WELLS v. ROCKEFELLER
Legal provision: Article 1, Section 2, Paragraph 1: Composition of the House of Representatives
Argument of Robert B. Mckay
Chief Justice Earl Warren: Number 238, David I. Wells, appellant, versus Nelson A. Rockefeller.
Mr. Robert B. Mckay: Mr. Chief Justice and may it please the Court.
I should like first to introduce Mr. David Wells, the plaintiff-appellant in this case who, through the generosity of the Clerk’s Office has been allowed to participate with me as an adviser even though he is not a member of this Bar or any Bar but, he is a man of great knowledge in the field of congressional districting, particularly in New York.
This is an appeal from a three-judge Federal District Court in the Southern District of New York, dismissing the suit that had been brought by Mr. Wells in 1966 in challenging the then 1961 congressional districting statute in New York.
The present appeal is from the judgment and order of 1968 upholding and, therefore, dismissing the complaint in connection with the 1968 congressional districting statute of New York.
In a sense, this case picks up where the Missouri case, which we’ve just heard argument, leaves off.
It may respect it as quite different because, in this case, unlike the Missouri case, the legislative posture was totally different.
There was no debate in the legislature of any consequence.
There was only one plan presented which had been prepared by a Joint Legislative Committee on Reapportionment in Camera, was presented, and was passed without essential debate.
The population disparities between the smallest and the largest districts are more than twice as great as in the Missouri case.
And, specifically in this case, the appellant has claimed throughout that there is a deviation that is so substantial that requires justification, but the justifications given by the state are unsatisfactory and, further, that there is a lack of compactness and that the reasons for that are explained by affirmative evidence in the record showing that there was a partisan objective leading to the particular district lines that were drawn.
This case, thus, raises two principle questions that are related but separable.
The first is, where there are population deviations that are not de minimis, what is necessary for the state in order to satisfy its burden of justification.
Second, where the districts are not as compact as they could have been and there's affirmative evidence of a gerrymander for partisan or, in this case, perhaps bipartisan purposes, is the plan unconstitutional.
The suit was originally filed in 1966 in challenge to the last previous congressional districting statute in New York which dated from the year 1961.
In May of 1967, the three-judge Court held that the statute was unconstitutional and that decision was affirmed by this Court in December of 1967.
The three-judge Court held that the population deviations were excessive and they were, indeed, very substantial at that time.
It suggested also that there was “a seemingly bizarre structure among the congressional districts,” and so the Court advised that, in redrawing the lines, the legislature should draw congressional districts that are “reasonably compact and contiguous.”
And, the legislature was warned not to allow “considerations of race, sex, economic status, or politics to cross their minds.”
How well the New York legislature obeyed that injunction, we shall see.
The 1968 Act was prepared by a small group of legislators in the Joint Legislative Committee on Reapportionment, and the drafting was largely in the hands of advisers to the leading Republican and Democratic figures concerned with this particular matter at the time in New -- in the State of New York.
The plan was introduced on February 20 in response to a determination by a three-judge District Court that the new plan must be drafted and presented by March 1, 1968.
It was discussed briefly, but not really debated in both Houses of the New York legislature on February 26, passed after a 10-minute debate in the Senate and a slightly longer but perfunctory debate in the Assembly.
It was signed by the governor 90 minutes after it had been passed by the Second House.
There were substantial majorities for the legislation in both Houses and by both parties in each House.
There was no real doubt as to the decision made in advance that this was the legislation that would be accepted by the New York State legislature in 1968.
The principles of congressional districting that had been outlined by this Court or that are, we believe, in the prospect of being defined are several.
First, substantial population equality is required.
Second, to the extent that there is comparison with state legislative reapportionment, the deviations for congressional districsing-- districts should be and ordinarily will be smaller than in state legislative districting.
Third, the deviations must be explained on rational and permissible grounds and know, it seems to us, that there are emerging principles which will be tested in part by this case.
