U.S. Supreme Court KIRKPATRICK v. PREISLER, 394 U.S. 526 (1969) 394 U.S. 526

KIRKPATRICK, SECRETARY OF STATE OF MISSOURI, ET AL. v. PREISLER ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI. No. 30. Argued January 13, 1969. Decided April 7, 1969.*

[Footnote *] Together with No. 31, Heinkel et al. v. Preisler et al., also on appeal from the same court.

[Page 394 U.S. 526, 527]

(a) Variances based on the creation of districts with specific interest orientations are contrary to the constitutional requirement of equal representation. P. 533.

(b) Consideration of practical or partisan politics cannot justify population disparities. Pp. 533-534.

(c) Even assuming that apportionment may be based on eligible voter population rather than total population, Missouri made no serious attempt to ascertain the number of eligible voters in each district and to apportion on that basis. Pp. 534-535.

(d) Where population shifts can be accurately predicted, States may properly consider them and apply them, not as Missouri has done, but throughout the State in a systematic manner. P. 535.

(e) Claims that geographic compactness may require deviations from equality are generally unconvincing, and here Missouri's claim of compactness is based merely on the unaesthetic appearance of a congressional boundaries map that would result from changes which would achieve greater equality. Pp. 535-536.

279 F. Supp. 952, affirmed.

Thomas J. Downey, First Assistant Attorney General of Missouri, argued the cause for appellants in No. 30. With him on the briefs were Norman H. Anderson, Attorney General, pro se, and Louren R. Wood, Assistant Attorney General. David Collins argued the cause and filed a brief for appellants in No. 31.

Irving Achtenberg argued the cause for appellees in both cases. With him on the brief was Paul W. Preisler, pro se.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

In Wesberry v. Sanders, 376 U.S. 1 (1964), we held that "[w]hile it may not be possible [for the States] to draw congressional districts with mathematical precision," id., at 18, Art. I, 2, of the Constitution requires that "as nearly as is practicable one man's vote in a congressional

[Page 394 U.S. 526, 529]

above the mathematical ideal, and the least populous was 2.84% below.[Footnote 1]

[Page 394 U.S. 526, 530]

probable jurisdiction but stayed the District Court's judgment pending appeal and expressly authorized the State "to conduct 1968 congressional elections under and pursuant to [the] 1967 . . . Act . . . ." 390 U.S. 939 (1968). We affirm.

Missouri's primary argument is that the population variances among the districts created by the 1967 Act are so small that they should be considered de minimis and for that reason to satisfy the "as nearly as practicable" limitation and not to require independent justification. Alternatively, Missouri argues that justification for the variances was established in the evidence: it is contended that the General Assembly provided for variances out of legitimate regard for such factors as the representation of distinct interest groups, the integrity of county lines, the compactness of districts, the population trends within the State, the high proportion of military personnel, college students, and other nonvoters in some districts, and the political realities of "legislative interplay." I. We reject Missouri's argument that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the "as nearly as practicable" standard. The whole thrust of the "as nearly as practicable" approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular case. The extent to which equality may practicably be achieved may differ from State to State and from district to district. Since "equal representation for equal numbers of people [is] the fundamental goal for the House of Representatives," Wesberry v. Sanders, supra, at 18, the "as nearly as practicable" standard requires that the State make a good-faith effort to achieve precise mathematical

[Page 394 U.S. 526, 532]

proponents of the 1967 Act frankly conceded at the District Court hearing that resort to the simple device of transferring entire political subdivisions of known population between contiguous districts would have produced districts much closer to numerical equality. The District Court found, moreover, that the Missouri Legislature relied on inaccurate data in constructing the districts, and that it rejected without consideration a plan which would have markedly reduced population variances among the districts. Finally, it is simply inconceivable that population disparities of the magnitude found in the Missouri plan were unavoidable.[Footnote 2] The New York apportionment plan of regions divided into districts of almost absolute population equality described in Wells v. Rockefeller, post, at 545-546, provides striking evidence that a state legislature which tries can achieve almost complete numerical equality among all the State's districts. In sum, "it seems quite obvious that the State could have come much closer to providing districts of equal population than it did." Swann v. Adams, 385 U.S. 440, 445 (1967).

