WMCA, Inc. v. Lomenzo Opinion

    SUPREME COURT OF THE UNITED STATES

No. 20.— October T erm, 1963.

WMCA, Inc., et al., 
Appellants, 

v .
John P. Lomenzo, Secretary 

of State of the State of 
New York, et al.

On Appeal From the United 
States District Court for 
the Southern District of 
New York.

[June 15, 1964.]

M r . Ch ief  Justice W arren delivered the opinion of 
the Court.

At issue in this litigation is the constitutional validity, 
under the Fourteenth Amendment to the Federal Con­
stitution, of the apportionment of seats in the New York 
Legislature.

I.
Appellants initially brought this action on May 1, 1961, 

in the Federal District Court for the Southern District of 
New York. Plaintiffs below included individual citizens 
and voters residing in five of the six most populous New 
York counties (Bronx, Kings, Nassau, New York and 
Queens), suing in their own behalf and on behalf of all 
New York citizens similarly situated. Appellees, sued in 
their representative capacities, are various state and local 
officials charged with duties in connection with reappor­
tionment and the conducting of state elections. The 
complaint claimed rights under the Civil Rights Act, 42 
U. S. C. §§ 1983, 1988, and asserted jurisdiction under 
28 U. S. C. § 1343 (3).

Plaintiffs below sought a declaration that those provi­
sions of the State Constitution which establish the for­
mulas for apportioning seats in the two houses of the New 
York Legislature, and the statutes implementing them,



2 WMCA v. LOMENZO.

are unconstitutional since violative of the Fourteenth 
Amendment to the Federal Constitution. The complaint 
further asked the District Court to enjoin defendants 
from performing any acts or duties in compliance with 
the allegedly unconstitutional legislative apportionment 
provisions. Plaintiffs asserted that they had no ade­
quate remedy other than the judicial relief sought, and 
requested the court to retain jurisdiction until the New 
York Legislature, “ freed from the fetters imposed by the 
Constitutional provisions invalidated by this Court, pro­
vides for such apportionment of the State legislature as 
will insure to the urban voters of New York State the 
rights guaranteed them by the Constitution of the United 
States.”

In attacking the existing apportionment of seats in the 
New York Legislature, plaintiffs below stated, more 
particularly, that:

“ The provisions of the New York State Constitu­
tion, Article III, § § 2-5, violate the X IV  Amendment 
of the Constitution of the United States because the 
apportionment formula contained therein results, 
and must necessarily result, when applied to the pop­
ulation figures of the State in a grossly unfair weight­
ing of both houses in the State legislature in favor 
of the lesser populated rural areas of the state to the 
great disadvantage of the densely populated urban 
centers of the state . . . .

“As a result of the constitutional provisions chal­
lenged herein, the Plaintiffs’ votes are not as effective 
in either house of the legislature as the votes of other 
citizens residing in rural areas of the state. Plaintiffs 
and all others similarly situated suffer a debasement 
of their votes by virtue of the arbitrary, obsolete and 
unconstitutional apportionment of the legislature and 
they and all others similarly situated are denied the



WMCA v. LOMENZO. 3

equal protection of the laws required by the Consti­
tution of the United States.”

The complaint asserted that the legislative apportion­
ment provisions of the 1894 New York Constitution, as 
amended, are not only presently unconstitutional, but 
also were invalid and violative of the Fourteenth Amend­
ment at the time of their adoption, and that “ the popula­
tion growth in the State of New York and the shifts of 
population to urban areas have aggravated the violation 
of Plaintiffs’ rights under the X IY  Amendment.”

As requested by plaintiffs, a three-judge District Court 
was convened.1 The New York City defendants admitted 
the allegations of the complaint and requested the Court 
to grant plaintiffs the relief they were seeking. The 
remaining defendants moved to dismiss. On January 11, 
1962, the District Court announced its initial decision. 
It held that it had jurisdiction but dismissed the com­
plaint, without reaching the merits, on the ground that 
it failed to state a claim upon which relief could be 
granted, since the issues raised were non justiciable. 202 
F. Supp. 741. In discussing the allegations made by 
plaintiffs, the Court stated:

“The complaint specifically cites as the cause of this 
allegedly unconstitutional distribution of state legis­
lative representation the New York Constitutional 
provisions requiring that:

“ (a) . . the total of fifty Senators established
by the Constitution of 1894 shall be increased by 
those Senators to which any of the larger counties 
become entitled in addition to their allotment as of

1See 196 F. Supp. 758, where the District Court concluded that 
the suit presented issues warranting the convening of a three-judge 
court, over defendants’ motions to dismiss the complaint for lack of 
jurisdiction and for failure to state a claim on which relief could 
be granted.



4 WMCA v. LOMENZO,

1894, but without effect for decreases in other large 
counties . .

“ (b ) no county may have ‘four or more Senators 
unless it has a full ratio for each Senator . . and 

“ (c) . . every county except Hamilton shall
always be entitled [in the Assembly] to one member 
coupled with the limitation of the entire membership 
to 150 members . . . .’ ” 2

Noting that the 1894 Constitution, containing the present 
apportionment provisions, was approved by a majority 
of the State’s electorate before becoming effective, and 
that subsequently the voters had twice disapproved pro­
posals for a constitutional convention to amend the con­
stitutional provisions relating to legislative apportion­
ment, the District Court concluded that, in any event, 
there was a “want of equity in the relief sought, or, to 
view it slightly differently, want of justiciability, [which] 
clearly demands dismissal.”

Plaintiffs appealed to this Court from the District 
Court’s dismissal of their complaint. On June 11, 1962, 
we vacated the judgment below and remanded for further 
consideration in the light of Baker v. Carr, 369 U. S. 186, 
which had been decided subsequent to the District Court’s 
dismissal of the suit below. 370 U. S. 190. In vacating 
and remanding, we stated:

“ Our well-established practice of a remand for con­
sideration in light of a subsequent decision therefore 
applies . . . .  [W ]e believe that the court below 
should be the first to consider the merits of the fed­
eral constitutional claim, free from any doubts as to 
its justiciability and as to the merits of alleged arbi­
trary and invidious geographical discrimination.” 3

2 202 F. Supp., at 743. All decisions of the District Court, and 
also this Court’s initial decision in this litigation, are reported sub 
nom. WMCA, Inc., v. Simon.

3 370 U. S., at 191. Shortly after we remanded the case, the Dis­
trict Court ordered defendants to answer or otherwise move in respect



WMCA v. LOMENZO. 5

On August 16, 1962, the District Court, after conduct­
ing a hearing,4 dismissed the complaint on the merits, 
concluding that plaintiffs had not shown by a preponder­
ance of the evidence that there was any invidious discrim­
ination, that the apportionment provisions of the New 
York Constitution were rational and not arbitrary, that 
they were of historical origin and contained no improper 
geographical discrimination, that they could be amended 
by an electoral majority of the citizens of New York, and 
that therefore the apportionment of seats in the New 
York Senate and Assembly was not unconstitutional,

to the complaint. Another of the defendants, a Nassau County 
official, joined the New York City defendants in admitting most of 
the allegations, and requested the Court to grant plaintiffs the relief 
which they were seeking. The remaining defendants, presently 
appellees, denied the material allegations of the complaint and 
asserted varied defenses.

4 At the hearing on the merits a large amount of statistical evidence 
was introduced showing the population and citizen population of 
New York under various censuses, including the populations of the 
State’s 62 counties and the Senate and Assembly districts estab­
lished under the various apportionments. The 1953 apportionment 
of Senate and Assembly seats under the 1950 census was shown, and 
other statistical computations showing the apportionment to be made 
by the legislature under the 1960 census figures, as a result of apply­
ing the pertinent constitutional provisions, were also introduced into 
evidence.

The District Court refused to receive evidence showing the effect 
of the alleged malapportionment on citizens of several of the most 
populous counties with respect to financial matters such as the col­
lection of state taxes and the disbursement of state assistance. The 
Court also excluded evidence offered to show that the State Constitu­
tion’s apportionment formulas were devised for the express purpose of 
creating a class of citizens whose representation was inferior to that 
of a more preferred class, and that there had been intentional dis­
crimination against the citizens of New York City in the designing 
of the legislative apportionment provisions of the 1894 Constitution. 
Since we hold that the court below erred in finding the New York 
legislative apportionment scheme here challenged to be constitution­
ally valid, we express no view on the correctness of the District Court’s 
exclusion of this evidence.



6 WMCA v. LOMENZO.

208 F. Supp. 368. Finding no failure by the New York 
Legislature to comply with the state constitutional pro­
visions requiring and establishing the formulas for peri­
odic reapportionment of Senate and Assembly seats, the 
court below relied on the presumption of constitutionality 
attaching to a state constitutional provision and the 
necessity for a clear violation “before a federal court of 
equity will lend its power to the disruption of the state 
election processes . . . After postulating a number of 
“ tests” for invidious discrimination, including the “ration­
ality of state policy and whether or not the system is 
arbitrary,” “ whether or not the present complexion of the 
legislature has a historical basis,” whether the electorate 
has an available political remedy, and “ geography, in­
cluding accessibility of legislative representatives to their 
electors,” the Court concluded that none of the rele­
vant New York constitutional provisions were arbitrary 
or irrational in giving weight to, in addition to popula­
tion, “ the ingredient of area, accessibility and character 
of interest.” Stating that in New York “ the county is a 
classic unity of governmental organization and adminis­
tration,” the District Court found that the allocation of 
one Assembly seat to each county was grounded on a his­
torical basis. The Court noted that the 1957 vote on 
whether to call a constitutional convention was “heralded 
as an issue of apportionment” by the then Governor, but 
that nevertheless a majority of the State’s voters chose 
not to have a constitutional convention convened. The 
Court also noted that “ if strict population standards were 
adopted certain undesirable results might follow such as 
an increase in the size of the legislature to such an extent 
that effective debate may be hampered or an increase in 
the size of districts to such an extent that contacts be­
tween the individual legislator and his constituents may 
become impracticable.” 5 As a result of the District

5 A concurring opinion stated that, while the six counties where 
plaintiffs reside' contain 56.2% of the State’s population, they com­



WMCA v. LOMENZO. 7
Court’s dismissal of the complaint, the November 1962 
election of New York legislators was conducted pursuant 
to the existing apportionment scheme. A timely appeal 
to this Court was filed, and we noted probable jurisdiction 
on June 10, 1963. 374 U. S. 802.