The deviations from compactness also must be explained by the legislative body or by those who support the legislation.
Justice Potter Stewart: I'm not sure I understood your second criteria, i.e., as I heard you say it, that smaller deviations are required in congressional districting than might be permitted in a state legislative apportionment.
Did I understand that correctly?
Mr. Robert B. Mckay: Yes, sir.
In Reynolds versus Sims, the majority opinion stated that there might be a larger toleration for deviations in state legislative representation districts than in congressional because, ordinarily, there are a larger number of districts to be drawn in a state legislative chamber than in the congressional s--
Justice Potter Stewart: I think that worked the other way.
Mr. Robert B. Mckay: No, I think not because the necessity of the opportunity to draw so many different districts, there is more opportunity to play with the population figures of this point, in a sense that Mr. Achtenberg made in connection with Missouri.
Justice Potter Stewart: Smaller building blocks.
Mr. Robert B. Mckay: Smaller building blocks and more of them, yes, sir.
Justice Potter Stewart: So, it-- your--
Mr. Robert B. Mckay: Excuse me.
Justice Potter Stewart: So, it follows, in your submission, that a lower magnitude of deviation is constitutionally permissible in congressional districts than might be constitutionally tolerable in--
Mr. Robert B. Mckay: It's constitutionally required is the way I would state it.
Justice Potter Stewart: In the state legislative apportionment.
Mr. Robert B. Mckay: Yes, sir.
Justice Potter Stewart: And you say there's something in Reynolds against -- in the opinion of Reynolds against Sims?
Mr. Robert B. Mckay: Yes.
Justice Potter Stewart: Is that so?
Mr. Robert B. Mckay: Yes, there is.
I can find the specific section.
Justice Potter Stewart: Well, it's probably in the briefs.
Mr. Robert B. Mckay: It is in the brief, sir.
Justice Potter Stewart: Alright, thank you.
Mr. Robert B. Mckay: The immerging principles, as we see them, are that, when there are deviations from compactness, that there must be -- this also must be explained by the state because it is impossible to have equality without being tested in a sense, at least by the measure of compactness, a point I shall return to.
And, finally, we suggest that a gerrymander for a racial, religious, socioeconomic, or partisan purposes is or should be forbidden by the constitution.
Let me speak first to the question of deviations from equality as it affects this particular case.
It seems to us, it manifests that the deviations in this case are not de minimis by any standard whatsoever.
The deviation from the smallest to the largest congressional district in the State of New York under the 1968 Act is more than 53,000 persons.
This is a difference in percentage point from the smallest, the least populous, to the most populous district of over 14%.
Even adjoining districts sometimes have population deviations as great as 50,000 where it would've been perfectly possible to reduce the figure, as I shall suggest later, to a very small figure indeed.
Indeed, it would've been possible to change the -- one of the substantial deviations between adjoining districts from 40,000-plus to 5,000-plus by the shift of a single county.
And, now, if you will refer, I can show you where this is, to appendix B in the -- yes, I can do it, on the map that's now behind me as well.
It's also in appendix B in the appellant's brief.
Lewis County, which is now in the 31st district, could've been shifted to the 32nd district, thus, also increasing or improving the compactness of the 32nd district with a difference in population of instead of 40,000-plus to 5,000-plus.
If a further shift had been made Hilton County, which is here, to the 32nd district, the population deviation would've been reduced to under-2,000.
But, in that particular case, there would've been some sacrifice of compactness.
We do not urge it, but simply point out that this would've been possible without any other change in the state lines in that particular area.
On the deviation from equality point, it should be noted that there is no decision of this Court that has approved a population deviation as large as the one that exists in the State of New York now.
As to make clear from the Missouri case already discussed, the only two cases in which this Court has recently affirmed a decision with a population deviation of any substantial figure have been in the Mississippi and the Florida cases and in neither of those was the population deviation as large as in the New York case.
