Davis v. Mann Brief for the United States as Amicus Curiae

    No. 69

Jit the Supreme Qfmtrt of (Ik ittilwl States
October Term, 1963

L evin N ock D avis, Secretary, State B oard op 
Elections, et al., appellants 

v.
H arrison M an n , et al.

ON APPEAL PROM THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF VIRGINIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

A R C H IB A L D  COX,
Solicitor General,

BRUCE J. T E R R IS ,
Assistant to Solicitor General, 

R IC H A R D  W . SCHM UDE,
Attorney,

Department of Justice, 
Washington, D.C., 205S0.

P !S



I N D E X

Opinion below-----------------------------------------------------------------
Jurisdiction-------------------------------------------------------:--------------
(Questions presented---------------------------------------------------------
Constitutional provisions and statutes involved--------------
Interest of tlie United States------------------------------------------
.Statement__________________________________ - —7-------------

1. The pre-hearing proceedings in the district court-
2. The evidence before the district court-----------------
3. The decision and decree of the district court-------

Argument:
Introduction and summary---------------------------------------

I. The district court correctly proceeded to 
an adjudication of plaintiffs" constitutional 
claims--------------------------------------------------------------

A. The district court properly refused to.
postpone an adjudication pending a 
state determination of the issues------- -

B. Even when abstention is appropriate, a
district court should retain jurisdic­
tion to adjudicate the claims o f federal 
constitutional right------------------------------

I I . Virginia’s legislative apportionment violates the 
Fourteenth Amendment by grossly discrimi­
nating against the people of Arlington and 
Fairfax counties and the City o f Norfolk with­
out rhyme or reason---------------------------------------

A. The Virginia apportionment seriously
discriminates against the voters in 
Arlington and Fairfax counties and in 
the City of Norfolk------------------------------

B. The gross discrimination is based upon
no intelligible policy---------------------------

•'Conclusion-----------------------------------------------------------------------
Appendix A ------------------------------------------------------------- ------
Appendix B ------------------------------------------------*-------------------

(1)

Page
1
1
2
2
2
Ot)
4
5 
9

12

14

14

26

29

30

33
49
51
59

709- 361— 63--------------- 1



II

C I T A T I O N S
Cases: Fage

Albertson v. Millard, 345 U.S. 242__________________15,26
American Federation o f Labor v. Watson, 327

U.S. 582___________________________________________15,26
Armstrong v. Mitten, 95 Colo. 425, 37 P. 2d 757____ 48
Asbury Park Press, Inc. v. Wooley, 33 N.J. 1, 161

A. 2d 705_______________________________________  48
Baker v. Carr, 369 U.S. 186_____________________12,14, 30
Borden’s Farm Products Go. v. Baldtoin, 293

U.S. 194__________________________________________ 48
Brooks v. State, 162 Ind. 568, 70 N.E. 980__________  48
Browder v. Gale, 142 F. Supp. 707, affirmed, 352

U.S. 903_________________________________________  20
Brown v. Saunders, 159 Va. 28, 166 S.E. 105________  23
Burford v. Ntm CiZ Co., 319 U.S. 315_____________  27
Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168_15,16,26
Golegrove v. Green, 328 U.S. 549___________________28,29
Cook v. Fortson, 329 U.S. 675________________________  29
Denny v. State, 144 Ind. 503, 42 N.E. 929__________  48
Dyer v. Kazuhisa Abe, 138 F. Supp. 220_________ 16,20
Goesaert v. Cleary, 335 U.S. 464___________________ 47
Government and Civic Employees Organizing Com­

mittee v. Windsor, 353 U.S. 364______________ 15,16, 26
Gray v. Sanders, 372 U.S. 368______________________  33
Harrison v. National Association for the Advance­

ment of Colored People, 360 U.S. 167_____15,17,18,26
Hartford Co. v. Harrison, 301 U.S. 459____________  48
Hawks v. Ha-mill, 288 U.S. 52_____________________  27
Lane v. Wilson, 307 U.S. 268---------------------------------- 20
Lassiter v. Northampton County Board o f Elections,

360 U.S. 45______________________________________  18
Lein v. Sathre, 201 F. Supp. 535___________________ 16
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61__  47
Louisiana Power <§ Light Co. v. City of Thibodaux,

360 U.S. 25_____________________________________ _ 12,26
Maryland Committee for Fair Representation v.

Tawes, No. 29, this Term--------------------------- 2,12.16, 23
Matthews v. Rodgers, 284 U.S. 521___________________ 27
McNeese v. Board o f Education, 373 U.S. 668______12,19
Mitchell v. Wright, 154 F. 2d 924___________________ 21
Monroe, v. Pape, 365 U.S. 167-----------------------------------  17



Ill

Moss v. Burkhart, U.S.D.C., W.D. Okla., decided Page
July 17, 1963__________ ___________________________ 16

National Association for the Advancement of Colored
People v. Button, 371 U.S. 415___________________ 18

Parker v. State, 133 Ind. 178, 32 ISLE. 836__________  48
Pennsylvania v. Williams, 294 U.S. 176____________  27
Ragland, v. Anderson, 125 Ky. 141, 100 S.W. 865_____ 48
Railroad Commission v. Pullman Co., 312 U.S. 496__ 16, 26
Reynolds v. Sims, Nos. 23, 27, 41, this Term__________ 24,48
Rice, E x parte, 143 So. 2d 848_____________________  24
Rogers v. Morgan, 127 Neb. 456, 256 N W . 1_______  48
Romero v. Weakley, 226 F. 2d 399___________________  20
Royster Guano Co. v. Virginia, 253 U.S. 412________  47
Scholle v. Secretary o f State, 367 Mich. 176, 116

N.W. 2d 350_______1______ ______________________  48
Sims v. Frank, 208 F. Supp. 431, pending on appeal 

sub. nom. Reynolds v. Sims, Nos. 23, 27, 41, this
Term_____________________________________________  48

Spector Motor Service, Inc. \. McLaughlin, 323 U.S.
101___________________________________________  15, 16, 26

Stainba.ck v. Mo Ilock K e Lok Po, 336 U.S. 368______ 27
Stapleton v. Mitchell, 60 F. Supp. 51, appeal dis­

missed sub. nom. McElroy v. Mitchell, 326 U.S. 690_ 21
State ex rel. Attorney General v. Cunningham, 81

Wis. 440, 51 N.W. 724___________________________  48
State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53

N.W. 35______________________________________   48
Stiglitz v. Sehardien, 239 Ky. 799, 40 S.W. 2d 315_ 48
Thigpen v. Meyers, U.S.D.C. W.D. Wash., decided

May 3, 1963______________________________________  48
Toombs v. Fortson, 205 F. Supp. 248______________  16
Waid v. Pool, 255 Ala. 441, 51 So. 2d 869__________  24
Wesberry v. Sanders, No. 22, this Term____________  24
Westminster School Dist. v. Mendez, 161 F. 2d 774_ 21
Wilson v. Beebe, 99 F. Supp. 418___________________  21
WMCA, Inc. v. Simon, No. 20, this Term_______ 23, 40, 45

Constitutions and statutes:
U.S. Constitution:

Fourteenth Amendment______________________________2,
4,11,12,13, 21, 24, 28, 29, 30, 45,48 

Civil Eights Act, 42 U.S.C. 1983, 1988-______________  4



Page
Georgia Constitution, Art. 1, c. 2-1, Secs. 102, 103------ 24
Virginia Constitution, as amended:

Article 1, Sec. 8________________________________  22
Article I, Sec. 11------------------  22
Article IV , Sec. 40__________________________ 2, 22,51
Article IV , Sec. 41__________________________5,22,51
Article IV , Sec. 42------------------------------------------ 2, 5, 51
Article IV , Sec. 43_________________________ 2,6,22,51
Article IV , Sec. 55_____- ______________    23

Virginia Constitution o f 1864 (Section 6) -----------------  22
Virginia Acts of Assembly, Chapters 635 and 638 

(1962) :
Sec. 24-12______________________________________  6,54
Sec, 24-14— ____________________________________ 6, 51

Virginia Code:
24 Va. Code 17___________________________ 2, 34,56
24 Va. Code 18_______________________________2,34, 57
24 Va. Code 19_______________________________2,34,58
24 Va. Code (1962 Supp.) 23.1______________ 2,34,57

Miscellaneous:
Chafee, Bills of Peace with Multi f ie  Parties. 45

Harv. L. Rev.' 1297__________________   19
Department of Commerce, County and City Data 

Booh, 196%_______________________________________  42

IV



J it  fltt j&ajiramt flfottrt of the I n t e l  states
O cto ber  T e r m , 1963

No. 69

L e v in  N o c k  D a v is , S e c r e t a r v , S t a t e  B oard  of 
E l e c t io n s , e t  a l ., a p p e l l a n t s  

v.
H a r r is o n  M a n n , e t  a l .

ON A P P E A L  FROM  T E E  UNITED STATES D IST R IC T  COURT FOR  
T E E  E ASTERN  D IST R IC T  OF V IRG IN IA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

O PIN IO N  BELOW

The opinion of the three-judge district court (R. 
57-79) is reported at 213 F. Supp. 577.

JU R ISD IC T IO N

The order of the district court was entered on No­
vember 28, 1962 (R. 79). The notice of appeal to this 
Court was filed on December 10, 1962, and probable 
jurisdiction was noted on June 10, 1963 (R. 81, 83). 
The jurisdiction of this Court rests upon 28 TI.S.C. 
1253.

(i)



2

QUESTIONS P R E SE N TE D

1. Whether the federal district court, instead of 
deciding the constitutionality of the apportionment 
of Virginia’s legislature under the Fourteenth Amend­
ment, should have either dismissed or stayed the pro­
ceedings to allow a suit to be brought in a State court 
in order to decide State issues.

2. Whether the apportiomnent of the Virginia 
legislature violates the equal protection clause because 
it discriminates against voters in Arlington and Fair­
fax Counties and the City of Norfolk without rhyme 
or reason.

CO N ST ITU T IO N A L PR O V IS IO N S A N D  ST A T U T E S IN V O L V E D

Sections 40 to 43 of Article IV  of the Constitution 
of Virginia are set forth in Appendix A, p. 51. 
Chapters 635 and 638 of the Virginia Acts of As­
sembly for 1962 are set forth in Appendix A, pp. 51-56. 
Sections 17-19 and 23.1 of 24 Virginia Code are set 
forth in Appendix A, pp. 56-58.

IN T E R E S T  OE T H E  U N ITED ' STATES

This is one of four cases pending argument on the 
merits in which the Court will be called upon to 
formulate under the Fourteenth Amendment the con­
stitutional principles applicable to challenges to mal­
apportionment of a State legislature. The United 
States has filed its principal brief in Maryland Com­
mittee for Fair Representation v. Tawes, No. 29, be­
cause that ease presents a greater variety of issues. 
There, we presented a compendious analysis of the 
substantive issues in all four cases showing their 
relation to each other. Substantively, the instant case 
raises the specific problem of the validity of discrim­



3

ination in per capita representation against the citi­
zens of three areas without any rational justification 
whatever. Procedurally, the instant case raises ques­
tions concerning the relationship between federal and 
State forums in the adjudication of such constitutional 
issues.

Individually and collectively, these cases present 
issues of great importance to millions of American 
citizens seeking full and fair participation in their 
State governments. This is the primary basis of the 
government’s interest.

ST A T E M E N T

The plaintiffs—four citizens of the United States 
and of the Commonwealth of Virginia, who are resi­
dents and qualified voters of Arlington and Fairfax 
Counties—filed a complaint on April 9, 1962, in the 
United States District Court for the Eastern District 
of Virginia, in their own behalf and on behalf of all 
voters in Virginia similarly situated, challenging the 
apportionment of the Virginia legislature (R. 1-31). 
The defendants, who were sued in their representative 
capacities as officials charged with duties in connec­
tion with State elections, include the Governor and 
Attorney General of Virginia; three members of the 
Virginia Board of Elections; the three members of 
the Electoral Boards of Fairfax and Arlington Coun­
ties, as representatives of all members of city and 
county electoral boards of Virginia; and the Clerks of 
the Circuit Courts of Arlington and Fairfax Counties, 
as representatives of all of the county and city clerks of 
Virginia (R. 1, 3-4). The plaintiffs claimed rights un­
der the Civil Rights Act, 42 U.S.C. 1983, 1988, and 
asserted jurisdiction under 28 U.S.C. 1343(3) (R. 2).



4

The complaint alleged that the present statute ap­
portioning of the General Assembly, as amended in 
1962, results in “ invidious discrimination”  since- 
voters in Arlington and Fairfax Counties are given 
substantially less representation than voters residing' 
elsewhere in the State (R. 6-7). The plaintiffs as­
serted that the discrimination violates the Fourteenth 
Amendment as well as the Virginia Constitution. 
They contended that the requirements of the Four­
teenth Amendment and the Virginia Constitution 
could be met only by a re-distribution of legislative 
districts among the counties and cities of the State- 
“ substantially in proportion to their respective popu­
lations”  (R. 7-8).

The complaint sought the convening of a three- 
judge district court. As relief, plaintiffs asked: (1) 
a declaratory judgment that the statutory scheme o f 
reapportionment, prior as well as subsequent to the 
1962 amendments, contravenes the equal protection 
clause of the Fourteenth Amendment and is, there­
fore, unconstitutional and void; (2) a prohibitory 
injunction restraining the defendants from perform­
ing their official duties with respect to the election 
of members of the General Assembly pursuant to* 
the present statute; and (3) a mandatory injunction 
requiring the defendants to conduct the next primaries 
and general election for legislators on an at-large 
basis throughout Virginia (R. 8-9).