II.
Apportionment of seats in the two houses of the New 

York Legislature is prescribed by certain formulas con­
tained in the 1894 State Constitution, as amended. Re­
apportionment is effected periodically by statutory pro­
visions,6 enacted in compliance with the constitutionally 
established formulas. The county is the basic unit of 
area for apportionment purposes, except that two sparsely 
populated counties, Fulton and Hamilton, are treated as 
one. New York uses citizen population instead of total 
population, excluding aliens from consideration, for pur­
poses of legislative apportionment. The number of 
assemblymen is fixed at 150, while the size of the Senate 
is prescribed as not less than 50 and may vary with each 
apportionment.7 All members of both houses of the New 
York Legislature are elected for two-year terms only, in 
even-numbered years.

With respect to the Senate, after providing that that 
body should initially have 50 seats and creating 50 sena­
torial districts, the New York Constitution, in Art. I ll ,
§ 4, as amended, provides for decennial readjustment of 
the size of the Senate and reapportionment of senatorial

prise only 3.1% of its area, and, if legislative apportionment were 
“based solely on population, . . . 3% of the State’s area would dom­
inate the rest of New York.”

6 The existing plan of apportionment of Senate and Assembly seats 
is provided for in McKinney’s N. Y. Laws, 1952 (Supp. 1963), State 
Law, §§ 120-124, enacted by the New York Legislature in 1953.

‘ Article III, § 2, of the 1894 New York Constitution provided for 
a 50-member Senate and a 150-member Assembly. Article III, § 3, 
of the 1894 Constitution prescribed a detailed plan for the apportion­
ment of the 50 Senate seats, subject to periodic alteration by the 
legislature under the formula provided for in Art. I ll, § 4.



8 WMCA v. LOMENZO.

seats, beginning in 1932 and every decade thereafter, in 
the following manner:

“ Such districts shall be so readjusted or altered that 
each senate district shall contain as nearly as may 
be an equal number of inhabitants, excluding aliens, 
and be in as compact form as practicable, and shall 
remain unaltered until the first year of the next 
decade as above defined, and shall at all times con­
sist of contiguous territory, and no county shall be 
divided in the formation of a senate district except 
to make two or more senate districts wholly in such 
county . . . .

“ No county shall have four or more senators 
unless it shall have a full ratio for each senator. 
No county shall have more than one-third of all the 
senators; and no two counties or the territory thereof 
as now organized, which are adjoining counties, or 
which are separated only by public waters, shall have 
more than one-half of all the senators.

“ The ratio for apportioning senators shall always 
be obtained by dividing the number of inhabitants, 
excluding aliens, by fifty, and the senate shall always 
be composed of fifty members, except that if any 
county having three or more senators at the time of 
any apportionment shall be entitled on such ratio 
to an additional senator or senators, such additional 
senator or senators shall be given to such county in 
addition to the fifty senators, and the whole number 
of senators shall be increased to that extent.” 8

As interpreted by practice and judicial decision, reap­
portionment and readjustment of senatorial representa­
tion is accomplished in several stages. First, the total 
population of the State, excluding aliens, as determined 
by the last federal census, is divided by 50 (the minimum

8 N. Y. Const., Art. I ll, § 4.



WMCA v. LOMENZO. 9

number of Senate seats) in order to obtain a so-called 
“ratio” figure. The counties on account of which the 
size of the Senate might have to be increased are then 
ascertained— counties having three or more ratios, i. e., 
more than 6% of the State’s total citizen population each. 
Under the existing apportionment, only five counties are 
in the 6%-or-more class, four of New York City’s five 
counties and upstate Erie County (Buffalo and environs). 
Nassau County (suburban New York City) will be added 
to this class in the pending reapportionment based on the 
1960 census. After those counties that come within the 
“ populous” category, so defined, have been ascertained, 
they are then allocated one senatorial seat for each full 
ratio. Fractions of a ratio are disregarded, and each 
populous county is thereafter divided into the appropriate 
number of Senate districts. In ascertaining the size of 
the Senate, the total number of additional seats resulting 
from the growth of the populous counties since 1894 is 
added to the 50 original seats. And, while the total num­
ber of seats which any of the populous counties has gained 
since 1894 is added to the 50 original seats, the number 
of seats which any of them has lost since 1894 is not 
deducted from the total number of seats to be added. 
Currently the New York Senate, as reapportioned in 
1953, has 58 seats. From that total, the number allo­
cated to the populous counties is subtracted— 27 under 
the 1953 apportionment— and the remaining seats— 31 
under the 1953 scheme— are then apportioned among the 
less populous counties. When reapportioned on the 
basis of 1960 census figures, the Senate will have 57 seats, 
with 26 allotted to the populous counties, as a result of 
applying the constitutionally prescribed ratio and the re­
quirement of a full ratio in order for a populous county 
to be given more than three Senate seats.

The second stage of applying the senatorial apportion­
ment formula involves the allocation of seats to the less



10 WMCA v. LOMENZO.

populous counties, i. e., those having less than 6% of the 
State’s total citizen population (less than three full 
ratios). After the number of Senate seats allocated to 
the populous counties (and thus the size of the Senate) 
has been determined, a second population ratio figure is 
obtained by dividing the number of seats available for 
distribution to the less populous counties, 31 under both 
the 1950 and 1960 censuses, into the total citizen popu­
lation of the less populous counties. Less populous coun­
ties which are entitled to two or three seats, as determined 
by comparing a county’s population with the second ratio 
figure thus ascertained, are then divided into senatorial 
districts. A less populous county is entitled to three 
seats if it has less than three full first ratios, but has more 
than three, or has two and a large fraction, second ratios. 
Since the first ratio is significantly larger than the second, 
a county can have less than three first ratios but more 
than three second ratios. Finally, counties with substan­
tially less than one second ratio are combined into 
multicounty districts.

The result of applying this complicated apportionment 
formula is to give the populous counties markedly less 
senatorial representation, when compared with respective 
population figures, than the less populous counties. 
Under the 1953 apportionment, based on the 1950 census, 
a senator from one of the less populous counties repre­
sented, on the average, 195,859 citizens, while a senator 
from a populous county represented an average of 301,178. 
The constitutionally prescribed first ratio figure was 
284,069, while the second ratio was, of course, only 
195,859. Under the pending apportionment based on the 
1960 census, the first ratio figure is 324,816, and the aver­
age population of the senatorial districts in the populous 
counties will be 366,128. On the other hand, the second 
ratio, and the average population of the senatorial dis­
tricts in the less populous counties, is only 216,822.



WMCA v. LOMENZO. 11

Thus, a citizen in a less populous county had, under the 
1953 apportionment, over 1.5 times the representation, 
on the average, of a citizen in a populous county, and, 
under the apportionment based on the 1960 census, this 
ratio will be about 1.7-to-l.9

The 1894 New York Constitution also provided for an 
Assembly composed of 150 members, in Art. I l l ,  § 2. 
Under the formula prescribed by Art. I ll , § 5, of the New 
York Constitution, each of the State’s 62 counties, except 
Hamilton County which is combined with Fulton County 
for purposes of Assembly representation, is initially given 
one Assembly seat. The remaining 89 seats are then 
allocated among the various counties in accordance with 
a “ratio” figure obtained by dividing the total number 
of seats, 150, into the State’s total citizen population. 
Applying the constitutional formula, a county whose pop­
ulation is at least 1 y2 times this ratio (1%  of the total 
citizen population) is given one additional assemblyman. 
The remaining Assembly seats are then apportioned 
among those counties whose citizen populations total two 
or more whole ratios, with any remaining seats being allo­
cated among the counties on the basis of “highest re­
mainders.” Finally, those counties receiving more than 
one seat are divided into the appropriate number of 
Assembly districts. In allocating 61 of the 150 Assembly 
seats on a basis wholly unrelated to population, and in 
establishing three separate categories of counties for the 
apportionment of Assembly representation, the constitu­
tional provisions relating to the apportionment of As­
sembly seats plainly result in a favoring of the less popu­
lous counties. Under the new reapportionment based on

9 For an extended discussion of the apportionment of seats in the 
New York Senate under the pertinent state constitutional provisions, 
see Silva, Apportionment of the New York Senate, 30 Ford. L. Rev. 
595 (1962). See also Silva, Legislative Representation—With Special 
Reference to New York, 27 Law & Contemp. Prob. 408 (1962).



12 WMCA v. LOMENZO.

1960 census figures, the smallest 44 counties will each 
be given one seat for an average of 62,765 citizen inhab­
itants per seat, three counties will receive two seats each, 
with a total of six assemblymen representing an average 
of 93,478 citizen inhabitants, and the 14 most populous 
counties will be given the remaining 100 seats, resulting 
in an average representation figure of 129,183 citizen 
inhabitants each.10

Although the New York Legislature has not yet reap­
portioned on the basis of 1960 census figures,11 the out­
lines of the forthcoming apportionment can be predicted 
with assurance. Since the rules prescribed in the New 
York Constitution for apportioning the Senate are so 
explicit and detailed, the New York Legislature has little 
discretion, in decennially enacting implementing statutory 
reapportionment provisions, except in determining which 
of the less populous counties are to be joined together 
in multicounty districts and in districting within counties 
having more than one senator. Similarly, the legislature 
has little discretion in reapportioning Assembly seats.12

10 For a thorough discussion of the apportionment of seats in the 
New York Assembly pursuant to the relevant state constitutional 
provisions, see Silva, Apportionment of the New York Assembly, 
31 Ford. L. Rev. 1 (1962).

