Baker v. Carr/Concurrence Douglas

MR. JUSTICE DOUGLAS, concurring.

While I join the opinion of the Court and, like the Court, do not reach the merits, a word of explanation is necessary. [n1] I put to one side the problems of "political" [p242] questions involving the distribution of power between this Court, the Congress, and the Chief Executive. We have here a phase of the recurring problem of the relation of the federal courts to state agencies. More particularly, the question is the extent to which a State may weight one person's vote more heavily than it does another's.

So far as voting rights are concerned, there are large gaps in the Constitution. Yet the right to vote is inherent in the republican form of government envisaged by Article IV, Section 4 of the Constitution. The House — and now the Senate — are chosen by the people. The time, manner, and place of elections of Senators and Representatives are left to the States (Article I, Section 4, Clause 1; Amendment XVII) subject to the regulatory power of Congress. A "republican form" of government is guaranteed each State by Article IV, Section 4, and each is likewise promised protection against invasion. [n2] Ibid. [p243] That the States may specify the qualifications for voters is implicit in Article I, Section 2, Clause 1, which provides that the House of Representatives shall be chosen by the [p244] people and that


 * the Electors (voters) in each State shall have the Qualifications requisite for Electors (voters) of the most numerous Branch of the State Legislature.

The same provision, contained in the Seventeenth Amendment, governs the election of Senators. Within limits, those qualifications may be fixed by state law. See Lassiter v. Northampton Election Board, 360 U.S. 45, 50-51. Yet, as stated in Ex parte Yarbrough, 110 U.S. 651, 663-664, those who vote for members of Congress do not "owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State." The power of Congress to prescribe the qualifications for voters, and thus override state law, is not in issue here. It is, however, clear that, by reason of the commands of the Constitution, there are several qualifications that a State may not require.

Race, color, or previous condition of servitude is an impermissible standard by reason of the Fifteenth Amendment, and that alone is sufficient to explain Gomillion v. Lightfoot, 364 U.S. 339. See Taper, Gomillion versus Lightfoot (1962), pp.12-17.

Sex is another impermissible standard by reason of the Nineteenth Amendment.

There is a third barrier to a State's freedom in prescribing qualifications of voters, and that is the Equal Protection Clause of the Fourteenth Amendment, the provision invoked here. And so the question is, may a State weight the vote of one county or one district more heavily than it weights the vote in another?

The traditional test under the Equal Protection Clause has been whether a State has made "an invidious discrimination," as it does when it selects "a particular race or nationality for oppressive treatment." See Skinner v. Oklahoma, 316 U.S. 535, 541. Universal equality is not [p245] the test; there is room for weighting. As we stated in Williamson v. Lee Optical Co., 348 U.S. 483, 489, "The prohibition of the Equal Protection Clause goes no further than the invidious discrimination."

I agree with my Brother CLARK that, if the allegations in the complaint can be sustained, a case for relief is established. We are told that a single vote in Moore County, Tennessee, is worth 19 votes in Hamilton County, that one vote in Stewart or in Chester County is worth nearly eight times a single vote in Shelby or Knox County. The opportunity to prove that an "invidious discrimination" exists should therefore be given the appellants.

It is said that any decision in cases of this kind is beyond the competence of courts. Some make the same point as regards the problem of equal protection in cases involving racial segregation. Yet the legality of claims and conduct is a traditional subject for judicial determination. Adjudication is often perplexing and complicated. An example of the extreme complexity of the task can be seen in a decree apportioning water among the several States. Nebraska v. Wyoming, 325 U.S. 589, 665. The constitutional guide is often vague, as the decisions under the Due Process and Commerce Clauses show. The problem under the Equal Protection Clause is no more intricate. See Lewis, Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev. 1057, 1083-1084.

There are, of course, some questions beyond judicial competence. Where the performance of a "duty" is left to the discretion and good judgment of an executive officer, the judiciary will not compel the exercise of his discretion one way or the other (Kentucky v. Dennison, 24 How. 66, 109), for to do so would be to take over the office. ''Cf. Federal Communications Comm'n. v. Broadcasting Co.'', 309 U.S. 134, 145. [p246]

Where the Constitution assigns a particular function wholly and indivisibly [n3] to another department, the federal judiciary does not intervene. Oetjen v. Central Leather Co., 246 U.S. 297, 302. None of those cases is relevant here. [p247]

There is no doubt that the federal courts have jurisdiction of controversies concerning voting rights. The Civil Rights Act gives them authority to redress the deprivation "under color of any State law" of any "right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens. . . ." 28 U.S.C. § 1343(3). And 28 U.S.C. § 1343(4) gives the federal courts authority to award damages or issue an injunction to redress the violation of "any Act of Congress providing for the protection of civil rights, including the right to vote." (Italics added.) The element of state action covers a wide range. For, as stated in United States v. Classic, 313 U.S. 299, 326:


 * Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of" state law.

And see Monroe v. Pape, 365 U.S. 167.

The right to vote in both federal and state elections was protected by the judiciary long before that right received the explicit protection it is now accorded by § 1343(4). Discrimination against a voter on account of race has been penalized (Ex parte Yarbrough, 110 U.S. 651) or struck down. Nixon v. Herndon, 273 U.S. 536; Smith v. Allwright, 321 U.S. 649; Terry v. Adams, 345 U.S. 461. Fraudulent acts that dilute the votes of some [p248] have long been held to be within judicial cognizance. Ex parte Siebold, 100 U.S. 371. The "right to have one's vote counted" whatever his race or nationality or creed was held in United States v. Mosley, 238 U.S. 383, 386, to be "as open to protection by Congress as the right to put a ballot in a box." See also United States v. Classic, supra, 324-325; United States v. Saylor, 322 U.S. 385.

Chief Justice Holt stated in Ashby v. White, 2 Ld.Raym. 938, 956 (a suit in which damages were awarded against election officials for not accepting the plaintiff's vote, 3 Ld.Raym. 320) that:


 * To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.

The same prophylactic effect will be produced here, as entrenched political regimes make other relief as illusory in this case as a petition to Parliament in Ashby v. White would have been. [n4] [p249]

Intrusion of the Federal Government into the election machinery of the States has taken numerous forms — investigations (Hannah v. Larche, 363 U.S. 420); criminal proceedings (Ex parte Siebold, supra; Ex parte Yarbrough, supra; United States v. Mosley, supra; United States v. Classic, supra); collection of penalties (Smith v. Allwright, supra); suits for declaratory relief and for an injunction (Terry v. Adams, supra); suits by the United States under the Civil Rights Act to enjoin discriminatory practices. United States v. Raines, 362 U.S. 17.

As stated by Judge McLaughlin in Dyer v. Kazuhisa Abe, 138 F.Supp. 220, 236 (an apportionment case in Hawaii which was reversed and dismissed as moot, 256 F.2d 728):


 * The whole thrust of today's legal climate is to end unconstitutional discrimination. It is ludicrous to preclude judicial relief when a mainspring of representative government is impaired. Legislators have no immunity from the Constitution. The legislatures of our land should be made as responsive to the Constitution of the United States as are the citizens who elect the legislators.

With the exceptions of Colegrove v. Green, 328 U.S. 549; MacDougall v. Green, 335 U.S. 281; South v. Peters, 339 U.S. 276, and the decisions they spawned, the Court has never thought that protection of voting rights [p250] was beyond judicial cognizance. Today's treatment of those cases removes the only impediment to judicial cognizance of the claims stated in the present complaint.

The justiciability of the present claims being established, any relief accorded can be fashioned in the light of well known principles of equity. [n5] [p251]