1. The Pre-hearing Proceedings in the District 
Court. On April 17, 1962, the Chief Judge of the 
Court of Appeals for the Fourth Circuit convened a 
three-judge district court. Four citizens of the 
United States and Virginia, who are residents and



5

qualified voters of the City of Norfolk, moved on 
May 25, 1962, to intervene as intervenor-plaintiffs 
against the original defendants and against four ad­
ditional defendants, namely, the Clerk of the Cor­
poration Court for the City of Norfolk and the three 
members of the Electoral Board of Norfolk (R. 32- 
43). The application set out the substance of the alle­
gations and grounds contained in the complaint and 
sought the same relief from the court which the 
plaintiffs were seeking (R. 36-43). The applica­
tion was granted (see R. 58). On June 20, 1962, the 
plaintiffs and intervenor-plaintiffs sought and ob­
tained leave to amend the complaint by adding an 
.additional prayer for relief that, unless the General 
Assembly “ promptly and fairly”  reapportioned the 
legislative districts, the court should reapportion the 
districts so as to accord the parties and others simi­
larly situated “ fair and proportionate”  representa­
tion in the legislature (R. 55).1

2. The Evidence Before the District Court. The 
Virginia Constitution provides for a Senate of not 
more than 40 nor less than 33 members, and for a 
House of Delegates of not more than 100 nor less 
than 90 members. Art. IY , Sec. 41, 42 (see Appendix 
A., p. 51). At all relevant times, State statutes have 
fixed the number of senators at 40 and of delegates 
at 100. The constitution also specifies that a reap­
portionment must be made at least once every ten 
years (Art. IV, Sec. 43). The constitution provides

1 The plaintiffs introduced into evidence two alternate plans 
for reapportioning the House of Delegates (R. 105-114, 119- 
131) and three alternate plans for the redistricting of the Sen­
ate (R. 133-158).



6

no express standards, however, for the apportion­
ment of representatives and it also leaves the estab­
lishment of the districts to legislation.

The core of the evidence before the district court 
is the basic figures showing the population of the sev­
eral districts from which senators and delegates are 
chosen and the number of senators and delegates as­
signed to each. The most convenient tabulation ap­
pears at R. 11-24. Prom that data other statistical 
comparison were derived. Since the 1962 appor­
tionment was enacted only two days before the 
complaint was filed and made only a small change 
in Virginia Code 21-12, 14, which had been last 
amended in 1958, the evidence covers both the pres­
ent and last previous apportionments.

Although the conclusions to be derived from the 
data are matters of argument, the basic figures make 
it abundantly clear that the people of Arlington and 
Fairfax Counties and the City of Norfolk suffer from 
gross inequalities in per capita representation in both 
houses of the Virginia legislature. Since there are 40 
senators and Virginia had a population of 3,966,949, 
according to the 1960 census, the ideal ratio would be 
one senator for 99,174 people. Arlington County has 
only one senator for 163,401 people—only 61 percent 
of its fair representation. Its voters are the most un­
derrepresented in the State. The City of Norfolk 
has only 65 percent of its fair share—two senators 
for a population of 305,872—making it the second 
most underrepresented senatorial district. Fairfax, 
with two senators for 285,194 people, is the third 
worst represented area with only 70 percent of a fair 
apportionment.



/

The inequality is also apparent from the following- 
table showing the Arlington, Fairfax and Norfolk 
districts in comparison with the most overrepresented 
districts as well as other typical areas (R. 18-20):

Senatorial district
Total

population
(1960)

Number
of

Senators

Population
per

Senator

Ratio to 
most under­
represented 

district

Arlington_____________________________ ________ 163,401 1 163,401 1.00
City of Norfolk________________________________
Fairfax---------------------------------------------------------------

305,872
1

2 152,936 1.06

City of Fairfax------------------ --------------------------------
Falls Church_________________ _________________

> 285,194 2 142,597 1.14

City of Richmond------- -------------------------------------- 219,958 2 109,979 1.58
City of Alexandria-------------- -------- ----------------------
Henry---------- ----------- -------------------- --------------------
Patrick-------------- -----------------------------------------------

91,023 1 91,023 1.79

Pittsylvania_______________________ ______ ____
City of Danville____________ — --------------- --------
City of Martinsville____________________________
Bland------ ----------- -------------------------------- ----------- -

. 179,288 2 89,644 1.82

Giles--------------------------- -------- -----------------------------
Pulaski_____________________________ ____ - ........
Wythe____________________ ____ _________ - ........

| 72,434 

]

1 72,434 2. 25

Fauquier___________ ________ —-------- ----------------
Loudoun............................... ................. ........ - ........ -
Brunswick_____________________________________

[ 63,703 

1

1 63,703 2.56

Lunenburg____________________________________
Mecklenburg------- ----- ---------------------------------------

> 61,730 1 61,730 2.64

State total............... ........................ ................. 3,966,949 40 99,174 1.65

Thus, the ratio between the most overrepresented and 
the most underrepresented districts is more than 2% 
to 1. Twelve districts have over twice the representa­
tion of Arlington County; ten have over twice the 
representation of Norfolk; and six have over twice 
the representation of Fairfax.1*

The same discrimination against the people of 
Arlington and Fairfax Counties and the City of Nor-

la In mailing such calculations, we have considered overlapping 
districts as one large district. For example, under the appor­
tionment before 1962, Amhurst County (population 22,953) and 
the City of Lynchburg (population 54,190) together had a dele­
gate, Lynchburg alone had a delegate, and Nelson (population 
12,752) and Amhurst Counties had a delegate. We have con­
sidered all three as composing one district with a population of 
90,595 and three delegates.



8

folk is apparent in the figures relating to the House 
of Delegates. Fairfax, the third most underrepre­
sented district in the Senate, is the most underrepre­
sented in the House of Delegates, having only 42 per­
cent of the ideal representation. Arlington, the most 
underrepresented district in the Senate, is the fifth 
most underrepresented district in the House, with 
only 73 percent of its fair share. The City of Nor­
folk is the sixth most underrepresented district in the 
House of Delegates, with 78 percent of its fair repre­
sentation.

The discrimination in the House of Delegates is 
also apparent from the following table comparing 
Arlington and Fairfax Counties and the City of Nor­
folk with the most overrepresented districts and other 
typical districts (R. 21-24) :

House district
Total

population
(1960)

Number of 
delegates

Population
per

delegate

Ratio to 
most 

underrep­
resented 
district

Fairfax Comity___________________________
City of Fairfax. _____ _______ ___________________ [ 285,194 95,064 1.00
City of Falls Church__________________________
Chesterfield.. _____________________ ______ ____
City of Colonial Heights____ ____ ______________

1
J  80,784 1 80,784 1.17

A rlington...____ _____ ____ ____________________ 163,401 3 54,467 1.74
City of Norfolk____________ ____ _______________ 305,872 6 50,978 1.86
City of Newsport News________________________ 113,662 3 37,887 2.50

W ise._____ ______ _____________________________ | 74,416 2 37,203 2. 55
City of N orton.._____ ______________ _____ _____
City of Petersburg_____________________________
Dinwiddie........ ................. ............................. .......... J  58,933 2 29,466 3. 22
Pittsylvania_____ _______________ ____________ _ 58,296 2 29,148 3. 26
Rockingham_______________________ ___________
City of Harrisonburg__________ ____ ___________ | 52,401 2 26,200 3.62
Loudoun______________________ __________ 24,549 1 24,549 3.87
Bland_______________ _______ _______ __________
Giles_____________________ _____ ______ _____ _ J  23,201 1 23,201 4.09
Grayson__________ _______ ________ ____ _____
City of Galax.............................. .......... ................... |  22,844 1 22,644 4.19
Wythe.............................. .......................................... 21,975 1 21,975 4.32
Shenandoah................................................................. 21,825 1 21,825 4.35

State total................................................... . 3,966,949 100 39,669 2.40



9

Excluding Arlington, Norfolk, and several pertinent 
overlapping districts (see note la, p. 7), every district 
except six has more than twice the representation of the 
people o f Fairfax. Twenty-seven districts have more 
than three times the representation of the people of 
Fairfax. The ratio between Fairfax and the four 
most overrepresented districts is more than 4 to 1. 
Twelve districts had twice the representation of 
Arlington, and six, twice that of Norfolk.

The evidence also showed that measured simply by 
the percentage of the population required to elect a 
majority in each house of the legislature, Virginia 
ranks well up on the list of well-apportioned States. 
It requires just under 40 percent of the population to 
elect majorities in both the Senate and House of 
Delegates.

3. The Decision and Decree of the District Court. 
On November 28, 1962, the district court, one judge 
dissenting, sustained the plaintiffs’ claim and entered 
an interlocutory order (R. 57-80). In an opinion by 
Judge Bryan, concurred in by Judge Lewis, the court 
held that the complaint alleged a claim upon which 
relief could be granted; that the complaint pleaded a 
class action and an actual controversy within the 
Declaratory Judgment Act; and that the action was 
not barred by the 11th Amendment as one by private 
citizens against a State (R. 57-59).2 The court refused 
to stay the case on the ground that the plaintiffs should 
first procure the views of the State courts on the 
validity of the apportionment, holding that since *

* The court sustained motions to dismiss the suit as to the 
Governor and Attorney General, holding that those officials had 
no “ special relation" to the elections in question (R. 59).



10

neither the 1962 legislation nor the State constitution 
was ambiguous, no question of State law requiring 
abstention was presented.

In applying the equal protection clause, the court 
ruled, although population is the “predominant”  con­
sideration, other factors including “ [cjompactness and 
contiguity of the territory, community of interests of 
the people, observance of natural lines, and conformity 
to historical division * * * are all to be noticed in 
assaying the justness of the apportionment” (R. 65). 
While exactitude in population is not constitutionally 
required, the court said, “ there must be a fair ap­
proach to equality unless it be shown that other ac­
ceptable factors may make up for the differences in 
the numbers of people”  (R. 66). In view of the gross 
inequalities in representation in Virginia (see pp. 6-9 
above), the court put the burden of explanation upon 
the defendants but found that they failed to meet i t ; 
consequently, the court concluded that the discrimi­
nation against Norfolk City and Arlington and Fair­
fax Counties was invidious and violates the equal pro­
tection clause of the Fourteenth Amendment (R. 67).

As for relief, the court said that, while it would 
have preferred for the General Assembly to correct 
the unconstitutionality of the 1962 legislation, it would 
not defer the case until the next regular session of the 
General Assembly in January 1964, because the dele­
gates to be elected in 1963 would hold office until 1966 
and the senators to be elected in 1963, until 1968 (R. 
67-68), which would cause “unreasonable” delay in 
correcting the injustices in the House and Senate 
<R. 68).



11

The interlocutory order (1) declared that the 1962 
apportionment violated the equal protection clause of 
the Fourteenth Amendment and accordingly was void 
and of no effect; (2) restrained and enjoined the de­
fendants from proceeding under the 1962 legislation, 
but stayed the operation of the injunction until 
January 31, 1963, so that either the General Assembly 
could act or an appeal could be taken to this Court; 
(3) provided that, if neither of these steps were taken, 
the plaintiffs might apply to the court for further re­
lief ; and (4) retained jurisdiction over the cause for 
the entry of such orders as may be required (R. 80).

Judge Hoffman dissented both on the merits of 
plaintiffs’ claim and on the question of relief and pro­
cedure (R. 68-79). On the merits, he said that he 
was not prepared to say that the discrimination under 
the 1962 legislation violated the Fourteenth Amend­
ment “ in the absence of further guidance”  from this 
Court or the Virginia Court of Appeals (R. 69). He 
-said that the majority decision “place[d] too much 
emphasis upon the weighted vote of one county, city, 
or district as contrasted with the weighted vote in an­
other county, city or district”  (R. 69). On the ques­
tion of relief and procedure, Judge Hoffman favored 
application of the doctrine of abstention, at least until 
the plaintiffs should have exhausted their remedies in 
the State courts (R. 70, 7F-78).

The defendants noted an appeal on December 10, 
1962, to this Court (R. 81-83). The Chief Justice 
granted a stay of the injunction pending disposition 
o f  the case by this Court.



12

A R G U M E N T

INTRODUCTION AND SUMMARY

The instant case raises a threshold question not 
presented in the companion cases. The district court 
refused defendants’ request that it abstain from de­
ciding the basic issues under the federal Constitu­
tion so that they could be litigated in the State courts,, 
and that ruling is questioned on appeal.

We submit that ruling was correct. The federal 
courts have power to determine suits challenging the 
constitutionality of a State’s legislative apportion­
ment. Baker v. Carr, 369 U.S. 186. A  federal action 
over which the court has jurisdiction is not to be 
dismissed merely because an alternative remedy may 
be available under State law in the State courts. 
E.g., Louisiana Power & Light Co. v. City of Thibo- 
daux, 360 U.S. 25, 27. In this case there are no State 
issues to be resolved before reaching the federal 
question, nor is the constitutional right asserted by 
the plaintiffs “ entangled in a skein of state law that 
must be untangled before the federal case can pro­
ceed.” McNeese v. Board of Education, 373 U.S.. 
668, 674. The Virginia statute is precise on its face. 
Plaintiffs’ claim is predicated upon the Fourteenth 
Amendment. Therefore, the district court not only 
had discretion but the duty to decide the ease.

Our basic analysis of the constitutional standards 
to be applied in adjudicating challenges to the con­
stitutionality under the Fourteenth Amendment of an 
apportionment of seats in a State legislature is set 
forth in the Brief for the United States in Maryland 
Committee for Fair Representation v. Taives, jSTo..



13

29, this Term.8 Here, we predicate that the Four­
teenth Amendment imposes substantive limitations 
upon State legislative apportionment, as urged in 
that brief (pp. 26-29).

