty-three 
of ninety-nine members.

This discrimination, principally against urban vot­
ers, has at least two consequences. First, these voters 
are deprived of the fundamental right to share fairly 
in choosing their own government. Second, the ex­
treme underrepresentation of urban voters has re­
sulted in discrimination by the State legislature 
against urban areas in the State’s exercise of its gov­
ernmental powers. In Tennessee, as in many other 
States, the underrepresentation of urban voters has 
been a dominant factor in the refusal of the State to 
meet the growing problems of the cities.

The court below, although it agreed that there was 
“a clear violation * * * of the rights of the plaintiffs” 
(R. 219), dismissed the bill upon the ground that “ fed­
eral courts, whether from a lack of jurisdiction or 
from the inappropriateness of the subject matter for 
judicial consideration, will not intervene in cases of 
this type to compel legislative reapportionment” (R. 
216), citing Golegrove v. Green, 328 U.S. 549, and later 
cases. The central issue upon this appeal, therefore, 
is whether the claim that a legislative malapportion­
ment is so gross as to violate the due process or equal 
protection clause of the Fourteenth Amendment pre­
sents a justiciable question. We submit that the com­
plainants’ claim is justiciable; that Golegrove v. Green



19

does not support the dismissal for want of jurisdic­
tion; and that the court below should retain jurisdic­
tion and adjudicate the merits.

The view that legislative malapportionment raises 
exclusively political questions appears to rest, at 
bottom, upon (1) doubt as to whether the fair alloca­
tion of legislative seats is sufficiently amenable to 
rational analysis to be suitable for judicial review and 
(2) misgivings concerning the effectiveness of judicial 
remedies. We propose to demonstrate that, although 
there are wide areas for compromise and all kinds of 
political considerations may enter into legislative 
apportionment, the interests deserving constitutional 
recognition are sufficiently identifiable and the rele­
vant factors are sufficiently articulatable to permit 
the kind of rational analysis requisite for constitu­
tional adjudication. We also submit that, although 
jurisdiction must sometimes be declined in the ex­
ercise of equitable discretion, the courts have sufficient 
ability to provide effective relief, without intruding 
into the sphere of political judgments, to preclude 
laying down any hard and fast exclusionary rule 
based upon the supposed inappropriateness of judicial 
remedies.

These two questions, which we believe determine the 
justiciability of a constitutional attack upon a legisla­
tive malapportionment, parallel the two basic issues 
which must ultimately be decided in the present 
litigation, viz.—

1. Whether the malapportionment of the 
Tennessee legislature violates rights of the



20

complainants secured by the Fourteenth 
Amendment.

2. Whether judicial relief is available against 
the alleged violation.

Although both questions are present, neither requires 
a final decision at this stage of the case. The district 
court’s opinion indicates that it dismissed the bill for 
want of jurisdiction without any real consideration of 
whether it substantively stated a cause of action (R. 
220). The decree can be affirmed only if some rigid 
doctrine deprives the federal courts of jurisdiction to 
redress a malapportionment, however gross and how­
ever susceptible to a judicial remedy it may be.

I t  is permissible but not necessary to decide whether 
the malapportionment alleged in the complaint violates 
the Fourteenth Amendment. The court below did 
not rule upon the point. We submit that the com­
plaint states a cause of action. I f  this Court has 
doubt but agrees that the claim is justiciable, it would 
be proper to reverse and remand for consideration of 
the merits by the three-judge court. Certainly the 
complainant states a colorable claim under the Four­
teenth Amendment, and it is well settled that “ [i]f the 
bill or declaration makes a claim that if well founded 
is within the jurisdiction of the Court it is within that 
jurisdiction whether well founded or not”—at least 
when not patently frivolous. Hart v. B. F. Keith 
Vaudeville Exchange, 262 U.S. 271, 273-274.

Similarly, it is not necessary to decide now on a 
particular remedy for Tennessee’s malapportionment. 
If, as we contend, the federal courts have power to 
hear such cases, subject to the exercise of their equi-



21

table discretion to dismiss if it should appear that an 
appropriate decree could not be fashioned, then the 
decision below must be reversed; for in the present 
ease there is every likelihood that the lower court can 
give appropriate relief. Whether the probability can 
be realized, should be left to the future.

In the argument which follows we present first the 
contention that the malapportionment of the Ten­
nessee legislature violates the equal protection and 
due process clauses of the Fourteenth Amendment. 
Our primary purpose is to show in the context of an 
actual controversy that both the substance of such 
constitutional claims and also the available criteria for 
decision are of such a character as to render the claims 
amenable to judicial consideration. In the second 
part of this brief we deal with other alleged obstacles 
to the exercise of jurisdiction, with special emphasis 
upon the availability and effectiveness of judicial 
remedies. Thus, both branches of the argument, de­
spite their other aspects, center upon the justiciability 
of a claim that a legislative malapportionment is so 
gross as to violate the Fourteenth Amendment.

I
THE COMPLAINT SUFFICIENTLY ALLEGES A VIOLATION OF 

COMPLAINANTS' RIGHTS UNDER THE FOURTEENTH 
AMENDMENT TO BE W ITH IN THE JURISDICTION OF 
THE DISTRICT COURT

A. THE FOURTEENTH AMENDMENT IS VIOLATED BY AN ARBITRARY 
AND UNREASONABLE APPORTIONMENT OF SEATS IN  A STATE 

LEGISLATURE

1. The right to he free from gross discrimination in 
the selection of a State legislature is a federal right 
protected hy the Fourteenth Amendment.



22

Appellants allege in their complaint that “ [b]y a 
purposeful and systematic plan to discriminate against 
a geographical class of persons * * * [they] and 
others similarly situated, are denied the equal pro­
tection of the laws accorded them by the Fourteenth 
Amendment * * *” (R. 12; see also R. 10, 19). They 
assert that the State legislature, despite an explicit 
command in the State constitution, has failed to re­
apportion State legislative districts since 1901 (R. 
9-10, 86). As a result, they allege, “a minority of 
approximately 37 percent of the voting population of 
the State now controls twenty of the thirty-three 
members of the senate * * *” and 40 percent of the 
voters elects sixty-three of the ninety-nine members of 
the House (R. 13). They claim that they thereby 
“suffer a debasement of their votes by virtue of the 
incorrect, arbitrary, obsolete and unconstitutional ap­
portionment * * *” (R. 12). The complaint and the 
supporting papers thus assert a claim of discrimina­
tion against Tennessee voters based on their geo­
graphic location.

The right to be free from hostile or capricious dis­
crimination by a State in defining the class of persons 
entitled to vote, as well as in the exercise of the fran­
chise, is a federal right protected by the Fourteenth 
Amendment. The Court has repeatedly invalidated 
discriminations against a class of voters on the basis 
of race. E.g., Nixon v. Herndon, 273 U.S. 536; cf. 
Smith v. Allwright, 321 U.S. 649; Gomillion v. Light- 
foot, 364 U.S. 339. And, ever since Munn v. Illinois, 
94 U.S. 113, it has been clear that prohibitions in the



23
Fourteenth Amendment are not confined to discrimi­
nation based on color, but extend to arbitrary and 
capricious action against other groups. Thus, it 
would obviously violate the due process and equal pro­
tection clauses for a State to deny the franchise to 
persons who had ever visited the Soviet Union or to 
women who bobbed their hair.10

A geographical classification may also be so irra­
tional as to violate the Fourteenth Amendment. No 
one would defend the constitutionality of giving one 
twenty-fifth of a vote to citizens in the eastern half of 
a State and one vote to those in the western half. 
The case is exactly the same when a statute gives one 
representative to each of the populous counties in the 
eastern half and twenty-five representatives to the 
sparsely populated counties in the west. The statute 
which arbitrarily provides such disproportionate rep­
resentation must therefore be equally unconstitu­
tional. There is no merit to appellees’ distinction be-

10 In  this context it seems unnecessary to distinguish between 
the due process and equal protection clauses. The liberty 
protected by the due process clause, of course, Includes the 
right to vote. In  Bolling v. Sharpe, 347 U.S. 497, 499, this 
Court held that gross discrimination constitutes a denial of 
due process:

[T]he concepts of equal protection and due process, both 
stemming from our American ideal of fairness, are not mu­
tually exclusive. The “equal protection of the laws” is a 
more explicit safeguard of prohibited unfairness than “due 
process of law,” and, therefore, we do not imply that the 
two are always interchangeable phrases. But, as this Court 
has recognized, discrimination may be so unjustifiable as to 
be violative of due process.

Thus, it appears that malapportionment can so grossly discrim­
inate against urban voters that it violates due process.



24

tween the denial of voting rights and the distortion of 
their weight in the legislative chambers. In United 
States v. Classic, 313 U.S. 299, the Court held that a 
qualified voter had a constitutional right to have his 
vote counted in a primary election for the House of 
Representatives without dilution by fraudulent tabu­
lations. Similarly, in United States v. Saylor, 322 
U.S. 385, the Court ruled that a qualified voter had 
a constitutional right to have his vote counted in the 
election of a Senator without dilution by the stuffing 
of ballot boxes. In both these cases the essence of 
the wrong was the improper devaluation of votes.

Of course, a wide range of discretion is left to the 
States in choosing units of representation. So long 
as the State legislature fairly represents the people of 
the State, there can be no violation of the Constitu­
tion. I t does not follow, however, that merely be­
cause some degree of inequality from the nature of 
things must be permitted, gross inequality must also 
be allowed. State legislation dealing with legislative 
apportionment must be measured by tests of reason­
ableness like other State legislation. Such legislation 
must be “ rooted in reason” (Griffin v. Illinois, 351 
U.S. 12, 21 (Mr. Justice Frankfurter concurring)),
i.e., it must not create classifications so arbitrary and 
unreasonable as to offend the equal protection clause 
of the Fourteenth Amendment. The due process 
clause protects rights “found to be implicit in the 
concept of ordered liberty” (Pallco v. Connecticut, 
302 U.S. 319, 325) ; which are “of the very essence of 
a scheme of ordered liberty” (ibid.); which, if abol-



25

ished, would “violate a ‘principle of justice so rooted 
in the traditions and conscience of our people as to be 
ranked as fundamental’ ” Snyder v. Massachusetts, 
291 TJ.S. 97, 105) (302 U.S. at 325); and which “ vio­
late those ‘fundamental principles of liberty and jus­
tice which lie at the base of all our civil and political 
institutions’ ” (Hebert v. Louisiana, 272 U.S. 312, 316 
(302 U.S. at 328). Certainly, the right to have a 
fair share in the choosing of one’s own government is 
“ of the very essence of a scheme of ordered liberty” 
and is a fundamental principle of liberty and justice 
lying “at the base of all our civil and political institu­
tions.” When a State arbitrarily and unreasonably 
apportions its legislature so as to deny the real mean­
ing of the right to vote, i.e., effective participation in 
democratic government, both the equal protection and 
due process clauses are violated.

2. The merits of a challenge to the constitutionality 
of a legislative apportionment under the Fourteenth 
Amendment are amenable to reasoned analysis and 
judicial determination.

I t is unnecessary and unwise to attempt to formu­
late precise tests for determining when a legislative 
apportionment violates the Fourteenth Amendment. 
The Amendment’s fundamental guarantees do not 
lend themselves to mathematical formulas. The line 
must be pricked out case by case. I t  may be useful, 
however, since the basic issue is res nova, to suggest 
some of the factors which would ultimately have to 
be weighed in deciding whether an apportionment act 
violates the equal protection or due process clause of 
the Fourteenth Amendment. Their analysis shows



26
that legislative apportionment, although it involves 
many compromises, is properly rooted in reason; that 
judicial review of the merits of a questioned appor­
tionment is not dissimilar to review of other classifi­
cations ; and that the challenge to a particular appor­
tionment is therefore susceptible to constitutional 
adjudication.

(a) Numerical Equality.—Purely the starting point 
must be per capita equality of representation. Poli­
tical equality is one of the fundamental ideals of 
American life. Any serious departure from appor­
tionment according to population (whether persons 
or qualified voters)—certainly any departure affect­
ing both houses of the legislature—is subject to ques­
tion, although the divergence might also be shown to 
have a rational justification. Since exact numerical 
equality of population within legislative districts is 
impossible to achieve, all that the principle requires, 
in this context, is “ that equality in the representation 
of the state which an ordinary knowledge of the pop­
ulation and a sense of common justice would suggest” 
(.Ragland v. Anderson, 125 Ky. 141, 158, 100 S.W. 
865, 869).11

11 Among yardsticks proposed for measuring permissible vari­
ations have been evaluation of the relative deviation above or 
below the average population of all districts in the State, and the 
relative excess of the largest over the smallest districts in the 
State. See Note, Constitutional Right to Congressional Districts oj 
Equal Population, 56 Yale L.J. 127, 138, note 45 (1946); Tabor, 
The Gerrymandering oj State and Federal Legislative Districts, 16 
Md. L. Rev. 277, 293, note 78 (1956); Celler, Congressional Appor­
tionment-—Past, Present, and Future, 17 Law & Contemp. Prob. 
268, 274-275 (1952).