Justice Byron R. White: What do you think the deviation was before?
Mr. Robert B. Mckay: The legislation thought it was 8,000-plus.
When the actual figures were made available, it turned out to be 48,000-plus.
Now, I do not make anything particular.
Justice Byron R. White: Well, was that in the Court -- was that a Court scene?
Mr. Robert B. Mckay: Yes, that's correct, sir.
Justice Byron R. White: The Court was only a deviation of -- total deviation or something like that in the stand?
Mr. Robert B. Mckay: That's correct.
Justice Byron R. White: And you say you think it could be available and --
Mr. Robert B. Mckay: It turned out to be something like 48,000.
Justice Byron R. White: In the Court at that time, did it have the figures then?
Mr. Robert B. Mckay: I have assumed --
Justice Byron R. White: You didn't have --
Mr. Robert B. Mckay: I'm not sure of this.
Justice Byron R. White: Have in the District Court then?
Mr. Robert B. Mckay: I think this Court, at the time of affirmance, had the figures of 48,000, but I would have to verify that.
If that is wrong, I will let you know.
Justice Byron R. White: You made a total deviations are like 12%.
Mr. Robert B. Mckay: Yes, yes sir, from the smallest to the largest.
Justice Byron R. White: Yes, but the total deviation would be?
Mr. Robert B. Mckay: Over 14%.
Justice Potter Stewart: Was -- what do you think is the right approach, from the smallest to the largest or deviation from the ideal whether plus or minus?
Mr. Robert B. Mckay: Both are available.
Justice Potter Stewart: No, if --
Mr. Robert B. Mckay: If you want the deviations from the ideal, the figure in this case would be 6.6 in one direction and 6.5 in the other direction.
But, the more dramatic figure, of course, is the total deviation --
Justice Potter Stewart: Well that doesn't matter because I wonder which is the more helpful.
Mr. Robert B. Mckay: I think they are both relevant and I would be glad to stand on either of them as showing a very substantial and, we think, impermissible deviation in this case.
My present point is only that it is not de minimis and that, thus, under Swann versus Adams and other decisions in this Court and elsewhere, it becomes necessary for the state to explain what the reasons for those deviations were.
And, it's here that I believe that the state has failed to give any satisfactory explanation.
No explanation will hold up at all.
Let me talk then briefly to the explanations that the state has sought to give and suggest why each of them is inadequate and not sufficient constitutionally.
The state asserts, in the first place, that the plan took into account regional differences throughout the State of New York.
This would obviously be of some significance.
The difficulty is that the plan is not consistent in that standard.
There are substantial unexplained departures from the notion of regionality or from the notion that they also assert of the desirability of preserving political subdivision lines, counties, cities, and towns were possible.
Let me give examples.
The state's plan, that is the plan in New York the present time, divides unnecessarily the Cities of Yonkers in Westchester County, just north of New York City, and Lackawanna, just south of Buffalo, divides much more substantially than necessary the City of Rochester in upper central New York.
It divides unnecessary the Town of Islip on Long Island, and it divides in ways that we think are undesirable but make no particular point of part of the boroughs in the City of New York.
Justice Byron R. White: You say that in dividing the cities is permissible or not -- is it permissible to the election?
Mr. Robert B. Mckay: Yes, sir.
The reason for that --
Justice Byron R. White: You just say that really -- that suggested a -- it's not true in this case because it -- at least the inconsistently invited.
Mr. Robert B. Mckay: That's part right.
Again, from Reynolds and Sims and through the more recent cases, it's been perfectly clear that one of the factors that can be taken into account in justifying populish -- population deviations of small amounts is the desirability of protecting against the gerrymander, and one way of protecting against the gerrymander is to use whole political subdivision units so that there can be no chart that the lines are drawn in ways that cannot be checked out.
But, in the State of New York, the state legislative Act here in question has unquestionably divided towns and cities in ways that were not necessary.