We show below that the apportionment of the Vir­
ginia legislature violates the second proposition ad­
vanced in our Maryland brief (pp. 34-39)—that the 
equal protection clause condemns gross inequalities in 
per capita representation that have no rhyme or rea­
son. We submit that, the people of Fairfax and 
Arlington Counties and of the City of Norfolk have 
been capriciously denied anything approaching equal 
representation in either house of the Virginia legis­
lature. Since these areas contain a substantial part 
of the population, the discrimination cannot be brushed 
aside as the kind of trifling inequality that sometimes 
emerges in the operation of an essentially fair sys­
tem. The only justifications suggested, in fact, fail 
to explain the invidious discrimination. Even if 
appellants’ figures concerning military personnel and 
their dependents were acceptable, they would not 
support the relatively inadequate representation ac­
corded to Arlington and Fairfax Counties. Nor can 
the discrimination be explained as an attempt to bal­
ance urban and rural power. Other urban areas, 
such as the City of Richmond, are given appropriate 
representation. 3

3 The analysis, as stated in our Maryland brief, proceeds on 
the assumption that the Fourteenth Amendment permits rea­
sonable deviations from equal per capita representation in at 
least one house of the legislature. The assumption is made 
arguendo, reserving further judgment, because the’ issue does 
not have to be decided in the present cases.

709- 361— 6:.!-----------2



14

I

THE DISTRICT COURT CORRECTLY PROCEEDED TO AN ADJU­
DICATION OF PLAINTIFFS’  CONSTITUTIONAL CLAIMS

The district court had jurisdiction of the subject 
matter of the present action. The plaintiffs, who as 
individual voters were the victims of the discrimina­
tion against the people of Arlington and Fairfax 
Counties and of the City of Norfolk, had standing 
to bring the action. The federal question raised by 
the complaint is justiciable. All three points were 
settled beyond dispute in Baker v. Carr, 369 U.S. 
186. Appellants’ argument is that the federal court 
should have dismissed the complaint because the 
issues had not first been litigated in the State courts, 
and in this connection appellants point to the suit 
entitled Tyler v. Davis in a State court (see Appel­
lants’ Brief, pp. 26-27), which was instituted after 
the decision below, raising the same questions. We 
submit that there was no occasion for the district court 
to postpone adjudication and that, in any event, it 
would have been error to dismiss the complaint.

A . T H E  DISTRICT COURT PROPERLY REFUSED TO POSTPONE A N  A D JU D I­

CATIO N  P E N D IN G  A  STATE D E T E R M IN A T IO N  OF T H E  ISSUES

Where a federal court has jurisdiction of an action 
arising under the Constitution of the United States, 
it is the court’s duty to proceed promptly to a final 
adjudication without deferring to State courts unless 
some recognized ground of abstention appears. Only 
two grounds have any possible relevance in the 
present case.



15

1. Where the meaning of a State statute or other 
State action is uncertain, and therefore its constitu­
tionality cannot be determined until the State has 
given its action definitive meaning, the federal pro­
ceeding may be suspended for a reasonable period 
pending clarification of the question of State law in 
a State court. The reason for the rule is that the 
federal courts will not anticipate a constitutional 
controversy by adjudicating the validity of State 
action upon a hypothetical interpretation. E.g., 
Government and Civic Employees Organizing Com­
mittee v. Windsor, 353 U.S. 364, 366; Chicago v. 
.Fielderest Dairies, Inc., 316 U.S. 168, 171-172; Spec- 
tor Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 
104-105; American Federation of Laihor v. Watson, 
327 U.S. 582, 596; Albertson v. Millard, 345 U.S. 242, 
.244; Harrison v. National Association for the Ad­
vancement of Colored, People, 360 U.S. 167.

This ground of abstention is obviously inapplicable 
to the present case, even if Harrison v. National As­
sociation for the Advancement of Colored People, 
supra, be thought to make the doctrine applicable to 
cases under the Civil Rights Act involving an ante­
cedent question of State law. Plaintiffs’ claims under 
the Fourteenth Amendment require no preliminary 
interpretation of the State legislation or of the sig­
nificance of executive action. As both the majority 
and dissenting judges in the court below agreed (R. 
59, 76), the Virginia apportionment statute is clear on 
its face. It defines exactly each legislative district. 
It assigns specific numbers of representatives to each



16

district in the Senate and House of Delegates. There 
is no room for interpretation. Consequently, there is 
no justification for abstention. Toombs v. Fortson, 
205 P. Supp. 248, 253 (N.D. Da.) ; Moss v. Burkhart, 
U.S.D.C., W.D. Okla., decided July 17, 1963; Dyer v. 
Kazuhisa Abe, 138 P. Supp. 220, 233 (I). Hawaii).4

2. The Court has also held that where the State- 
action challenged in a federal court may be illegal 
under the State’s own law, either statutory or consti­
tutional, then the federal court should suspend action 
until proceedings in the State courts reveal whether 
there is need to decide the federal constitutional ques­
tion. The rule is based partly upon the principle that 
the federal courts should not adjudicate constitutional 
questions unless their resolution is unavoidable, and 
partly upon the desirability of avoiding unnecessary 
conflict between the federal, courts and State govern­
ments. Government and Civic Employees Organizing 
Committee v. Windsor, 353 IT.S. 364, 366; Railroad 
Commission v. Pullman Co., 312 TI.S. 496, 498, 500- 
501; Chicago v. Fieldcrest Dairies, Inc., 316 IT.S. 168, 
171-172; Spector Motor Service, Inc. v. McLaughlin,. 
323 H.S. 101, 104-105. The doctrine is inapplicable 
to the present case, however, first, because the action 
is one under the Civil Rights Act and, second, because

4 Numerous other federal courts have considered the consti­
tutionality of State apportionments without finding even the 
necessity o f alluding to this question. See the federal cases 
cited in the government’s brief in Maryland Committee for Fair 
Representation v. Tawes, No. 29, this Term, pp. 26-27. Only 
one court has held to the contrary. Lein v. Sathre, 201 F.. 
Supp. 535, 536 (D.N.D.).



17

there is no serious doubt about the validity of Vir- 
'ginia’s apportionment under the Virginia Constitu­
tion.

It would defeat the basic purpose of the Civil 
Rights Act to hold that a federal court must tempo­
rarily deny a plaintiff his civil rights under the fed­
eral Constitution because he may also have a plausible 
-claim that the defendant’s action is violating State 
law. The very purpose of the legislation is to pro­
tect the basic constitutional rights of American citi­
zens against State infringement. Where the chal­
lenged State action is ambiguous, it may be reasonable 
to require the plaintiff initially to ascertain the pre­
cise meaning of the State action so as to show that 
his constitutional rights are actually being violated, 
and to spare the court the danger of making an un­
necessary ruling upon a false hypothesis. Cf. Harri­
son v. National Association for the Advancement of 
Colored People, 360 U.S. 167. But where the nature 
o f the alleged wrong is clearly established, it is no 
answer to the plaintiff to say that perhaps he has a 
different remedy in another forum. This Court 
stated in Monroe v. Pape, 365 U.S. 167, 183, after a 
lengthy analysis of the legislative history of the Civil 
Rights Act—

It is no answer that the State has a law which 
if enforced would give relief. The federal 
remedy is supplementary to the state remedy, 
and the latter need not be first sought and 
refused before the federal one is invoked.



18

A requirement of abstention, whenever State action* 
might violate State law would produce long delays 5' 
and add greatly to the cost of vindicating federal con­
stitutional rights. Litigants would be required to pro­
ceed not only in the district courts and then to this 
Court by direct appeal, but to the district court, to* 
the State trial court and one or more State appeal; 
courts, and then either to this Court directly6 or to* 
the federal, district court and then to this Court. The 
result is likely to be the defeat of important con­
stitutional rights in voting, racial segregation, and 
numerous other fields for a considerable period of" 
time or, in practice, often forever.7 The only alterna­

t o r  example, this Court decided that the district court 
should have abstained in Harrison v. National Association for  
the Advancement of Colored People, swpra, in June 1959. A  
suit was then brought in the State courts, which upheld the 
constitutionality of the statutes. This Court ultimately re­
versed and held that the statute violated the Fourteenth Amend­
ment in National Association for the Advancement o f Colored 
People v. Button, 37l TJ.S. 415, in January 1963, nearly four 
years after the determination to abstain was first made.

6 This Court has reviewed cases on direct appeal from the 
highest State court, after a federal district court has abstained 
merely to allow the State courts to decide State issues while- 
retaining jurisdiction. National Association for the Advance­
ment of Colored People v. Button, supra; Lassiter v. Northamp­
ton County Board, of Elections, 360 U.S. 45. As a result, the 
jurisdiction conferred by the Civil Rights Acts on the federal 
district courts to decide federal constitutional questions in the 
first instance may be entirely defeated.

7 “ 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 o f ground where only one grew before, 
would deserve better of mankind, and do more essential service 
to his country than the whole race of politicans put together.’ 
In matters of justice, however, the benefactor is he who makes



19

tive would be for voters to bring apportionment issues 
in the State courts—a course which would defeat the 
purpose of the Civil Bights Acts to provide a federal 
forum for the assertion of constitutonal rights.

The recent decision in McNeese v. Board of Educa­
tion, 373 U.S. 668, confirms the view that abstention 
is not required in cases brought under the Civil 
Rights Act where the sole State issue is the consti­
tutionality of the State statute under State law. This 
Court refused to order a federal district court to 
abstain in a case brought under the Civil Rights Act 
on the ground that segregation in an Illinois public 
school might violate State law, saying that it would 
defeat the purposes of the Act to hold that the 
assertion of a federal claim in a federal court must 
await an attempt to vindicate the same claim in a 
State court. Id. at 672. Summarizing its view of 
the applicable law, the Court stated (id. at 674) :

The right alleged is as plainly federal in 
origin and nature as those vindicated in Brown 
v. Board of Education, 347 U.S. 483. Nor is 
the federal right in any way entangled in a 
skein of state law that must be untangled 
before the federal case can proceed. For peti­
tioners assert that respondents have been and 
are depriving them of rights protected by the 
Fourteenth Amendment. It is immaterial 
whether respondents’ conduct is legal or illegal 
as a matter of state law. Monroe v. Pape 
* * *. Such claims are entitled to be adjudi­
cated in the federal courts.

one lawsuit grow where two grew before/' Chafee, Bills o f  
Peace with Multiple Parties, 45 Harv. L. Rev. 1297.



20

Earlier, in Lane v. Wilson, 307 U.S, 268, 274, the 
Court likewise said in a case under the Civil Rights 
Act that “ resort to a federal court may be had without 
first exhausting the judicial remedies of state courts.” 

Numerous lower federal courts have also held that 
persons claiming rights under the Civil Rights Act 
need not proceed first in the State courts to deter­
mine whether the State conduct violates the State’s 
own law. Browder v. Gale, 142 P. Supp. 707, 713 
(M.D. Ala.), affirmed, 352 U.S. 903, involved statutes 
and ordinances requiring segregation of buses in 
Montgomery, Alabama. The district court refused to 
abstain to allow a State court to determine either 
the construction or validity of the statutes and ordi­
nances involved because the doctrine of abstention 
“ has no application where the plaintiffs complain that 
they are being deprived of constitutional civil rights, 
for the protection of which the Federal courts have 
a responsibility as heavy as that which rests on the 
State courts.” In Dyer v. KazuMsa Abe, 138 F. Supp. 
220, 233 (D. Hawaii), the district court refused to 
abstain in a case challenging the apportionment of 
the Hawaii legislature even though it stated that the 
apportionment plainly violated the Organic Act. 
While the court believed that abstention was proper 
where interpretation of local law could avoid a con­
stitutional question, it said that otherwise a plaintiff 
may litigate in. a federal court even though a local 
court could grant effective relief. Ibid. In Romero 
v. Weakley, 226 F. 2d 399, 400-402, the Ninth Circuit 
noted that the California constitution had the same



21

provisions as the federal prohibiting racial segrega­
tion of public schools. The court nonetheless said that 
the plaintiffs were entitled to an adjudication under 
the federal Constitution since the “ obvious purpose 
of the civil rights legislation [was] to give the liti­
gant his choice of a federal forum rather than of the 
state.”  Id. at 401. Accord, e.g., Westminster School 
Dist. v. Mendez, 161 F. 2d 774, 781 (C.A. 9 ); Mitchell 
v. Wright, 154 P. 2d 924, 926 (C.A. 5) ; Stapleton v. 
Mitchell, 60 P. Supp. 51, 55 (D. Kansas), appeal 
dismissed sub nom. McElroy v. Mitchell, 326 TT.S. 
690; Wilson v. Beebe, 99 P. Supp. 418, 420-421 (D. 
Del.).

The decision below would be correct even if the 
abstention doctrine applied in an apportionment case 
brought under the Civil Rights Act because, in the 
present case, there is no substantial claim that the 
Virginia apportionment deprives the plaintiffs of 
rights secured by Virginia law. At one point the 
complaint does allege that the apportionment violates 
both the Fourteenth Amendment and the Virginia 
Constitution (R. 7-8), but the reference follows two 
allegations confined to violation of the Fourteenth 
Amendment (R. 4, 6), and the complaint cites no pro­
vision of the Virginia Constitution that is said to be 
violated. The prayer for relief asks only that the 
district court declare the apportionment invalid under 
the Fourteenth Amendment (R. 8-9). The district 
court construed the complaint not to assert rights 
under the State constitution, for it described the issue 
as one arising solely under the Fourteenth Amend­
ment (R. 57-58).



22

There is no apparent ground on which the appor­
tionment could be held invalid under the Virginia 
Constitution. Virginia’s constitution establishes no 
standards for apportionment of the legislature. The 
only provision fixes the maximum and minimum num­
ber of members in each house and states when they 
should be elected. Article IV, Sec. 40-41, Appendix 
A, p. 51. While appellants rely (Br. 24) on Article 
IV, Sec. 43 (Appendix A, p. 51), it merely provides 
for reapportioning every ten years. It is in marked 
contrast to the analogue provision in the Constitution 
of 1864 (Section 6) which required the legislature to 
reapportion every ten years on the basis of an enum­
eration of population. The Virginia Constitution 
contains no provision guaranteeing equal protection 
of the law. The two due process clauses are plainly 
inapplicable.8

s One clause, under the heading o f “ criminal prosecutions 
generally,”  provides that no man shall “be deprived of life or 
liberty, except by the law of the land * * Art. I, Sec. 8. 
Apportionment of a legislature obviously has nothing to do 
with a criminal prosecution. The other provision states that 
“ no person shall be deprived o f his property without due process 
of law * * Art. I, Sec. 11. Since the right to fair rep­
resentation involves liberty not property, this provision is like­
wise inapplicable.