The following chart lists comparative population figures in 
certain cases where legislative reapportionment acts have been



27
The extent to which the right of equal representa­

tion is ingrained in our constitutional system is evi­
denced by the fact that more than four-fifths of the 
State constitutions make apportionment according to 
population or qualified voters the basic principle for 
choosing at least one branch of the State legislature. 
Thus, thirteen States provide for apportionment in 
both houses based largely on population (meaning 
either people or voters).12 Another twelve States ap­
portion in this manner, except that in one house each 
county or town is guaranteed at least one seat. 
Nineteen States, although they provide other bases for 
choosing the representatives in one branch, call for 
apportionment of the other according to population 
either with or without the stipulation that each county 
or town shall have at least one seat.
invalidated by State courts. Of course, the test under any 
particular State constitution may not be the same as under the 
Fourteenth Amendment. ____

I  argest 
d istric t

Sm allest
d istric t

53,263 7,407
128,595 39,210

S t ig l i t z  v . S c h a r d ie n , 239 K y. 79y, 4 U b . w .  z u  o io  -------------- -
38,801 6,823

102,805 31,685

A t to r n e y  G en e ra l v . S u f fo l k  C o u n ty  A p p o r t io n m e n t  C o m m ’rs , 224
6,182 1,957

91,420 39.727
G id d in g s  v. B la c k e r , 93 M i e n ,  l ,  02 in  . w . ------------------

116,033 52,731
W il l i a m s  v . S e c re ta ry  o f  S ta te ,  145 M i e n ,  m i , w .  -------

12 Colorado, Indiana, Kentucky, Massachusetts, Minnesota, 
Nebraska (unicameral), Oklahoma, Oregon, South Dakota, Ten­
nessee, Washington, West Virginia, Wisconsin.

13 Alabama, Iowa, Maine, Missouri, New York, North Caro­
lina, Ohio, Pennsylvania, Khode Island, Texas, Utah, Wyoming.

14 Alaska, Arizona, Arkansas, California, Connecticut, Flor­
ida, Georgia, Hawaii, Idaho, Illinois, Louisiana, Michigan, 
Montana, Nevada, New Hampshire, New Jersey, North Dakota,

622455— 61--- 8



28

We are not unmindful of the warning that, “ To 
assume that political power is a function exclusively 
of numbers is to disregard the practicalities of gov­
ernment” (MacDougall v. Green, 335 U.S. 281, 283). 
Historical practice shows the existence of other 
desiderata (see pp. 28-31 below), the due recognition 
of which may call for some departure from appor­
tionment according to population; and a State has 
wide discretion in evaluating the opposing interests 
and making an accommodation. Our argument on 
this point is simply that the other desiderata are 
capable of the kind of rational statement and analysis 
which is required for constitutional adjudication. If 
the State can point to neither rhyme nor reason for 
a discriminatory apportionment, save that it is an 
anachronism, the apportionment should be held to 
violate the Fourteenth Amendment.16

(b) Criteria Justifying Some Inequality in Ap­
portionment.—Historically, the claim of political sub­
divisions to representation regardless of size has been 
an important reason for departing from the strict 
rule of apportionment according to population. 
Early in our history the town or county was often

South Carolina, Vermont. In  six States the State constitution 
or statute does not expressly base apportionment in at least one 
house on population. In  Kansas, Mississippi, New Mexico, and 
Virginia there is no indication as to the method of apportion­
ment. The Maryland and Delaware constitutions specifically 
prescribe the number of representatives for each district.

15 This proposition seems sufficient for the present case since 
Tennessee offers no justification for its gross malapportionment. 
See pp. 45-47 below. In  other situations it might be necessary 
to go on and determine whether the reasons given by the State 
are sufficient justification. See p. 33 below.



29
a dominant unit of government, and the colonial as­
sembly and later the State legislature were composed 
of representatives from these entities. Since it was 
the town or county that was being represented, in a 
very real sense, and not the people directly, it was 
natural to guarantee each unit at least one represent­
ative in one, and sometimes both, of the branches of 
the legislature. Such provisions are still found in the 
constitutions of twenty-seven States.16 In eight of 
these States enough weight has been attached to the 
county or town as a unit to provide that each such- 
subdivision should have the same representation in 
one branch of the legislature.17 The federal Const!- 
tution contains a similar compromise between the 
claims of the States and direct representation of the 
people.

The interest in geographical distribution of politi­
cal power is also advanced by granting some rep­
resentation to each town, county, or other political 
subdivision. Constitutional statecraft often involves 
a degree of protection for minorities which limits the 
principle of majority rule. Perfect numerical equal­
ity in voting rights would be achieved if an entire 
State legislature were elected at large but the danger 
is too great that the remote and less populated sec­
tions would be neglected or that, in the event of a

16 Alabama, Arizona, Arkansas, Connecticut, Florida, Georgia, 
Idaho, Iowa, Kansas, Louisiana, Maine, Maryland, Mississippi, 
Missouri, Nevada, New Jersey, New Mexico, New York, North 
Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, 
South Carolina, Texas, Utah, Vermont.

17 Arizona, Connecticut, Idaho, Nevada, New Jersey, New 
Mexico, South Carolina, Vermont.



30

conflict between two parts of the State, the more 
populous region would elect the entire legislature and 
in its councils the minority would never be beard.

Due recognition of geographic and other minority 
interests is also a comprehensible reason for reducing 
the weight of votes in great cities. I f  seventy per­
cent of a State’s population lived in a single city and 
the remainder was scattered over wide country areas 
and small towns, it might be reasonable to give the 
city voters somewhat smaller representation than that 
to which they would be entitled by a strictly numeri­
cal apportionment in order to reduce the danger of 
total neglect of the needs and wishes of rural areas. 
I t  would probably be unconstitutional even under 
these circumstances, however, to apportion both 
houses of the legislature in such a way that both 
houses were controlled by representatives chosen by 
the rural thirty percent of the State’s population.18

Other factors have also been considered in allocat­
ing legislators, such as the share of a district in the 
cost of State government. In Hew Hampshire seats 
in the Senate are apportioned in the ratio of direct 
taxes paid.

Some inequality can be justified, not only on the 
basis of the deliberate systems of apportiomnent dis­
cussed above, but also as the result of population

18 This problem seems to have been taken into account in the 
Texas Constitution. Seats in the lower house are apportioned 
according to popidation but no county may have more than 
seven representatives unless its population exceeds 700,000, in 
which event it is allocated one representative for each addi­
tional 100,000 people. Evidently, the purpose was to prevent 
one or two heavily populated counties from dominating the 
State.



31

shifts since the last apportionment. The expense, 
unsettling effects, and legislative time required make 
it impracticable for legislatures to reapportion at 
every session. In determining what is an excessive 
hiatus between apportionments, the historic require­
ments for reapportionment contained in State consti­
tutions all over the country again show the considered 
judgment of the community. The constitutions of 
forty-three States require the apportionment or re­
districting of one or both houses of the legislature at 
least once every ten years. None suggests a 40, 50, 
or 60-year interval.

(c) Other Considerations in Determining Constitu­
tionality.-—When a legislature is unequally appor­
tioned, there are at least two other facts to be 
considered in determining whether the inequality is 
gross enough to violate the Fourteenth Amendment. 
First, gross malapportionment in a unicameral legis­
lature or in both houses of a bicameral legislature is 
obviously harder to justify than a system of rep­
resentation which is based on population in one 
house, and, in the other, apportions representatives 
upon some other basis. This compromise between 
opposing desiderata is found in the constitutions of 
the United States and a number of States. Con­
versely, the most serious instances of malapportion­
ment are those which permit minorities to rule both 
branches of the legislature.

Second, the availability of other methods of ex­
pressing the popular will is relevant in the event 
that the legislature is not apportioned in accordance 
with population. For example, complaints of under-



32

representation in a State legislature may be less serious 
in a State which provides for legislation by referenda 
initiated by a reasonable number of voters. Under 
such a system, the majority of the population can 
pass legislation and, indeed, can reapportion the leg­
islature itself. On the other hand, such a remedy 
would hardly be sufficient if a minority of the people 
were seriously underrepresented. The availability of 
a constitutional correction is also material. If  a 
convention could be called by petition or some other 
expression of popular will, the availability of this 
remedy would perhaps offset a measure of inequality 
in the apportionment. On the other hand, the un­
fairness is the greater if only the malapportioned leg­
islature can call a constitutional convention, as in 
Tennessee. Tenn. Const., Art. XI, Section 3.

The foregoing illustrations, taken from State con­
stitutions, do not exhaust the list of factors which 
might be taken into account in apportioning a State 
legislature or in judging the constitutionality of a 
particular apportionment under the Fourteenth 
Amendment. A study of State constitutions does show, 
however, that the acceptable bases for any serious 
departure from the basic ideal of political equality 
are amenable to identification and articulation. Con­
sequently, where a serious malapportionment is chal­
lenged under the due process or equal protection clause, 
the initial step is to inquire whether it has any as­
serted justification or coherent purpose beyond the 
perpetuation of past political power. This was the 
process suggested by the Court in Gomillion v. Light-



33

foot, 364 U.S. 339, 342, where an analogous question of 
State districting was involved (see pp. 47-48 below). 
If  no justification can even be asserted, as in this case, 
and the discriminations and inequities are gross, the 
apportionment violates the Fourteenth Amendment.

In a case in which a comprehensible justification for 
the departure from the principle of equal representa­
tion was asserted, the Court would have to go farther 
and determine whether this justification was sufficient,
i.e., resulted in a reasonable classification and violated 
no “principle of justice so rooted in the traditions 
and conscience of our people as to be ranked as funda­
mental.” This issue necessarily turns on matters of 
judgment and degree. The apportionment of repre­
sentatives in the ratio of the value of real property, 
for example, may be offered as a justification, but 
there is ground to inquire whether it is any longer 
consistent with those “fundamental principles of lib­
erty and justice which lie at the base of all our civil 
and political institutions.” Hebert v. Louisiana, 272 
IJ.S. 312, 316. Similarly, the desire to give historic 
subdivisions a minimum of one representative per 
unit in one house may be a sufficient justification for 
a small departure from the rule of equal representa­
tion in proportion to the population to satisfy the 
requirements of the Fourteenth Amendment; but the 
larger the departure became, the less adequate the 
justification would be.19

19 This issue should be resolved in the light of current condi­
tions and not merely by reference to historical practice. A t 
the time most State constitutions were adopted the population 
was more evenly disti’ibuted than today, so that guaranteeing



34

Judgments upon the relative value of divergent 
interests, the art of compromise and accommodation, 
and the practicalities of political manipulation are the 
responsibility of the political branches of government. 
The constitutional limitations implicit in the due proc­
ess and equal protection clauses leave a wide area for 
legislative discretion. Cf. MacDougall v. Green, 335 
U.S. 281, 284. But free recognition of the breadth 
and importance of this aspect of a State’s political 
power does not require exaltation of the power into 
an absolute. Cf. Gomillion v. Lightfoot, 364 U.S. 339, 
342. The Court can and should afford citizens im­
portant protection of the right to vote under 
the Fourteenth Amendment by invalidating those 
discriminations which are so arbitrary and capricious 
as to lack any rational foundation. The process of 
adjudicating the constitutionality of a State legislative 
apportionment does not call for the exercise of a 
different function or require the Court to proceed in 
a different manner than in the resolution of many 
other issues of due process and equal protection.

Moreover, the need for constitutional protection here 
is infinitely greater. Arbitrary and capricious action 
affecting the fundamental right to vote goes to the
each county or town a seat did not work the same discrimina­
tion against urban voters that it may cause today in a legisla­
ture with a limitation upon the number of members. Further­
more, towns and counties no longer have their historic 
separateness. Their importance has diminished, and even 
though history and common acceptance also have their claims, 
the methods of representation which once were fair and reason­
able may now have less to commend them.



35
heart of our government. In United States v. Caro­
tene Products C o 304 U.S. 144, 152, note 4, Mr. 
Justice Stone raised the question “whether legislation 
which restricts those political processes which can 
ordinarily be expected to bring about repeal of unde­
sirable legislation, is to be subjected to more exacting 
judicial scrutiny under the general prohibitions of 
the Fourteenth Amendment than are most other types 
of legislation.’' See also Minersville School Dist. v. 
Gobitis, 310 U.S. 586, 599-600 (overruled on other 
grounds in West Virginia State Board of Education 
v. Barnette, 319 U.S. 624, 642). Writing specifically 
of legislation affecting the right to vote, Judge Cooley 
stated (2 Cooley, Constitutional Limitations (8th ed., 
1927), p. 1370) :

All regulations of the elective franchise, how­
ever, must be reasonable, uniform and impar­
tial; they must not have for their purpose 
directly or indirectly to deny or abridge the 
constitutional right of citizens to vote, or un­
necessarily to impede its exercise; if they do, 
they must be declared void.