I suggest not necessary because the appellant himself has devised a plan which has been before the Court throughout which he does not assert is the best plan, does not suggest is one that should be approved by this Court or by the legislature, but simply to show that, on the basis of an entire plan for the State of New York, it is possible to draw a plan that is more compact, more equal, and does not divide any town or city that is not required to be divided because of a substantiality of the population of that town, county, or city.
So that, all these things have to be explained by the states and they have not done so on the basis certainly of originality.
Take, for example, the 35th congressional district which stretches from virtually the outskirts of Rochester all the way over virtually to Schenectady, a stretch of more of about 200 miles, more than two-thirds of the whole state.
Now, we have some reason to know what the basis for this district drawing was when it was first drawn in 1951.
It was designed, according to the popular legend in New York, which I have no reason to doubt, to make impossible the election of a Democratic congressman.
In fact, the Democratic congressman has been elected every time since then.
So, the purpose failed but there still remains no logic to that district, except now as a means of protecting the incumbent in that particular office.
It is not a region.
It is not the Mohawk Valley, as was asserted by witnesses before the hearing below.
It is not land or area within the State of New York that makes any particular sense, except for the political reasons for which it was originally drawn and has now been continued.
The state has suggested that it is appropriate to consider the so-called blue-lined counties together.
The blue line is essentially the line drawn around the Adirondack Preserve in upper northeastern New York, and that is the justification they say for not drawing the district lines somewhat more consistently with compactness and population as appellant has suggested but, in fact, the very counties that are at issue here, Lewis County, to which reference has been made before is in the state legislative districts joined with a non-Adirondack county or neither, which is a Mohawk Valley County.
So, there is, again, no consistency of approach to the state.
There is, we believe, no justification for the lives which have been drawn that the state has satisfactory advanced in any of these points.
The state also argues that there is a factor of legislative convenience.
Perhaps, this is the legislative function consideration that was discussed in the Missouri case.
They say the time was too short to device a better plan, but the time, I called to their attention, was from May of 1967 when the 1961 plan was held unconstitutional until March 1, 1968, the deadline imposed by the Court.
There was, indeed, time to draw a more comprehensive and more equal equality-serving plan.
They suggest the necessity of preserving the election district's hope and this, of course, is a valid consideration to minimize the dislocation of a new plan.
Appellant, in drawing his plan, did not use election districts because he did not have, unlike the state, the population of the election districts.
But, it could've been done just as well with election districts as with census tracks with which he largely worked.
And so, again, this is a factor that could've been satisfied perfectly well in a plan that would have met the equality and the compactness standards which we believe are appropriate.
It is asserted also that this is the best plan that could've been secured, but note that, unlike Missouri, there was no legislative compromise factor involved here.
The plan was produced and was presented to the legislators on a take it-or-leave it basis, and it was perfectly clear that they were expected to take it.
Both parties had agreed in advance that this was the plan that would best satisfy the give and take of the political and the legislative process and so, it was passed without any substantial dissent in both Houses.
Justice Potter Stewart: This was done when one House was -- had a majority of Democrats and the other House had a majority
Mr. Robert B. Mckay: Yes, sir.
Justice Potter Stewart: Of Republicans, wasn't it?
Mr. Robert B. Mckay: Thus, distinguishing it from what had been the previous situation in New York and in most states where both Houses are of a single party where the plan is worked out by that party and presented the legislature, and then that seems to have been the case indeed in Missouri, but the dissent, the dispute of the minority is unavailable in those cases
But, here, it was necessary to give something to both parties in order to make the plan acceptable legislatively.
Further, I call to your attention, and here you will have to look at appendix B, the map of Queens in New York City which is on that map.
The 6th and the 8th congressional districts, if they were to be added together, could be a reasonably compact almost circular area but, as you would notice, they had been drawn as the interlocking wedges as though of two wrenches working together.
The question is why they were drawn in that fashion.
The perfectly clear answer is that the 6th district is a Republican district and was intended to be so.