Even if Virginia did have equal protection or a due process 
clause applying to liberty, we still believe abstention would 
not be proper. Many States have such provisions without ap­
plying them to require fair apportionment. Indeed, we know 
of no cases where they have been applied. Consequently, we 
do not believe that even when such clauses exist, there is a sub­
stantial enough likelihood that the State issue will be con­
trolling for a federal court to stay its determination of the 
federal constitutional issues (this is on the assumption, which 
we reject above, pp. 16-18, that abstention is proper where there 
is a real question as to the validity o f the State statutes under 
the State constitution).



23

Brown v. Saunders, 159 Ya. 28, 166 S.E. 105, holds 
nothing to the contrary. The Supreme Court of Vir­
ginia held that the State’s congressional district­
ing violated Art. IY, Sec. 55, of the Virginia Con­
stitution, which requires congressional districts to 
have “ as nearly as practicable, an equal number of in­
habitants.”  The specific requirement applicable to 
-congressional districting obviously has no bearing on 
apportionment of the legislature.

Contrary to appellants’ argument (Br. 26-28), the 
pendency of litigation in the State courts challenging 
the existing apportionment under both federal and 
State constitutions is irrelevant. The present case was 
brought on April 9, 1962 (R. 2), and decided by the 
■district court on November 28, 1962 (R. 57, 79). 
Tyler v. Davis was not instituted in the State court 
until March 26, 1963, almost four months after the 
district court had rendered its decision; in the trial 
court the action was dismissed on the merits. Obvi­
ously, the district court could not have taken into ac­
count the State litigation even if it were relevant. 
Nor should pendency of this action, which throws no 
light upon the present issues, affect this Court’s con­
sideration of the federal controversy.0 9

9 There is equally no basis for abstention in the other ap­
portionment cases now being heard on the merits by this 
Court—even if  this issue had been raised in those cases. 
Maryland Committee for Fair Representation v. Tawes, No. 29, 
this Term, was decided by a State court and therefore cannot 
possibly present the issue o f abstention. In WMCA, I  no. v. 
Simon, No. 20, this Term, the New York apportionment faith­
fully follows the State constitution; indeed, it is the state con­
stitutional provisions which are under attack. While the pre­



'24

3. Although appellant does not raise the point, it 
may be suggested that since a court-ordered reappor­
tionment (if the legislature refused to act following 
invalidation of the existing apportionment) would 
penetrate deeply into the political processes of the 
State and might require familiarity with State cus­
toms as well as State law, a federal court should not 
rule upon a challenge to an existing apportionment 
under the Fourteenth Amendment if the question 
could be litigated in a State court, which, presumably, 
would be better equipped to formulate a judical rem­
edy. In our view, abstention for this purpose would 
not be appropriate for three reasons:

existing apportionment in Reynolds v. Sims, Xos. 23, 27, 41, 
this Term, violated the Alabama Constitution, the highest State 
court has refused to exercise jurisdiction in cases challenging 
the apportionment o f the State legislature. Waid v. Pool, 
255 Ala. 441, 442, 51 So. 2d 869; E x parte Rwe, 143 So. 2d 
848 (Ala. Sup. C t.) ;

As to the congressional districting in Georgia involved in 
Wesberry v. Sanders, Xo. 22, this Term, the Georgia Constitu­
tion has no provisions giving standards for congressional dis­
tricts. While it has equal protection and due process clauses 
(Art. I, c. 2-1, Secs. 102, 103), there is no indication that these 
general provisions would invalidate the present districts making 
the decision of the federal constitutional issue unnecessary (see 
p. 22, note above). In any event, as we emphasize in our brief 
in that case (pp. 42-44), that case involves at the present time 
only whether the complaint should be dismissed for want of 
jurisdiction or o f equity. Since, as we have seen above (pp. 
15-16), there is plainly no basis for dismissal in order to allow 
the State courts to decide the State issues, the question of 
abstention is not now at issue. On remand, the district 
court may properly decide whether to stay proceedings for any 
valid reason, such as to allow the State legislature to act. See 
the cases cited in our brief in Wesberry v. Sanders, pp. 37-38.



25

First, the abstention doctrine lias never been ap­
plied on the question of remedies. The doctrine is 
derived from the precepts of constitutional law pre­
venting unnecessary constitutional decisions and ad­
visory opinions. Neither line of reasoning would 
support abstention to allow a State court to frame a 
remedy for violation of a federal, constitutional right.

Second, abstention prior to an adjudication of the 
merits would be inappropriate even if it might be 
within the court’s discretion once the task of formulat­
ing a remedy was reached. The court below did not 
undertake to reapportion the Virginia legislature. It 
merely enjoined further action pursuant to the State 
statute and provided ample opportunity for the State 
legislature to adopt a new apportionment honoring 
plaintiffs’ constitutional rights. In the event that the 
legislature fails to act—an event there is no apparent 
reason to anticipate—it will be time enough to con­
sider what further relief should be awarded and 
whether the plaintiffs should be required to ascertain 
whether it can be obtained promptly in a State court.

Third, in the present case even a judicial reappor­
tionment would not involve consideration of State law. 
The Virginia Constitution contains no standards for 
the apportionment of the legislature except to estab­
lish the maximum and minimum size of each house. 
There are no judicial decisions or statutes bearing 
upon the question beyond those which the district 
court found to be unconstitutional. Thus, in this case, 
even the formulation of a judicial reapportionment 
would not be entangled with questions of State law.



26

B. EVEN  W H E N  A B STE N TIO N  IS APPRO PRIA TE , A  DISTRICT COURT

SH OU LD R E T A IN  JU R ISD IC TIO N  TO A D JU D ICA TE  T H E  C L A IM S  OF'

FEDERAL C O N STITU TIO N A L R IG H T

The doctrine of abstention, where applicable, pro­
vides for the determination of State and federal 
questions in orderly sequence. It is not a defense de­
feating the plaintiff’s constitutional rights. Conse­
quently, when a federal court stays its hand to await 
a State determination, the proper course is to retain 
jurisdiction pending the proceeding in the State 
courts. Thus, in Louisiana Power & Light Co. v. 
City of Thibodaux, 360 U.S. 25, 30-31, the Court, 
while holding that State issues should be decided by 
the State courts, ordered the federal district court 
to retain jurisdiction. Accord, e.g., Harrison v. 
National Association for the Advancement of Colored 
People, 360 U.S. 167, 179; Government and Civic 
Employees Organizing Committee v. Windsor, 353 
U.S. 364, 366-367; Railroad Commission v. Pullman 
Co., 312 U.S. 496, 501-502; Chicago v. Fieldcrest 
Dairies, Inc., 316 U.S. 168, 173; Spector Motor Serv­
ice, Inc. v. McLaughlin, 323 U.S. 101, 106; American 
Federation of Labor v. Watson, 327 U.S. 582, 599; 
Albertson v. Millard, 345 U.S. 242, 245. The Court 
in the Louisiana Power case specifically stated that 
“ the mere difficulty of state law does not justify a 
federal court’s relinquishment of jurisdiction in favor 
of state court action”  Id. at 27.

The occasional cases cited by appellants in which 
the Court has ordered the dismissal of actions brought 
in federal courts because of the existence of control­
ling State issues are readily distinguishable. In



27

Pennsylvania v. Williams, 294 U.S. 176, 184, the 
Court emphasized, in a case involving liquidation of 
a building and loan association, that it was not a 
State court but a State officer that was asserting 
jurisdiction, and that this officer was charged by 
State law with supervising and, in case of insolvents, 
liquidating the State’s own associations. Further­
more, the ease did not involve constitutional issues 
and the Court emphasized that purely private rights 
were involved. Id. at 185. Hawks v. Harnill, 288 
U.S. 52, was a diversity case involving no claim of 
federal right and which depended entirely on the 
purely local question whether a State-granted fran­
chise was valid under the State constitution. The 
Court in Matthews v. Bodcjers, 284 U.S. 521, relied 
on the well-established rule that the federal courts 
will not enjoin State taxes where there is an adequate 
State remedy by suing for return of taxes paid. 
This is, as the Court emphasized (id. at 525), a par­
ticular application of the general equitable principle 
that suits in equity do not lie when there is an 
adequate legal remedy. In Stainback v. Mo Hock Ke 
Lok Po, 336 U.S. 368, 383, this Court made clear that 
the Hawaii statute was susceptible to varying inter­
pretations by the Hawaii courts. While the Court 
ordered, without discussion, the complaint to be dis­
missed rather than having the district court retain 
jurisdiction until the scope of the statute was re­
viewed, the result is inconsistent with the cases cited 
in the text above (pp. 15-16) and numerous other deci­
sions of this Court. The Court in Burford v. Sun Oil 
Co., 319 U.S. 315, 331, 333-334, dismissed an action



28

challenging Texas’ regulation of oil wells within the 
State since such regulation involves almost exclu­
sively State issues which are of local and not general 
concern, and review by the federal courts will pro­
duce conflicting determinations where uniform regu­
lation is necessary.

None of those cases is apposite here. There is no 
substantial remedy at law for the malapportionment 
of State legislatures. The State statutes here need 
no interpretation. Legislative apportionment is not 
of limited, local concern. Most important, the case 
raises basic, constitutional rights under the Four­
teenth Amendment concerning the right of American 
citizens to equal participation in their own State gov­
ernment. Thus, even if the federal courts should 
sometimes stay proceedings in apportionment cases 
for the determination of State issues, dismissal is 
plainly improper. Once the State issues have been 
determined, it is the duty of the federal courts to 
protect constitutional rights and therefore to decide 
the constitutional issues. The responsibility continues 
whether or not State issues are also present.

The only case decided by this Court even suggesting 
that controversies involving State legislative appor­
tionment should be dismissed for want of equity is 
Colegrove v. Green, 328 U.S. 549, which involved the 
analogous issue of Congressional districting. There, 
Mr. Justice Rutledge, who cast the deciding vote, said 
that the cases should be dismissed for want of equity. 
However, this view was not based on the need for 
determining whether the statute was ambiguous or 
might violate the State constitution. Rather, Mr.



29

Justice Rutledge concluded that the Court should 
refuse to exercise its equitable discretion because “ [t]he 
shortness of the time remaining [before the next 
election] makes it doubtful whether action could, or 
would, be taken in time to secure for petitioners 
the effective relief they seek.”  Id. at 565. In a 
subsequent case involving the Georgia county unit 
system, Mr. Justice Rutledge explained his position 
in Golegrove as based on the “ particular circum­
stances”  of that case. Cook v. Fortson, 329 U.S. 
675, 678.

In the present case, there was no difficulty arising 
from the imminence of an election. Nor was there any 
other special reason why the district court should not 
have exercised its equitable discretion to prevent the 
violation of federal constitutional rights.

II

Vir g in ia ’s  l e g is l a t iv e  a p p o r t io n m e n t  v io l a t e s  t h e

FOURTEENTH AMENDMENT BY GROSSLY DISCRIMINATING 
AGAINST THE PEOPLE OF ARLINGTON AND FAIRFAX COUN­
TIES AND THE CITY OF NORFOLK WITHOUT RHYME OR 
REASON

In our brief in the Maryland case (pp. 24-34), we 
argued that population is the point of departure for 
judging the constitutionality under the Fourteenth 
Amendment of a State’s legislative apportionment. 
Where serious inequalities are found in per capita repre­
sentation, the apportionment violates the equal protec­
tion clause unless some rational basis can be found for 
the differentiation. When no justification is apparent 
and the State offers none that is adequate, the differ­

709- 361— 63------------- 3



30

ences in the representation of voters in the several 
areas are arbitrary and capricious and therefore vio­
late the Fourteenth Amendment.

These conclusions merely apply to apportionment 
principles long settled under the Fourteenth Amend­
ment. As the Court said in Baker v. Carr, 369 U.S. 
186, 226, “ it has been open to the courts since the enact­
ment of the Fourteenth Amendment to determine, if 
on the particular facts they must, that a discrimina­
tion reflects no policy, but simply arbitrary and capri­
cious action. ” The lower courts have consistently ap­
plied this principle in apportionment eases. See the 
authorities cited in our Maryland brief, pp. 39 and 
50-51.

The Virginia apportionment is invalid under the 
foregoing rules.
A . T H E  V IR G IN IA  A P P O R T IO N M E N T  SERIOU SLY D ISC R IM IN A T E S A G A IN ST

T H E  VOTERS I N  A R L IN G T O N  A N D  F A IR F A X  10 COU N TIES A N D  I N  T H E

C IT Y  OF N O R FO LK

The discrimination against the voters in Arlington, 
Fairfax and Norfolk is too plain for dispute.11 Ar­

10 We use Fairfax County as a short-hand description for the 
total area of the county including the cities of Fairfax and 
Falls Church which are actually independent. The county and 
the two cities constitute a single district in both the Senate and 
the House of Delegates.

“ We do not mean to suggest that there is no discrimination 
against other districts, or that such discrimination does not violate 
the Fourteenth Amendment. Just as the district court did not 
consider it necessary to decide whether such discrimination was 
unconstitutional (see R. 67), we likewise do not discuss the issue. 
I f  the discrimination against Norfolk, Fairfax, and Arlington 
violates the Fourteenth Amendment, the apportionment is uncon­
stitutional and the district court’s injunction against further elec­
tions under it was proper.