Arbitrary regulation of the right to vote, even more 
than restrictions upon freedom of communication, 
destroys the essential pre-conditions of alert democ­
racy. Those who are denied the right to vote or who 
are grossly under-represented cannot protect their 
franchise by voting. There is, therefore, a special 
reason for the courts to exert all the power they 
possess for the vindication of these constitutional 
rights.



36

3. The need for constitutional protection is urgent 
because malapportionment of State legislatures is 
subverting responsible Stale and local government.

The dangers of arbitrary and capricious malappor­
tionment defeating the fundamental right to vote are 
not merely theoretical. The disparities between State 
legislative districts, through selfishness or indiffer­
ence, are constantly increasing, almost always to the 
disadvantage of growing cities. The consequences cast 
doubt upon the workability of State government and 
threaten to affect the balance of the federal system. 
The current conditions infecting legislative apportion­
ment in some of our States are much more serious than 
the malapportionment of Congressional districts in 
1946 at the time of the decision in Golegrove v. Green, 
328 U.S. 549.

In 1946 the disparity between the most and least 
populous Congressional districts in Illinois was ap­
proximately eight to one. Illinois had then, by far, 
the most badly apportioned Congressional districts of 
any State in the country. Only one other State had 
a more than four to one disparity (Ohio), another 
State had a more than three to one disparity (South 
Dakota), and eleven other states had more than two 
to one disparities. See Appendix I  to Mr. Justice 
Frankfurter’s opinion in Golegrove v. Green, supra, 
328 U.S. at 557-559. Similarly, in 1950, only one 
State had a more than three to one disparity in Con­
gressional districts (South Dakota), and nine others 
had a more than two to one disparity. In Tennessee 
both in 1946 and 1950, the rate was slightly less than 
two to one.

In contrast, the situation in most State legislatures



37
is considerably worse. Figures derived from the 1950 
federal census show that in Kansas, Delaware, Flor­
ida, Vermont, and Connecticut, majorities in the 
lower chamber of the State legislature represented 
only 221/a percent, 19% percent, 17 percent, 12% per­
cent, and 9% percent of the population, respectively. 
106 Cong. Ree. 13828 (daily ed.). In Tennessee, ac­
cording to the complaint, only 40 percent of the voters 
elect 63 of the 99 members of the lower house and 
37 percent of the voters elect 20 of the 33 members 
of the upper house (R. 13). The smallest population 
per representative is 3,948, the largest 75,134, a ratio 
of 19 to l.20

It is not accidental that the malapportionment of 
the State legislatures is considerably greater through­
out the country (including Tennessee) than the mal­
apportionment of Congressional districts, serious as 
the latter also is. For in most States periodic re­
apportionment of Congressional districts is virtually 
assured by law.21 The result is that there was no ap-

20 The record shows that the 2,340 qualified voters (as con­
trasted to total population) of Moore County are entitled to 
one representative in the Tennessee House of Representatives 
while the 312,345 voters of Shelby County elect only seven 
(R. 231, 234). This is a disparity of approximately 20 to 1.

21 Every ten years the House is automatically reapportioned. 
The new apportionment is calculated by the executive depart­
ment and transmitted to Congress. The report based on the 
1960 census is Message from the President, H. Hoc. No. 46, 
87th Cong., 1st Sess. (January 12, 1961). Each State is then 
notified of the number of Representatives to which it is en­
titled. 46 Stat. 26 (1929), as amended, 2 U.S.C. 2 (a). I f  the 
State loses one or more Representatives, it is required either to 
reapportion or to elect all its Representatives at large. The lat­
ter alternative has rarely been adopted, particularly by states 
with more than two Representatives. I f  the State gains one or 
more Representatives, it can either reapportion or elect the



38
preciable worsening of the malapportionment of Con­
gress from 1928 to 1950 despite marked changes of 
population. In 1928, three States had a disparity 
between Congressional districts of more than three to 
one and nine others of over two to one. See Appendix 
I  to Mr. Justice Frankfurter’s opinion in Colegrove v. 
Green, supra, 328 U.S. at 557-559. In 1946, one 
State had a disparity of over eight to one, another 
of over four to one, another over three to one, and 
eleven others of over two to one. Ibid. And in 1950 
only one State had a disparity of over three to one, 
and but nine others had a disparity of over two to one.

The situation is becoming markedly worse, however, 
in the State legislatures. There has been no pressure, 
comparable to that which has led to the reapportion­
ment of Representatives by Congress to force legis­
lative action. The only major exception is where 
State courts have assumed jurisdiction (which has 
been frequent) and provided an effective remedy 
(which is less so). See Lewis, Legislative Apportion­
ment and the Federal Courts, 71 Harv. L. Rev. 1057, 
1066-1070. In States such as Tennessee in which the 
State courts have refused to act (see Kidd v. McCan-
added Representatives at large. Again, the latter alternative 
has rarely beeen followed by the larger States. The 1960 cen­
sus will result in nine states gaining and sixteen states losing 
one or more Representatives. In  addition, five states will have 
only one Representative and two states elect at present their 
only two Representatives at large. See Message of the Presi­
dent, H. Doc. No. 46, 87th Cong., 1st Sess., pp. 1, 2; Hearings 
on Standards for Congressional Districts (Apportionment) be­
fore Subcommittee No. 2 of the House Judiciary Committee, 
86th  Cong., 1st Sess., p. 81.



39

less, 200 Term. 273, 292 S.W. 2d 40, appeal dismissed, 
352 U.S. 920), the State legislatures have generally 
refused to obey the provisions in their own constitu­
tions or statutes requiring regular reapportionment. 
Although the constitutions of forty-three States require 
reapportionment or redistricting22 of one or both houses 
of the legislature every ten years (including Tennessee) 
or more frequently, in 1958 twenty-three of the then 
forty-eight States had not reapportioned for periods 
ranging from ten years to half a century or more. See 
Lewis, op. cit. supra, p. 1060; Alaska Const., Art. V I . 
Sections 3, 5-7; Hawaii Const., Art. I l l ,  Section 4.. 
See also 106 Cong. Ree. 13831-13833 (daily ed.) for 
tabular analyses of the requirements of State constitu­
tions. Alabama, Connecticut, Delaware, Maryland, 
Hew Jersey, South Carolina, and Vermont, in addi­
tion to Tennessee, had apportionments and legislative 
districts which were over fifty years old. At least 
twenty-seven legislatures had not been touched for more 
than twenty-five years. Merry, Minority Buie: Chal­
lenge to Democracy, Christian Science Monitor, Octo­
ber 2, 1958, reprinted in 106 Cong. Ree. 13836 (daily 
ed.). The result has been in Tennessee, as elsewhere, 
that as population has shifted, particularly toward 
urban centers, State legislative malapportionment has 
become drastically worse.

In our country’s early history, the average citizen 
looked to the State legislature for initiative and wis­
dom in the formulation of public policy on domestic

22 Reapportionment requires only a reevaluation of the num­
ber of legislators allotted each district, while redistricting re­
quires that the districts themselves be redrawn.



40

issues. U.S. Commission on Intergovernmental Rela­
tions, Report to the President (1955), p. 38. Only 
thirty years ago Mr. Justice Brandeis singled out as 
an important characteristic of our federal system the 
fact that “a single courageous State may, if its citi­
zens choose, serve as a laboratory; and try novel social 
and economic experiments without risk to the rest of 
the country.” New State Ice Co. v. Liebmann, 285 
U.S. 262, 311 (dissenting opinion). The State legis­
latures, however, have in very large part failed to 
adapt themselves to modern problems and majority 
needs, and this failure has resulted in public cynicism, 
disillusionment, and loss of confidence. A primary rea­
son for the failure of the States to respond is that in 
many States a majority of the people, even a large 
majority, do not control the legislature. The dicta­
tion of legislative action by a minority of the citizens 
has tended to stifle civic responsibility at the very 
time when novel problems are pressing upon the 
country.

More specifically, the most glaring consequence of 
malapportionment of State legislatures is the gross 
underrepresentation of urban interests. As cities 
have grown more rapidly than rural areas, the exist­
ing apportionments, when not changed by the legis­
latures, have tended to create an increasing imbalance 
in legislative representation discriminating against 
urban areas.23 As early as 1928, H. L. Mencken, in 
his characteristically caustic manner, commented

23 See Baker, Rural Versus Urban Political Power (1955), 
pp. 16-17, note a, for a table showing the extent of urban 
underrepresentation in the state legislatures.



41

upon the inequities of this situation. “The yokels 
hang on because old. apportionments give them unfair 
advantages. The vote of a malarious peasant on the 
lower Eastern Shore counts as much as the votes of 
twelve Baltimoreans.” Mencken, A Carnival of Bun­
combe, 160 (Moos ed., 1956) (reprinted from the 
Baltimore Evening Sun, July 23, 1928, p. 15, col. 4 
(financial ed.). Then, in a rare note of optimism, 
he added: “ But that can’t last. I t  is not only unjust 
and undemocratic; it is absurd. ” 24 Ibid. One may 
dislike Mencken’s prejudice against rural citizens, 
yet recognize the inequity. Mencken proved a better 
wit than a prophet, for the same complaint and prog­
nosis were echoed thirty years later by President 
(then Senator) Kennedy (Kennedy, The Shame of 
the States, New York Times Magazine, May 18, 1958, 
pp. 12, 37) :

[T]he apportionment of representation in our 
Legislatures and (to a lesser extent) in Congress 
has been either deliberately rigged or shamefully 
ignored so as to deny the cities and their voters 
that full and proportionate voice in government 
to which they are entitled.

The malapportionment of State legislatures not 
only subverts democratic principles generally, but it 
also has the effect of precluding the States from meet­
ing burgeoning needs resulting from the transforma­
tion of the basic character of our society from

24 I t  may not be entirely coincidental that the Tennessee 
House recently voted down a bill to repeal the “Monkey Law,” 
which prohibits teaching about evolution. Washington Post, 
March 4, 1961, p. A3, col. 7.



42
predominantly rural to predominantly urban.25 See 
U.S. Commission on Intergovernmental Relations, 
Report to the President (1955), p. 3. I t is widely 
agreed that the pressing domestic problems stemming 
from the metropolitan population explosion—housing, 
urban renewal and slum clearance, education, trans­
portation, juvenile delinquency, water and air pollu­
tion—are not being adequately met. Id. at 38; The 
Exploding Metropolis, written by the Editors of 
Fortune (1957), p. 1. The failure is reflected not 
merely in unresponsiveness .to special urban needs 
and lack of sympathy for the urban point of view, but 
also in affirmative action rendering it more difficult 
for urban areas to meet their own problems. This 
action takes such forms, as the complaint here alleges, 
as systematically discriminatory taxation of under­
represented, generally urban, areas as contrasted with 
overrepresented rural areas; far greater per capita 
spending by the State in overrepresented rural areas 
than in the urban areas (R. 16-18; see also R. 229- 
254);26 and the denial even of the urban areas’ pro-

25 In  1900, at least sixty percent of all Americans lived on 
farms or in small rural communities, and less than forty per­
cent were city dwellers. Today approximately seventy percent 
of the people live in urban or suburban areas and the rural 
population has diminished to about thirty  percent. Merry, 
Minority Rule: Challenge to Democracy, Christian Science 
Monitor, October 2, 1958, reprinted in 106 Cong. Rec. 13836 
(daily ed.)

26 Nor is this situation limited to Tennessee. In  Colorado, for 
example, the legislature allows Denver only $2.3 million a year 
in school aid for 90,000 children, but gives adjacent Jefferson 
County, a semi-rural area, $2.4 million for 18,000 pupils. Strout, 
The Next Election Is Already Rigged, H arper’s (November 
1959), reprinted at 106 Cong. Rec. 13840 (daily ed.). In  Penn-



43
portionate share of matching funds provided by the 
federal government (R. 119-120). In addition, the 
State legislatures have frequently refused to give 
populous urban centers adequate authority to enable 
them to solve pressing local problems themselves.