11 Article III, § 4, of the New York Constitution requires the legis­
lature to reapportion and redistrict Senate seats no later than 1966, 
and Art. I ll, § 5, provides that “ the members of the Assembly shall 
be chosen by single districts and shall be apportioned by the legis­
lature at each regular session at which the senate districts are read­
justed or altered, and by the same law, as nearly as may be according 
to the number of their respective inhabitants, excluding aliens.”

12 While the legislature has the sole power to apportion Assembly 
seats among the State’s counties, in accordance with the constitu­
tional formula, the New York Constitution gives local governmental 
authorities the exclusive power to divide their respective counties 
into Assembly districts. A county having only one assemblyman 
constitutes one Assembly district by itself, of course, and therefore 
cannot be divided into Assembly districts. But, with respect to



WMCA v. LOMENZO. 13

A number of other rather detailed rules, some mandatory 
and some only directive, are included in the constitutional 
provisions prescribing the system for apportioning seats in 
the two houses of the New York Legislature, and are set 
out in Art. I l l ,  §§ 2-5, of the New York Constitution.13

When the New York Legislature was reapportioned in 
1953, on the basis of 1950 census figures, assemblymen 
representing 37.1% of the State’s citizens constituted a 
majority in that body, and senators representing 40.9% 
of the citizens comprised a majority in the Senate. Under 
the still effective 1953 apportionment, applying 1960 
census figures, assemblymen representing 34.7% of the 
citizens constitute a majority in the Assembly, and sen­
ators representing 41.8% of the citizens constitute a 
majority in that body. If reapportionment were carried 
out under the existing constitutional formulas, applying 
1960 census figures, 37.5% of the State’s citizens would

counties given more than one Assembly seat, the New York Con­
stitution, Art. I ll, §5, provides: “ In any county entitled to more 
than one member [of the Assembly], the board of supervisors, and 
in any city embracing an entire county and having no board of 
supervisors, the common council, or if there be none, the body exer­
cising the powers of a common council, shall . . . divide such counties 
into assembly districts as nearly equal in number of inhabitants, 
excluding aliens, as may be . . .

13 Under these specific provisions, while more than one Senate or 
Assembly district can be contained within the whole of a single 
county, and while a Senate district may consist of more than one 
county, no county border line can be broken in the formation of 
either type of district. Both Senate and Assembly districts are 
required to consist of contiguous territory, and each Assembly dis­
trict is required to be wholly within the same senatorial district. 
Each Assembly district in the same county shall contain, as nearly 
as may be, an equal number of citizen inhabitants, and shall consist 
of “ convenient” territory and be as compact as practicable. Further 
detailed provisions relate to the division of towns between adjoining 
districts, and the equalization of population among Senate districts 
in the same county and Assembly districts in the same Senate district.



14 WMCA v. LOMENZO.

reside in districts electing a majority in the Assembly, 
and 38.1% would live in areas electing a majority of the 
members of the Senate. When the State was reappor­
tioned in 1953 on the basis of the 1950 census, the most 
populous Assembly district had 11.9 as many citizens as 
the least populous one, and a similar ratio in the Senate 
was about 2.4-to-l. Under the current apportionment, 
applying 1960 census figures, the citizen population-vari- 
ance ratio between the most populous and least populous 
Assembly districts is about 21-to-l, and a. similar ratio 
in the Senate is about 3.9-to-l. If the Assembly were 
reapportioned under the existing constitutional formulas, 
the most populous Assembly district would have about 
12.7 times as many citizens as the least populous one, 
and a similar ratio in the Senate would be about 2.6-to-l.

According to 1960 census figures, the six counties where 
the six individual appellants reside had a citizen popu­
lation of 9,129,780, or 56.2% of the State’s total citizen 
population of 16,240,786. They are currently repre­
sented by 72 assemblymen and 28 senators— 48% of 
the Assembly and 48.3% of the Senate. When the legis­
lature reapportions on the basis of the 1960 census figures, 
these six counties will have 26 Senate seats and 69 
Assembly seats, or 45.6% and 46%, respectively, of the 
seats in the two houses. The 10 most heavily populated 
counties in New York, with about 73.5% of the total 
citizen population, are given, under the current appor­
tionment, 38 Senate seats, 65.5% of the membership of 
that body, and 93 Assembly seats, 62% of the seats in 
that house. When the legislature reapportions on the 
basis of the 1960 census figures, these same 10 counties 
will be given 37 Senate seats and 92 Assembly seats, 
64.9% and 61.3%, respectively, of the membership of 
the two houses. The five counties comprising New 
York City have 45.7% of the State’s total citizen popu­
lation, and are given, under the current apportionment,



WMCA v. LOMENZO. 15

43.1% of the Senate seats and 43.3% of the seats in the 
Assembly. When the legislature reapportions on the 
basis of the 1960 census figures, these same counties will 
be given 36.8% and 37.3%, respectively, of the member­
ship of the two houses.

Under the existing senatorial apportionment, applying 
1960 census figures, Suffolk County’s one senator repre­
sents a citizen population of 650,112, and Nassau 
County’s three senators represent an average of 425,267 
citizens each. The least populous senatorial district, on 
the other hand, comprising Saratoga, Warren, and Essex 
Counties, has a total population of only 166,715.14 Under 
the forthcoming reapportionment based on the 1960 
census, Nassau County will again be allocated only three 
Senate seats, with an average population of 425,267, while 
the least populous senatorial district, which will probably 
comprise Putnam and Rockland Counties, will have a 
citizen population of only 162,840.15 Onondaga County, 
with a total citizen population of 414,770, less than the 
average population of each Nassau County district, will 
nevertheless be given two Senate seats. Because of the 
effect of the full-ratio requirement applicable only to the 
populous counties, Nassau County, despite the fact that 
its citizen population increased from 655,690 to 1,275,801,

14 Included as Appendix D to the District Court’s opinion on the 
merits is a map of the State of New York showing the 58 senatorial 
districts under the existing apportionment. 208 F. Supp., at 383. 
Appendix E contains a chart which includes census figures showing 
the 1960 population of each of New York’s 62 counties. Id., at 384.

15 Appendix A to the District Court’s opinion on the merits is a 
chart showing the apportionment of senatorial seats which would 
result if the Senate were reapportioned on the basis of the present 
constitutional formula, using 1960 census figures, including the citizen 
populations of the 13 most populous counties, the number of senators 
to be allocated to each, and the average citizen population per senator 
in each of the projected senatorial districts. 208 F. Supp., at 380.



16 WMCA v. LOMENZO.

will not obtain a single additional senatorial seat as a 
result of the reapportionment based on 1960 census 
figures. And Monroe County, with a citizen population 
of 571,029, since not having more than 6% of the State’s 
total citizen population, will have the same number of 
senators under the new apportionment, three, as Nassau 
County, although it has less than half that county’s popu­
lation. New York City’s 20 senators will represent an 
average citizen population of 360,193, while the 15 multi­
county senatorial districts to be created upstate will have 
an average of only 207,528 citizens per district. Because 
of the operation of the full-ratio rule with respect to 
counties having more than 6% of the State’s total citizen 
population each, the unrepresented remainders (above a 
full first ratio but short of another full first ratio which 
is required for an additional Senate seat) in three of the 
urban counties will be as follows: Nassau, 301,353; New 
York, 284,805; and Kings, 244,798. Thus, over 800,000 
citizens will not be counted in the apportionment of Sen­
ate seats, even though the unrepresented remainders in 
two of these three counties equal or exceed the statewide 
average population of 284,926 citizens per district. Fur­
thermore, the effect of the rule requiring an increase in 
the number of Senate seats because of the entitlement of 
populous counties to added senatorial representation, cou­
pled with the failure to reduce the size of the Senate 
because of reductions in the number of seats to which a 
populous county is entitled (as compared with its sena­
torial representation in 1894), is that the comparative 
voting power of the populous counties in the Senate 
decreases as their share of the State’s total population 
increases.

With respect to the Assembly, the six assemblymen 
currently elected from Nassau County represent an aver­
age citizen population of 212,634, and one of that county’s 
current Assembly districts has a citizen population of



WMCA v. LOMENZO. 17

314,721. Suffolk County’s three assemblymen presently 
represent an average of 216,704 citizens. On the other 
hand, the least populous Assembly district, Schuyler 
County, has a citizen population, according to the 1960 
census, of only 14,974, and yet, in accordance with the 
constitutional formula, is allocated one Assembly seat.16 
Under the new apportionment, Schuyler County will 
again be given one Assembly seat, while one projected 
Monroe County district will have a citizen population of 
190,343 and an Assembly district in Suffolk County will 
have over 170,000 citizens.17 Additionally, the average 
population of the 54 Assembly districts in New York 
City’s four populous counties will be in excess of 132,000 
citizens each.

Under the 1953 apportionment, based on 1950 census 
figures, the most populous Assembly district, in Onondaga 
County, had a citizen population of 167,226, while the 
least populous district was that comprising Schuyler 
County, with only 14,066 citizens. In the Senate, the 
most populous districts were the four in Bronx County, 
averaging 344,545 citizens each, while the least populous 
district had a citizen population of only 146,666.

No adequate political remedy to obtain relief against 
alleged legislative malapportionment appears to exist in

16 Included as Appendix C to the District Court’s opinion on the 
merits is a map of the State of New York showing the number of 
Assembly seats apportioned to each county under the existing appor­
tionment. 208 F. Supp., at 383. Appendix E contains a chart which 
includes census figures showing the 1960 population of each of New 
York’s 62 counties. Id., at 384.

17 Appendix B to the District Court’s opinion on the merits is a 
chart showing the apportionment of Assembly seats which would 
result if the Assembly were reapportioned under the present con­
stitutional formula, using 1960 census figures, including the number 
of Assembly seats to be given to each county and the approximate 
citizen population in each projected Assembly district. 208 F. Supp., 
at 381-382.