The 8th district is a Democratic district and was intended to be so.
I shall advert later in connection with my argument or gerrymander to the exact evidence that shows that that was not only the result, but as well the intent.
Let me turn now to the question of gerrymander to which these arguments are, I believe, inextricably linked.
Here, the question is deviation from equality and deviation from compactness, and the burden, I believe, being on the state to explain both in the rather extreme circumstances here presented.
Justice John M. Harlan: I don't see where -- where is Richmond here?
Staten Island, where is that on appendix B?
Mr. Robert B. Mckay: It -- well -- it shows only in the extreme left-hand corner, just the very tiniest touch of the lower left-hand map.
Justice John M. Harlan: What is it?
Mr. Robert B. Mckay: Do you see the little line going from the two there?
That's the Verrazano Bridge, and to the left of that is Richmond, but it doesn't appear here.
Richmond, intact, is a part of the 16th congressional district.
Justice John M. Harlan: Well, it's probably 16th --
Mr. Robert B. Mckay: But it's not large enough by itself to justify a full district, so it's linked through the Verrazano Bridge to part of Brooklyn.
Justice John M. Harlan: Over there in Kings County.
Mr. Robert B. Mckay: Yes, sir.
Justice John M. Harlan: Thank you.
Mr. Robert B. Mckay: The gerrymander, as is well known, is that device by which a legislature seeks to add to or diminish the power of a political group, a racial group, a socioeconomic group, a religious group, or any other kind of group interest.
And, it is this that we believe is demonstrated in this case and it is this that we believe must be prohibited in terms of the constitutional philosophy that's here involved.
Whether speaking in terms of Article 1 Section 2 of the Constitution, as in Wesberry versus Sanders or in terms of the Equal Protection of the Laws Clause of the Fourteenth Amendment, we believe that a gerrymander designed to favor or to disfavor some identifiable group is constitutionally impermissible.
The state has argued, I think not very strongly but it should be mentioned, that there is a doubt as to the justiciability of the gerrymander issue.
The reliance there is on bits and pieces out of lower Federal Court decisions and State Courts with one exception, that's the affirmance by this Court of the decision in WMCA versus Lomenzo in which there was a per curiam affirmance of a decision of a three-judge District Court below in which, among various points, the Court had suggested that the gerrymander was not a justiciable issue.
But, the affirmance per curiam seems equally susceptible to the point that this Court was not satisfied that there was sufficient proof of a gerrymander in that case to warrant taking it up on that particular issue.
It becomes particularly unlikely that the Court has determined that the issue is not justiciable in view of the fact that WMCA was bracketed in time by Fortson versus Dorsey from Georgia and Burns versus Richardson from Hawaii.
In each of which, the Court explicitly recognized the possibility that, in proper circumstances, there might be racial or political gerrymandering taken into account as a basis for a holding of unconstitutionality.
This, we believe, is a case in which those factors are sufficiently evident both affirmatively and negatively by inference to justify the imposition of that rule in this particular case.
The proof of the gerrymander in circumstances of this case, I think, deserves some mention at this point.
The circumstances of the development of the 1968 legislative plan and of its passage through the legislature suggest that there was a bipartisan agreement to protect encumbrance and to tradeoff to make sure that individuals favored by the legislative leaders in both parties would be assured as nearly as may be of a continuance of their seat or of the giving of a new seat in the Congress to be elected in 1968.
There was unwavering bipartisan support for the Bill by substantial majorities in both Houses.
The principal Republican and Democratic architects of the plan both testified in its favor in the hearing before the three-judge District Court below, and the evidence as to the 6th and 8th congressional districts indicates very clearly that they were drawn so as to ensure a Republican preponderance in the 6th and a Democratic preponderance in the 8th.
Now, that's a point that I would like to return in the time that I have reserved, if I may leave it at that junction.
Justice Hugo L. Black: Was there any finding made on that?
