Wells v. Rockefeller/Dissent Harlan

Mr. Justice HARLAN, with whom Mr. Justice STEWART joins, dissenting.

Whatever room remained under this Court's prior decisions for the free play of the political process in matters of reapportionment is now all but eliminated by today's Draconian judgments. Marching to the nonexistent 'command of Art. I, § 2' of the Constitution, the Court now transforms a political slogan into a constitutional absolute. Straight indeed is the path of the righteous legislator. Slide rule in hand, he must avoid all thought of county lines, local traditions, politics, history, and economics, so as to achieve the magic formula: one man, one vote.

As my Brothers WHITE and FORTAS demonstrate, insistence on mathematical perfection does not make sense even on its own terms. Census figures themselves are inexact; our mobile population rapidly renders them obsolete; large groups of ineligible voters are unevenly distributed throughout the State. Nevertheless, the Court refuses to permit any room for legislative common sense to compensate for Census Bureau inadequacies. If no 'scientific' data are available to justify a divergence from census figures, the Court holds that nothing can be done-'we mean to open no avenue for subterfuge.' Kirkpatrick v. Preisler, 394 U.S., at 535, 89 S.Ct., at 1231.

This all-pervasive distrust of the legislative process is completely alien to established notions of judicial review. See Butler v. Pennsylvania, 10 How. 402, 13 L.Ed. 472 (1851); Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Nor does it have precedent in the prior reapportionment decisions themselves. 'Reynolds v. Sims (377 U.S. 553, 84 S.Ct. 1362, 12 L.Ed.2d 506) recognized that mathematical exactness is not required in state apportionment plans. De minimis deviations are unavoidable * *  * .' Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967); see also Wesberry v. Sanders, 376 U.S. 1, 18, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964).

Even more important, the Court's exclusive concentration upon arithmetic blinds it to the realities of the political process, as the Rockefeller case makes so clear. The fact of the matter is that the rule of absolute equality is perfectly compatible with 'gerrymandering' of the worst sort. A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues. The legislature must do more than satisfy one man, one vote; it must create a structure which will in fact as well as theory be responsive to the sentiments of the community On the record before us, however, there is absolutely no indication that the New York Legislature can satisfy this Court's demand for absolute equality and yet create a structure which will permit New York's multitude of political groups to have a fair chance at having their voices heard in Congress.

Even the appellant himself does not suggest that it is possible to create a proper apportionment plan which is at the same time consistent with the demands of perfect mathematical equality. The plan he advances contemplates a maximum deviation of 4.7% from the state average, which represents an improvement of only 1.9 percentage points on the State's 6.6% deviation. Moreover, under the State's plan, a majority of the congressional delegation can represent no less than 49.3% of the population. The appellant's scheme 'improves' this figure by 0.5%, increasing the number to 49.8% See Appellant's Appendix D. Perfection, however, is still 0.2% away.

Although the appellant's plan offers such marginal benefits of voting egalitarianism, and although the record contains no suggestion of any other plan which even arguably permits the coherent expression of the popular will, the Court rejects the legislature's considered proposal simply because it seeks to remain true to traditional county and regional lines. In doing so, the majority ignores the salutary warning to be found in Reynolds v. Sims, 377 U.S. 533, 578-579, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964): 'Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.' Yet, today the Court condemns the legislature's approach because it 'permit(s) groups of districts with defined interest orientations to be over represented at the expense of districts with different interest orientations.' Wells v. Rockefeller, 394 U.S., at 546, 89 S.Ct., at 1237. Of course, all districting decisions inevitably involve choices between different interest groups. But as Reynolds recognized, legislatures prefer to follow traditional county and regional lines so that the demands of blatant partisanship will be tempered by the constraints of history and tradition. If the Court believes it has struck a blow today for fully responsive representative democracy, it is sorely mistaken. Even more than in the past, district lines are likely to be drawn to maximize the political advantage of the party temporarily dominant in public affairs.

We do not deal here with the hopelessly malapportioned legislature unwilling to set its own house in order. Rather, the question before us is whether the Constitution requires that mathematics be a substitute for common sense in the art of statecraft. As I do not think that the apportionment plans submitted by the States of New York and Missouri can properly be regarded as offensive to the requirement of equality imposed in Wesberry-a case whose constitutional reasoning I still find it impossible to swallow, but by whose dictate I consider myself bound-I dissent.

I would reverse the judgments of the District Court in the Missouri cases and affirm the decision of the District Court in the New York case.L.Ed.2d 45 (1968).