Burns v. Richardson/Concurrence Stewart

Mr. Justice STEWART, concurring in the judgment.

At the time Reynolds v. Sims was decided, I expressed the belief 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 characteristics and needs, the plan must be a rational 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.' Lucas v. Forty-Fourth Colorado General Assembly, 377 U.S. 713, at pp. 753-754, 84 S.Ct. 1459, at p. 1483 (dissenting opinion).

Time has not changed my views. I still believe the Court misconceived the requirements of the Equal Protection Clause in Reynolds v. Sims and its companion cases. But so long as those cases remain the law, I must bow to them. And even under those decisions there is surely room for at least as much flexibility as the Court today accords to Hawaii. Accordingly, I concur in the judgment.