18 WMCA v. LOMENZO.

New York.18 No initiative procedure exists under New 
York law. A proposal to amend the State Constitution 
can be submitted to a vote by the State’s electorate only 
after approval by a majority of both houses of two suc­
cessive sessions of the New York Legislature.19 A ma­
jority vote of both houses of the legislature is also re­
quired before the electorate can vote on the calling of a 
constitutional convention.20 Additionally, under New 
York law the question of whether a constitutional con­
vention should be called must be submitted to the elec­
torate every 20 years, commencing in 1957.21 But even 
if a constitutional convention were convened, the same 
alleged discrimination which currently exists in the ap­
portionment of Senate seats against each of the counties 
having 6% or more of a State’s citizen population would 
be perpetuated in the election of convention delegates.22 
And, since the New York Legislature has rather consist­
ently complied with the state constitutional requirement 
for decennial legislative reapportionment in accord­
ance with the rather explicit constitutional rules, enact­

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

19 Under Art. X IX , § 1, of the New York Constitution.
20 According to Art. X IX , § 2, of the New York Constitution, which 

provides that the question of whether a constitutional convention 
should be called can be submitted to the electorate “ at such times 
as the legislature may by law provide . . . . . ”

21 Pursuant to Art. X IX , § 2, of the New York Constitution. In 
1957 the State’s electorate, by a close vote, disapproved the calling 
of a constitutional convention, and the question is not required to be 
submitted to the people again until 1977.

22 Under Art. X IX , § 2, of the New York Constitution, delegates 
to a constitutional convention are elected three per senatorial district, 
plus 15 delegates elected at large.



WMCA v. LOMENZO. 19

ing effective apportionment statutes in 1907, 1917, 1943, 
and 1953, judicial relief in the state courts to remedy the 
alleged malapportionment was presumably unavailable.23

III.
In Reynolds v. Sim s,-----U. S. - — , decided also this

date, we held that the Equal Protection Clause requires 
that seats in both houses of a bicameral state legislature 
must be apportioned substantially on a population basis. 
Neither house of the New York Legislature, under the 
state constitutional formulas and the implementing stat­
utory provisions here attacked, is presently or, when 
reapportioned on the basis of 1960 census figures, will be 
apportioned sufficiently on a population basis to be con­
stitutionally sustainable. Accordingly, we hold that the 
District Court erred in upholding the constitutionality of 
New York’s scheme of legislative apportionment.

We have examined the state constitutional formulas 
governing legislative apportionment in New York in a 
detailed fashion in order to point out that, as a result 
of following these provisions, the weight of the votes of 
those living in populous areas is of necessity substantially 
diluted in effect. However complicated or sophisticated 
an apportionment scheme might be, it cannot, consistent 
with the Equal Protection Clause, result in a significant 
undervaluation of the weight of the votes of certain of a 
State’s citizens merely because of where they happen to 
reside. New York’s constitutional formulas relating to

23 Decisions by the New York Court of Appeals indicate that state 
courts will do no more than determine whether the New York Legis­
lature has properly complied with the state constitutional provisions 
relating to legislative apportionment in enacting implementing statu­
tory provisions. See, e. g., In re Sherrill, 188 N. Y. 185, 81 N. E. 
124 (1907); In re Dowling, 219 N. Y. 44, 113 N. E. 545 (1916); and 
In re Fay, 291 N. Y. 198, 52 N. E. 2d 97 (1943).



20 WMCA v. LOMENZO.

legislative apportionment demonstrably include a built-in 
bias against voters living in the State’s more populous 
counties. And the legislative representation accorded to 
the urban and suburban areas becomes proportionately 
less as the population of those areas increases. With the 
size of the Assembly fixed at 150, with a substantial num­
ber of Assembly seats distributed to sparsely populated 
counties without regard to population, and with an addi­
tional seat given to counties having 1 y2 population ratios, 
the population-variance ratios between the more pop­
ulous and the less populous counties will continually in­
crease so long as population growth proceeds at a dis­
parate rate in various areas of the State. With respect 
to the Senate, significantly different population ratio fig­
ures are used in determining the number of Senate seats 
to be given to the more populous and the less populous 
counties, and the more populous counties are required 
to have full first ratios in order to be entitled to addi­
tional senatorial representation. Also, in ascertaining 
the size of the Senate, the number of seats by which the 
senatorial representation of the more populous counties 
has increased since 1894 is added to 50, but the number 
of Senate seats that some of the more populous counties 
have lost since 1894 is not subtracted from that figure. 
Thus, an increasingly smaller percentage of the State’s 
population will, in all probability, reside in senatorial dis­
tricts electing a majority of the members of that body. 
Despite the opaque intricacies of New York’s constitu­
tional formulas relating to legislative apportionment, 
when the effect of these provisions, and the statutes im­
plementing them, on the right to vote of those individuals 
living in the disfavored areas of the State is considered, 
we conclude that neither the existing scheme nor the 
forthcoming one can be constitutionally condoned.



WMCA v. LOMENZO. 21

We find it inappropriate to discuss questions relating 
to remedies at the present time, beyond what we said in 
our opinion in Reynolds.'2* Since all members of both 
houses of the New York Legislature will be elected in 
November 1964, the court below, acting under equitable 
principles, must now determine whether, because of the 
imminence of that election and in order to give the New 
York Legislature an opportunity to fashion a constitu­
tionally valid legislative apportionment plan, it would be 
desirable to permit the 1964 election of legislators to be 
conducted pursuant to the existing provisions, or whether 
under the circumstances the effectuation of appellants’ 
right to a properly weighted voice in the election of state 
legislators should not be delayed beyond the 1964 elec­
tion. We therefore reverse the decision below and re­
mand the case to the District Court for further proceed­
ings consistent with the views stated here and in our 
opinion in Reynolds v. Sims.

It is so ordered.

24 See Reynolds v. Sims, U. S., a t ---- .



SUPREME COURT OF THE UNITED STATES
Nos. 508 and 20.— October T erm, 1963.

Andres Lucas et al., etc., 
Appellants,

508 v .
The Forty-Fourth General 

Assembly of the State of 
Colorado et al.

WMCA, Inc., et al., 
Appellants,

20 v .
John P. Lomenzo, Secretary 

of State of the State of 
New York, et al.

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

On Appeal From the United 
States District Court for 
the Southern District of 
New York.

[June 15, 1964.]

M r . Justice Stewart, whom M r . Justice Clark joins, 
dissenting.

It is important to make clear at the outset what these 
cases are not about. They have nothing to do with the 
denial or impairment of any person’s right to vote. 
Nobody’s right to vote has been denied. Nobody’s right 
to vote has been restricted. Nobody has been deprived 
of the right to have his vote counted. The voting right 
cases which the Court cites are, therefore, completely 
wide of the mark.1 Secondly, these cases have nothing 
to do with the “ weighting” or “diluting” of votes cast

1 See Reynolds v. Sims, ante, p p .-------------, citing: Ex parte Yar­
brough, 110 U. S. 651; United States v. Mosely, 238 U. S. 383; 
Guinn v. United States, 238 U. S. 347; Lane v. Wilson, 307 U. S. 268; 
United States v. Classic, 313 U. S. 299; Ex parte Siebold, 100 U. S. 
371; United States v. Saylor, 322 U. S. 385; Gomillion v. Lightfoot, 
364 U. S. 339; Nixon v. Herndon, 273 U. S. 536; Nixon v. Condon, 
286 U. S. 73; Smith v. Allwright, 321 U. S. 649; Terry v. Adams, 
345 U. S. 461.



2 LUCAS v. COLORADO GENERAL ASSEMBLY.

within any electoral unit. The rule of Gray v. Sanders, 
372 U. S. 368, is, therefore, completely without relevance 
here.2 Thirdly, these cases are not concerned with the 
election of members of the Congress of the United States, 
governed by Article I of the Constitution. Consequently, 
the Court’s decision in Wesberry v. Sanders, 376 U. S. 1, 
throws no light at all on the basic issue now before us.3

The question involved in these cases is quite a different 
one. Simply stated, the question is to what degree, if at 
all, the Equal Protection Clause of the Fourteenth 
Amendment limits each sovereign State’s freedom to 
establish appropriate electoral constituencies from which 
representatives to the State’s bicameral legislative as­
sembly are to be chosen. The Court’s answer is a blunt 
one, and, I think, woefully wrong. The Equal Protec­
tion Clause, says the Court, “requires that the seats in 
both houses of a bicameral state legislature must be 
apportioned on a population basis.” 4

After searching carefully through the Court’s opinions 
in these and their companion cases, I have been able to 
find but two reasons offered in support of this rule. 
First, says the Court, it is “ established that the funda­

2 “ Once the geographical unit for which a representative is to be 
chosen is designated, all who participate in the election are to have 
an equal vote . . . ” Gray v. Sanders, 372 U. S., at 379. The 
Court carefully emphasized in Gray that the case did not “ involve a 
question of the degree to which the Equal Protection Clause of the 
Fourteenth Amendment limits the authority of a State Legislature 
in designing the geographical districts from which representatives 
are chosen . . .  for the State Legislature . . . . ”■ 372 U. S., at 376.

3 In Wesberry v. Sanders the Court held that Article I of the Con­
stitution (which ordained that members of the United States Senate 
shall represent grossly disparate constituencies in terms of numbers, 
U. S. Const., Art. I, §3, el. 1; see U. S. Const., Amend. XVII) 
ordained that members of the United States House of Representa­
tives shall represent constituencies as nearly as practicable of equal 
size in terms of numbers. U. S. Const,., Art. I, § 2.