31

lington, Fairfax and the City of Norfolk are the three 
most underrepresented districts in the State Senate.. 
The extent of the discrimination is demonstrated both 
by the evidence that each has only about two-thirds 
of its proper representation and also by comparison 
of the per capita representation of their voters with 
that of the three most over-represented districts:

Senatorial district Population
(1960)

Senators Population 
per Senator

Percent of 
ideal ratio *

163,401 1 163,401 61
305,872 2 152,936 65
285,194 2 142, 597 70
63, 703 1 63, 703 156
62,523 1 62,523 159
61, 730 1 61,730 161

i Since Virginia’s population is 3.966,949, the average or ideal population per Senator is 99,174.

Thus, the three most overrepresented districts have 
2-1/2 times the per capita representation of Arlington 
and Norfolk and over twice the representation of 
Fairfax.

Arlington, Fairfax and Norfolk suffer in compari­
son with almost all other senate districts. They have 
the smallest percentages of the average ratio. Of 
the 36 senate districts, twelve have over twice the per 
capita representation of Arlington; ten have over 
twice the per capita representation of Norfolk; and 
six over twice that of Fairfax.

The situation in the House of Delegates is even 
worse. The average population per delegate for the 
State as a whole is 39,669. The population per dele­
gate in Fairfax, Arlington, and the City of Norfolk, 
which are the first, fifth, and sixth most underrepre­



32

sented in the State,1- are 95,064, 54,467, and 50,978, 
respectively. Contrast the three most overrepresented 
districts:

House district
Population

(1960) Delegates
Population

per
delegate

Percent of 
ideal ratio

285,194 3 95, 064 42

Arlington----------- -------- ----------------- ------------ ------- 163,401 3 54,467 73

City of Norfolk-------------------------------------------------- 305,872 6 50,978
Grayson, e ta l---------------------------- ----------------------- 22,644 1 22,644 175

Wythe_______________________ __________ ______ 21, 975 1 21,975
Shenandoah_________ —- --------------------------- ------- 21,825 1 21,825 182

Thus, the three most overrepresented districts have 
over four times the representation of Fairfax and 
about 2y2 times the representation of Arlington and 
the City of Norfolk. Again, the discrimination is 
not confined to a few favored districts but runs against 
the counties in question in comparison with the rest 
of the State. Twenty-seven districts of the seventy 
have three times the representation of Fairfax; fifty- 
five districts have over twice the representation of Fair­
fax; twelve have twice the representation of Arling­
ton; and six twice that of Norfolk City.12 13

Thus, the discrimination against Fairfax, Arling­
ton, and Norfolk extends to both houses. Fairfax has 
only 70 percent of its appropriate representation in 
the Senate and only 42 percent in the House. Arling-

12 The second, third, and fourth most underrepresented dis­
tricts are the City of Hampton, Chesterfield, et al., and the City 
o f  Portsmouth, which have populations of 89,258, 80,784 and 
114,773 (57,386 per delegate), respectively.

13 The table also shows severe discrimination even among 
Fairfax, Arlington, and Norfolk City. Fairfax has_ only 
20,000 less people than Norfolk but Norfolk has twice as 
many delegates. Arlington has slightly over half the popu­
lation of Fairfax, yet has the same number of delegates.



33

ton has 61 percent of its appropriate representation 
in the Senate and 73 percent in the House. Taking 
the legislature as a whole they are, by a wide margin, 
the three most underrepresented counties in the State.

Manifestly, the discrimination cannot be brushed 
aside as sport in an essentially fair plan of representa­
tion. The three districts in question contain almost 
one-fifth of the population of the State.14

B . T H E  GROSS D IS C R IM IN A T IO N  IS  BASED U P O N  N O  IN T E L L IG IB L E

PO LIC Y

The statutes of Virginia set forth no rational basis 
for the foregoing inequalities in per capita repre­
sentation. None is advanced in any of the documents 
or other history underlying the statutory apportion­
ment. Nor is any apparent from Virginia’s history

14 Appellants argue (Br. 46-50) that the discrepancies in 
Virginia between districts are not as great as those in the 
electoral college. However, as we showed in our brief in the 
Maryland case (pp. 73-80), the federal government was a com­
promise between a unified national government and a con­
federation. Those who favored the former type of government 
wanted representation based directly on population; supporters 
of the confederation wanted representation based on the States. 
Just as the Congress is a compromise of the two views as to 
the basic nature o f the new government (and not as to what 
kind of apportionment is permissible), so is the electoral 
college. For a State has the same numbers of electoral votes 
as it has representatives which are determined by population, 
and senators, which are given equally to each State. The 
States, on the other hand, are unitary governments operating 
directly for the people and therefore only representation and 
statewide elections based on population are permissible.

In Gray v. Sanders, 372 U.S. 368, 378, this Court held that 
the electoral college was not analogous to the Georgia county 
unit system for statewide election; certainly, that analogy is 
far closer than the electoral college, which relates to nation­
wide elections, is to state legislative apportionment.



34

generally, except that the same areas suffered similar 
discrimination under the previous apportionment. 
The justifications now put forward by appellants are 
all afterthoughts that cannot be squared with the 
facts.

1. Appellants’ principal contention (Br. 33-37) 
is that the inequalities in per capita representation 
are to be explained by a State policy of excluding 
from persons entitled to representation all transient 
military personnel and their families. The conten­
tion fails for two reasons.

First, the policy of Virginia, so far as evidenced 
by her election laws, actually favors military per­
sonnel. They are not included in the categories of 
persons disabled to vote. 24 Va. Code 18, Appendix A, 
p. 57. Military personnel and members of their fam­
ilies who have been residents of Virginia for a year, 
residents o f a county, city or town for six months and 
residents of a precinct for 30 days are entitled to vote. 
24 Va. Code 17, Appendix A, pp. 56-57. Although the 
mere stationing of military personnel in the State 
does not give them residence (24 Va. Code 19, Appen­
dix A, p. 58), Virginia election officials interpret the 
provision to mean that residence for military person­
nel is determined in the same manner as for all other 
citizens. The Virginia election laws enable persons 
in the armed forces to vote without registration or 
payment of poll tax. 24 Va. Code (1962 Supp.) 23.1, 
Appendix A, pp. 57-58. While the literal language of 
the statute grants the privilege to those on “ active serv­
ice * * * in time of war, ”  the Virginia State Board of 
Electors is applying it currently.



35

In no event could it be lightly assumed that in 
apportioning representatives the Virginia legislature 
would discriminate against men and women in their 
country’s armed forces. Virginia’s policy, as evi­
denced by its statutes, looks the other way. Since 
other non-voters, such as felons and other temporary 
residents, were not eliminated, it is unreasonable to 
suppose that a State which favors military personnel 
in voting, actually reversed itself to eliminate them 
from consideration in apportioning representatives 
in the legislature.

Appellants cite no evidence of any such legislative 
intent. All the proposed apportionment plans which 
preceded the 1962 apportionment, including the pro­
gram of the Commission on Redistricting which re­
ported to the governor (R. 159-188), invariably 
used total population without reference to military 
personnel or their families.

Second, the exclusion of military personnel from 
the total population of the various districts will not 
explain the discrimination against Fairfax, Arlington, 
and Norfolk. Nor will the exclusion of 2y2 times the 
number of military personnel, as appellants suggest 
(Br. 37), in order to account for the entire families 
of servicemen, explain the discrimination.

The following table will show that there is the same 
gross discrimination in per capita representation in 
the Senate even if military personnel and their 
families are excluded from the population.15

15 The number o f military personnel in each county and inde­
pendent city is given in Appendix B below, pp. 59-61. The 
population o f each senatorial and house district after exclusion 
o f military personnel and after exclusion o f 2y 2 times the 
number o f military personnel is also given in Appendix B. pp. 
62-67.



Senatorial district

Population
excluding
military
personnel

(1960)

Population 
minus V/z 

times 
military 

personnel

(1960)

Senators

Population, 
excluding 
m litary 

personnel, 
per Senator

Population, 
minus 2 l/i 

times 
military 

personnel, 
per Senator

Percent of 
ideal ratio 
based on 

exclusion of 
military 

personnel

Percent of 
ideal ratio 
based on 

exclusion of 
times 

mi
personnel

152,025 134,961 1 152,925 134,961 63 67
261,491 194,919 2 130,745 97,460 73 i 93
268,227 242,777 2 134,113 121,388 71 75
63,143 62,303 1 63,143 62,303 152 146
62,325 62,028 1 62,325 62,028 154 146
61,730 61,730 1 61,730 61,730 155 147

3,833,867 3,634,244 40 95,847 90,856 100 100

i kppellmts state (Br 57) that Norfolk City is over-represented in the Senate if military personnel and their families are excluded. This is incorrect. Appellants’ view 
is based on an average population per Senator throughout the State of 99,174. However, if military personnel are excluded, the average population per Senator is 9o,847 and 
if 2H times the number of military is excluded the average population per Senator is 90,856.

CO
O



37

Using total civilian population, the three most over­
represented counties have 2 ^  times the representa­
tion of Arlington and over twice the representation 
of the City of Norfolk and Fairfax. Of the 36 sen­
ate districts, ten have over twice the representation 
of Arlington, and three over twice the representation 
of Norfolk and of Fairfax. Using total population, 
minus 2 ^  times the number of military personnel, 
the three most overrepresented counties still have 
approximately twice the representation of Arlington 
and Fairfax. Twenty-two districts have over 1% 
times the representation of Arlington, thirteen have 
over U/2  times the representation of Fairfax, and four 
have over that of Norfolk City.16 The short of 
the matter is that the only significant change is in 
the figures for Norfolk County.

The factual inadequacy of appellants’ theory is 
also apparent from the figures for the House of 
Delegates:

16 The figures in this section are based upon the tables in 
Appendix B, pp. 62-64.



House district

Fairfax, et al—
Arlington..........
City of Norfolk. 
Grayson, et a l . .
Wythe...............
Shenandoah—

State total.

Population
excluding
military

personnel
(1960)

Population 
minus 

2H times 
military 
personnel 

(1960)

Delegates

Population,
excluding
military

personnel,
per

delegate

Population, 
minus 

2Yi times 
military 

personnel, 
per

delegate

Percent of 
ideal ratio 
based on 

exclusion of 
military 
personnel

Percent 
of ideal 

ratio based 
on exclusion 
of 2M times 

military 
personnel

268,277 242,902 3 89, 425 80,967 43 45
152, 025 134,961 3 50, 675 44,987 76 81
261,491 194,920 6 43, 582 32,487 88 112
22, 640 22, 634 1 22, 640 22, 634 169 161
21,971 21,965 1 21,971 21,965 175 166
21,817 21,805 1 21,817 21,805 176 167

3,833,867 3, 634,244 100 38,339 36,342 100 100



39

Using total civilian population, the two most over­
represented districts have over four times the repre­
sentation of Fairfax, 17 of the 70 districts have over 
three times the representation, and 40 have over twice 
the representation. Seven districts have twice the 
representation of Arlington and 26 over times the 
representation. Fourteen districts have over P/2  times 
the representation of Norfolk. Using total population, 
minus 2% times the number of military personnel, 
the three most overrepresented counties have over 
?>y2 times the representation of Fairfax17 and about 
twice the representation of Arlington. Forty-eight 
house districts have over twice the representation of 
Fairfax, and 21 districts have over 1% times the 
representation of Arlington (see App. B, pp. 65-67).

In short, even accepting appellants’ figures of mil­
itary connected personnel, they are wholly inadequate 
to explain the discrimination against the people of 
Arlington and Fairfax counties. The compelling in­
ference is that comparisons of total population, less 
military personnel and their families, were not the 
basis of the apportionment. Thus, the discrimination 
against all three districts remains unexplained.18

17 Appellants state (Br. 38) that the ratio of representation 
in the House of Delegates o f the most overrepresented county 
to Fairfax is 3.53 to 1 after 2% times the military personnel 
are excluded from total population. In. fact, the ratio is 3.71 
to 1.

18 Even i f  the exclusion of military personnel and their fami­
lies from the total population of Virginia did explain the V ir­
ginia apportionment we submit the apportionment would still 
be unconstitutional. However, this would not be because the 
apportionment discriminated without rhyme or reason (see



4 0

2. Appellants also suggest (Br. 50, 56) that V ir­
ginia’s apportionment is an attempt to balance urban 
and rural power in the legislature. The explanation, 
whatever its legal merit,19 does not conform to the

our brief in tlie Maryland case, pp. 34—39), but because the 
discrimination was invidious (see our brief in the Maryland 
case, pp. 39-46). W e perceive no valid basis on which mili­
tary personnel and their families may be deprived o f repre­
sentation in a State legislature. A  State may limit the right 
to vote of persons not remaining long in the State through 
residence requirements and may base its apportionment on 
eligible voters. However, when military personnel and their 
families can vote by satisfying the general residence require­
ments (we doubt whether more restrictive voting requirements 
may validly be placed on servicemen), it is invidious discrimi­
nation to deprive them of representation by not including 
them when the apportionment is made. This is particularly 
so when all other categories o f voters and even all non-voters 
are included within the population base used to make tlie ap­
portionment.

Excluding military personnel and their families in voting 
on apportionment also discriminates against the overwhelming 
majority of other persons in counties and cities like Fairfax, 
Arlington, and Norfolk City with large numbers o f military 
personnel. For the votes of these other people are diluted 
by the votes of the servicemen and their families, while not 
giving the area, the appropriate amount of representation. As 
a result, voters in such areas have less voting strength in terms 
of either voters per legislator or total population per legislator 
than other areas of the State. We see no rational reason for 
so diluting the votes o f these other persons.