Mr. Robert B. Mckay: No, sir, there was none.
Chief Justice Earl Warren: Mr. Zuckerman.
Argument of George D. Zuckerman
Mr. George D. Zuckerman: Mr. Chief Justice and may it please the Court.
Before discussing New York's 1968 Congressional Districting Act, I believe it would be advisable if we briefly consider the background of this litigation.
As a result of the 1960 census, which reduced New York's congressional delegation from 43 to 41 seats, it was necessary to draw new lines in 1961.
Now, although at that time this Court had not yet come down with the decisions in Reynolds versus Sims, Baker versus Carr, or Wesberry versus Sanders, the New York legislature, in its report of the Joint Legislative Committee on Reapportionment, determined that the most important criterion to follow is substantial equality of population.
At that time, the standard that was being recommended by the American Academy of Political Science by Former President Truman and by various congressional leaders such as Congressman Celler was that no district should exceed the state mean by more than 15%, and that is what the New York legislature did in 1961.
The precedent suit was instituted in 1966 and, when the three-judge Court reached its conclusion in 1967, they concluded that whatever standard the legislature may have followed in 1961 had become outmoded as a result of the recent decisions of this Court.
They also particularly criticized the congressional districts in Brooklyn under the 1961 Act where disparities of up to 29.5% existed among contiguous districts.
But, when it came to determining an appropriate remedy, the District Court, in its opinion, acknowledged that it might be preferable to wait until the 1970 census figures were available rather than having the legislature draw new lines in 1968 based on figures that were eight years old.
However, the Court felt that the decisions of this Court in Swann versus Adams precluded such an extension.
Accordingly, to resolve this dilemma, the Court below suggested a compromise which I'd like to just quote from it because this was really important when the legislature drew the lines.
The Court said “Acting upon the assumption, that accurate congressional representation must await the 1970 census and upon the Supreme Court's understandable objection to protract a delay, a compromise may be in order.”
The 1968 and 1970 congressional districts ought to be held in districts far more equalized than they are at present.
There are rough changes which can be superimposed on the present districts to pure the most flagrant inequalities.
When the legislature drew the lines in 1968, they followed this admonition from the District Court.
Whereas, before, six of the congressional districts were above 10% from the state mean and seven districts were below 10% from the state mean.
There is no district in the 1968 Act, which his more than 10%.
The largest deviation -6.6% rests upon rational state policies, which I will come to in a minute.
As for appellant's argument that the legislature didn't have time to consider this thing, first, let me point out that the Joint Legislative Committee on Reapportionment issued a 20-page report which outlined its policies, and these were in the hands of the legislature several weeks before the Act was actually passed.
The Bill was introduced on February 20, and it was six days later when the legislature enacted the statute.
After considering the policies set forth in the report of the Joint Legislative Committee on Reapportionment and, after hearing witnesses for the state and after giving any party or any person, I might add, in the state an opportunity to criticize these districts at a hearing in March of last year, the District Court concluded that the legislature had indeed cured the defects under the prior 1961 statute.
In Brooklyn where the greatest disparities occurred, as I mentioned, up to 29.5% under the 1961 lines, the seven districts in this area are now all within one-tenth of 1% of each other and they are all less than 2% from the state mean.
The minor population disparities that exist among New York's districts rest upon rational state policies which were undertaken by the legislature to, first, of course, create districts that are substantially equal in population but, at the same time, to respect the integrity of county lines where possible and to afford recognition to the natural geographic and economic regions within the State of New York.
Now, in New York State, the problems and the aspirations of the people of New York City are far different from those in Long Island or Westchester or, similarly, the problems of people in the Mohawk Valley and what they expect of their representatives in Congress are far different from the people in the Adirondacks or in the Niagara Frontier.
The state wanted to afford some recognition to these regional considerations.
For example, the City of New York, in light of its independent shrewder and its special political and economic problems, was treated as a separate entity, and nobody, including appellant, has criticized this.