4 See Reynolds v. Sims, ante, p . ---- .



LUCAS v. COLORADO GENERAL ASSEMBLY. 3

mental principle of representative government in this 
country is one of equal representation for equal numbers 
of people . . . . ”  5 6 With all respect, I think that this is 
not correct, simply as a matter of fact. It has been unan­
swerably demonstrated before now that this “was not the 
colonial system, it was not the system chosen for the 
national government by the Constitution, it was not the 
system exclusively or even predominantly practiced by 
the States at the time of adoption of the Fourteenth 
Amendment, it is not predominantly practiced by the 
States today.” 6 Secondly, says the Court, unless legis­
lative districts are equal in population, voters in the more 
populous districts will suffer a “debasement” amounting 
to a constitutional injury. As the Court explains it, “ To 
the extent that a citizen’s right to vote is debased, he is 
that much less a citizen.” 7 We are not told how or why 
the vote of a person in a more populated legislative dis­
trict is “ debased,” or how or why he is less a citizen, nor 
is the proposition self-evident. I find it impossible to 
understand how or why a voter in California, for instance, 
either feels or is less a citizen than a voter in Nevada, 
simply because, despite their population disparities, each 
of those States is represented by two United States 
Senators.8

5 Id., at — .
6 Baker v. Carr, 369 U. S. 186, 266, 301 (Frankfurter, J., dis­

senting).
See also the excellent analysis of the relevant historical materials 

contained in M r . Justice Harlan ’s dissenting opinion filed this day 
in these and their companion cases, ante, p . -----.

7 Reynolds v. Sims, ante, p . ---- .
8 On the basis of the 1960 Census, each Senator from Nevada rep­

resents fewer than 150,000 constituents, while each Senator from 
California represents almost 8,000,000. As will become clear later in 
this opinion, I do not mean to imply that a state legislative appor­
tionment system modeled precisely upon the Federal Congress would 
necessarily be constitutionally valid in every State.



4 LUCAS v. COLORADO GENERAL ASSEMBLY.

To put the matter plainly, there is nothing in all the 
history of this Court’s decisions which supports this con­
stitutional rule. The Court’s draconian pronouncement, 
which makes unconstitutional the legislatures of most of 
the 50 States, finds no support in the words of the Con­
stitution, in any prior decision of this Court, or in the 
175-year political history of our Federal Union.9 With

9 It has been the broad consensus of the state and federal courts 
which, since Baker v. Carr, 369 U. S. 186, have been faced with the 
basic question involved in these cases, that the rule which the Court 
announces today has no basis in the Constitution and no root in 
reason. See, e. g., Sobel v. Adams, 208 F. Supp. 316, 214 F. Supp. 
811; Thigpen v. Meyers, 211 F. Supp. 826; Sims v. Frink, 205 F.
Supp. 245, 208 F. Supp. 431, ante, p. -----; W. M. C. A., Inc., v.
Sim.on, 208 F. Supp. 368, ante, p. •— ; Baker v. Carr, 206 F. Supp.
341; Mann v. Davis, 213 F. Supp 577, ante, p. -----; Toombs v.
Fortson, 205 F. Supp. 248; Davis v. Synhorst, 217 F. Supp. 492; 
Nolan v. Rhodes, 218 F. Supp. 953; Moss v. Burkhart, 207 F. Supp.
885; Lisco v. Love, 219 F. Supp. 922, ante, p. ---- ; Wisconsin v.
Zimmerman, 209 F. Supp. 183; Marshall v. Hare, 227 F. Supp. 989; 
Hearne v. Smylie, 225 F. Supp. 645; Land v. Mathas. 145 So. 2d 871 
(F la.); Caesar v. Williams, 84 Idaho 254, 371 P. 2d 241; Maryland 
Committee for Fair Representation v. Tawes, 228 Md. 412, 180 A. 2d
656, 182 A. 2d 877, 229 Md. 406, 184 A. 2d 715, ante, p .---- ; Levitt v.
Maynard, 182 A. 2d 897 (N. H .); Jackman v. Bodine, 78 N. J. Super. 
414, 188 A. 2d 642; Sweeney v. Notte, 183 A. 2d 296 (R. I . ) ; Mikell 
v. Rousseau, 183 A. 2d 817 (Vt.).

The writings of scholars and commentators have reflected the same 
view. See, e. g., De Grazia, Apportionment and Representative 
Government; Neal, Baker v. Carr: Politics in Search of Law, 1962 
Supreme Court Review 252; Dixon, Legislative Apportionment and 
the Federal Constitution, 27 Law and Contemporary Prob. 329; 
Dixon, Apportionment Standards and Judicial Power, 38 Notre Dame 
Lawyer 367; Israel, On Charting a Course Through the Mathematical 
Quagmire: The Future of Baker v. Carr, 61 Mich. L. Rev. 107; 
Israel, Nonpopulation Factors Relevant to an Acceptable Standard 
of Apportionment, 38 Notre Dame Lawyer 499; Lucas, Legislative 
Apportionment and Representative Government: The Meaning of 
Baker v. Carr, 61 Mich. L. Rev. 711; Friedeibaum, Baker v. Carr: 
The New Doctrine of Judicial Intervention and its Implications for 
American Federalism, 29 U. of Chi. L. Rev. 673; Bickel, The Dura­



LUCAS v. COLORADO GENERAL ASSEMBLY. 5

all respect, I am convinced these decisions mark a long 
step backward into that unhappy era when a majority of 
the members of this Court were thought by many to have 
convinced themselves and each other that the demands of 
the Constitution were to be measured not by what it says, 
but by their own notions of wise political theory. The 
rule announced today is at odds with long-established 
principles of constitutional adjudication under the Equal 
Protection Clause, and it stifles values of local individ­
uality and initiative vital to the character of the Federal 
Union which it was the genius of our Constitution to 
create.

I .

What the Court has done is to convert a particular 
political philosophy into a constitutional rule, binding 
upon each of the 50 States, from Maine to Hawaii, from 
Alaska to Texas, without regard and without respect for 
the many individualized and differentiated characteristics 
of each State, characteristics stemming from each State’s 
distinct history, distinct geography, distinct distribution 
of population, and distinct political heritage. M y own 
understanding of the various theories of representative 
government is that no one theory has ever commanded 
unanimous assent among political scientists, historians, or 
others who have considered the problem.10 But even if 
it were thought that the rule announced today by the 
Court is, as a matter of political theory, the most desir­

bility of Colgrove v. Green, 72 Yale L. J. 39; McCloskey, The Reap­
portionment Case, 76 Harv. L. Rev. 54 ; Freund, New Vistas in Con­
stitutional Law, 112 U. of Pa. L. Rev. 631, 639; Comment, Baker v. 
Carr and Legislative Apportionments: A Problem of Standards, 72 
Yale L. J. 968.

10 See, e. g., DeGrazia, Apportionment and Representative Govern­
ment, pp. 19-63; Ross, Elections and Electors, pp. 21-127; Lakeman 
and Lambert, Voting in Democracies, pp. 19-37, 149-156; Hogan, 
Election and Representation; Dahl, A. Preface to Democratic 
Theory.



6 LUCAS v. COLORADO GENERAL ASSEMBLY.

able general rule which can be devised as a basis for the 
make-up of the representative assembly of a typical 
State, I could not join in the fabrication of a constitu­
tional mandate which imports and forever freezes one 
theory of political thought into our Constitution, and 
forever denies to every State any opportunity for enlight­
ened and progressive innovation in the design of its demo­
cratic institutions, so as to accommodate within a system 
of representative government the interests and aspira­
tions of diverse groups of people, without subjecting any 
group or class to absolute domination by a geographically 
concentrated or highly organized majority.

Representative government is a process of accommo­
dating group interests through democratic institutional 
arrangements. Its function is to channel the numerous 
opinions, interests, and abilities of the people of a State 
into the making of the State’s public policy. Appropriate 
legislative apportionment, therefore, should ideally be 
designed to insure effective representation in the State’s 
legislature, in cooperation with other organs of political 
power, of the various groups and interests making up the 
electorate. In practice, of course, this ideal is approxi­
mated in the particular apportionment system of any 
State by a realistic accommodation of the diverse and 
often conflicting political forces operating within the 
State.

I do not pretend to any specialized knowledge of the 
myriad of individual characteristics of the several States, 
beyond the records in the cases before us today. But I 
do know enough to be aware that a system of legislative 
apportionment which might be best for South Dakota, 
might be unwise for Hawaii with its many islands, or 
Michigan with its Northern Peninsula. I do know 
enough to realize that Montana with its vast distances is 
not Rhode Island with its heavy concentrations of peo­
ple. I do know enough to be aware of the great varia­



LUCAS v. COLORADO GENERAL ASSEMBLY. /

tions among the several States in their historic manner of 
distributing legislative power— of the Governors’ Coun­
cils in New England, of the broad powers of initiative and 
referendum retained in some States by the people, of the 
legislative power which some States give to their Gov­
ernors, by the right of veto or otherwise, of the widely 
autonomous home rule which many States give to their 
cities.11 The Court today declines to give any recogni­
tion to these considerations and countless others, tangible 
and intangible, in holding unconstitutional the particular 
systems of legislative apportionment which these States 
have chosen. Instead, the Court says that the require­
ments of the Equal Protection Clause can be met in any 
State only by the uncritical, simplistic, and heavy-handed 
application of sixth-grade arithmetic.

But legislators do not represent faceless numbers. 
They represent people, or, more accurately, a majority of 
the voters in their districts— people with identifiable 
needs and interests which require legislative representa­
tion, and which can often be related to the geographical 
areas in which these people live. The very fact of geo­
graphic districting, the constitutional validity of which 
the Court does not question, carries with it an acceptance 
of the idea of legislative representation of regional needs 
and interests. Yet if geographical residence is irrelevant, 
as the Court suggests, and the goal is solely that of 
equally “ weighted” votes, I do not understand why the 
Court’s constitutional rule does not require the abolition 
of districts and the holding of all elections at large.12

11 See, e. g., Sandalow, The Limits of Municipal Power Under 
Home Pule: A Role for the Courts, 48 Minnesota L. Rev. 643; 
Klemme, The Powers of Home Rule Cities in Colorado, 36 U. of 
Colo. L. Rev. 321.

