Colegrove v. Green/Opinion of the Court

This case is appropriately here, under § 266 of the Judicial Code, 28 U.S.C. § 380, 28 U.S.C.A. § 380, on direct review of a judgment of the District Court of the Northern District of Illinois, composed of three judges, dismissing the complaint of these appellants. Petitioners are three qualified voters in Illinois districts which have much larger populations than other Illinois Congressional districts. They brought this suit against the Governor, the Secretary of State, and the Auditor of the State of Illinois, as members ex officio of the Illinois Primary Certifying Board, to restrain them, in effect, from taking proceedings for an election in November 1946, under the provisions of Illinois law governing Congressional districts. Illinois Laws of 1901, p. 3. Formally, the appellees asked for a decree, with its incidental relief, § 274d Judicial Code, 28 U.S.C. § 400, 28 U.S.C.A. § 400, declaring these provisions to be invalid because they violated various provisions of the United States Constitution and § 3 of the Reapportionment Act of August 8, 1911, 37 Stat. 13, 2 U.S.C.A. § 3, as amended, 2 U.S.C. § 2a, 2 U.S.C.A. § 2a, in that by reason of subsequent changes in population the Congressional districts for the election of Representatives in the Congress created by the Illinois Laws of 1901, Ill.Rev.Stat.Ch. 46, 1945, §§ 154-156, lacked compactness of territory and approximate equality of population. The District Court, feeling bound by this Court's opinion in Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131, dismissed the bill. 64 F.Supp. 632.

The District Court was clearly right in deeming itself bound by Wood v. Broom, supra, and we could also dispose of this case on the authority of Wood v. Broom. The legal merits of this controversy were settled in that case, inasmuch as it held that the Reapportionment Act of June 18, 1929, 46 Stat. 26, as amended, 2 U.S.C. § 2a, 2 U.S.C.A. § 2a, has no requirements 'as to the compactness, contiguity and equality in population of districts.' 287 U.S. at page 8, 53 S.Ct. at page 3, 77 L.Ed. 131. The Act of 1929 still governs the districting for the election of Representatives. It must be remembered that not only was the legislative history of the matter fully considered in Wood v. Broom, but the question had been elaborately before the Court in Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795, Koening v. Flynn, 285 U.S. 375, 52 S.Ct. 403, 76 L.Ed. 805, and Carroll v. Becker, 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807, argued a few months before Wood v. Broom was decided. Nothing has now been adduced to lead us to overrule what this Court found to be the requirements under the Act of 1929, the more so since seven Congressional elections have been held under the Act of 1929 as construed by this Court. No manifestation has been shown by Congress even to question the correctness of that which seemed compelling to this Court in enforcing the will of Congress in Wood v. Broom.

But we also agree with the four Justices (Brandeis, Stone, Roberts, and Cardozo, JJ.) who were of opinion that the bill in Wood v. Broom, supra, should be 'dismissed for want of equity.' To be sure, the present complaint, unlike the bill in Wood v. r oom, was brought under the Federal Declaratory Judgment Act which, not having been enacted until 1934, was not available at the time of Wood v. Broom. But that Act merely gave the federal courts competence to make a declaration of rights even though no decree of enforcement be immediately asked. It merely permitted a freer movement of the federal courts within the recognized confines of the scope of equity. The Declaratory Judgment Act 'only provided a new form of procedure for the adjudication of rights in conformity' with 'established equitable principles.' Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1970, 1074, 87 L.Ed. 1407. And so, the test for determining whether a federal court has authority to make a declaration such as is here asked, is whether the controversy 'would be justiciable in this Court if presented in a suit for injunction * *  * .' Nashville C. & St. L. Ry. v. Wallace, 288 U.S. 249, 262, 53 S.Ct. 345, 348, 77 L.Ed. 730, 87 A.L.R. 1191.

We are of opinion that the petitioners ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power which cannot be met by verbal fencing about 'jurisdiction.' It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination.

This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity. Compare Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 and Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281, with Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909. In effect this is an appeal to the federal courts to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation. Because the Illinois legislature has failed to revise its Congressional Representative districts in order to reflect great changes, during more than a generation, in the distribution of its population, we are asked to do this, as it were, for Illinois.

Of course no court can affirmatively remap the Illinois districts so as to bring them more in conformity with the standards of fairness for a representative system. At best we could only declare the existing electoral system invalid. The result would be to leave Illinois undistricted and to bring into operation, if the Illinois legislature chose not to act, the choice of members for the House of Representatives on a state-wide ticket. The last stage may be worse than the first. The upshot of judicial action may defeat the vital political principle which led Congress, more than a hundred years ago, to require districting. This requirement, in the language of Chancellor Kent, 'was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each state, a due influence in the choice of representatives, so as not to leave the aggregate minority of the people in a state, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils.' 1 Kent, Commentaries (12th ed., 1873) * 230-31, n. (c). Assuming acquiescence on the part of the authorities of Illinois in the selection of its Representatives by a mode that defies the direction of Congress for selection by districts, the House of Representatives may not acquiesce. In the exercise of its power to judge the qualifications of its own members, the House may reject a delegation of Representatives-at-large. Article I, § 5, Cl. 1. For the detailed system by which Congress supervises the election of its members, e e e.g., 2 U.S.C. §§ 201-226, 2 U.S.C.A. §§ 201-226; Bartlett, Contested Elections in the House of Representatives (2 vols.); Alexander, History of the Procedure of the House of Representatives (1916) c. XVI. Nothing is clearer than that this controversy concerns matters that bring courts into immediate and active relations with party contests. From the determination of such issues this Court has traditionally held aloof. It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law.