Another result of the States’ neglect of the reap­
portionment problem is that urban governments now 
tend to by-pass the States and enter directly into co­
operative arrangements with the national government 
in such areas as housing, urban development, airports, 
and water pollution facilities. This multiplication of 
national-local relationships reinforces the debilitation 
of State governments by weakening the States’ control 
over their own policies and their authority over their 
own political subdivisions. The 1955 Report of the 
TJ.S. Commission on Intergovernmental Relations (The 
Kestnbamn Commission, whose members were ap­
pointed by the President) cautioned (p. 40) that “ the 
ultimate result * * * may be a new government ar­
rangement that will break down the constitutional 
pattern which has worked so well up to now.” After 
hearings on the Kestnbaum study extending over a 
period of three years, the House Committee on Gov­
ernment Operations emphasized in its final report that 
“ there is a strong national interest in encouraging 
vigorous and responsible State and local government.” 
H. Rep. Ho. 2533, House Committee on Government 
Operations, 85th Cong., 2d Sess., p. 47.
sylvania, the legislature pays $8 per day for the care of 
indigent patients to each non-sectarian hospital in the state— 
except Philadelphia’s city-owned General Hospital, which must 
provide such services at an annual cost of $2.5 million. Ibid.

622455— 61 - 4



44

Constitutional adjudication under the Fourteenth 
Amendment cannot correct all the problems of malap­
portionment. The States have broad discretion, and 
within that area the only remedy is an enlightened 
citizenry. But broad discretion is not the equivalent 
of absolute and arbitrary power. Cf. Gomillion v. 
Lightfoot, 364 U.S. 339, 342. The Fourteenth Amend­
ment reaches at least those egregious cases in which 
geographical or other discrimination imposed by a 
minority lacks a rational foundation. And while the 
urgency of the need cannot confer jurisdiction upon the 
federal courts, it should carry a potent appeal for the 
exercise of existing jurisdiction.
B. THE TENNESSEE LEGISLATIVE APPORTIONMENT, AS DESCRIBED IN

THE COMPLAINT, VIOLATES THE DtJE PROCESS AND EQUAL PROTEC­

TION CLAUSES OF THE FOURTEENTH AMENDMENT

Although Article II, Section 6, of the Tennessee 
constitution requires the legislature to allocate the 
ninety-nine seats in the House of Representatives and 
thirty-three seats in the Senate among the several coun­
ties or districts “according to the number of qualified 
voters in each,” no apportionment has been made for 
sixty years. Between 1901 and 1950, according to the 
complaint, the population grew from 2,021,000 to 
3,292,000. The 1960 federal census puts the popula­
tion of Tennessee at 3,567,089. The growth was un­
even between counties. The areas around Memphis, 
Nashville, Chattanooga, and Knoxville and Oak 
Ridge grew much faster than other parts of the State. 
Judged by the 1950 census, the complaint alleges, “a 
minority of approximately 37 percent of the voting 
population of the State now controls twenty of the 
thirty-three members of the senate” (R. 13; Ex. E, R.



45
28), and “a minority of 40 percent of the voting 
population of the State now controls sixty-three of 
the ninety-nine members of the House of Representa­
tives” (R. 13; Ex. E., R. 30). In Moore County 2,340 
qualified voters elect one representative to the lower 
house, while the 312,345 qualified voters of Shelby 
County elect only seven (R. 231, 234). The result, in 
substance, is that a citizen of Shelby County is al­
lowed only one-nineteenth of a vote in relation to 
each Moore County voter. And the discrimination is 
gross all over the State.

I t  would seem too plain for argument that this ar­
bitrary and capricious discrimination against the 
voters in growing counties violates the due process 
and equal protection clauses of the Fourteenth 
Amendment—unless the Court is to hold, contrary to 
our contention, that the Fourteenth Amendment 
places no restriction whatever upon the apportion­
ment powers of a State. So gross a departure 
from the basic ideal of political equality, affect­
ing both branches of the legislature, requires some 
rational justification. None has been suggested by 
the appellees; indeed, it is hard to see how any could 
be suggested because the Tennessee constitution re­
quires the apportionment among districts to be made 
“ according to the number of qualified voters in each.” 
Prima facie, therefore, the complainants have made 
out their case.

In referring to the Tennessee constitution we do 
not suggest that petitioners have a federal right to 
have the Tennessee legislature apportioned accord­
ing to the State constitution. The requirements of 
the Tennessee constitution are significant, coupled



46

with the passage of sixty years from the last appor­
tionment, because they go far to show that there is no 
rational basis whatever for the present allocation of 
seats in the Tennessee legislature. The present allo­
cation cannot be supported upon the only ground 
permissible under the State constitution. The consti­
tution forbids the use of another method. The mal­
apportionment results chiefly from the changes in the 
distribution of the population during the passage of 
sixty years. I t  is fair to infer, at least in the absence 
of any other explanation, that the continued use of 
the 1901 apportionment results from the indifference 
of the incumbents or their determination to retain 
unwarranted power, and not from any rational policy.

Nashville, C. & St. L. By. v. Browning, 310 U.S. 
362, presented a different question. There the State 
authorities had classified the property of public util­
ities differently from all other property for purposes 
of taxation, and had taxed it at a higher rate in 
alleged violation of the State constitution. But the 
differentiation was made deliberately— ‘all the or­
gans of the State are conforming to a practice, sys­
tematic, unbroken for more than forty years” (310 
U.S. at 369)—and the classification, whether it vio­
lated the Tennessee constitution or not, had a widely 
understood, rational foundation. The Browning case 
might be applicable here if the present apportion­
ment of the Tennessee legislature is later shown to 
be rooted in reason. The present record shows no 
justification. Even in argument, none has been 
suggested.



47

The Tennessee apportionment is not supported by 
any of the considerations which have sometimes led 
the framers of other State constitutions to compromise 
the principle of numerical equality among legislative 
districts. The present Tennessee apportionment can­
not be supported in either branch of the legislature as 
a rational effort based on political subdivisions or 
geography or as an attempt to balance rural and city 
representation. Under an apportionment according to 
population the urban voters would not elect a 
majority in either house of the legislature—more 
nearly one third—and their votes would be split 
among four areas in quite different parts of the 
State. There is no suggestion that the apportion­
ment can be defended on the basis of contributions 
to the cost of State government. The discrimination 
infects both houses of the legislature. I t  results not 
from recent developments of which the legislature 
may take account, but from sixty years of inaction. 
The majority has no other remedy such as the direct 
referendum. Thus, not only is there no justification 
for the denial of equal representation which the State 
authorities are in a position to assert; the apportion­
ment cannot be supported upon any of the bases which 
other States have applied to their legislatures.

On the merits, therefore, and on this record the 
present case is hardly distinguishable from Gomillion 
v. LigMfoot, 364 U.S. 339. In Gomillion the com­
plaint alleged a claim of racial discrimination. 
“Against this claim,” the Court pointed out (p.342), 
“ respondents have never suggested, either in their 
brief or in oral argument, any countervailing munic­
ipal function which Act 140 is designed to serve. The



48
respondents invoke generalities expressing the State’s 
unrestricted power—unlimited, that is, by the
United States Constitution—to establish, destroy, or 
reorganize by contraction or expansion its political 
subdivisions * * *. We freely recognize the breadth 
and importance of this aspect of the State’s political 
power. To exalt this power into an absolute is to 
misconceive the reach and rule of this Court’s, 
decisions * *

In the present case the complaint amply alleges a 
claim of gross geographical discrimination. Against 
this claim the appellees have never suggested, either 
in their briefs or in oral argument, any countervailing 
purpose which the Tennessee apportionment is de­
signed to achieve. We recognize the breadth and im­
portance of the State’s political power to apportion 
representation in its legislature, but we submit that to 
exalt this power into an absolute is to misconceive the 
reach and meaning of the Fourteenth Amendment. 
I t is unsound to distinguish Gomillion from the pres­
ent case on the ground that it arose under the Fif­
teenth Amendment. The Fourteenth Amendment 
protects the right to vote (Nixon v. Condon, 286 U.S. 
73) and arbitrary geographical distinctions are 
scarcely less invidious than discriminations based upon 
race.
C. THE JURISDICTION OP THE DISTRICT COURT M AT BE SUSTAINED

WITHOUT DETERMINING WHETHER THE COMPLAINT STATES A
CAUSE OP ACTION

Although we believe that the appellants have al­
leged sufficient facts to show violation of both the equal 
protection and due process clauses of the Fourteenth



49

Amendment, we also recognize that the question is so 
novel and so complex that this Court might well con­
clude that it should not be determined, even to the ex­
tent of ruling on the pleadings, without a full and 
detailed examination of the merits by the three-judge 
district court. If  there be doubt whether the com­
plaint states a cause of action, it would be not only 
proper, but perhaps advisable, to remand the cause 
without resolving this constitutional issue.

The court below dismissed the complaint for want 
of jurisdiction. We show in Point II, below, that 
this ruling was in error. Appellees also moved to 
dismiss the complaint for failure to state a claim upon 
which relief could be granted. Although the district 
court commented that this case involves a “ clear vio­
lation” of the rights of appellants (R. 219), it granted 
the motion to dismiss the complaint for failure to state 
a claim upon which relief could be granted because it 
found that it lacked jurisdiction to provide a remedy. 
Thus, this Court has not received the benefit of full 
consideration of the constitutional question on its 
merits by the court below.

The dismissal for want of jurisdiction, if erroneous, 
can properly be reversed without consideration of the 
merits. As Justice Holmes said in Hart v. B. F. 
Keith Vaudeville Exchange, 262 U.S. 271, 273. “ [I]f 
the bill or declaration makes a claim that if well 
founded is within the jurisdiction of the Court it is 
within that jurisdiction whether well founded or not.” 
Bell v. Hood, 327 U.S. 678, is squarely in point. 
There plaintiff’s right of recovery was contingent upon 
the scope of the protection afforded by the Fourth and 
Fifth Amendments, so that recovery would be had if



50
the amendments were construed in one way but denied 
if construed in another. The Court held that there 
was jurisdiction without resolving the constitutional 
issue, saying (id. at 682) :

Jurisdiction therefore is not defeated as re­
spondents seem to contend, by the possibility 
that the averments might fail to state a cause of 
action on which petitioners could actually re­
cover. * * * Whether the complaint states a 
cause of action on which relief could be granted 
is a question of law and just as issues of fact it 
must be decided after and not before the court 
has assumed jurisdiction over the controversy.

The only exceptions to this doctrine are cases in 
which the federal claim is patently frivolous, or is 
immaterial and made solely for the purpose of ob­
taining federal jurisdiction over a State cause of 
action. E.g., Water Service Go. v. City of Redding, 
304 U.S. 252; Norton v. Whiteside, 239 U.S. 144. 
The present case does not fit either exception. What­
ever its ultimate merit the complaint is squarely 
founded upon the Fourteenth Amendment, and it pre­
sents a substantial claim.

I I
THE DISTEICT COURT HAD, AND SHOULD HAVE EXERCISED, 

JURISDICTION OVER THIS ACTION TO REDRESS AN U N ­
CONSTITUTIONAL MALAPPORTIONMENT

The general jurisdictional statute, 28 U.S.C. 1343, 
provides that the district courts of the United States 
shall have original jurisdiction over a—

civil action authorized by law to be commenced 
by any person:

* * * * *



51

(3) To redress the deprivation, under color 
of any State law * * * of any right, privilege 
or immunity * * * secured by the Constitution 
of the United States * * *.

See also 42 U.S.C. 1983, derived from the Civil Rights 
Act of April 20, 1871, 17 Stat. 13, which specifically 
authorizes suits in equity as well as other appropriate 
forms of redress.

The present case falls squarely within the fore­
going jurisdiction. The complaint seeks to redress 
the deprivation by State officials of rights, relating 
to the elective franchise, which are secured by the 
due process and equal protection clauses of the Four­
teenth Amendment. The violation of the Fourteenth 
Amendment asserted by the appellants is a private 
wrong directly affecting themselves and large num­
bers of other Tennessee voters. In  Ex parte Yar­
brough, 110 U.S. 651, this Court held that once the 
State has defined the class of persons entitled to vote 
(in that ease, for a member of Congress) the right of 
any member of the class to vote is protected by the 
Constitution. That right is enforceable in the courts. 
Nixon v. Herndon, 273 U.S. 536; cf. Wiley v. Sinkler, 
179 U.S. 58. If  the denial of the right to east a ballot 
is of a sufficiently “ private” character to give the 
victim standing to sue for relief, a denial of the right 
to cast an effective ballot cannot logically be treated 
as a “ public” wrong so as to deprive the victim of 
standing. Thus, federal jurisdiction is also sustained 
by such precedents as Smith v. Allwright, 321 U.S. 
649, and Gomillion v. Light foot, 364 U.S. 339.