12 Even with legislative districts of exactly equal voter population, 
26% of the electorate (a bare majority of the voters in a bare ma­
jority of the districts) can, as a matter of the kind of theoretical 
mathematics embraced by the Court, elect a majority of the legisla­



8 LUCAS v. COLORADO GENERAL ASSEMBLY.

The fact is, of course, that population factors must 
often to some degree be subordinated in devising a legis­
lative apportionment plan which is to achieve the impor­
tant goal of ensuring a fair, effective, and balanced repre­
sentation of the regional, social, and economic interests 
within a State. And the further fact is that throughout 
our history the apportionments of State Legislatures have 
reflected the strongly felt American tradition that the pub­
lic interest is composed of many diverse interests, and 
that in the long run it can better be expressed by a med­
ley of component voices than by the majority’s mono­
lithic command. What constitutes a rational plan rea­
sonably designed to achieve this objective will vary from 
State to State, since each State is unique, in terms of 
topography, geography, demography, history, hetero­
geneity and concentration of population, variety of social 
and economic interests, and in the operation and inter­
relation of its political institutions. But so long as a 
State’s apportionment plan reasonably achieves, in the 
light of the State’s own characteristics, effective and bal­
anced representation of all substantial interests, without 
sacrificing the principle of effective majority rule, that 
plan cannot be considered irrational.

II.
This brings me to what I consider to be the proper con­

stitutional standards to be applied in these cases. Quite 
simply, I think the cases should be decided by application 
of accepted principles of constitutional adjudication under

ture under our simple majority electoral system. Thus, the Court’s 
constitutional rule permits minority rule.

Students of the mechanics of voting systems tell us that if all that 
matters is that votes count equally, the best vote-counting electoral 
system is proportional representation in state-wide elections. See, 
e. g., Lakeman and Lambert, supra, n. 10. It is just because electoral 
systems are intended to serve functions other than satisfying 
mathematical theories, however, that the system of proportional rep­
resentation has not been widely adopted. Ibid.



the Equal Protection Clause. A recent expression by the 
Court of these principles will serve as a generalized 
compendium:

“ [T]he Fourteenth Amendment permits the States 
a wide scope of discretion in enacting laws which 
affect some groups of citizens differently than others. 
The constitutional safeguard is offended only if the 
classification rests on grounds wholly irrelevant to 
the achievement of the State’s objective. State 
legislatures are presumed to have acted within their 
constitutional power despite the fact that, in prac­
tice, their laws result in some inequality. A statu­
tory discrimination will not be set aside if any state 
of facts reasonably may be conceived to justify it.”  
McGowan v. Maryland, 366 U. S. 420, 425-426.

These principles reflect an understanding respect for the 
unique values inherent in the Federal Union of States 
established by our Constitution. They reflect, too, a wise 
perception of this Court’s role in that constitutional sys­
tem. The point was never better made than by Mr. Jus­
tice Brandeis, dissenting in New State Ice Co. v. Lieh- 
mann, 285 U. S. 262, 280. The final paragraph of that 
classic dissent is worth repeating here :

“To stay experimentation in things social and 
economic is a grave responsibility. Denial of the 
right to experiment may be fraught with serious con­
sequences to the Nation. It is one of the happy inci­
dents of the federal system that a single courageous 
State may, if its citizens choose, serve as a labora­
tory ; and try novel social and economic experiments 
without risk to the rest of the country. This Court 
has the power to prevent an experiment. We may 
strike down the statute which embodies it on the 
ground that, in our opinion, the measure is arbi­
trary, capricious or unreasonable. . . . But in the 
exercise of this high power, we must be ever on our

LUCAS v. COLORADO GENERAL ASSEMBLY. 9



10 LUCAS V.  COLORADO GENERAL ASSEMBLY.

guard, lest we erect our prejudices into legal prin­
ciples. If we would guide by the light of reason, 
we must let our minds be bold.” 285 U. S., at 311.

That cases such as the ones now before us wrere to be 
decided under these accepted Equal Protection Clause 
standards was the clear import of what was said on this 
score in Baker v. Carr, 369 U. S. 186, 226:

“ Nor need the appellants, in order to succeed in this 
action, ask the Court to enter upon policy determi­
nations for which judicially manageable standards 
are lacking. Judicial standards under the Equal 
Protection Clause are well developed and familiar, 
and it has been open to courts since the enactment of 
the Fourteenth Amendment to determine, if on the 
particular facts they must, that a discrimination re­
flects no policy, but simply arbitrary and capricious 
action.”

It is to be remembered that the Court in Baker v. Carr 
did not question what had been said only a few years 
earlier in MacDougall v. Green, 335 U. S. 281, 284:

“ It would be strange indeed, and doctrinaire, for this 
Court, applying such broad constitutional concepts 
as due process and equal protection of the laws, to 
deny a State the power to assure a proper diffusion 
of political initiative as between its thinly populated 
counties and those having concentrated masses, in 
view of the fact that the latter have practical oppor­
tunities for exerting their political weight at the 
polls not available to the former. The Constitu­
tion— a practical instrument of government— makes 
no such demands on the States.”

Moving from the general to the specific, I think that 
the Equal Protection Clause demands but two basic 
attributes of any plan of state legislative apportionment. 
First, it demands that, in the light of the State’s own



LUCAS v. COLORADO GENERAL ASSEMBLY. 11

characteristics and needs, the plan must be a ratonal one. 
Secondly, it demands that the plan must be such as not to 
permit the systematic frustration of the will of a majority 
of the electorate of the State.13 I think it is apparent 
that any plan of legislative apportionment which could 
be shown to reflect no policy, but simply arbitrary and 
capricious action -or inaction, and that any plan which 
could be shown systematically to prevent ultimate effec­
tive majority rule, would be invalid under accepted Equal 
Protection Clause standards. But, beyond this, I think 
there is nothing in the Federal Constitution to prevent a 
State from choosing any electoral legislative structure 
it thinks best suited to the interests, temper, and customs 
of its people. In the light of these standards, I turn 
to the Colorado and New York plans of legislative 
apportionment.

III.
Colorado.

The Colorado plan creates a General Assembly com­
posed of a Senate of 39 members and a House of 65 mem­
bers. The State is divided into 65 equal population rep­
resentative districts, with one representative to be elected 
from each district, and 39 senatorial districts, 14 of which 
include more than one county. In the Colorado House,

13 In Baker v. Carr, 369 U. S. 186, it was alleged that a substantial 
numerical majority had an effective voice in neither legislative house 
of Tennessee. Failure to reapportion for 60 years in flagrant viola­
tion of the Tennessee Constitution and in the face of intervening 
population growth and movement had created enormous disparities 
among legislative districts— even among districts seemingly identical 
in composition—which, it was alleged, perpetuated minority rule 
and could not be justified on any rational basis. It was further 
alleged that all other means of modifying the apportionment had 
proven futile, and that the Tennessee legislators had such a vested 
interest in maintaining the status quo that reapportionment by the 
legislature was not a practical possibility. See generally, the con­
curring opinion of Mr. Justice Clark, 369 U. S. 251.



12 LUCAS v. COLORADO GENERAL ASSEMBLY.

the majority unquestionably rules supreme, with the pop­
ulation factor untempered by other considerations. In 
the Senate rural minorities do not have effective control, 
and therefore do not have even a veto power over the will 
of the urban majorities. It is true that, as a matter of 
theoretical arithmetic, a minority of 36% of the voters 
could elect a majority of the Senate, but this percentage 
has no real meaning in terms of the legislative process.14 
Under the Colorado plan, no possible combination of 
Colorado senators from rural districts, even assuming 
arguendo that they would vote as a bloc, could control 
the Senate. To arrive at the 36% figure, one must in­
clude with the rural districts a substantial number of 
urban districts, districts with substantially dissimilar 
interests. There is absolutely no reason to assume that 
this theoretical majority would ever vote together on any 
issue so as to thwart the wishes of the majority of the 
voters of Colorado. Indeed, when we eschew the world 
of numbers, and look to the real world of effective repre­
sentation, the simple fact of the matter is that Colorado’s 
three metropolitan areas, Denver, Pueblo, and Colorado 
Springs, elect a majority of the Senate.

The State of Colorado is not an economically or geo­
graphically homogeneous unit. The Continental Divide 
crosses the State in a meandering line from north to south,

14 The theoretical figure is arrived at by placing the legislative 
districts for each house in rank order of population, and by counting 
down the smallest population end of the list a sufficient distance to 
accumulate the minimum population which could elect a majority 
of the house in question. It is a meaningless abstraction as applied 
to a multimembered body because the factors of political party 
alignment and interest representation make such theoretical bloc 
voting a practical impossibility. For example, 31,000,000 people in 
the 26 least populous States representing only 17% of United States 
population have 52% of the Senators in the United States Senate. 
But no one contends that this bloc controls the Senate’s legislative 
process.



LUCAS v. COLORADO GENERAL ASSEMBLY. 13

and Colorado’s 104,247 square miles of area are almost 
equally divided between high plains in the east and 
rugged mountains in the west. The State’s population is 
highly concentrated in the urbanized eastern edge of the 
foothills, while farther to the east lies that agricultural 
area of Colorado which is a part of the Great Plains. The 
area lying to the west of the Continental Divide is largely 
mountainous, with two-thirds of the population living in 
communities of less than 2,500 inhabitants or on farms. 
Livestock raising, mining and tourism are the dominant 
occupations. This area is further subdivided by a series 
of mountain ranges containing some of the highest peaks 
in the United States, isolating communities and making 
transportation from point to point difficult, and in some 
places during the winter months almost impossible. The 
fourth distinct region of the State is the South Central 
region, in which is located the most economically de­
pressed area in the State. A scarcity of water makes a 
state-wide water policy a necessity, with each region 
affected differently by the problem.