19 I f  the Virginia apportionment could be explained on the 
basis of an attempt to balance urban and rural power, we would 
argue that the resulting discrimination against urban areas was 
invidious. For, just as in WMGA, Inc. v. Simon, No. 20, this 
Term (see our brief, pp. 14-33), it was invidious discrimina­
tion to give significantly greater representation to less popu­
lous political subdivisions, it is likewise invidious to give greater 
representation to rural, in contrast to urban, areas. And this 
justification is not made reasonable because urban and rural



41

facts. Arlington and Fairfax are suburban areas 
while the City of Norfolk is an urban area. The City 
of Richmond, another urban area, has two senators 
for 219,958 people, or one per 109,979, which is 90 
percent of its appropriate representation. This is 50 
percent more representation than Arlington. In the 
House of Delegates, Richmond, which together with 
the suburban County of Henrico composes one district 
of 337,297 people with eight delegates, has an average 
of 42,162 people per delegate.20 This is 94 percent of 
its ideal representation and well over twice the repre­
sentation of Fairfax. Norfolk County and the City 
of South Norfolk, which are suburban areas adjoining 
the City of Norfolk, have 135 percent of their proper 
representation in the Senate—which is over twice the 
representation of Arlington, or of the City of Norfolk, 
and almost twice the representation of Fairfax. As 
to the House of Delegates, Norfolk County and South 
Norfolk have 108 percent of their proper representa­
tion which is over twice the representation of Fairfax

power is allegedly balanced. An equally strong argument could 
be made for balancing Protestant and Catholic representation, 
Negro and white, business and labor. The very point of demo­
cratic government is not to give a group greater representation 
than its numbers justify.

This is not to say, however, that a State cannot give mini­
mum representation to each political subdivision. We have 
assumed arguendo in these cases that such a method of appor­
tionment is proper since the discrimination against urban voters 
is only an incidental result. However, we have limited this 
assumption to apportionments which do not .result in gross dis­
crimination. See our brief in the Maryland case, pp. 24-25, 
46-50..

20 Henrico has, in addition, a representative to itself.



42

and almost P/2 times the representation of Arlington 
and the City of Norfolk.21

Moreover, the balance which appellants claim re­
sults in the legislature between urban and rural aieas 
is based on the inclusion in the urban category of 
many small cities not considered by the United States 
Census as metropolitan areas. Department of Com­
merce, County and City Data Do oh, 1962, p. 665. Many 
of these small cities are overrepresented in the Vir­
ginia legislature. For example, the City of Lynch­
burg and Campbell County have 113 percent of their 
proper Senate representation, Augusta, et at., have 118 
percent, and Dinwiddie, et at., have 134 percent. Simi­
larly, in the House of Delegates, Charlottesville has 
135 percent of its proper representation, Allegany, et 
al, have 139 percent, Nelson and the City of Peters­
burg and Dinwiddie County have 135 percent.

3. Appellants contend (Br. 56-58) that the appor­
tionment can be explained by the factors of area and 
the number of political subdivisions in each district,22

21 Appellants suggest (Br. 56, 58) that population density 
may explain the Virginia apportionment. This is viitually, 
however, the same thing as giving more representation to rural 
than urban areas as population density is much lower in the 
former than the latter. Moreover, while there are no figures 
on this issue in the record, it seems unlikely that the City of 
Richmond is less densely populated than most suburban areas 
as Arlington or especially Fairfax. Indeed, we doubt that 
there is any appreciable difference in density between urban 
areas such as Richmond and Norfolk City and among suburban 
areas like Arlington, Fairfax, Henrico, Norfolk County, and 
South Norfolk.

22 We do not understand how the number of political sub­
divisions has any relevance and therefore inequalities result­



43

These factors are likewise inadequate. The senatorial 
district of Norfolk County and South Norfolk has 
one governmental unit and an area of 344 square 
miles (R. 275). The Fairfax senatorial district, on 
the other hand, has three governmental units and 407 
square miles (R. 279). Yet, as we have seen (pp. 41- 
42), the former district has almost twice the repre­
sentation of the latter. The City of Richmond has 37 
square miles and only one governmental subdivision 
(R. 280). Yet, it has almost 50 percent more repre­
sentation in the Senate than Norfolk, which has 50 
square miles and one governmental subdivision (R. 
275). The senatorial district of Dinwiddie et al., has 
823 square miles and 3 political subdivisions (R. 276). 
The senatorial district of Accomack, et al., has 951 
square miles and 3 political subdivisions (R. 275). 
Yet, the former district has 134 percent of its proper 
representation and the latter has 75 percent. The sen­
atorial district of King George, et al., has 1564 square 
miles and 7 governmental subdivisions (R. 279); 
Brunswick, et al., has 1648 square miles and 3 polit­
ical subdivisions (R. 276); the City of Hampton has 
57 square miles and 1 political subdivision (R. 280);

ing resulting from this factor would constitute invidious dis­
crimination. An apportionment based in whole or part on 
area would also be invidious since legislator’s represent people, 
not land. The only possible relevance o f basing an apportion­
ment on area would be to assure that every area o f the State 
had a spokesman for its views in the legislature. Even assum­
ing this would justify some inequality, this objective would be 
satisfied by giving each area a representative in one house of 
the legislature; it could not justify Virginia’s discrimination 
in both houses.



44

and Alexandria has 15 square miles and one political 
subdivision (R. 280). Yet, King George, et al., has 
89 percent of its appropriate representation and 
Brunswick has 161 percent, Hampton, has 111 per­
cent, and Alexandria 109 percent.

In the House of Delegates, Norfolk County and 
the City of South Norfolk, having 344 square miles 
and. 1 governmental unit, has 107 percent of its proper 
representation (R. 289). Fairfax, having 407 square 
miles and 3 governmental subdivisions (R. 286), has 
42 percent of its proper representation. Thus, the 
former district, with substantially less area and %  
the number of governmental subdivisions, has 2% 
times as much representation. Charlottesville has 6 
square miles and 1 governmental subdivision (R. 
283). Yet, it has 135 percent of its proper repre­
sentation. Thus, Charlottesville, with % 8 the area 
and %  the governmental units, has 3 times the repre­
sentation of Fairfax. Wythe and Shenandoah, the 
two most overrepresented House districts in the State, 
have 460 and 507 square miles respectively, and each 
is a governmental subdivision (R. 290, 291). Yet,, 
they have 181 and 182 percent of their proper repre­
sentation. In contrast, Russell, et ail., has 818 square 
miles and 2 governmental subdivisions (R. 284), but 
only 85 percent of its appropriate representation. 
Charles City County, et al, has 670 square miles, 5 
governmental subdivisions (R. 285), and only 79 per­
cent of its proper representation. And Washington, 
et al., which is the fifth largest in the State in area, 
having 1,122 square miles and 3 governmental sub­



45

divisions (R. 291), has only 98 percent of its proper 
representation.23

4. Nor do we know of any other explanation, not 
suggested by appellants, for the serious discrimination 
against Arlington, Fairfax, and Norfolk City. First, 
the discrimination cannot be explained as giving less 
representation to populous political subdivisions to 
prevent their control of the State legislature. While 
the Counties of Arlington and Fairfax and the City 
of Norfolk are three of the four most populous po­
litical subdivisions in the State, the third most popu­
lous is the City of Richmond.24 As we have seen, how­
ever, Richmond is only slightly underrepresented. 
Moreover, the fourth most populous political 
subdivision, Arlington, is the most underrepresented 
in the Senate. And the most populous subdivision, 
the City of Norfolk, is only the second most 
underrepresented in the Senate and sixth most under­
represented in the House. The second, third, and

23 The Virginia apportionment cannot be justified by ap­
pellants’ suggestion (Br. 58-59) that it is an attempt to ensure 
adequate accessibility of representatives and voters in rural 
areas by keeping rural districts limited in size. This is merely 
the factor of area in a different guise. We have seen (pp. 42- 
44) that districts having a smaller area frequently have greater 
representation measured by population than larger. The op­
posite would obviously be true if accessibility of legislators to 
the voters were an important factor.

24 We are not suggesting that discrimination against populous 
subdivisions would be a constitutionally valid justification for 
disparities in representation. In our brief in WMCA, Inc. v. 
Simon, No. 20, this Term, pp. 14-33, we argue that a, classifica­
tion giving less representation to populous political subdivisions 
is invidious under the third principle we suggested in the 
Maryland case (see our brief in that case, pp. 39—46) and 
therefore violates the Fourteenth Amendment.

709- 361— 63-------------- 4



46

fourth most underrepresented districts in the House 
have, in contrast to the 305,872 people in Norfolk, 
only 89,288, 80,784 and 114,773 (57,386 per delegate) 
people, respectively. And even if Arlington, Fairfax, 
and the Cities of Norfolk and Richmond were given 
their full proportionate representation, they have less 
than one-fourth the population of the State.

Finally, the apportionment of Virginia cannot be 
justified on the ground that it is an attempt to balance 
the power of different areas of the State in the legis­
lature. Arlington and Fairfax, which are seriously 
underrepresented, are in the north of the State. 
Loudoun, in contrast, which adjoins Fairfax County 
has 162 percent of the appropriate representation in 
the House of Delegates, over twice the representation 
of Arlington and almost four times that of Fairfax. 
In the Senate, Loudoun has over 2% times the 
representation of Arlington and twice that of Fair­
fax. Similarly, as we noted above, Norfolk County 
and the City of South Norfolk, which adjoin 
the City of Norfolk in the southeastern part of the 
State, have over twice the representation of Norfolk 
City in the Senate and P/2  times in the House. Sim­
ilarly, the House district in the southeast composed of 
the Counties of Nansemond and the Isle of Wight 
and the City of Suffolk have 65 percent of the ap­
propriate representation and they are in a Senate 
district with 112 percent of its appropriate repre­
sentation.



47

Appellants contend (Br. 45-46) that the Virginia 
apportionment is not unconstitutional because Vir­
ginia ranks eighth among the States in the representa­
tiveness of its legislature (see R. 266). However, this 
figure is based on the percentage of people electing a 
majority of the two houses of the legislature. Under 
the 1962 statute, 41.1 percent of the population elects 
a majority of the Senate and 40.5 percent elects a 
majority of the House. These figures are relevant to 
the fourth principle advanced by the government in 
its brief in the Maryland case (pp. 46-50)—'whether 
an apportionment so grossly discriminates as to give 
control of the legislature to a substantial minority of 
the people. But this question, in the government’s 
view, need not be reached in this ease. We believe 
that a State may not apportion its legislature so as to 
discriminate significantly against a substantial number 
of voters when it can suggest no rational basis for the 
discrimination, even though a large minority is needed 
to elect a majority of the legislature.

This Court has repeatedly held that legislative 
classifications may not be arbitrary and capricious. 
“ The Constitution in enjoining the equal protection 
of the laws upon States precludes irrational discrimi­
nation as between persons or groups of persons in 
the incidence of a law.”  Goesaert v. Cleary, 335 U.S. 
464, 466. See, e.g., Royster Guano Co. v. Virginia, 
253 U.S. 412, 415; Lindsley v. Natural Carbonic Gas 
Co., 220 U.S. 61, 78-79. Virginia, by giving some



48

counties and cities two or more times the repre­
sentation of other counties or cities, has obviously 
made a classification to the detriment of the under­
represented areas. Such a classification must rest at 
the very least, upon some intelligible foundation or 
else be condemned as a denial of equal protection. 
The several explanations advanced by appellants are 
manifest afterthoughts and do not conform to the 
facts. No other justification is reasonably apparent. 
Under these circumstances there was no occasion for 
the district court to look farther before ruling that 
the apportionment violates the Fourteenth Amend­
ment. “Discriminations are not to be supported by 
mere fanciful conjecture.”  Hartford Co. v. Harrison, 
301 U.S. 459, 462; Borden’s Farm Products Co. v. 
Baldwin, 293 U.S. 194,209.25

25 Appellants raise no issue as to the remedy ordered by the 
district court—i.e., an injunction against further elections under 
the present apportionment statutes. The traditional remedy 
when a State statute is held unconstitutional is to enjoin further 
actions based on it. The State and lower federal courts have 
in numerous cases used this remedy in the field of apportion­
ment. E.g., Sims v. Frink, 208 F. Supp. 431 (M.I). A la.), 
pending on appeal sub. nom. Reynolds v. Sims, Nos. 23, 27, 41, 
this Term; Thigpen v. Meyers, U.S. D.C., W.D. Wash., decided 
May 3, 1963; Scholle v. Secretary o f State, 367 Mich. 176, 116 
N.W. 2d 350; Parker v. State, 133 Ind. 178, 32 N.E. 836; Denny 
v. State, 144 Ind. 503, 42 N.E. 929; Brooks v. State, 162 Ind. 568, 
70 N.E. 980; Ragland, v. Anderson, 125 Ky. 141, 100 S.W. 865; 
Armstrong v. Mitten, 95 Colo. 425,37 P, 2d 757; Stiglits v. Schar- 
dien, 239 Ky. 799, 40 S.W. 2d 315; Rogers v. Morgan, 127 Neb. 
456, 256 N.W. 1; State ex rel. Lamb v. Cunningham, 83. Wis. 90, 
53 N.W. 35; State ex rel. Attorney General v. Cunningham, 81 
Wis. 440, 51 N.W. 724; Asbury Park Press, Inc. v. Wooley, 33 
N.J. 1,161 A. 2d 705, 713-714.



49

CONCLUSION

For the foregoing reasons, we respectfully submit 
that the decision of the district court should be 
affirmed.

A rchibald Cox,
Solicitor General,

B ruce J. T erris,
Assistant to the Solicitor General. 

R ichard W . Schmude,
Attorney.

O cto ber  1963.



A PPE N D IX  A

Sections 40 to 43 of Article IV  of the Virginia Con­
stitution provide as follows:

Section 40. The legislative power of the State 
shall be vested in a general assembly which 
shall consist of a senate and house of dele­
gates.

Section 41. The senate shall consist of not 
more than forty and not less than thirty-three 
members, who shall be elected quadrennially by 
the voters of the several senatorial districts on 
the Tuesday succeeding the first Monday in 
November.