[Page 394 U.S. 526, 533]

II. We agree with the District Court that Missouri has not satisfactorily justified the population variances among the districts.

Missouri contends that variances were necessary to avoid fragmenting areas with distinct economic and social interests and thereby diluting the effective representation of those interests in Congress. But to accept population variances, large or small, in order to create districts with specific interest orientations is antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people. "[N]either history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes." Reynolds v. Sims, supra, at 579-580. See also Davis v. Mann, 377 U.S. 678, 692 (1964).

We also reject Missouri's argument that "[t]he reasonableness of the population differences in the congressional districts under review must . . . be viewed in the context of legislative interplay. The legislative leaders all testified that the act in question was in their opinion a reasonable legislative compromise. . . . It must be remembered . . . that practical political problems are inherent in the enactment of congressional reapportionment legislation."[Footnote 3] We agree with the District Court that "the rule is one of `practicability' rather than political `practicality.'" 279 F. Supp., at 989. Problems created by partisan politics cannot justify an apportionment which does not otherwise pass constitutional muster.

[Page 394 U.S. 526, 534]

subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries. The State's interest in constructing congressional districts in this manner, it is suggested, is to minimize the opportunities for partisan gerrymandering. But an argument that deviations from equality are justified in order to inhibit legislators from engaging in partisan gerrymandering[Footnote 4] is no more than a variant of the argument, already rejected, that considerations of practical politics can justify population disparities.

[Page 394 U.S. 526, 536]

supra, at 580, we said, "Modern developments and improvements in transportation and communications make rather hollow, in the mid-1960's, most claims that deviations from population-based representation can validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing." In any event, Missouri's claim of compactness is based solely upon the unaesthetic appearance of the map of congressional boundaries that would result from an attempt to effect some of the changes in district lines which, according to the lower court, would achieve greater equality. A State's preference for pleasingly shaped districts can hardly justify population variances.

Affirmed.

[For dissenting opinion of MR. JUSTICE HARLAN, see post, p. 549.]

[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 553.]

FootnotesFootnote 1 The redistricting effected by the 1967 Act, based on a population of 4,319,813 according to the 1960 census, is as follows:

% Variation District No. Population. From Ideal.

One 439,746 + 1.80 Two 436,448 + 1.03 Three 436,099 + 0.95 Four 419,721 - 2.84 Five 431,178 - 0.19 Six 422,238 - 2.26 Seven 436,769 + 1.11 Eight 445,523 + 3.13 Nine 428,223 - 0.87 Ten 423,868 - 1.88

Ideal population per district................................ 431,981 Average variation from ideal................................... 1.6% Ratio of largest to smallest district..................... 1.06 to 1 Number of districts within 1.88% of ideal...................... 7 Population difference between largest and smallest districts.. 25,802

Footnote 2 Contrary to appellants' assertion, we have not sustained the constitutionality of any congressional districting plan with population variances of the magnitude found in the Missouri plan. In Connor v. Johnson, (1967), the only issue presented to this Court was whether the districting plan involved racial gerrymandering. Alton v. Tawes, 384 U.S. 315 (1966), and Kirk v. Gong, 389 U.S. 574 (1968), involved situations where the lower courts themselves had reapportioned the districts on an emergency basis, and our affirmances were based on agreement with the use of the plans in that circumstance, and not on any view that the plans in question achieved equality as nearly as practicable.

Footnote 3 Brief for Appellants 37-38.

Footnote 4 It is dubious in any event that the temptation to gerrymander would be much inhibited, since the legislature would still be free to choose which of several subdivisions, all with their own political complexion, to include in a particular congressional district. Besides, opportunities for gerrymandering are greatest when there is freedom to construct unequally populated districts. "[T]he artistry of the political cartographer is put to its highest test when he must work with constituencies of equal population. At such times, his skills can be compared to those of a surgeon, for both work under fixed and arduous rules. However, if the mapmaker is free to allocate varying populations to different districts, then the butcher's cleaver replaces the scalpel; and the results reflect sharply the difference in the method of operation." A. Hacker, Congressional Districting 59 (1964 rev. ed.).