The District Court found that the people living in each 
of these four regions have interests unifying themselves 
and differentiating them from those in other regions. 
Given these underlying facts, certainly it was not irra­
tional to conclude that effective representation of the in­
terests of the residents of each of these regions was 
unlikely to be achieved if the rule of equal population dis­
tricts were mechanically imposed; that planned depar­
tures from a strict per capita standard of representation 
were a desirable way of assuring some representation of 
distinct localities whose needs and problems might have 
passed unnoticed if districts had been drawn solely on a 
per capita basis; a desirable way of assuring that districts 
should be small enough in area, in a mountainous State 
like Colorado, where accessibility is affected by configura­
tion as well as compactness of districts, to enable each



14 LUCAS v. COLORADO GENERAL ASSEMBLY.

senator to have firsthand knowledge of his entire district 
and to maintain close contact with his constituents; and 
a desirable way of avoiding the drawing of district lines 
which would submerge the needs and wishes of a portion 
of the electorate by grouping them in districts with larger 
numbers of voters with wholly different interests.

It is clear from the record that if per capita representa­
tion were the rule in both houses of the Colorado Legis­
lature, counties having small populations would have to 
be merged with larger counties having totally dissimilar 
interests. Their representatives would not only be un­
familiar with the problems of the smaller county, but the 
interests of the smaller counties might well be totally 
submerged to the interests of the larger counties with 
which they are joined. Since representatives represent­
ing conflicting interests might well pay greater attention 
to the views of the majority, the minority interest could 
be denied any effective representation at all. Its votes 
would not be merely “ diluted,” an injury which the Court 
considers of constitutional dimensions, but rendered 
totally nugatory.

The findings of the District Court speak for themselves:
“ The heterogeneous characteristics of Colorado 

justify geographic districting for the election of the 
members of one chamber of the legislature. In no 
other way may representation be afforded to insular 
minorities. Without such districting the metropoli­
tan areas could theoretically, and no doubt practi­
cally, dominate both chambers of the legislature.

“The realities of topographic conditions with their 
resulting effect on population may not be ignored. 
For an example, if [the rule of equal population dis­
tricts] was to be accepted, Colorado would have 
one senator for approximately every 45,000 persons.



LUCAS v. COLORADO GENERAL ASSEMBLY. 15

Two contiguous Western Region senatorial districts, 
Nos. 29 and 37, have a combined population of 
51,675 persons inhabiting an area of 20,514 square 
miles. The division of this area into two districts 
does not offend any constitutional provisions. 
Rather, it is a wise recognition of the practicalities 
of life. . . .

“ We are convinced that the apportionment of the 
Senate by Amendment No. 7 recognizes population 
as a prime, but not controlling, factor and gives effect 
to such important considerations as geography, com­
pactness and contiguity of territory, accessibility, 
observance of natural boundaries, conformity to his­
torical divisions such as county lines and prior repre­
sentation districts, and ‘a proper diffusion of political 
initiative as between a state’s thinly populated 
counties and those having concentrated masses.’ ” 
219 F. Supp., at 932.

From 1954 until the adoption of Amendment 7 in 1962, 
the issue of apportionment had been the subject of intense 
public debate. The present apportionment was proposed 
and supported by many of Colorado’s leading citizens. 
The factual data underlying the apportionment were pre­
pared by the wholly independent Denver Research Insti­
tute of the University of Denver. Finally, the appor­
tionment was adopted by a popular referendum in which 
not only a 2-1 majority of all the voters in Colorado, but 
a majority in each county, including those urban coun­
ties allegedly discriminated against, voted for the present 
plan in preference to an alternative proposal providing for 
equal representation per capita in both legislative houses. 
As the District Court said:

“ The contention that the voters have discriminated 
against themselves appalls rather than convinces. 
Difficult as it may be at times to understand mass



16 LUCAS v. COLORADO GENERAL ASSEMBLY.

behaviour of human beings, a proper recognition of 
the judicial function precludes a court from holding 
that the free choice of the voters between two con­
flicting theories of apportionment is irrational or the 
result arbitrary.” Ibid.

The present apportionment, adopted overwhelmingly 
by the people in a 1962 popular referendum as a state 
constitutional amendment, is entirely rational, and the 
amendment by its terms provides for keeping the appor­
tionment current.15 Thus the majority has consciously 
chosen to protect the minority’s interests, and under the 
liberal initiative provisions of the Colorado Constitution, 
it retains the power to reverse its decision to do so. 
Therefore, there can be no question of frustration of the 
basic principle of majority rule.

IV.
N ew  Y ork.

“ Constitutional statecraft often involves a degree of 
protection for minorities which limits the principle of 
majority rule. Perfect numerical equality in voting 
rights would be achieved if an entire State legislature 
were elected at large but the danger is too great that the 
remote and less populated sections would be neglected 
or that, in the event of a conflict between two parts of 
the State, the more populous region would elect the en­
tire legislature and in its councils the minority would 
never be heard.

“ Due recognition of geographic and other minority 
interests is also a comprehensible reason for reducing the 
weight of votes in great cities. If seventy percent of a

15 Within the last 12 years, the people of Michigan, California, 
Washington, and Nebraska (unicameral legislature) have expressed 
their will in popular referenda in favor of apportionment plans depart­
ing from the Court’s rule. See Dixon, 38 Notre Dame Lawyer, supra, 
at 383-385.



LUCAS v. COLORADO GENERAL ASSEMBLY. 17

State’s population lived in a single city and the re­
mainder was scattered over wide country areas and small 
towns, it might be reasonable to give the city voters 
somewhat smaller representation than that to which they 
would be entitled by a strictly numerical apportionment 
in order to reduce the danger of total neglect of the 
needs and wishes of rural areas.”

The above two paragraphs are from the brief which the 
United States filed in Baker v. Carr, 369 U. S. 186.16 It 
would be difficult to find words more aptly to describe the 
State of New York, or more clearly to justify the system 
of legislative apportionment which that State has chosen.

Legislative apportionment in New York follows a 
formula which is written into the New York Constitution 
and which has been a part of its fundamental law since 
1894. The apportionment is not a crazy quilt; it is 
rational, it is applied systematically, and it is kept rea­
sonably current. The formula reflects a policy which 
accords major emphasis to population, some emphasis to 
region and community, and a reasonable limitation upon 
massive overcentralization of power. In order to effectu­
ate this policy, the apportionment formula provides that 
each county shall have at least one representative in the 
Assembly, that the smaller counties shall have somewhat 
greater representation in the legislature than representa­
tion based solely on numbers would accord, and that some 
limits be placed on the representation of the largest

16 Brief for the United States as amicus curiae on reargument, No. 
6, 1961 Term, pp. 29-30.

The Solicitor General, appearing as amicus in the present cases, 
declined to urge this Court to adopt the rule of per capita equality 
in both houses, stating that “ [s]uch an interpretation would press 
the Equal Protection Clause to an extreme, as applied to State 
legislative apportionment, would require radical changes in three- 
quarters of the State governments, and would eliminate the oppor­
tunities for local variation.”  Brief for the United States as amicus 
curiae, No. 508, 1963 Term, p. 32.



18 LUCAS v. COLORADO GENERAL ASSEMBLY.

counties in order to prevent one megalopolis from com­
pletely dominating the legislature.

New York is not unique in considering factors other 
than population in its apportionment formula. Indeed, 
the inclusion of such other considerations is more the rule 
than the exception throughout the states. Two-thirds of 
the States have given effect to factors other than popu­
lation in apportioning representation in both houses of 
their legislatures, and over four-fifths of the States give 
effect to nonpopulation factors in at least one house.17 
The typical restrictions are those like New York’s afford­
ing minimal representation to certain political subdivi­
sions, or prohibiting districts composed of parts of two 
or more counties, or requiring districts to be composed 
of contiguous and compact territory, or fixing the mem­
bership of the legislative body. All of these factors tend 
to place practical limitations on apportionment accord­
ing to population, even if the basic underlying system is 
one of equal population districts for representation in 
one or both houses of the legislature.

That these are rational policy considerations can be 
seen from even a cursory examination of New York’s 
political makeup. In New York many of the interests 
which a citizen may wish to assert through the legislative 
process are interests which touch on his relation to the 
government of his county as well as to that of the State, 
and consequently these interests are often peculiar to the 
citizens of one county. As the District Court found, 
counties have been an integral part of New York’s gov­
ernmental structure since early colonial times, and the 
many functions performed by the counties today reflect 
both the historic gravitation toward the county as the 
central unit of political activity and the realistic fact that

17 See Dixon, 38 Notre Dame Lawyer, supra, at 399.



LUCAS v. COLORADO GENERAL ASSEMBLY. 19

the county is usually the most efficient and practical unit 
for carrying out many governmental programs.18

A policy guaranteeing minimum representation to each 
county is certainly rational, particularly in a State like 
New York. It prevents less densely populated counties 
from being merged into multi-county districts where they 
would receive no effective representation at all. Further, 
it may be only by individual county representation that 
the needs and interests of all the areas of the State can be 
brought to the attention of the legislative body. The

18 The following excerpts from the brief of the Attorney General 
of New York in this case are instructive:
“ For example, state aid is administered by the counties in the follow­
ing areas: educational extension work (N. Y. Education Law §§ 1104, 
1113), community colleges (N. Y. Education Law §§ 6301, 6302, 
6304), assistance to physically handicapped children (N. Y. Educa­
tion Law §4403), social welfare such as medical and other aid for 
the aged, the blind, dependent children, the disabled, and other needy 
persons (N. Y. Social Welfare Law §§ 153, 154, 257, 409), public 
health (N. Y. Public Health Law §§ 608, 620, 636, 650, 660), mental 
health (N. Y. Mental Hygiene Law, Art. 8-A, § 191-a), probation 
work (N. Y. Correction Law § 14-a), highway construction, im­
provement and maintenance (N. Y. Highway Law §§ 12, 112, 112-a, 
279), conservation (N. Y. County Law §219, 299-w, N. Y. Con­
servation Law §§205, 879), and civil defense preparations (State 
Defense Emergency Act §§ 23-b, 25-a).