The petitioners urge with great zeal that the conditions of which they complain are grave evils and offend public morality. The Constitution of the United States gives ample power to provide against these evils. But due regard for the Constitution as a viable system precludes judicial correction. Authority for dealing with such problems resides elsewhere. Article I, section 4 of the Constitution provides that 'The Times, Places and Manner of holding Elections for * *  * Representative, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, *  *  * .' The short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House and left to that House determination whether States have fulfilled their responsibility. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people. Whether Congress faithfully discharges its duty or not, the subject has been committed to the exclusive control of Congress. An aspect of government from which the judiciary, in view of what is involved, has been excluded by the clear intention of the Constitution cannot be entered by the federal courts because Congress may have been in default in exacting from States obedience to its mandate.

The one stark fact that emerges from a study of the history of Congressional apportionment is its embroilment in politics, in the sense of party contests and party interests. The Constitution enjoins upon Congress the duty of apportioning Representatives 'among the several States * *  * according to their respective Numbers, *  *  * .' Article I, § 2. Yet, Congress has at times been heedless of this command and not apportioned according to the requirements of the Census. It never occurred to anyone that this Court could issue mandamus to compel Congress to perform its mandatory duty to apportion. 'What might not be done directly by mandamus, could not be attained indirectly by injunction.' Chafee, Congressional Apportionment (1929) 42 Harv.L.Rec. 1015, 1019. Until 1842 there was the greatest diversity among the States in the manner of choosing Representatives because Congress had made no requirement for districting. 5 Stat. 491. Congress then provided for the election of Representatives by districts. Strangely enough the power to do so was seriously questioned; it was still doubted by a Committee of Congress as late as 1901. See e.g., Speech of Mr. (afterwards Mr. Justice) Clifford, Cong. Globe, April 28, 1842, 27th Cong., 2d Sess., App., p. 347; 1 Bartlett, Contested Elections in the House of Representatives (1865) 47, 276; H.R.Rep.No.3000, 56th Cong., 2d Sess. (1901); H.R.Doc.No.2052, 64th Cong., 2d Sess. (1917) 43; United States v. Gradwell, 243 U.S. 476, 482, 483, 37 S.Ct. 407, 409, 410, 61 L.Ed. 857. In 1850 Congress dropped the requirement. 9 Stat. 428, 432, 433. The Reapportionment Act of 1862 required that the districts be of contiguous territory. 12 Stat. 572. In 1872 Congress added the requirement of substantial equality of inhabitants. 17 Stat. 28. This was reinforced in 1911. 37 Stat. 13, 14. But the 1929 Act, as we have seen, dropped these requirements. 46 Stat. 21. Throughout our history, whatever may hav been the controlling Apportionment Act, the most glaring disparities have prevailed as to the contours and the population of districts. Appendix I summarizes recent disparities in the various Congressional Representative districts throughout the country and Appendix II gives fair samples of prevailing gerrymanders. For other illustrations of glaring inequalities, see 71 Cong.Rec. 2278, 79, 2480 et seq.; 86 Cong.Rec. 4369, 4370, 71, 76th Cong., 2d Sess. (1940); H.R.Rep.No.1695, 61st Cong., 2d Sess. (1910); (1920) 24 Law Notes 124 (October 20, 1902) 75 The Nation 343; and see, generally, Schmeckebier, Congressional Apportionment (1941); and on gerrymandering, see Griffith, The Rise and Development of the Gerrymander (1907).

To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress. The Constitution has many commands that are not enforceable by courts because they clearly fall outside the conditions and purposes that circumscribe judicial action. Thus, 'on Demand of the executive Authority,' Art. IV, § 2, of a State it is the duty of a sister State to deliver up a fugitive from justice. But the fulfillment of this duty cannot be judicially enforced. Commonwealth of Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717. The duty to see to it that the laws are faithfully executed cannot be brought under legal compulsion. State of Mississippi v. Johnson, 4 Wall. 475, 18 L.Ed. 437. Violation of the great guaranty of a republican form of government in States cannot be challenged in the courts. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377. The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and, ultimately, on the vigilance of the people in exercising their political rights.

Dismissal of the complaint is affirmed.

Mr. Justice JACKSON took no part in the consideration or decision of this case.

DISPARITIES IN APPORTIONMENT SHOWING DISTRICTS IN EACH STATE HAVING LARGEST AND SMALLEST POPULATIONS.
1946  1928  1897 *

State    Dist. Population   Dist. Population  Dist. Population

ALA. 9th 459,930   9th  310,054   2d  188,

6th    251,757   6th  170,188   7th  130,

ARIZ. 2 Representatives   1 Representative  Not yet admitted

Elected at large.