52
The standing of private persons to bring an action 

in federal courts to challenge an illegal apportion­
ment was recognized in Smiley v. Holm, 285 U.S. 355. 
There, a unanimous Court reviewed the merits of, and 
granted relief in, a suit by a Minnesota “ citizen, 
elector and taxpayer” (id. at 361) to enjoin the hold­
ing of a Congressional election pursuant to a State 
redistricting statute which violated the federal re­
quirement that redistricting be carried out by the 
State’s lawmaking power, including the approval of 
the governor. Similarly, in Koenig v. Flynn, 285 
U.S. 375, the Court reviewed on the merits a suit 
brought by “citizens and voters” (id. at 379) of 
New York for a writ of mandamus to New York’s 
Secretary of State to compel him to certify that 
Representatives were to be selected according to dis­
tricts defined in a resolution of the State legislature. 
See also Leser v. Garnett, 258 U.S. 130; Hawke v. 
Smith (No. 1), 253 U.S. 221; Stiglitz v. Schardien, 
239 Ky. 799, 40 S.W. 2d 315.

I t plainly follows that the court below had juris­
diction unless some special judge-made rule relating 
to the justiciability of claims of malapportionment 
deprived the court of its normal statutory power to 
remedy the violation, under color of State law, of 
rights secured by the Fourteenth Amendment.

In discussing this central question it is essential to 
observe at the beginning the distinction between (i) a 
hard-and-fast rule denying jurisdiction over the sub­
ject matter, which would exclude from the federal 
courts all legal attacks upon unjust legislative repre­
sentation, and (ii) an application of the doctrine that



53

a court of equity may decline to intervene in any par­
ticular case when it cannot frame a suitable remedy 
or its intervention would be contrary to the public 
interest. The distinction has significant legal and 
practical consequences:

A denial of jurisdiction over the subject matter 
excludes all malapportionment cases from judicial 
consideration as a category without regard to the seri­
ousness of the constitutional wrong or the ability of 
the court to grant effective relief in the particular 
case. The complaint must be dismissed at the outset. 
On the other hand, taking jurisdiction of the subject 
matter, examining the merits and then asking whether 
equity can usefully intervene permits flexible treat­
ment according to the necessities of the particular 
case. In some cases an injunction might issue. 
Other cases might have to be dismissed upon the 
ground that, whatever the wrong, there was no judicial 
remedy; but at least the court would have looked to 
the merits, appraised the degree of the wrong and 
the urgency of the need for judicial action as well as 
the difficulties, and determined whether the court 
could contribute to a solution, instead of disabling it­
self at the outset because of general misgivings about 
the effectiveness of its decrees.

The difference, in short, is between judicial power 
and equitable discretion. We submit that this Court 
has never held, and should not hold now, that the 
federal courts lack the power to deal with an uncon­
stitutional legislative apportionment, however gross 
and easily remedied. On the other hand, we fully rec­
ognize the doctrine of equitable discretion, which may



54
sometimes call for the dismissal of an apportionment 
case without consideration of the merits. We shall 
show, however, that the exercise of sound equitable 
discretion under the circumstances of the present case 
requires, at least for the present, the retention of 
jurisdiction and the conduct of further proceedings 
upon the merits.
A. THE CONSTITUTIONAL ISSUE IS NOT A POLITICAL QUESTION

BEYOND THE JURISDICTION OF THE FEDERAL COURTS

1. The decisions of this Court show that the court 
below had jurisdiction.

This Court has already sustained federal juris­
diction over legal controversies concerning apportion­
ment. I t  has never held that the judiciary lacks 
power to deal with such cases. On the contrary, it 
has considered the merits of apportionment systems 
in several cases and has granted relief in some of 
them. Thus, in Smiley v. Holm, 285 U.S. 355, the 
Court held that the existing Minnesota apportionment 
of United States Representatives did not meet federal 
requirements because the governor had refused to 
approve the bill, and accordingly the Court ordered 
an election-at-large. The Court also held a State ap­
portionment law invalid (the governor had vetoed it) 
and ordered an election-at-large in Carroll v. Becker, 
285 U.S. 380. In Koenig v. Flynn, 285 U.S. 375, the 
Court affirmed a decision of a State court holding that, 
in the absence of a valid districting statute (the gov­
ernor had not approved the resolution of the State 
legislature) to conform to the increase in Represen­
tatives allotted to the State by Congress, the additional 
Representatives must be elected at large. And the



55

Court also took jurisdiction in Wood v. Broom, 287 
U.S. 1, which involved the Reapportionment Act of 
1911. There the Court, deciding the merits, refused 
to apply the Act—which required that Congressional 
election districts be of contiguous and compact terri­
tory and, as nearly as practicable, of equal popula­
tion—because it applied only to districts formed under 
the 1911 Act and not to those formed under the Ap­
portionment Act of 1929. Although the concurring 
opinion of Justices Brandeis, Stone, Roberts, and 
Cardozo is too short for one to be sure of their reason­
ing, it spoke only of a dismissal “for want of equity.” 
That phrase suggests that under traditional equity 
principles an injunction should not issue, not that the 
courts are without jurisdiction to consider the merits 
because a non justiciable political issue is involved.

Colegrove v. Green, 328 U.S. 549, does not hold to 
the contrary. Mr. Justice Frankfurter, joined by 
two other Justices, would have held that State ap­
portionment of Representatives is a political question 
beyond the power of the federal courts to decide, but 
a majority of the Justices participating (Mr. Justice 
Rutledge concurring, and the three dissenting Jus­
tices) took the view that federal courts have the 
power to adjudicate the validity of the system of ap­
portionment under attack. Mr. Justice Rutledge, 
whose vote was dispositive of the case, concluded that 
under Smiley v. Holm, supra, “this Court has power 
to afford relief in a case of this type as against the ob­
jection that the issues are not justiciable” ; but, he 
said, the power should be employed “only in the most 
compelling circumstances” {id. at 565). Since such



56
circumstances were absent because of tbe shortness of 
time before the election, he decided that “the case is 
one in which the Court may properly, and should, de­
cline to exercise its jurisdiction” 27 (id. at 566).

Shortly after the Golegrove case, the scope of the 
Court’s decision became even more clear. In Cook v. 
Fortson, 329 U.S. 675, 678, involving the Georgia 
county unit system, Mr. Justice Rutledge described 
the actual ruling in the earlier case:

A majority of the justices participating re­
fused to find that there was a want of juris­
diction, but at the same time a majority, dif­
ferently composed, concluded that the relief 
sought should be denied. I  was of the opinion 
that, in the particular circumstances, this 
should be done as a matter of discretion, for 
the reasons stated in a concurring opinion.28

In Cook v. Fortson Mr. Justice Rutledge would have 
postponed consideration of the issue of jurisdiction to 
the argument, even though he admitted that the order 
on appeal might “ have become moot in part.” Id. at 
677. The Court, however, dismissed the bills, citing 
United States v. Anchor Goal Go., 279 U.S. 812, which 
involved the dismissal as moot of a bill seeking an 
injunction.

The Court in MacDougall v. Green, 335 U.S. 281, 
passed on the merits of the claim that an Illinois

27 A t this point Mr. Justice Rutledge quoted in a footnote 
from American Federation of Labor v. Watson, 327 U.S. 582, 
593: “The power of a court of equity to act is a discretionary 
one * * *.”

28 For a discussion of the equitable discretion aspect of the 
Golegrove decision, see pp. 68-85 below.



57

statute requiring a candidate of a new political party 
to obtain a specified number of signatures on Ms nom­
inating petitions in fifty of the 102 counties in tbe 
State was unconstitutional. Mr. Justice Rutledge, in 
a separate opinion, stated that “ this case is closely 
analogous to Colegrove v. Green” and “ [e]very rea­
son existing in Colegrove * * * which seemed to me 
compelling to require this Court to decline to exercise 
its equity jurisdiction and to decide the constitutional 
questions is present here. * * * As in Colegrove 
* * * I  think the case is one in which * * * this 
Court may properly, and should, decline to exercise 
its jurisdiction in equity.” Id. at 284, 286-287. No 
member of the Court suggested that the Court was 
without jurisdiction or power to consider the issue.

In South v. Peters, 339 IT.S. 276, 277, the Court 
again recognized that the question is not one of judi­
cial power but of its proper exercise. The decision 
was embodied in a single sentence: “Federal courts 
consistently refuse to exercise their equity powers in 
cases posing political issues arising from a state’s geo­
graphical distribution of electoral strength among its 
political subdivisions” (emphasis added). Rone of 
the cases cited in support of this conclusion held that 
the issue involved was not justiciable. Reliance was 
placed on MacDougall v. Green, in which, as we have 
seen, the Court passed on the merits of a State elec­
tion issue; Colegrove v. Green, in which a majority of 
the Court held that the federal courts have power to 
consider the merits of apportionment cases; and Wood 
v. Broom, in which the Court took jurisdiction but



58

four Justices said the bill should he dismissed “for 
want of equity” 29 (see p. 55 above).

In no subsequent apportionment case has this Court 
held, so far as we can determine, that the federal 
courts lack power to adjudicate the constitutionality of 
apportionment systems. In Cox v. Peters, 342 U.S. 
936, involving an attack on Georgia’s county unit laws, 
and Remmey v. Smith, 342 U.S. 916, involving a suit 
to compel reapportionment of the Pennsylvania legis­
lature, the appeals were simply dismissed for want of 
a substantial federal question, without citation of au­
thority. In Anderson v. Jordan, 343 U.S. 912, the 
Court dismissed the appeal on the authority of Cole- 
grove v. Green, MacDougaU v. Green, and Wood v. 
Broom (the opinion of the Court). As we have seen, 
in the latter two cases the Court considered the issues 
on the merits. In Kidd v. McCunless, 352 U.S. 920, 
involving an attack upon the same Tennessee appor­
tionment law now before the Court, the appeal was 
dismissed on the authority of Colegrove v. Green and 
Anderson v. Jordan. In Radford v. Gary, 352 U.S. 
991, involving an attack on the Oklahoma apportion­
ment laws, this Court affirmed the district court’s dis-

29 The Court in South  v. Peters also cited as authority “cf. 
Johnson v. Stevenson, 170 F. 2d 108 (C.A. 5th Cir., 1948).” 
In  that case, the court of appeals held that 8 U.S.C. (1946 ed.) 
43, which is the same statute as is involved here, did not pro­
vide a remedy, as a matter of substance, for fraudulent returns 
in a Senate primary election: “We have here no question of 
votes excluded contrary to the Constitution, but only of frauds 
and illegalities under the Texas law” {id. at 111). And, sig­
nificantly, the court emphasized that the plaintiff did “not have 
the standing of a voter who is being discriminated against con­
trary to the Constitution and whose right is clearly secured by 
it” {ibid.).



59
missal of the action, citing Colegrove v. Green and 
Kidd v. McCanless. And in Hartsfield v. Slom, 357 
U.S. 916, without citation of authority, the Court de­
nied a motion for leave to file a petition for a writ of 
mandamus to compel the convening of a three-judge 
court to pass on the validity of the Georgia county 
unit laws.30

Gomillion v. Lightfoot, 364 U.S. 339, which was 
decided only last term, makes it plain that a case is 
not removed from the domain of judicial review merely 
because the unconstitutional discrimination is accom­
plished by an exercise of the State’s power to control 
its political subdivisions. The precise holding was 
that the Fifteenth Amendment prevents a State from 
fixing the boundaries of its municipalities in such a 
way as to deprive a citizen of his right to vote because 
of his race. But surely a case is not the more justi­
ciable because it involved racial discrimination and

30 Where the Court has rejected attacks on apportionment 
systems without citation, it  is of course impossible to know the 
basis of the decision. But such action is just as compatible 
with a determination that the case clearly does not present 
“compelling circumstances” necessary for federal judicial relief 
as with a holding of lack of power. Where the Court has 
cited Colegrove v. Green, the reason for this reliance is also 
not entirely clear. As we have seen, four of the seven Justices 
voting in that case upheld the power of the Court to consider 
the merits. The citation of the Colgrove decision to support 
rejection of attacks on state apportionment must therefore, we 
believe, mean reliance on the only holding of the prevailing 
majority in that case, i.e., that an injunction was not justified 
in the circumstances. I t  cannot be assumed that the Court in­
tended to settle this important issue of federal judicial power 
in accordance with the view of the minority of the Court in 
Colegrove v. Green by citing Colegrove in fe r  curiam decisions, 
without the benefit of full briefing or oral argument.

622455— 61----5



60

arises under the Fifteenth., instead of the Fourteenth, 
Amendment. The victims of the discrimination are 
no less identifiable in the present case.