Dividing the population of New York City into the population of the state entitled the city to 19 congressional seats, and 19 is what it received.
In fact, no one has been able to appoint to any metropolitan area within the State of New York that has been discriminated against in the drawing of the 1968 lines.
The City of New York itself divides within sub-regions.
Manhattan and the Bronx are separated from Brooklyn and the other boroughs by water, and there are some New Yorkers would tell you there is more than just a body of water which separates Manhattan from Brooklyn.
When it came to drawing these lines, the Bronx presented a problem because its population was too large for just three districts, but not large enough for four full districts.
Therefore, a small segment of the Bronx, the southwest portion, was attached to a district in Manhattan which is connected to by four bridges.
All together, the eight districts given to Manhattan and the Bronx do not vary from each other by more than one-quarter of 1%.
Queens presented a problem because its population of 1,800,000 was too large for just four districts, but not large enough for five full districts.
To overcome this problem, the Rockaway Peninsular, which lies to the south of Queens and which his connected by toll bridges to Brooklyn, was joined in the Brooklyn districts.
Therefore, the other four districts were all within the County of Queens, which warrants to produce districts which don't vary from each other by more than about 200 persons.
Preserving the integrity of New York City lines left Nassau and Suffern Counties separated from the rest of the state, and this was treated as a separate region in the drawing of five congressional districts which are approximately equal to each other.
When we move north of the New York City lines, the legislature follow the county lines wherever possible.
The Counties of Westchester, Monroe, and Gerry which were too large for just one district, of course, had to be divided, but every other county of the state has not been divided in the creation of the congressional districts.
Now, in the extreme western portion of the state, the 1961 districts were left alone in the drawing of the 1968 statute.
The reason for this is, first, nobody had criticized these lines in the 19 -- in the arguments prior to the issuance of the prior opinion nor had the District Court pointed out these lines as being particularly large in disparities, but another reason was that these districts rest upon rational state considerations as well.
For instance, the largest deviation among the present districts is the 38th congressional district, and that's the area just south of Gerry, south of Buffalo.
This is composed of five small agrarian counties which are all similar both as to their nature and as to their economy.
The only way to make this district a little bit closer to the state mean would've been to take a portion of Gerry County and join this into the 38 districts.
However, Niagara and Gerry Counties form an area which is known in the state as the Niagara Frontier.
They are treated alike when it comes to receiving federal and state grants in various state projects.
And they have practically nothing at all in common with the agrarian counties in the southwest here.
Justice John M. Harlan: Where's Jamestown?
Is that in the Niagara Frontiers or south of it?
Mr. George D. Zuckerman: I believe Jamestown is in the 38th district.
Justice John M. Harlan: Down at the 38th?
Mr. George D. Zuckerman: Yes, Your Honor.
That, I think, might be about the largest city in that --
Justice Abe Fortas: What's happened to Rochester?
Mr. George D. Zuckerman: Pardon?
Justice Abe Fortas: Where is Rochester?
Mr. George D. Zuckerman: Rochester is in Monroe County.
That's the -- yes, the 37th and the 36th districts.
In that particular area, as long as you bring it up, it should be pointed out that that area was divided as it has been for the past prior two congressional districting statutes, right along the Genesee River.
Now, it is interesting that nobody from upstate or the western portion of the state came into the District Court to challenge these lines.
In fact, we have no one from any of the political parties here before this Court to challenge these lines.
We have just one private citizen from Queens who is taking up a supposed argument for the people upstate or in the western portions of the state.
He argues that he could come up with a plan which would somewhat reduce the disparities in New York's present congressional districts.
However, he does it by ignoring many of the considerations which were held to be very vital by New York legislature.
As an example, he would move Lewis County from the present 31st district where it is joined with the other Adirondack Counties and move it into the other 32nd district which would, true, bring the disparity down a little bit.