“ County governments, are, of course, far more than instrumen­
talities for the administration of state aid. They have extensive 
powers to adopt, amend or repeal local laws affecting the county 
(N. Y. County Law §§301-309), and also play a vital part in the 
enactment of state laws which affect only a particular county or 
counties (see N. Y. Const., Art. IX, §§ 1, 2). The enactment in 1959 
of a new County Charter Law (N. Y. County Law, Art. 6-A ), pro­
viding opportunity for the fundamental reorganization of county 
governments by county residents, has given the counties an even 
greater role to play in the social, economic and political life of modern 
New York.” Brief for appellees Secretary of State and Attorney 
General, No. 20, 1963 Term, pp. 42-43.



20 LUCAS v. COLORADO GENERAL ASSEMBLY.

rationality of individual county representation becomes 
particularly apparent in States where legislative action 
applicable only to one or more particular counties is the 
permissible tradition.

Despite the rationality of according at least one repre­
sentative to each county, it is clear that such a system of 
representation, coupled with a provision fixing the maxi­
mum number of members in the legislative body— a 
necessity if the body is to remain small enough for man­
ageably effective action— has the result of creating some 
population disparities among districts. But since the dis­
parity flows from the effectuation of a rational state pol­
icy, the mere existence of the disparity itself can hardly 
be considered an invidious discrimination.

In addition to ensuring minimum representation to 
each county, the New York apportionment formula, by 
allocating somewhat greater representation to the smaller 
counties while placing limitations on the representation 
of the largest counties, is clearly designed to protect 
against overcentralization of power. To understand 
fully the practical importance of this consideration in 
New York, one must look to its unique characteristics. 
New York is one of the few States in which the central 
cities can elect a majority of representatives to the legis­
lature. As the District Court found, the 10 most pop­
ulous counties in the State control both houses of the 
legislature under the existing apportionment system. 
Each of these counties is heavily urban; each is in a 
metropolitan area. Together they contain 73.5% of the 
citizen population, and are represented by 65.5% of the 
seats in the Senate and 62% of the seats in the Assembly. 
Moreover, the nine counties comprising one metropolitan 
area— New York City, Nassau, Rockland, Suffolk and 
Westchester— contain 63.2% of the total citizen popu­
lation and elect a clear majority of both houses of the 
legislature under the existing system which the Court



LUCAS v. COLORADO GENERAL ASSEMBLY. 21

today holds invalid. Obviously, therefore, the exist­
ing system of apportionment clearly guarantees effec­
tive majority representation and control in the State 
Legislature.

But this is not the whole story. New York City, with 
its seven million people and a budget larger than that of 
the State, has, by virtue of its concentration of popula­
tion, homogeneity of interest, and political cohesiveness, 
acquired an institutional power and political influence of 
its own hardly measurable simply by counting the num­
ber of its representatives in the legislature. Elihu Root, 
a delegate to the New York Constitutional Convention of 
1894, which formulated the basic structure of the present 
apportionment plan, made this very point at that tim e: 

“The question is whether thirty separate centers of 
38,606 each scattered over the country are to be com­
pared upon the basis of absolute numerical equality 
with one center of thirty times 38,606 in one city, 
with all the multiplications of power that comes from 
representing a single interest, standing together on 
all measures against a scattered and disunited repre­
sentation from the thirty widely separated single 
centers of 38,606. Thirty men from one place owing 
their allegiance to one political organization repre­
senting the interest of one community, voting to­
gether, acting together solidly; why they are worth 
double the scattered elements of power coming from 
hundreds of miles apart.” 3 Revised Record of the 
New York State Constitutional Convention of 1894, 
p. 1215.

Surely it is not irrational for the State of New York to 
be justifiably concerned about balancing such a concen­
tration of political power, and certainly there is nothing 
in our Federal Constitution which prevents a State from 
reasonably translating such a concern into its apportion­
ment formula. See MacDougall v. Green, 335 U. S. 281.



22 LUCAS v. COLORADO GENERAL ASSEMBLY.

The State of New York is large in area and diverse in 
interests. The Hudson and Mohawk Valleys, the farm 
communities along the southern belt, the many suburban 
areas throughout the State, the upstate urban and indus­
trial centers, the Thousand Islands, the Finger Lakes, the 
Berkshire Hills, the Adirondacks— the people of all these 
and many other areas, with their aspirations and their 
interests, just as surely belong to the State as does the 
giant metropolis which is New York City. What the 
State has done is to adopt a plan of legislative apportion­
ment which is designed in a rational way to ensure that 
minority voices may be heard, but that the will of the 
majority shall prevail.

V.
In the allocation of representation in their State Legis­

latures, Colorado and New York have adopted completely 
rational plans which reflect an informed response to their 
particularized characteristics and needs. The plans are 
quite different, just as Colorado and New York are quite 
different. But each State, while clearly ensuring that in 
its legislative councils the will of the majority of the elec­
torate shall rule, has sought to provide that no identifi­
able minority shall be completely silenced or engulfed. 
The Court today holds unconstitutional the considered 
governmental choices of these two Sovereign States. By 
contrast, I believe that what each State has achieved 
fully comports with the letter and the spirit of our con­
stitutional traditions.

I would affirm the judgments in both cases.



SUPEEME COUET OF THE UNITED STATES
Nos. 508 and 20.— October Term, 1963.

Andres Lucas et al., etc., 
Appellants,

508 v.
The Forty-Fourth General 

Assembly of the State of 
Colorado et al.

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

WMCA, Inc., et al., 
Appellants,

20 v.
John P. Lomenzo, Secretary 

of State of the State of 
New York, et al.

On Appeal From the United 
States District Court for 
the Southern District of 
New York.

[June 15, 1964.]

M r . Justice Clark , dissenting.
While I join m y Brother Stewart ’s opinion, it is well 

that additional observations be recorded with reference 
to the Colorado case.

The parties concede that the Colorado House of Rep­
resentatives is now apportioned “as nearly equal in popu­
lation as may be.” The Court does not disturb this 
stipulation though it seems to accept it in niggardly 
fashion. The fact that 45.1% of the State’s population 
resides in the area which selects a majority of the House 
indicates rather conclusively that the apportionment 
comes within the test laid down in Reynolds v. Sims,
-----U. S . ------ , decided this date, viz.: “ ‘one person, one
vote,’ ” that is, “ approximately equal” or “ ‘as nearly as 
is practicable’ ” with only “ some deviations . . . .”  In­
deed, the Colorado House is within 4.9% of being perfect. 
Moreover, the fact that the apportionment follows politi­
cal subdivision lines to some extent is also a teaching of 
Reynolds v. Sims, supra. But the Court strikes down 
Colorado’s apportionment, which was adopted by the



2 LUCAS v. COLORADO GENERAL ASSEMBLY.

majority vote of every political subdivision in the State, 
because the Senate’s majority is elected by 33.2% of the 
population, a much higher percentage than that which 
elects a majority of the Senate of the United States.

I would refuse to interfere with this apportionment 
for several reasons. First, Colorado enjoys the initiative 
and referendum system which it often utilizes and which, 
indeed, produced the present apportionment. As a result 
of the action of the Legislature and the use of initiative 
and referendum, the State Assembly has been reappor­
tioned eight times since 1881. This indicates the com­
plete awareness of the people of Colorado to apportion­
ment problems and their continuing efforts to solve them. 
The courts should not interfere in such a situation. See 
my concurring opinion in Baker v. Carr, 369 U. S. 186, 
258-259 (1962). Next, as my Brother Stewart has 
pointed out, there are rational and most persuasive rea­
sons for some deviations in the representation in the 
Colorado Assembly. The State has mountainous areas 
which divide it into four regions, some parts of which are 
almost impenetrable. There are also some depressed 
areas, diversified industry and varied climate, as well as 
enormous recreational regions and difficulties in trans­
portation. These factors give rise to problems indigenous 
to Colorado, which only its people can intelligently solve. 
This they have done in the present apportionment.

Finally, I cannot agree to the arbitrary application of 
the “one man, one vote” principle for both houses of a 
State Legislature. In my view, if one house is fairly 
apportioned by population (as is admitted here) then the 
people should have some latitude in providing, on a 
rational basis, for representation in the other house. The 
Court seems to approve the federal arrangement of two 
Senators from each State on the ground that it was a com­
promise reached by the framers of our Constitution and 
is a part of the fabric of our national charter. But what 
the Court overlooks is that Colorado, by an overwhelming



LUCAS v. COLORADO GENERAL ASSEMBLY. 3

vote, has likewise written the organization of its legisla­
tive Body into its Constitution,* and our dual federalism 
requires that we give it recognition. After all, the Equal 
Protection Clause is not an algebraic formula. Equal 
protection does not rest on whether the practice assailed 
“results in some inequality” but rather on whether “any 
state of facts reasonably can be conceived that would 
sustain it” ; and one who attacks it must show “ that it 
does not rest upon any reasonable basis, but is essentially 
arbitrary.” Mr. Justice Van Devanter in Lindsley v. 
Natural Carbonic Gas Co., 220 U. S. 61, 78-79 (1911). 
Certainly Colorado’s arrangement is not arbitrary. On 
the contrary, it rests on reasonable grounds which, as I 
have pointed out, are peculiar to that State. It is argued 
that the Colorado apportionment w'ould lead only to a 
legislative stalemate between the two houses, but the 
experience of the Congress completely refutes this argu­
ment. Now in its 176th year, the federal plan has 
worked well. It is further said that in any event 
Colorado’s apportionment would substitute compromise 
for the legislative process. But most legislation is the 
product of compromise between the various forces acting 
for and against its enactment.

In striking down Colorado’s plan of apportionment, the 
Court, I believe, is exceeding its powers under the Equal 
Protection Clause; it is invading the valid functioning of 
the procedures of the States, and thereby commits a 
grievous error which will do irreparable damage to our 
federal-state relationship. I dissent.

*The Court says that the choice presented to the electorate was 
hardly “ clear-cut.”  The short answer to this is that if the voters 
had desired other choices, they could have accomplished this easily 
by filing initiative petitions, since in Colorado 8% of the voters can 
force an election.

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