Section 42. The house of delegates shall con­
sist of not more than one hundred and not less 
than ninety members, who shall be elected bi­
ennially by the voters of the several house dis­
tricts, on the Tuesday succeeding the first Mon­
day in November.

Section 43. The present apportionment of the 
Commonwealth into senatorial and house dis­
tricts shall continue; but a reapportionment 
shall be made in the year nineteen hundred and 
thirty-two and every ten years thereafter.

Chapter 635 of the Virginia Acts of Assembly for 
1962, approved April 7, 1962, provides as follows:

Be it enacted by the General Assembly of

That § 24-14, as amended, of the Code of 
Virginia, be amended and reenacted as follows:

§ 24-14. The State is hereby divided into 
thirty-six districts entitled to senators as 
follows:

First.—The counties of Accomack, North­
ampton, Princess Anne and the city of Virginia 
Beach, one.

( 51 )



5 2

Second.—Norfolk city, two.
Third.—Norfolk county and the city of South 

Norfolk, one.
Fourth.— The counties of Halifax, Charlotte 

and Prince Edward and the city of South Bos-
t / 0 7 l 0110.

Fifth.—The counties of Isle of Wight, Nan- 
semond, Southampton and the cities of Suffolk 
and Franklin, one.

Sixth.—The counties of Greensville, Prince 
George Surry and Sussex and the city of 
Hopewell, one.

Seventh.— The counties of Brunswick, Lun­
enburg and Mecklenburg, one.

Eighth.-—The counties of Dirrwiddie, Notto­
way and the city of Petersburg, one.

Ninth.—Arlington county, one.
Tenth.—City of Portsmouth, one.
Eleventh.— The counties of Appomattox, 

Buckingham, Cumberland, Powhatan, Amherst, 
Nelson and Amelia, one.

Twelfth.—Campbell county and city of 
Lynchburg, one.

Thirteenth.— The counties of Henry, Patrick 
and Pittsylvania and the cities of Danville and 
Martinsville, two.

Fourteenth.— The counties of Smyth, Carroll, 
Floyd, Grayson and the city of Galax, one.

Fifteenth.—The counties of Washington, Lee 
and Scott and the city of Bristol, one.

Sixteenth.— The counties of Dickenson and 
Wise and the city of Norton, one.

Seventeenth.—The counties of Buchanan, 
Russell and Tazewell, one.

Eighteenth.— The counties of Bland, Giles, 
Pulaski and Wythe, one.

Nineteenth.—The counties of Alleghany, 
Bedford, Botetourt, Craig and Rockbridge, and 
the cities of Buena Yista, Clifton Forge, and 
Covington, one.



53

Twentieth.— The counties of Franklin, Mont­
gomery, and Roanoke, and the city of Radford,
one. .

Twenty-first.— The counties _ of Augusta, 
Bath, and Highland, and the cities of Staunton 
and Waynesboro, one.

Twenty-second.— The counties of Page, Rap­
pahannock, Rockingham and Warren, and the 
city of Harrisonburg, one.

Twenty-third.— The counties of Clarke, Fred­
erick, Shenandoah and the city of Winchester, 
one.

Twenty-fourth.-—The counties of Albemarle, 
Fluvanna, Greene and Madison, and the city of 
Charlottesville, one.

Twenty-fifth.— The counties of Goochland, 
Louisa, Orange and Spotsylvania, and the city 
of Fredericksburg, one.

Twenty-six.— The counties of Culpeper, Fau­
quier and Loudoun, one.

Twenty-seventh.-—The county of Fairfax and 
the cities of Fairfax and Falls Church, two.

Twenty-eighth.— The counties of King 
George, Lancaster, Northumberland, Prince 
William, Richmond, Stafford and Westmore­
land, one. . , „

Twenty-ninth.—The counties of Caroline, 
Hanover. King William, Essex, King and 
Queen, Middlesex, Gloucester and Mathews, 
one.

Thirtieth.— City of Newport News and county 
of York, one.

Thirty-first.—City of Hampton, one.
Thirty-second.—The counties of Charles City, 

Chesterfield, James City and New Kent and the 
cities of Colonial Heights and Williamsburg, 
one.

Thirty-third.—Richmond city, two.
Thirty-fourth.—County of Henrico, one.
Thirty-fifth.—City of Roanoke, one.
Thirty-sixth.— City of Alexandria, one.



54

Chapter 638 of the Virginia Acts of Assembly for 
1962, approved April 7, 1962, provides as follows:

That § 24—12, as amended, of the Code of Vir­
ginia, be amended and reenacted as follows:

§ 24-12. Members of the House of Delegates 
shall be distributed and apportioned, and each 
county, city and combination is entitled to rep­
resentation in the House of Delegates by a dele­
gate, or by delegates, as follows:

First.—Accomack, one.
Second.—Accomack and Northampton, one.
Third.—Albemarle and Greene, one.
Fourth.—Charlottesville, one.
Fifth.—Alexandria, two.
Sixth.—Alleghany, Covington and Clifton 

Forge, one.
Seventh.—Amelia, Powhatan and Nottoway, 

one.
Eighth.—Amherst and Lynchburg, one.
Ninth.—Arlington, three.
Tenth.—-Augusta, Highland, Staunton and 

Waynesboro, two.
Eleventh.—Bedford, one.
Twelfth.—Bland and Biles, one.
Thirteenth.—Botetourt, Craig and Roanoke 

County, one.
Fourteenth.—Brunswick and Lunenburg, one.
Fifteenth.—Buchanan, one.
Sixteenth.—Russell and Dickenson, one.
Seventeenth.—Buckingham, Appomattox and 

Cumberland, one.
Eighteenth.— Campbell, one.
Nineteenth.—Caroline, King George, Essex 

and King and Queen, one.
Twentieth.—Carroll and Floyd, one.
Twenty-first.—Charles City, James City, New 

Kent, York and Williamsburg, one.
Twenty-second.— Charlotte and Prince Ed­

ward, one.
Twenty-third.—Chesterfield and Colonial 

Heights, one.



55

Twenty-fourth.—Clarke, Frederick and Win­
chester, one.

Twenty-fifth.—Danville, one.
Twenty-sixth.—Hampton, one.
Twenty-seventh.—Fairfax, and cities of Fair­

fax and Falls Church, three.
Twenty-eighth.—Fauquier and Rappahan­

nock, one.
Twenty-ninth.—Fluvanna, Goochland and 

Louisa, one.
Thirtieth.—-Franklin, one.
Thirty-first.—Gloucester, Mathews and Mid­

dlesex, one.
Thirty-second.—Grayson and Galax, one.
Thirty-third.—Greensville and Sussex, one.
Thirty-fourth.—Halifax and South Boston, 

one.
Thirty-fifth.—Hanover and King William, 

one.
Thirty-sixth.—Henrico, one.
Thirty-seventh.—Henry, Patrick and Mar­

tinsville, two.
Thirty-eighth.—Isle of Wight, Nansemond 

and Suffolk, one.
Thirty-ninth.—N orthumberland, W  estmore- 

land, Lancaster and Richmond county, one.
Fortieth.—Newport News, three.
Forty-first.-—Lee, Wise, and city of Norton, 

two.
Forty-second.—Loudon, one.
Forty-third.—Lynchburg, one.
Forty-fourth.-—Madison, Culpeper and Or­

ange, one.
Forty-fifth.—Mecklenburg, one.
Forty-sixth.-—Montgomery and Radford, one.
Forty-seventh.—Nansemond and Suffolk, one.
Forty-eighth.—Nelson and Amherst, one.
Forty-ninth.—Norfolk county and South 

Norfolk, two.
Fiftieth.—Norfolk city, six.
Fifty-first.—Page and Warren, one.



56

Fifty-second.—Petersburg and Dinwiddie, 
two.

Fifty-third.—Pittsylvania, two.
Fifty-fourth.—Portsmouth, two.
Fifty-fifth.—Prince George, Surry and Hope- 

well, one.
Fifty-sixth.—Princess Anne and Virginia 

Beach, two.
Fifty-seventh.—Prince William, one.
Fifty-eighth.—Pulaski, one.
Fifty-ninth.—Richmond city, and Henrico, 

eight.
Sixtieth.—Roanoke County, one.
Sixty-first.—Roanoke city, two.
Sixty-second.-—Rockbridge, Bath and Buena 

Vista, one.
Sixty-third.—Rockingham and Harrisonburg, 

two.
Sixty-fourth.-—Shenandoah, one.
Sixty-fifth.—Smyth, one.
Sixty-sixth.— Southampton and the city of 

Franklin, one.
Sixty-seventh.— Spotsylvania, Stafford, and 

Fredericksburg, one.
Sixty-eighth.—Tazewell, one.
Sixty-ninth.—Washington, Scott and Bristol, 

two.
Seventieth.—Wythe, one.
And the districts hereby created are hereby 

numbered one (1) to seventy (70) inclusive.
Section 17 of 24 Virginia Code (1950) provides:

Every citizen of the United States twenty- 
one years of age, who has been a resident of 
the State one year, of the county, city or town, 
six months, and of the precinct in which he 
offers to vote thirty days next preceding the 
election, in which he offers to vote, has been 
duly registered, and has paid his State poll 
taxes, as required by law, and is otherwise 
qualified, under the Constitution and laws of



57

this State, shall be entitled to vote for members 
of the General Assembly and all officers elective 
by the people. Removal from one precinct to 
another in the same county, city or town, shall 
not deprive any person of his right to vote in 
the precinct from which he has moved, until 
the expiration of thirty days from such re­
moval.

Section 18 of 24 Virginia Code (1950) provides:
The following persons shall be excluded from 

registering and voting: Idiots, insane persons 
and paupers; persons who, prior to the adop­
tion of the Constitution, were disqualified from 
voting by conviction of crime, either within or 
without the State, and whose disabilities shall not 
have been removed; persons convicted after the 
adoption of the Constitution, either within or 
without this State, for treason, or of any felony, 
bribery, petit larceny, obtaining money or prop­
erty under false pretenses, embezzlement, for­
gery or perjury; persons who, while citizens of 
this State since the adoption of the Constitu­
tion, have fought a duel with a deadly weapon, 
or sent or accepted a challenge to fight such 
duel, either within or without this State, or 
knowingly conveyed a challenge, or aided or 
assisted in any way in the fighting of such duel.

Section 23.1 of 24 Virginia Code (1962 Supp.) pro­
vides :

Whenever a majority of the judges of elec­
tion of any precinct are satisfied, by such evi­
dence as they may deem proper, that a person 
offering to vote in person in any election, is in 
active service as a member of the armed forces 
of the United States in time of war, and that 
such person is otherwise qualified to vote, they 
shall permit such person to vote in such elec­
tion (and also in any second primary election 
that may be held in connection therewith)



58

without being required to register or to pay 
any poll tax; provided, however, that such per­
son shall execute and file with the judges of 
election an affidavit, subscribed and sworn to 
before a judge of election, substantially as 
follows:

“ I  do swear (or affirm) that I  am now and 
have been a citizen and domiciliary resident of
Virginia since the — day o f ----------- , _ 19—,
and am a resident of t h e ---------------  (city or
county) o f __________ (name of city or county)
residing a t __________  (street and number or
place of residence therein) and am now in 
active service in the armed forces of the United 
States; that I  am twenty-one years of age; and 
that by exercising the privilege of voting I ac­
knowledge and accept all of the responsibilities 
and obligations of full citizenship of the Com­
monwealth of Virginia. The name or number
of my voting precinct i s __________ (if known,
so state.)

“ Subscribed and sworn to before me this — 
day o f ________, 19__

Judge of Election ”
The affidavit shall be returned to the clerk’s 

office with the ballots and shall be preserved by 
the clerk as a public record until such time as 
the judge of the circuit or corporation court 
of the county or city in whose clerk’s office the 
affidavit is filed shall order the same to be 
destroyed.

Section 19 of Title 24 Virginia Code (1950) pro­
vides:

Vo officer, soldier, seaman or marine of the 
United States army or navy, shall be deemed 
to have gained a residence as to the right of 
suffrage in the State, or in any county, city 
or town thereof, by reason of Ms being sta­
tioned therein.



A PPE N D IX  B
M IL IT A R Y  POPULATIONS OP COUNTIES AND INDEPENDENT

CITIES 1

Accomack.. 
Albemarle. 
Alleghany. 
Amelia------
Amherst-------
Appomattox..
Arlington------
Augusta........ .
Bath.........—
Bedford--------
Bland........ .

Political subdivision Male

10,628 
7

Female

79
91

11,376 
7

65

80

7

Botetourt------
Brunswick___
Buchanan___
Buckingham..
Campbell------
Caroline--------
Carroll----------
Charles C ity -
Charlotte........
Chesterfield—
Clarke..--------
Craig...............

214
4

17
93

214
4

Culpeper------
Cumberland.. 
Dickenson—  
Dinwiddie—
Essex— ...... -
Fairfax1 2_____
Fauquier------
Floyd.............
Fluvanna-----
Franklin____
Frederick-----
Giles...............

49
11

16, 454 
489

7
3

30

239
8

49
11

16,693 
497

7
3

30

1 This table is based on Table 83 of Book No. PC(1), 48C Va., United States Census of Population 
1960 Virginia: General Social and Economic Characteristics, pp. 185-187, 224-234, which we are filing 
with the Clerk. The Census Bureau has informed us that the military population for females is deter­
mined by adding, in Table 83, the total of females employed and unemployed under the “ Labor 
Force”  subheading, and subtracting this sum from the total labor force.

The Court now has on file Book No. PC(1), 48D, Va., United States Census o f Population 1960 
Virginia: Detailed Characteristics, pp. 395-404. Table 115 of this book shows the total 1960 military 
population of Virginia and indicates the military population breakdown for standard metropolitan 
statistical areas and counties of 250,000 population or more.