[Page 394 U.S. 526, 540]

well as in-and-out migration, substantial disparities had arisen between the real distribution of population in the State and that reflected in the 1960 census base here so zealously protected by the Court.4

Nothing that I have said should be taken as indicating that I do not believe that the Wesberry standard requires a high degree of correspondence between the demonstrated population or residence figures and the district divisions. Nor would I fix, at least at this relatively early stage of the reapportionment effort, a percentage figure for permissible variation.[Footnote 5]

[Page 394 U.S. 526, 541]

to accept the Missouri plan. It is true that on the average, there was only a 1.6% variation from what the majority quaintly calls the "ideal" (meaning the 1960 census figures) and in only three of the 10 districts was there a variation of 2% or more, and it is also true that there is no finding of gerrymandering. But regardless of the possibility that variances within this range might in some situations be considered tolerable within Wesberry's standard, I agree that we should sustain the District Court's rejection of the plan in light of the history of the cases and the record of the plan's preparation.

[Footnote 1] I would find it constitutionally entirely acceptable for a State to base its apportionment on numbers of residents, rather than total population, in each district at the time the districts are established. This would permit adjustments to take account, for example, of distortions resulting from large numbers of nonresidents at military installations or colleges in an area.

[Footnote 2] In Avery v. Midland County, 390 U.S. 474, 495 (1968), I argued in a dissenting opinion that consideration of disparate local interests might be appropriate with respect to defining certain types of local government units exercising limited governmental powers. I noted there, however, that the same factors could not justify departing from the one man, one vote theory in state legislatures - or, I might now add, congressional districts - because of the general and basic nature of the function performed.

[Footnote 3] The basic enumeration error in the census - that is the variation which would be observed between successive enumerations of the same area - is very low. Second surveys of selected areas, conducted by specially trained enumerators, produced counts varying by only about 1% for the whole population from the counts of the regular enumerators. For particular groups in the population, the variance was significantly larger. See U.S. Bureau of the Census, Evaluation and Research Program of the U.S. Censuses of Population and Housing, 1960, "Accuracy of Data on Population Characteristics as Measured by Re-interviews," Ser. ER-60, No. 4 (1964), Table 24, p. 22.

Far more significant than variations between successive enumerations are errors - virtually all undercountings - which are produced by the inherent limitations of the enumerating system. A Census Bureau estimate indicates that the 1960 census counted only 96.9% of the whole population, 3.1% of the people not being found and counted by the enumerators. Undercounting was not evenly distributed over the whole population. Instead, members of certain groups, notably young adult Negroes, were far more likely to be missed by the enumerators. For nonwhites in all age groups the census was estimated to understate the actual population by 9.5%. For young adult Negro males, undercounting reached nearly 20% for some five-year age groups. See generally, Siegel, Completeness of Coverage of the Nonwhite Population in the 1960 Census and Current Estimates, and Some Implications, Report, Conference on Social Statistics and the City (Washington, D.C., June 22-23, 1967) 13 (Heer ed., 1968). Because the heavily undercounted groups are not evenly distributed over the country, the differential rates of undercounting produce divergences between the actual relative populations of particular areas and those indicated by the census.

[Footnote 4] The Census Bureau has estimated that of Missouri's 114 counties, 50 lost population between 1960 and 1966, while 64 gained. The independent city of St. Louis lost 57,900, or 7.7%; St. Louis County gained 146,000 or 20.8%. Outside St. Louis City and County, the absolute change ranged from a 22,100 increase in St. Charles County to a 7,100 decrease in Dunklin County. The percentage change ranged from a 41.7% increase in St. Charles County to a 21.4% decrease in Holt County. Estimates of the Population of Counties: July 1, 1966 (Report No. 3), Current Population Reports, Population Estimates, Ser. P-25, No. 407 (Bureau of the Census, October 10, 1968) 11-13.

[Page 394 U.S. 526, 542]