In  the Gomillion case, the Court distinguished Cole- 
grove v. Green on the ground that Golegrove involved 
legislative inaction causing dilution in voting strength, 
in contrast to affirmative legislative action to deprive 
Negroes of their right to vote. The distinction be­
tween legislative action and inaction does not go to 
the power of the federal courts to hear the case, but 
at most to the appropriate remedy. In the instant 
case, as in Gomillion, the suit is one to enjoin State 
officials from taking affirmative action, in the future, 
which would deprive the complainants of their con­
stitutional rights. The character of the controversy 
is not changed nor its justiciability altered by the 
vintage of the legislation under which the State 
officials propose to act. The distinction is important 
only because it may affect the remedy. In Gomillion 
it was possible to fall back upon the old law establish­
ing Tuskegee’s boundary if the enforcement of the 
new statute were enjoined. In Golegrove v. Green the 
Court would have been left at large if the challenged 
apportionment were invalidated. But there might 
well be another acceptable basis of allocation upon 
which to fall back in an apportionment case. Suppose 
that the Tennessee legislature were to enact a valid 
statute apportioning legislative seats among the coun­
ties in exact proportion to the qualified voters and 
that, a month later, the legislature passed another law 
making the present apportionment. The remedy



61

would be obvious and easy to administer but the ease 
would be neither more nor less justiciable than it is 
today. In  another apportionment case the old law 
might not be available to fall back upon as a remedy 
but there might be other simple and effective forms 
of relief. For example, the State constitution might 
provide that the legislature should decennially appor­
tion seats in the lower house with one representative 
from the smallest county and representatives from 
each of the other counties in direct ratio to the num­
ber of eligible voters with no limitation upon the size 
of the legislature. If  the legislature failed to make 
the apportionment for sixty years despite radical 
shifts in population, a court could easily adjudicate 
the constitutional question and grant relief.

The lesson to be drawn from Golegrove v. Green, 
Gomillion v. Lightfoot and these examples, we sub­
mit, is that the propriety of judicial action in this 
class of cases must be analyzed in terms not of juris­
dictional power, but of equitable discretion. There 
is no jurisdictional bar to adjudicating the constitu­
tional issue. The propriety of exercising equitable 
jurisdiction depends upon the court’s ability to frame 
fair and effective judicial relief. In Golegrove v. 
Green an effective decree could not be devised within 
the limits of the judicial function before the election 
without risking still greater unfairness. In Gomil­
lion the remedy was plain. We shall show below that 
in the present case there is every reason to believe 
that suitable relief can be granted if the complainants 
prove their ease.



62

2. Colegrove v. Green is distinguishable from the 
present case.

Even if the views expressed by Mr. Justice Frank­
furter in Colegrove v. Green had prevailed, the prece­
dent would not control the present case both because 
of important distinctions and because its rationale 
has been undermined by subsequent developments.

(a) Colegrove v. Green dealt with the apportion­
ment of Congressional districts. The opinion relies 
heavily upon the power of the House of Representa­
tives to judge the qualifications of its own members 
under Article 1, Section 5, and of Congress to regu­
late the time, place, and manner of holding elections 
under Article 1, Section 4 (328 U.S. at 554) :

The short of it is that the Constitution has 
conferred upon Congress exclusive authority to 
secure fair representation by the States in the 
popular House and left to that House determi­
nation whether States have fulfilled their re­
sponsibility.

Article 1, Sections 4 and 5, are obviously not relevant 
to the apportionment of the legislature.

I t may be suggested that the Congress has a com­
parable power to deal with the unconstitutional ap­
portionment of a State legislature under its power to 
enforce the Fourteenth Amendment “by appropriate 
legislation” (Amend. XIV, Sec. 5). This Court has 
always dealt with any violation of the Fourteenth 
Amendment whenever presented by an actual case 
or controversy without awaiting implementary leg­
islation beyond the general statute conferring 
jurisdiction to remedy deprivations of Fourteenth 
Amendment rights under color of State law (see 
pp. 50-51 above). I t  is unlikely that Congress could



63
legally or practically do more to secure the fair ap­
portionment of State legislatures. The power of 
Congress to implement the Amendment is “ by appro­
priate legislation,” which may well impliedly exclude 
Congressional “ adjudication” of the validity of any 
particular malapportionment. As a practical matter 
the most that Congress could be expected to do is to 
enact legislation, phrased in the general terms of the 
Fourteenth Amendment, which directed the courts to 
deal with violations of the constitutional standard. 
Judicial adjudication and relief is the nub of the bills 
recently introduced in Congress to remedy the evils 
of the malapportionment of State legislatures. S.J. 
Res. 215, S. 3781, and S. 3782, 86th Cong., 2d Sess. 
(1960).

(b) The Civil Rights Acts of 1957 and 1960, both 
enacted subsequent to the decision in Colegrove v. 
Green, also show that the election process is not now 
to be regarded as exclusively political in nature. The 
1957 Civil Rights Act included a provision expressly 
conferring jurisdiction upon the federal district courts 
to hear actions “ to secure equitable or other relief 
under any Act of Congress providing for the protec­
tion of civil rights, including the right to vote.” 28 
U.S.C. 1343(4) (emphasis added). Congress thereby 
made clear that, in its view, questions involving “ po­
litical” rights, “including the right to vote,” were 
“ meet for judicial determination.” Cf. Colegrove V. 
Green, supra, 328 U.S. at 552. The 1960 Act specifi­
cally authorized the federal courts to consider applica­
tions for registration for voting under certain circum­
stances, so as to afford complete judicial protection 
against discrimination. 74 Stat. 90, Congress thereby



64

emphasized, once again, the national policy of rely­
ing on the judiciary as the organ through which the 
right to vote is to be made fully effective. Both acts 
express the intent of Congress and the national con­
sensus that, whatever disagreement may exist as to 
other civil rights, (1) the right to vote should be af­
forded federal protection to the fullest possible ex­
tent, and (2) its protection should principally take 
the form of judicial action.

(c) In Golegrove v. Green, Mr. Justice Frank­
furter also placed much reliance upon the difficulty 
of finding an effective and appropriate judicial rem­
edy for the alleged wrong. I f  the court invalidated 
the existing apportionment, new districts would have 
had to he laid out on the map of Illinois without any 
guidance save the need for twenty-five districts with 
compactness of territory and approximate equality of 
population. Hot only were there a wide number of 
theoretical possibilities from which the court would 
have had to choose without guidance, but also the 
choice would be one which is usually made with an 
eye to purely political considerations and which 
would almost surely affect the balance of political 
power in the Illinois Congressional delegation if not 
in the Congress itself. The only alternative would 
have been to order an election at large, a form of 
relief which might well have created more inequities 
than it cured. See 328 U.S. at 565-566. But this is 
not a reason for adopting a rule that the federal 
courts have no jurisdiction in any apportionment 
controversy. In the first place, it seems plain that 
in many such cases there would be no problem in



65

devising an appropriate judicial remedy. Second, 
several courts have found judicial remedies which 
effectively terminated at least the most serious aspects 
of a malapportionment. E.g., Asbury Park Press, 
Inc. v. Woolley, 33 N.J. 1, 161 A. 2d 705; Magraw v. 
Donovan, 159 F. Supp. 901 (D. Minn.); see Lewis, 
Legislative Apportionment and the Federal Courts, 
op. cit., supra, pp. 1066-1068. Third, there is every 
reason, as we show at pp. 74-85 below, to believe that 
appropriate judicial remedies can be applied in the 
present case.

3. Luther v. Borden, 7 Hoiv. 1, and similar cases 
are distinguishable from the case at bar.

Luther v. Borden, 7 How. 1, was an effort to have 
the federal courts determine the legitimacy of two 
rival governments, both of which claimed the right to 
rule Rhode Island during the Dorr Rebellion. Plain­
tiff brought an action of trespass against defendants 
who justified the entry upon the ground that they 
were privileged under the authority of the charter 
government. Plaintiff replied that the charter gov­
ernment was illegal and therefore the justification 
failed. This Court upheld the ruling of the lower 
courts that “ the inquiry proposed to be made be­
longed to the political power and not to the judicial.” 
Id. at 30. A similar decision was rendered in Pacific 
Telephone Co. v. Oregon, 223 U.S. 118, where plaintiffs 
sought to enjoin the collection of an Oregon tax upon 
the ground that the State government which sought to 
levy the tax was unconstitutional under Article IY, 
Section 5, because it was not republican in form. 
The bill was dismissed for want of jurisdiction.



66

These cases are clearly distinguishable from the pres­
ent controversy for at least two reasons.

(a) In both Luther v. Borden and the Pacific Tele­
phone case the attack was upon the legitimacy of the 
entire State government. The point clearly appears 
from the opinion of Chief Justice White in the latter 
case (223 U.S. at 150):

Its essentially political nature is at once made 
manifest by understanding that the assault 
which the contention here advanced makes it 
not on the tax as a tax, but on the State as a 
State. I t is addressed to the framework and 
political character of the government by which 
the statute levying the tax was passed. I t is 
the government, the political entity, which (re­
ducing the case to its essence) is called to the 
bar of this court * * *.

In Luther v. Borden this Court applied the rule of 
international law that the recognition or non-recogni­
tion of the legitimacy of a foreign government is a po­
litical decision to relations between the United States 
and its constituent states. 7 How. at 44; see also the 
dissenting opinion of Mr. Justice Woodbury, id. at 56- 
57. The Court pointed out that the Constitution treats 
the issue as a political question. When the Senators 
and Representatives from a State seek admission to 
Congress and when the President is called upon to sup­
press an insurrection, or when Congress is called upon 
to execute the guarantee of a republican form of gov­
ernment, it is a political arm that determines the status 
of the State government. Id. at 42-44.



67
The case at bar involves no question concerning the 

legitimacy of the government of Tennessee. The bill 
seeks to prevent the election officials from conducting 
future elections in a manner which deprives the com­
plainants of their rights under the Fourteenth 
Amendment. Complainants do not challenge the le­
gitimacy of any previously chosen legislature or the 
validity of any of its enactments. This case is there­
fore as different from Luther v. Borden and subse­
quent cases in the same line of authorities as are the 
decisions in Nixon v. Condon, 286 U.S. 73, Smith \. 
Allwright, 321 U.S. 649, and similar cases.

(b) One of the major elements in the decision in 
Luther v. Borden was the fear that sustaining a legal 
challenge to the legitimacy of a purported govern­
ment would leave people of the State without an 
authority to govern their affairs. 7 How. at 38. 
The Supreme Court of Tennessee expressed the fear 
that the same consequences might follow from sus­
taining the bill for a declaratory judgment in Kidd 
v. McCanless, 200 Tenn. 273, 292 S.W. 2d 40, appeal 
dismissed, 352 U.S. 920. The Tennessee court deter­
mined that to hold the 1901 Apportionment Act 
unconstitutional would leave Tennessee without a leg­
islature because there was no previous apportion­
ment act to fall back on; therefore no legislature 
would be in existence which could pass a new appor­
tionment act. If  relief is ultimately granted here, 
however, the court need not determine the validity 
of 1901 Apportionment Act as of the time of its



68

enactment or even of the decree, but need determine 
only that the application of the Act in the next elec­
tion would be unconstitutional; and although the 
reasoning behind such a determination might lead to 
the inference that constitutional rights had been 
ignored in past elections, the decree would not ad­
judicate that question.

Kidd v. McCanless, supra, does not require a con­
trary conclusion. The Tennessee court seems to have 
assumed that it was required to pass on the validity of 
the present legislature and did not consider whether its 
decree could be limited to future elections. In the 
present case it is possible to grant only prospective 
relief. This Court is not bound, moreover, by any 
State decisions concerning the legal consequences of 
a federal decree. The consequences to follow, like 
the remedy, would depend upon federal law. Sola 
Electric Co. v. Jefferson Electric Go., 317 U.S. 173y 
176; Holmberg v. Armbrecht, 327 U.S. 392, 395.
B. THE EXERCISE OF SOUND EQUITABLE DISCRETION REQUIRES THE

FEDERAL COURTS TO RETAIN JURISDICTION AND ADJUDICATE THE
MERITS OF THE PRESENT CONTROVERSY

The power of a court of equity is discretionary. 
Even when the court has jurisdiction of the subject 
matter and there is no adequate remedy at law, it 
may stay its hand in the public interest, or because a 
balance of convenience requires the denial of equita­
ble relief, or even because a suitable decree could not 
be framed and enforced without entangling the court 
in non-judical functions. Pennsylvania v. Williams, 
294 U.S. 176, 185; American Federation of Labor v. 
Watson, 327 U.S. 582. A clear illustration in the 
field of private litigation is the ancient rule that even



69
though the complainant prove the making and non- 
performance of a construction contract under circum­
stances in which there is no adequate remedy at law, 
nevertheless the court will deny specific performance 
if the administration of a decree would require the 
court to entangle itself in planning and building the 
project. Errington v. Aynsly, 2 Dick. 692; Pomeroy, 
Specific Performance of Contracts (3d ed.), Section 
312.