2 At the time of the census, the City of Fairfax was part of the County of Fairfax. Therefore, the 
County figures include the total of what is now the County and separate City of Fairfax.

( 59 )



60

M IL IT A R Y  POPULATIONS OF COUNTIES AND IN D EPEN D EN T
C ITIE S— Continued

Political subdivision Male Female Total

c o u n t i e s — c o n t i n u e d
16 16
5 5
4 4

4 4
3 3
9 9

228 228

105 105
217 217

4 4
156 3 159

4 4
7 7

59 59
12 12

16 16

34 4 38
67 67

3 3
901 8 909
199 199

110 110

8 8

8 8
5,250 
7,034 
9, 525 

13

76 5,326 
7,239205

Princess Anne--------------- ----------------- -------------- --------------------- 19
4

9, 544 
17

41 41
31 31

8 8
Scott_____________________ _______ ____ ______ - ...... . ......... 4 4



61

MILITARY POPULATIONS OF COUNTIES AND INDEPENDENT
CITIES— Continued

Political subdivision

counties—continued
Shenandoah-----
Smyth,..............
Southampton—- 
Spotsylvania.—
Stafford.......... .
Surry.................
Sussex................
Tazewell----------
Warren_______
Washington-----
Westmorelands
Wise....... .....
Wythe—  
York............. -

Alexandria.. 
Bristol-------

Falls Church-----
Fredericksburg..
Galax---------T—
Hampton———  
Harrisonburg—
Hopewell----------
Lynchburg-------
Martinsville-----
Newport News..
Norfolk------------
Norton-------------
Petersburg.........
Portsmouth------
Radford........ .
Richmond--------
Roanoke.........—
South Boston—  
South Norfolk.,
Staunton.......
Suffolk...............
Virginia Beach..
Waynesboro-----
Williamsburg— - 
Winchester.. —

Total..

INDEPENDENT CITIES

Buena Vista.. —  
Charlottesville—
Clifton Forge........
Colonial Heights..
Covington-----------
Danville----------

Male

23

t, 693 
12

245
12
8

274
159

6,376

353
31

i, 532 
!, 946

590 
1,354 

3 
195 
71

219
16
18

704
4

97
4

130,804

Female Total

163
435

4
168

2,278

22
589

13
7
4

20
4

1,656

3,741
17
7.

122

245
15
8

274
159

6,479

353
31

8,695 
44,381

594 
10,522 

3 
199 
75

222
16
18

704
4

97

133,082

709-361— 63- 5



62

REPRESENTATION IN THE SENATE EXCLUDING MILITARY
PERSONNEL AND THEIR FAMILIES

Senatorial District
Total ci­

vilian pop­
ulation 
(1960)

Total pop­
ulation, 

minus 2 
times the 
number of 
military 

personnel 
(1960)

Number of 
senators

Civilian 
population 

per senator

Population, 
minus 2Ĵ  
times the 
number of 
military 

personnel, 
per senator

121,290121,290 105, 501 1 105,501

261, 491 194,290 2 130,745 97,460

172,516 70,820 72,516 70,820

67,089 67, 073 1 67,089 67,073

} 88,144 87,859 1 88,144 87,859

67,264 58,734 1 67,264 58,734

| 61,730 61,730 1 61,730 61,730

I
| 73,321 72,192 1 73,321 72,192

152,025 
104, 251

134,961 
88,468

1 152,025 
104,251

134,961 
88,4681

1 76,644 76,632 1 76, 644 76,632

ij  87,700 87,628 1 87,700 87,628

179,272 179,248 2 89,636 89,624

> 87,319 87,273 1 87,319 87,273

City of Galax........................................ 1



REPRESENTATION IN THE SENATE EXCLUDING MILITARY
PERSONNEL AND THEIR FAMILIES— Continued

Senatorial District
Total ci­

vilian pop­
ulation 
(1960)

Total pop­
ulation, 

minus 2Yz 
times the 

number of 
military 

personnel 
(1960)

N umber of 
senators

Civilian 
population 
per senator

Population, 
minus 2p£ 
times the 

number of 
military 

personnel, 
per senator

■ 106,832 106, 795 1 106,832 106,795

W ise.------------------------------- -------- ----
City of Norton------------------- ----------

68, 766 68, 736 1 68, 766 68,736

• 107,777 107, 735 1 107, 777 107,735

Bland_______ — ............ ..........  —
72, 413 72,382 1 72, 413 72,382

- 109,698 109, 401 1 109,698 109, 401
City of Buena Vista......... ...............

• 129,827 129,700 1 129,827 129, 700
City of Radford---------------------------

Bath____ _____ _______ ____________
' 83,818 83, 778 1 83,818 83,778

87, 989 87,979 1 87,989 87,979

66, 768 66, 693 1 66, 768 66, 693

80,305 79,975 1 80,305 79,975

City of Charlottesville............ ............



REPRESENTATION IN THE SENATE EXCLUDING MILITARY
PERSONNEL AND THEIR FAMILIES— Continued

Senatorial District
Total ci­

vilian pop­
ulation 
(1960)

Total pop­
ulation, 

minus 2 l/2  
times the 
number of 
military 

personnel 
(1960)

Number of 
senators

Civilian 
population 
per senator

Population, 
minus 2}4 
times the 

number of 
military 

personnel, 
per senator

62,325 62,028 1 62,325 62,028

63,143 62,303 63,143 62,303

■ 268,227 242,777 134,113 121,388

103,065 91,074 1 103,065 91,074

85,623 85,394 1 85,623 85,394

Consolidated City of Newport News. 
York ......... ............................... .......... 124,894 109,368 1 124,894 109,368

82,779 73,061 1 82,779 73,061

108,375 107,211 1 108,375 107,211

219,759 
117, 111 
97,035 
87,282

219,461 
116,769 
96,923 
81, 671

2 109,879 
117, 111 
97,035 
87,282

109, 730 
116, 769 
96,923 
81,671

1
City of Roanoke______  _ _____ ____ 1

1

3,833,887 3,634,294 40 95,847 90,857



65

REPRESENTATION IN THE HOUSE OF DELEGATES EXCLUDING
MILITARY PERSONNEL AND THEIR FAMILIES

House district
Total civ­
ilian pop­

ulation 
(1960)

Total pop­
ulation, 

minus 2 H  
times the 
number of 

military 
personnel 

(1960)

Number of 
delegates

Civilian
population

per
delegate

Population, 
less 2 Vi 

times the 
number of 

military 
personnel, 

per
delegate

30,556 30,438 1 30,556 30,438

1 47,323 46,906| 47,323

| 35,593 35,457 35,593 35,437

29,305 29,122 1 29,305 29,122
87,282 81,671 2 43,641 40, 835

[ 28,443 28,421 1 28,443 28, 421

> 29,593 29,428 1 29,593 29,428

| 77,704 77,646 1 77,704 77, 646

152,025 134,961 3 50,675 44,987

[ 78,4.83 78,443 39, 241 39, 221

1
30, 963 30.866 1 30, 963 30,866

23,201 1 23, 201 23,201j 23,201

]
> 81,643 81,462 1 81, 643 81, 462

J 30,302 30,302 1 30,302 30,302

36,717 36,707 1 36,717 36,707

46,493 46,481| 40,493 46, 481

|
[ 26,385 26, 385 1 26,385 26, 385

32,941 32,916 1 32,941 32,916

32,280 31,880 32, 280 31,880

33,640 33,640 1 33,640 33,640
\

> 47,977 45,018 1 47,977 45,018
York.....................................................- J

J 27,481 27,469 1 27,481 27,469
Prince Edward.....................................



66

REPRESENTATION IN THE HOUSE OP DELEGATES EXCLUDING
MILITARY PERSONNEL AND THEIR FAMILIES— Continued

House district
Total civ­
ilian pop­

ulation 
(I960)

Total pop­
ulation, 

minus 2)4 
times the 
number of 
military 

personnel 
(1960)

Number of 
delegates

Civilian
population

per
delegate

Population, 
less 2}4 

times the 
number of 

military 
personnel, 

per
delegate

Chesterfield___________________ ___
City of Colonial Heights................. | go, 325 79,637 1 80,325 79,637
Clarke_____________________________
Frederick________ _________________ \ 44,951 CO0000'if 1 44,951 44,888
City of Winchester._ ______________
City of Danville________ __________

1
46, 569 46, 557 1 46, 569 46, 557

City of Hampton___________ ______ 82, 779 73,061 1 82, 779 73,061
Fairfax County_______ __ ____ ___
City of Fairfax_____ _________ ____. . 1 268,227 242,777 3 89, 409 80,925
City of Falls Church_____ _________
Fauquier_________ _______  ______
Rappahannock__________ _______

1
J 28,837 28,192 1 28, 937 28,192

Fluvanna.......................................  ...
Goochland____________ __________ _ | 29,368 29,332 1 29,368 29,332
Louisa..___________  _____________
Franklin__________________________ 25,922 25,918 1 25,922 25,918
Gloucester..____ ____________ _____ _
Mathews.. .............................. ............. \ 25,327 25,279 1 25,327 25,279
Middlesex............................................
Grayson___________________________
City of Galax.______________ _____ _

J
J 22,640 22,834 1 22,640 22,634

Greensville............................................
Sussex_______________ ____ _____ _ J 28,562 28,556 1 28,562 28,556
Halifax_____________________  _____
City of South Boston______________ j  39,608 39,603 1 39,608 39, 603
Hanover____ _____________________
King William_____________ _______ _ J 35,100 35,081 1 35,100 35,081
Henrico_________________________  _ 117,111 116,769 1 117,111 116,769
Henry________________ ___________
Patrick_______________ ____ _______ \ 74.415 74, 415 2 37, 207 37,207
City of Martinsville_______ _______
Isle of Wight___________________ _
Nansemond................ ..........  . _____

]
1 60,949 60,664 1 60,949 60,664

City of Suffolk____________________
Northumberland___ ________  ____ _
Westmoreland......... _ ____  ___ _ .
Lancaster.__ ____________________

j
|  36,769 36,759 1 36, 769 37, 759

Richmond County.................. ...........
City of Newport News................ - - 104,967 91,925 3 34, 989 30,641
Lee___  __ ______ _____ ________
Wise.................... .................................. \ 74,396 74,366 2 37,198 37,183
City of Norton___________ ________
Loudoun___________________ ______

)
24,490 24,402 1 24,480 24,402

City of Lynchburg__________ ______ 54,759 54, 713 1 54,769 54,713
Madison__________________________
Culpeper............................... ............... \ 36,171 36,165 1 36,171 36,165
Orange............. .................................. .
Mecklenburg.. __________________

1
31,428 31,428 1 31,428 31,428

Montgomery. _______ _____ ________
City of Radford__________ ______ _ J 42,253 42,192 1 42,253 42,192



67

REPRESENTATION IN THE HOUSE OF DELEGATES EXCLUDING
MILITARY PERSONNEL AND THEIR FAMILIES— Continued

House district
Total civ­
ilian pop­

ulation 
(1960)

Total pop­
ulation, 

minus 2H  
times the 
number of 

military 
personnel 

(1960)

Number of 
delegates

Civilian
population

per
delegate

Population,
less 2Vz 

times the 
number of 

military 
personnel, 

per
delegate

Nansemond........ ...................... ............
City of Suffolk--------------------------------

S 43,890 43,763 1 4.3,890 43,763

Nelson----------------- --------------------------
Amherst---------- -------- - ..........—..........

i 35,697 35,685 1 35,697 35,685

Norfolk County------------------------------
City of South Norfolk.........................

[• 72,516 70,820 2 36,258 35, 410

City of Norfolk.........—........................ 261,491 194, 920 6 43,582 32,487
Page-----------------------------------------------
Warren____________________________

| 30,220 30,210 1 30,220 30,210

City of Petersburg--------------------------
Dinwiddie----------- --------------------------

j- 58,290 57,326 2 29,1-45 28,663

Pittsylvania________________ _____ - 58,288 58,276 2 29,144 29,138
City of Portsmouth----------------------
Prince George---------------------------------

104,251 88,468 2 52,125 44,234

Surry______________________________
City of Hopewell-----------------------------

\ 38,702 30,178 1 38,702 30,178

Princess Anne................................... .
City of Virginia Beach -----------------

| 73,987 58,595 2 36,983 29, 297

Prince William--------- -------- ------------- 42,925 32,067 1 42,925 32,067
Pulaski..---------------------------------------- 27,241 27,216 1 27,241 27,216
City of Richmond_________________
H enrico..--------------------------------------

j 336,870 336,230 8 42,109 42,029

Roanoke County------------------- -------- 61,652 61, 591 1 61,652 61, 591
City of Roanoke__________________
Rockbridge----------------- -------------------

97,035
1

96,923 2 48, 517 48, 461

Bath------ ---------------------------------------
City of Buena V is t a . --------- ----------

J 35,636 35, 579 1 35,636 35, 579

Rockingham_________ ________ _---
Citv of Harrisonburg-----------------------

j 52,401 52,401 2 26, 200 26,200

Shenandoah------------------------------------ 21,817 21,805 1 21,817 21,805
Smyth............. ........ - - - .................... -- 31,039 30,999 1 31,039 30, 999
S outhampton. .............. - ..........- ..........
City of Franklin---------- ------------------
Spotsylvania-----------------------------------

| 27.195 

|
27,195 1 27,195 27,195

Stafford---------------------------------- -------
City of Fredericksburg--------------------

> 43,564 42,409 1 43,564 42,409

Tazewell-----------------------------------------
Washington................ .......... ............. -

44,778
1

44,459 1 44,778 44,759

Scott_____________________ - ..........—
City of Bristol............ ................ ........

> 81,008 80,971 2 40,504 40,485

Wythe_______________ ______ ______ 21,971 21,965 1 21,971 21,965

Total.............. ........... ...... ........ - 3,833,867 3,644,244 100 38,339 36,442

U.S. GOVERNMENT PRINTING 0FF!CE:196S