ARK. 1st 423,152   1st  330,292   1st  220,

3d     177,476   3d  180,348   4th  147,

CALIF.      3d  409,404   10th  516,283   5th  228,

21st   194,199   2d  129,357   4th  147,

COLO.1st 322,412   3d  281,170   2d  207,

4th    172,847   4th  140,532   1st  204,

CONN.1st 450,189   1st  336,027   2d  248,

5th    247,601   5th  224,426   3d  121,

DEL. 1 Representative  1 Representative  1 Representative

FLA. 1st 439,895   4th  315,292   2d  202,

6th    186,831   2d  187,474   1st  188,

GA. 5th  487,552   5th  308,364   2d  180,

9th    235,420   3d  205,343   11th  155,

IDAHO 2d 300,357   2d  253,542   1 Representative

ILL. 7th 914,053   7th  560,434   13th  184,

5th    112,116   5th  158.092   22nd  159,

IND 11th 460,926   7th  348,061   7th  191,

9th    241,323   4th  179,737   6th  139,

IOWA 2d 392,052   11th  295,449   11th  203,

4th    268,900   1st  156,594   1st  153,

KANSAS      4th  382,546   3d  280,045   7th  278,

3d     249,574   4th  152,378   1st  167,

KY. 9th 413,690   11th  289,766   4th  192,

5th    225,426   8th  168,067   7th  141,

1946 1928 * 1897 *

State Dist. Population   Dist. Population  Dist. Population

LA. 6th 333,295   6th  255,372   3d  214,

8th    240,166   7th  204,909   2d  152,

ME. 1st 290,335   1st  195,072   4th  183,

2d     276,695   2d  188,563   1st  153,

MD. 2d  534,568   2d  311,413   2d  208,

1st    195,427   1st  194,568   5th  153,

MASS. 10th 346,623   8th  259,954   5th  174,

1st    278,459   15th  217,307   6th  169,

MICH. 17th 419,007   6th  533,748   2d  191,

12th   200,265   10th  198,679   9th  148,

MINN.6th 334,781   5th  275,645   2d  188,

9th    283,845   9th  112,235   6th  184,

MISS.7th 470,781   3d  349,662   5th  224,

4th    201,316   8th  177,185   1st  143,

MO. 12th 503,738   10th  521,587   14th  230,

9th    214,787   8th  138,807   9th  152,

MONT.2d 323,597   2d  333,476   1 Representative

NEB. 1st 369,190   6th  188,090   4th  195,

2d     305,961   1st  173,458   3d  163,

NEV. 1 Representative  1 Representative  1 Representative

N. H.2d 247,033   1st  224,842   1st  190,

1st    244,491   2d  218,241   2d  185,

N. J.1st 370,220   8th  290,610   7th  256,

2d     226,169   11th  228,615   8th  125,

N. M. 2 Representatives   1 Representative  Not yet admitted

Elected at large.

N. Y.      25th  365,918   23d  391,620   14th  227,

45th   235,913   12th  151,605   7th  114,

N. C.4th 358,573   5th  408,139   6th  204,

1st    239,040   3d  202,760   3d  160,

N. D. 2 Representatives   2d  220,700   1 Representative

1946  1928 * 1897 *

State Dist. Population   Dist. Population  Dist. Population

OHIO 22d 698,650   14th  439,013   2d  205,

5th    163,561   11th  167,217   12th  158,

OKLA.1st 416,863   3d  325,680   Not yet admitted

ORE. 3d 355,099   1st  346,989   2d  158,

2d     210,991   2d  160,502   1st  155,

PA. 11th 441,518   12th  390,991   4th  309,

14th   212,979   15th  136,283   3d  129,

R. I.2d 374,463   3d  210,201   1st  180,

1st    338,883   2d  193,186   2d  164,

S.C..2d 361,933   7th  266,956   4th  200,

5th    251,137   2d  203,418   5th  144,

S. D.1st 485,829   2d  251,405   1 Representative

TENN.2d 388,938   3d  296,396   3d  199,

5th    225,918   5th  145,403   5th  153,

TEX. 8th 528,961   2d  349,859   6th  210,

17th   230,010   7th  211,032   1st  102,

UTAH 2d 203,922   1st  229,907   1 Representative

VT.   1 Representative   2d  176,596   1st  169,

VA. 9th  360,679   2d  312,458   9th  187,

4th    243,165   7th  167,588   2d  145,

WASH.1st 412,689   1st  348,474   2 Representatives

4th    244,908   4th  200,258   Elected at large

W. VA.      6th  378,630   6th  279,072   3d  202,

1st    281,333   4th  214,930   1st  177,

WIS. 5th 391,467   5th  276,503   6th  187,

10th   263,088   6th  214,206   10th  149,

WYO.  1 Representative   1 Representative  1 Representative

APPENDIX II.

APPENDIX II.

APPENDIX II.