This doctrine of equitable discretion underlies the 
position taken by Mr. Justice Rutledge in Cole- 
grove v. Green., 328 TJ.S. 549, 564. He indicated that 
the difficulty of framing a suitable decree and the 
possible damage to the public interest from inter­
fering in an imminent election were sufficient reasons 
for the Court to decline to exercise its jurisdiction. 
See also MacDougall v. Green, 335 TJ.S. 281. And it 
was on this ground that the four concurring Justices 
voted to have the bill dismissed in Wood v. Broom, 
287 TJ.S. 1.

In the present case the equities require the district 
court to retain the bill and adjudicate the merits. The 
seriousness of the wrong, the need for judicial assist­
ance, the absence of other available relief, and a high 
probability that the court can frame an adequate rem­
edy if the Tennessee legislature continues to refuse to 
act, present compelling circumstances to invoke the 
chancellor’s conscience.

1. The merits of the present case can he adjudi­
cated without intruding into the legislative or political 
process.

In protecting voting rights the due process clause 
condemns arbitrary and capricious discrimination.



70

“ To assume that political power is a function exclu­
sively of numbers” may misjudge “ the practicalities 
of government” (MacDougall v. Green, 335 U.S. 281, 
283), but an apportionment which denies qualified 
voters political equality must be founded in some ra­
tional consideration. In  addition to the desirability of 
numerical equality a rational and fair-minded man 
might take into account factors such as geography, 
existing governmental subdivisions, and history. 
After some foundation for a particular apportion­
ment is assembled, the Court must determine whether 
this justification has the rationality required by the 
Fourteenth Amendment. See pp. 32-34 above.

In the present case one does not reach the latter 
question. The only basis of apportionment pre­
scribed by the Tennessee constitution is equality of 
representation in relation to voter population. I t  is 
not suggested that any other factor or standard has 
been taken into account by the Tennessee legislature in 
allowing the 1901 apportionment to continue. Thus, 
the only question is whether an apportionment which 
overrepresents some voters and underrepresents oth­
ers in the ratio of 19 to 1 can be said to be “ rooted in 
reason” where the only basis suggested for the appor­
tionment is equality of representation per voter popu­
lation. This question is no harder for a court to 
answer than other constitutional questions which the 
courts have been adjudicating for decades.

2. The seriousness of the wrong calls for judicial 
action.

The complaint shows that roughly one-third of the 
State’s voters elect a majority of the Senators, and



71

that one-third elects a majority of the representatives 
even under the 1950 census. The imbalance is worse 
today. Thus, it is only a slight exaggeration to say 
that one-third of the voters of Tennessee rule the 
other two-thirds in the enactment of legislation. A 
vote for the State House of Representatives in Moore 
County has nineteen times the weight of a vote in Ham­
ilton County. A vote in Stewart or Chester County 
has almost eight times the weight of a vote in Shelby 
or Knox County. The discrimination runs against the 
cities.

We pointed out earlier in general terms the danger­
ous consequences of arbitrary interference with vot­
ing rights. See pp. 39-44 above. The practical con­
sequences in Tennessee are described at length in 
the pleadings and in appellants’ brief. They show 
that the State legislature has systematically imposed 
a discriminatorily larger proportion of State taxes 
on underrepresented areas but returned a smaller 
proportion of State funds and of federal grants to 
Tennessee on a matching basis.

The problem is not peculiar to Tennessee. Under­
representation of urban voters, as we have shown at 
pp. 35-44 above, is more serious with regard to elec­
tions for the State legislature than to congressional 
elections; itself promotes Congressional malapportion­
ment ; and has seriously undermined responsible State 
and local government, particularly by causing the 
State legislatures to ignore pressing urban needs. 
The urgency of the situation cannot enlarge the juris­
diction of the federal courts but it demonstrates that



72

judicial action which is clearly within the power of 
the federal judiciary should not be wuthheld because 
some undefined practical political realities might be 
supposed to tip the balance of convenience. In these 
circumstances, we believe that the federal courts 
should exercise their equitable discretion to consider 
the merits of allegations that gross malapportionment 
of a State legislature violates the Fourteenth Amend­
ment.

3. Complainants have no remedy outside the federal 
courts.

The citizens of Tennessee who suffer from discrimi­
nation under the alleged malapportionment have al­
ready exhausted their remedies in the State courts. In 
Kidd v. MeCandless, 200 Tenn. 273, 292 S.E. 2d 40, 
appeal dismissed 352 U.S. 920, the Supreme Court of 
Tennessee refused to consider on its merits the consti­
tutionality of continued use of the 1901 Apportion­
ment Act. Had this step not been taken the principles 
of equitable abstention might dictate that the district 
court hold the case until the parties repaired to the 
appropriate State court for resolution of the State 
issues—for example, in order to avoid the necessity 
of deciding a federal constitutional issue or to give 
the State courts an opportunity to decide, authorita­
tively, undecided issues of State law. See, e.g., Bail- 
road Commission v. Pullman Co., 312 U.S. 496; Ameri­
can Federation of Labor v. Watson, 327 U.S. 582. Al­
though the federal courts have generally refused to 
apply the abstention doctrine in civil rights cases, 
{e.g., Lane v. Wilson, 307 U.S. 268; Browder v. Gayle, 
142 F. Supp. 707 (M.D. Ala.), affirmed, 352 U.S. 903),



73
the procedure has considerable attractiveness in cases 
of State legislative malapportionment because it 
would avoid federal involvement and interference in 
the basic framework of State government. See, e.g., 
Matthews v. Rodgers, 284 U.S. 521, 525; Railroad 
Commission v. Pullman Co., supra, 312 U.S. at 500; 
Martin v. Creasy, 360 U.S. 219,224. But in the present 
case the decision already rendered by the Supreme 
Court of Tennessee makes it plain that delaying fed­
eral action to permit relitigation of the questions in 
the State courts would lead to an unnecessary prolifer­
ation of actions without foreseeable benefit.81

I t is equally plain that the complainants have no 
political remedies in Tennessee. The violation of the 
State constitution has continued for half a century. 
The discrimination against complainants and persons 
similarly situated, which violates the Fourteenth 
Amendment, has become worse with legislative in­
action in the face of changing conditions. The 50 
representatives elected by the one-third of the voting 
population who control the lower house of the legisla­
ture are not likely to vote to surrender their power. 
Seventeen of the 50 could not go back to the next 
session if a fair apportionment bill were enacted. 
Significantly sixty percent of the voters elect only 
36 of the 99 members of the House and no reappor-

31 “The King of Brobdingnag gave it for his opinion that, 
‘whoever could make two ears of corn, or two blades of grass 
to grow upon a spot of ground where only one grew before, 
would deserve better of mankind, and do more essential service 
to his country than the whole race of politicians put together’. 
In  matters of justice, however, the benefactor is he who makes 
one lawsuit grow where two grew before.” Chafee, Bills of 
Peace with Multiple Parties, 45 Harv. L. Rev. 1297 (1932).



74

tioranent bill since 1901 has received more than 36 
votes in the House; and sixty-three percent of the 
voters elect only 13 of 33 members of the Senate and 
no reapportionment bill since 1901 has received more 
than 13 votes in that body (R. 28-31).

Complainants cannot circumvent the legislature by 
calling a constitutional convention because in Tennes­
see only the legislature could call the convention. 
Tenn. Const., Art. XI, Section 3. Tennessee has no 
provision for a popular referendum.

Congress may have the power under Section 5 of 
the Fourteenth Amendment to pass general legislation 
correcting malapportionment of State legislatures 
which violate that Amendment. But as a practical 
matter this remedy is unrealistic. Congress has 
steadily refused to act in this area. Were it to 
intervene, it could hardly do more than reiterate the 
general standards of the Fourteenth Amendment and 
provide a judicial remedy. I t  cannot be expected to 
deal with the specific problem in Tennessee and, as we 
have shown at pp. 50-51 above, it has already conferred 
the necessary general jurisdiction upon the federal 
courts to redress violations of constitutional rights 
under color of State law. Thus, as Judge Miller 
stated below (R. 91), “ [t]he situation is such that if 
there is no judicial remedy there would appear to be 
no practicable remedy at all.”

4. There is every likelihood that the district court 
can frame effective relief without overstepping the 
limits of judicial action.

One of the major barriers to the exercise of equity 
jurisdiction in some apportionment eases is the ex-



75
treme difficulty of framing an effective remedy which 
is confined within the proper limits of the judicial 
function. In Colegrove v. Green, 328 TT.S. 549, those 
members of the Court who rejected the suggestion of 
an election at large were faced with the problem of 
remapping the Illinois Congressional districts with 
no guidance except a blank sheet and the figures on 
population. This appeared to be a hopeless task and 
is one which, under American traditions, is extremely 
political.

There is no such difficulty in the present case be­
cause the Tennessee constitution provides more 
precise guidelines (Term. Const., Art. II, Section 
4-6): (i) Seats in both houses of the legislature are 
required to be apportioned according to voter-popula­
tion. (ii) So far as possible the apportionment is to be 
by counties, (iii) A county may not be split into two 
or more districts, (iv) Where two or more counties 
are merged into a single district they must be ad­
jacent. These requirements, together with the princi­
ple that judicial relief should be held to the minimum 
necessary to vindicate constitutional rights, greatly 
reduce the number of possible apportionments. In 
the instant case the district court could fairly start 
with the existing representative and senatorial dis­
tricts and, using these principles, the court could readily 
eliminate the existing unconstitutional discriminations 
with a minimum of directions to the election officals.

The existing senatorial districts are shown on the 
map opposite R. 24. Thirty-three senators must be 
chosen. Using the 1950 census as if it were current,

622455— 61--- -6



70

each district would ideally have 60,000 voters. The 
Eighth district (Hamilton County) has one senator 
for 130,000 voters. The 32nd and 33rd Districts ( Shel­
by County), the 16th and 17th Districts (Davidson 
County), and the 5th District (Knox County), are 
also grossly underrepresented. There are other dis­
tricts which have less than half the ideal number of 
voters, and in several cases they are adjacent. By 
combining the following adjacent overrepresented 
districts and allowing them to choose only one sena­
tor, seats could be made available for the grossly 
underrepresented urban areas:

(1) Combine the 13th and 14th districts into a 
single district with 56,658 voters and give the seat 
released to Hamilton County which would then have 
two senators with 65,000 voters for each.

(2) Combine the 18th and 19th districts into a 
single district with one senator for 56,858 voters and 
give the seat released to Davidson County, which 
would then have three senators for 212,000 voters, or 
about 70,000 voters per senator. .

(3) Combine the 21st and 23rd districts into a dis­
trict with 53,129 voters, and give the seat released to 
Knox County.

(4) Combine the 24th and 27th districts and give 
the seat to Shelby County.

(5) Finally, take Tipton County out of the 30th 
district and add it to the 29th. The 29th district 
would then have just about 60,000 voters. Shelby 
County would then constitute the 30th, 32nd, and 33rd 
senatorial districts and an additional seat would be 
added taken from the 24th and 27th. This would give



77
Shelby four seats for 312,000 voters or one senator 
for each 78,000 voters instead of 1 for each 109,000 
voters as it is today.

By ordering the defendants to conduct the next 
election of State Senators in accordance with the 
existing Tennessee election laws, subject to these five 
changes, the district court could eliminate the worst 
of the current injustices in the apportionment of 
State Senators. None of the proposed changes in­
volves splitting an existing district. No new lines 
have to be put on the map. The merged districts 
would be made up of two compact continuous areas. 
Most of the districts and nearly all the boundary lines 
laid out by the Tennessee legislature would be pre­
served intact. And while the court might not achieve 
quite as fair an apportionment of the State Senate 
as the legislature could make, the most egregious 
wrongs would be corrected.

The same observations apply to the Tennessee 
House of Representatives. By ordering the election 
conducted in accordance with the present election laws 
but combining ten pairs of grossly over-represented 
counties one could give a much fairer representation 
to the areas around Memphis, Nashville, Knoxville, 
and Chattanooga and thereby eliminate most of the 
injustice in the present apportionment (see the exist­
ing House districts on the map opposite R. 26) :

(1) Combine Lake and Obion Counties in 1 
district.

(2) Combine Crockett and Haywood Counties 
in 1 district.

(3) Combine Hardeman and Chester Coun­
ties in 1 district.



78
(4) Combine MeKary and Hardin Counties 

in 1 district.
(5) Combine Williamson and Cheatham 

Counties in 1 district. (Williamson loses its 
separate representative and Robertson has a 
separate representative but no part in district 
18.)

(6) Combine Dickson and Hickman Coun­
ties in 1 district.

(7) Combine Moore and Coffee Counties in 
1 district.

(8) Combine Warren and Camion Counties 
in 1 district.

