WMCA, Inc. v. Lomenzo (382 U.S. 4)/Concurrence Harlan

Mr. Justice HARLAN, concurring.

The Court today disposes summarily of four New York reapportionment cases; it retains jurisdiction of a fifth, Lomenzo v. WMCA, Inc., No. 81, which raises substantial questions similar to some of those involved in a set of Hawaii reapportionment cases. Burns v. Richardson, 86 S.Ct. 74; Cravalho v. Richardson, 86 S.Ct. 74; and Abe v. Richardson, 86 S.Ct. 74, with respect to which probable jurisdiction has been noted (86 S.Ct. 74). Because these cryptic dispositions risk bewildering the New York legislators and courts, let alone those of other States, I believe it fitting to elucidate my understanding of these dispositions, all of which I join on the premises herein indicated. The need for clarification is particularly desirable because, through dismissal of the appeal in Rockefeller v. Orans, 86 S.Ct. 75, and affirmance in WMCA, Inc. v. Lomenzo, 86 S.Ct. 24, this Court signifies its approval of two decisions concerning the same apportionment plan, one of which 86 S.Ct. 75 found it acceptable and the other of which 86 S.Ct. 24 struck it down.

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

The New York Legislature adopted an apportionment plan, known as 'Plan A,' to comply with an order of a three-judge District Court, dated July 27, 1964, requiring the State to enact 'a valid apportionment scheme that is in compliance with the XIV Amendment of the United States Constitution and which shall be implemented to as to effect the election of Members of the Legislature at the election in November, 1965, Members so elected to hold office for a term of one year ending December 31, 1966.'

In WMCA, Inc. v. Lomenzo, D.C., 238 F.Supp. 916, the three-judge court found that Plan A satisfied this order; in so doing it rejected contentions that apportioning on a basis of citizen population violates the Federal Constitution, and that partisan 'gerrymandering' may be subject to federal constitutional attack under the Fourteenth Amendment. In affirming this decision, this Court necessarily affirms these two eminently correct principles.

Quite evidently Plan A was seen by the District Court, and is also viewed by this Court, as but a temporary measure. In holding the plan federally acceptable for the purpose of electing a special 1966 Legislature, the District Court explicitly abstained from dealing with challenges to the plan under the State Constitution. Judge Waterman also noted that although Plan A met federal constitutional requirements, 'Of course, the ultimate fitness of the scheme for their needs and purposes is for the people of the State of New York, themselves, to decide, and not for this court to mandate.' 238 F.Supp., at 927.

Subsequent to the decision below in WMCA, the New York Court of Appeals held Plan A (as well as Plans B, C, and D) unconstitutional as a matter of state law. In now dismissing for lack of a substantial federal question the appeal from that decision (Rockefeller v. Orans, 86 S.Ct. 75) insofar as it may bear upon any apportionment plan effective after the expiration of the 1966 New York Legislature, I take it that the Court is asserting that any final apportionment plan must comport with state as well as federal constitutional requirements. So much of the disposition in 86 S.Ct. 75 I join without reservation. In dismissing, without more, the remaining part of that appeal, I take it that the Court is simply reflecting its affirmances in 86 S.Ct. 49 and 86 S.Ct. 90, whereby it puts its stamp of approval on the District Court's use of Plan A, though invalid under the New York Constitution, as a temporary measure. I acquiesce in this aspect of the disposition because of factors to which I advert below.

The Court affirms as well two appeals, Travia v. Lomenzo, 86 S.Ct. 49, and Screvane v. Lomenzo, 86 S.Ct. 90, from the District Court's order of May 24, 1965, which specifically ordered a November 1965 special election under Plan A after the New York Court of Appeals had already declared that plan to be in violation of the State Constitution. On June 1, 1965, this Court denied a motion to stay the order and to accelerate the appeal, Travia v. Lomenzo, 381 U.S. 431, 85 S.Ct. 1582. In dissent I noted that a federal court order that a state election be held under a plan declared invalid under the State Constitution by the highest court of that State surely presented issues of far-reaching importance for the smooth functioning of our federal system, which were deserving of plenary consideration by this Court. I would have accelerated the appeal, and but for the action of this Court in denying the stay which was sought I would have granted the further application for such a stay that was made to me during the summer. Travia v. Lomenzo, 86 S.Ct. 49, Memorandum of Mr. Justice Harlan, July 16, 1965, 86 S.Ct. 7. I now acquiesce in the affirmance as I can see no satisfactory way to heal, at this juncture, the wounds to federal-state relations caused by the District Court's order without inflicting even greater ones.

The upshot of what is done today is, then, to suspend New York's 150-member constitutional provision for the one-year duration of the 1966 Legislature, a result to which I subscribe only under the compulsion of what has gone before in this Court.