(9) Combine Jackson and Smith Counties in 
1 district.

(10) Combine White and DeKalb Counties 
in 1 district.

Four of the representatives saved would be given to 
Shelby County, two to Knox County, two to Davidson 
County, and two to Hamilton County.

We do not suggest that this is an ideal solution or even 
that it is free from substantial flaws. We outline it 
for the sole purpose of showing concretely the prac­
ticability of granting the complainants greater pro­
tection by easily administered judicial relief. I f  the 
court is forced to proceed to a final decree, the sug­
gested decree would not be complex. Framing it 
would involve no nice choices. Ho political consider­
ations could enter into the decision. There is no 
wholesale remapping of the existing districts. And, 
there is nothing nonjudicial or extra-judicial about 
such relief.

A federal court should be slow, however, to enter 
even this type of decree; and there is reason to be-



79

lieve that it would never become necessary. Legisla­
tive inaction is encouraged by the courts’ declining 
jurisdiction. A ruling sustaining the judicial power 
to adjudicate the constitutionality of an apportion­
ment on the merits would stimulate legislative 
action not only in Tennessee but elsewhere. This is 
particularly true when the assertion of jurisdiction is 
coupled with a judicial admonition which focuses pub­
lic attention upon the problem. There are excellent 
political reasons for a legislature to prefer reappor­
tioning itself over reapportionment by a court. Thus, 
in Magraw v. Donovan, 159 F. Supp. 901 (I). Minn.) 
a suit attacking the apportionment of the Minnesota 
legislature was referred to a three-judge court. That 
court stated (163 F. Supp. 184, 187) :

Here it is the unmistakable duty of the State 
Legislature to reapportion itself periodically in 
accordance with recent population changes 
* * * I t is not to be presumed that the Legis­
lature will refuse to take such action as is nec­
essary to comply with its duty under the State 
Constitution. We defer decision on all the is­
sues presented (including that of the power of 
this Court to grant relief), in order to afford 
the Legislature full opportunity to “heed the 
constitutional mandate to redistrict.”

At the 1959 session, the legislature enacted a new ap­
portionment act and the litigation was dismissed. 177 
F. Supp. 803. See also Dyer v. Kazuhisa Abe, 138 F. 
Supp. 220 (D. Hawaii), discussed in Lewis, op. cit. 
supra, pp. 1088-1089. There is even reason to be­
lieve that the Illinois Congressional districts were re­
apportioned after the decision in Cole grove v. Green



80

because the political leaders feared that a new suit 
would bring judicial intervention; the original bill 
was dismissed by a four to three division in this Court 
and the decisive vote of Mr. Justice Rutledge stemmed 
partly from his reluctance to interfere in an immi­
nent election. See Lewis, op. cit. supra, p. 1088.

If  the Tennessee legislature failed to act following 
the assertion of jurisdiction, the district court might 
proceed to adjudicate the merits and, if it found a 
violation of the federal Constitution, enter an inter­
locutory decree reserving final action in order that 
the legislature should have the opportunity to act and 
the court to receive evidence as to the appropriate 
remedy. A judicial determination that the present 
mode of apportionment is illegitimate, even without 
any remedial implementation, is bound to have a pro­
found effect upon a legislature. The concept of le­
gitimacy has a power of its own. Governing bodies do 
not lightly reject an authoritative declaration by a 
constitutional organ of government to the effect that 
a challenged course of action is unlawful.

The efficacy of this procedure is illustrated by 
Asbury Park Press, Inc. v. Woolley, 33 N. J. 1,161 A. 
2d 705, where the New Jersey Supreme Court held 
that it had “ [t]he authority and the duty” to act in 
cases of malapportionment. 161 A. 2d at 710. After 
citing numerous cases in which other courts had ac­
cepted this same responsibility,32 the court held (161 
A. 2d at 711) :

32 See Magraw v. Donovan, 159 F. Supp. 901 (D. M inn.); 
Dyer v. Kazuhisa Abe, 138 F. Supp. 220 (D. Hawaii) ; Shaw  v. 
Adkins , 202 Ark. 856, 153 S.W. 2d 415; Armstrong v. Mitten, 
95 Colo. 425, 37 P. 2d 757; Moran v. Bowley, 347 111. 148, 179



81
From the foregoing it is manifest that the 

triunity of our government is not invaded by 
acceptance of this litigation for decision. If 
by reason of passage of time and changing con­
ditions the reapportionment statute no longer 
serves its original purpose of securing to the 
voter the full constitutional value of his fran­
chise, and the legislative branch fails to take 
appropriate restorative action, the doors of the 
courts must be open to him. The lawmaking 
body cannot by inaction alter the constitutional 
system under which it has its own existence.

Despite recognition of its power to act, the court did 
not order any particular relief. Instead, it retained 
jurisdiction of the cause from the date of decision, 
June 6,1960, until the legislature had time to reappor­
tion under the 1960 census figures. The court as­
sumed that the legislators would act pursuant to their
N.E. 526; Brooks v. State. 162 Ind. 568, 70 N.E. 980; Denney 
v. State, 144 Ind. 503, 42 N.E. 929; Parker v. State, 133 Ind. 
178, 32 N.E. 836, rehearing denied, 33 N.E. 119; Stig litz v. 
Schardien, 239 Ky. 799, 40 S.W. 2d 315; Ragland v. Anderson, 
125 Ky. 141, 100 S.W. 865; Merrill v. Mitchell, 257 Mass. 184, 
153 N.E 562; Donovan v. Suffolk County Apportionment 
Com’rs, 225 Mass. 55, 133 N.E. 740; Attorney General v. Suffolk 
County Apportionment Commlrs, 224 Mass. 598, 113 N.E. 581; 
Williams v. Secretary of State, 145 Mich. 447, 108 N.W. 749; 
Board of Supers of County of Houghton v. Blacker, 92 Mich. 
638, 52 N.W. 951; Giddings v. Blacker, 93 Mich. 1, 52 N.W. 
944; State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 
40; Rogers v. Morgan, 127 Neb. 456, 256 N.W. 1; In  re Sherill, 
188 N.Y. 185, 81 N.E. 124; People ex rel. Baird v. Board of 
Sup'rs, 138 N.Y. 95, 33 N.E. 827; Jones v. Freeman, 193 Okla. 
554, 146 P. 2d 564; State ex rel. Lamb v. Cunningham, 83 Wis. 
90, 53 N.W. 35; State v. Cunningham, 81 Wis. 440, 51 N.W. 
724; see also Brown Saunders, 159 Va. 28, 166 S.E. 105; 
Annotation, 2 A.L.K. 1337.



82
oath of office to uphold the State constitution. 161 A. 
2d at 712. When the legislature took no action, the 
State court stated that it itself would act at 5 p.m. on 
February 1, 1961. The Governor thereupon convened 
a special session of the legislature and, at 3 :13 p.m. on 
February 1, the legislature passed a reapportionment 
statute. The Few Jersey Supreme Court, at 5 p.m., 
issued this statement (Few York Times, February 2, 
1961, p. 1, col. 2, p. 16, col. 5) :

We are informed that the legislature has 
adopted an apportionment bill which the Gov­
ernor has signed. Litigation, accordingly, ap­
pears to be moot and hence the prepared 
opinion will not be filed.

Since one cannot he sure that another legislature 
would take the same action under similar circum­
stances, a district court would naturally be reluctant 
to assert jurisdiction without reason to believe that it 
could enter a fair and effective final decree. In ap­
praising the potentialities of judicial intervention, 
however, it is only realistic to recognize the effective­
ness of the interlocutory orders which can be entered 
at various stages of the proceeding and may dispense 
with the necessity of entering a final decree.

In the present case the district court would be free 
to choose among several forms of ultimate relief. 
Besides the remedy suggested above, the court might 
direct an election at large, following the course taken 
in other State and federal cases. See, e.g., Smiley 
v. Holm, 285 U.S. 355; Carroll v. Becker, 285 U.S. 
380; Brown v. Saunders, 159 Va. 28, 166 S.E. 
105. In Kidd v. McC unless, 200 Term. 273, 277, 292



83
S.W. 2d 40, 42, appeal dismissed, 352 U.S. 920, the 
Tennessee Supreme Court stated that “ [tjhere is no 
provision of law for election of our General Assembly 
by an election at large over the State;” 33 but a fed­
eral court, in effectuating a federal right, is not re­
stricted to the remedies provided by State law. 
Deitrick v. Greaney, 309 U.S. 190, 200; D’Oench, 
Diihme & Go. v. F.D.I.G., 315 U.S. 447, 455-456; Sola 
Electric Go. v. Jefferson Electric Go., 317 U.S. 173, 
176.

Another alternative is suggested by the opinions in 
Asbury Park Press, Inc. v. Woolley, supra, 33 N.J. 
1, 161 A. 2d 705, 714. After an enumeration of 
qualified voters, existing patterns of over or under­
representation would become apparent. In those 
cases where overrepresentation exists, a district court 
could order that the value of the vote of each rep­
resentative or senator be reduced by the amount nec­
essary to offset the overrepresentation. In other 
words, in overrepresented counties or districts, rep­
resentatives and senators would be entitled to frac­
tional, rather than full votes. Similarly, legislators 
from underrepresented districts would receive more 
than one vote each.

There are two other possibilities which involve 
neither remapping Tennessee nor an election at large. 
The election officials might be ordered to retain the 
existing districts, to call for the election of one rep­
resentative from each district in the group with the

33 In  Brown v. Saunders, the Virginia Supreme Court or­
dered an election at large despite the fact that the Virginia 
Constitution did not provide for such an election.



84
smallest population—perhaps those with 8,000 voters 
or less in electing representatives—and then to assign 
every other existing district a number of senators or 
representatives in the same ratio to one that its popu­
lation bears to 8,000 without limiting the total number 
elected to either house. The figures would have to he 
rounded off to the nearest whole number. If  it seemed 
preferable, although it would make the legislature very 
large, the existing senatorial districts could be retained 
with the new apportionment of seats but seats in the 
lower house might be allocated to the comities in pro­
portion to the population.

These last solutions would override the provision 
of the Tennessee constitution limiting the total num­
ber of senators to 33 and representatives to 99. The 
objection is not fatal. By hypothesis the constitu­
tional requirement of apportionment according to 
population is now being disregarded. I f  one constitu­
tional requirement or the other must yield until the 
Tennessee legislature is prepared to act, the limit on 
the size of the legislature is obviously the less 
important.

The foregoing discussion of remedies is neither de­
finitive or complete. We seek merely to show that 
there is no basis for assuming that the federal court 
would be helpless even if it were to find that com­
plainants were being deprived of rights under the 
Fourteenth Amendment. We do not seek to show 
that any particular form of relief is practicable or 
desirable. On the contrary, we submit that this case 
should be approached, like other cases of alleged con­
stitutional violation, by ascertaining whether the fed­



eral courts have jurisdiction over the issue presented. 
I f  they have jurisdiction, the constitutional issue 
should then be adjudicated. I f  a constitutional vio­
lation is found, then the question of a remedy should 
next be considered. We do not think the premise 
that the federal courts possess no appropriate reme­
dies can be accepted at this early stage in the pro­
ceedings. In  other cases under the Fourteenth 
Amendment the courts have found new and appro­
priate remedies among their broad and flexible equi­
table powers to prevent violations. The fact that in 
this area devising a proper remedy may call for a 
delicate and resourceful exercise of federal judicial 
power does not affect the court’s jurisdiction or call 
for refusal to act.

In sum, there is urgent need for relief against an 
apparently unconstitutional malapportionment—re­
lief which, in our submission, the federal court has 
power to grant and only it can give. Assuming that 
plaintiffs prove their case, there is great likelihood 
that a court of equity can devise an effective remedy 
to safeguard their constitutional rights. Under such 
circumstances the bill ought not to be dismissed at this 
early stage of the controversy without either deter­
mining the merits or fully investigating, after a hear­
ing, the potentialities of effective relief.

CONCLUSION

For the foregoing reasons, we submit that the three- 
judge court had jurisdiction, and that this is an ap­
propriate case for the federal courts to exercise their 
equitable discretion and consider the alleged violation



86

of the Fourteenth Amendment. We urge, therefore, 
that the judgment below be reversed and the case re­
manded to the three-judge court for consideration of 
the case on the merits.

Respectfully submitted.
Ar c h ib a ld  C ox,

Solicitor General. 
B u r k e  M arsh all ,

» /

Assistant Attorney General.
B ru ce  J . T erris ,

Assistant to the Solicitor General. 
H arold H . G r ee n e ,
D avid R u b in ,
H oward A. G l ic k s t e in ,

Attorneys.
S e pt e m b e r  196L

S.S .  GOVERNMENT PRINTING OFFICE: 1901