However, in that event, Lewis County, which strongly believes in conservation since it is part of the Adirondack Preserve, would then be under the domination of the Metropolitan area of Utica.
Appellant claims that part of the -- that a similar district was drawn in the State Assembly or State Senate, but those districts are much smaller in population.
They're only about one-half the size in population of a congressional district, so it was no possible to create one district just to encompass the Adirondacks.
As for the examples that appellant has given towards the division of cities, there were a few cities where it was impossible to keep them intact.
I should say only really two cities, I believe, in the whole state.
One, the City of Yonkers, a little portion, I believe one ward, was taken out of Yonkers in the creation of the 25th and the 26th districts.
However, the only way appellant gets around this in his supposed plan is to take Hampton County and move it northward into the 28th district.
Now, this is an example of how a private citizen doesn't understand the aspirations of the problems that are fought by other people in the state.
Justice Abe Fortas: Is it your argument that it is constitutionally relevant to consider the economic or consolation incurs or whatever you referred to in terms of the justification of population disparities among districts?
Let's suppose you have a case where there's a very large population disparity between district A and district B, and let us suppose that that population disparity is a result of the legislature's judgment that it's appropriate to consider the border counties in district A rather than district B because those border counties have interests that are harmonious with the rest of district A but not harmonious with district B.
Are you arguing to us that that is a relevant constitutional fact?
Mr. George D. Zuckerman: That's so limited in extent, Mr. Justice Fortas.
What I am arguing is that the most important criterion, of course, is equality of population, but --
Justice Abe Fortas: Is what?
Mr. George D. Zuckerman: Equality of population, but I believe disparities -- minor disparities should be permissible when the state feels that rational state policies require such a disparity.
Justice Abe Fortas: I know, but are you saying that --
Mr. George D. Zuckerman: But, I'm not saying if --
Justice Abe Fortas: If the disparity is gross?
Mr. George D. Zuckerman: No, Your Honor.
If the disparity was, say, 50% or 30%, I would not say that this should --
Justice Abe Fortas: Well, what are the factors that are relevant in -- constitutionally relevant, assuming any gross disparity, any factors?
Mr. George D. Zuckerman: Well, if the disparity is gross enough, I suppose no explanation by the state would satisfy this Court.
Justice Abe Fortas: Well, suppose it's not quite so gross.
Suppose it's just a little gross.
Mr. George D. Zuckerman: Well, I think what this Court is really interested in is fair and effective representation.
Justice Abe Fortas: No, I understand.
Mr. George D. Zuckerman: And well, I --
Justice Abe Fortas: I understand it to be the constitutional standard.
Mr. George D. Zuckerman: Yes.
Well, what I'm saying is that the legislature might feel, for instance, that nobody in Congress is speaking for the conservationist interest of the state.
There are 41 congressmen from New York.
They might feel that it was necessary to have at least one congressman who represented the Adirondack Preserve.
Justice Abe Fortas: I thought you just said that that's constitutionally irrelevant where you have a gross population disparity.
Now, let me change the wording.
Let us suppose that, numerically, there is a disparity, just on the basis of numbers, which is constitutionally objectionable.
Would -- is it cons -- is it permissible?
Is it mandatory or is it permissible for this Court to take into account the conservation interest in the terms that you just stated?
Mr. George D. Zuckerman: I believe it is permissible.
Justice Abe Fortas: Well, how does that affect -- does the -- does that affect the literal constitutional standard?
The constitutional objective, if I may speak very roughly and broadly, is to see that one man's vote is equal to -- has equal effect with the vote of another man.
Is that right?
Mr. George D. Zuckerman: Yes, Your Honor.
Justice Abe Fortas: In lay parlance.
Now, what does the conservation factor in the example you've put to us have to do with that?
Mr. George D. Zuckerman: Well, what I was referring back to the language I used, the fair and effective representation, I believe, can be found in the Reynolds versus Sims opinion.
I believe this was the overall goal, one man-one vote was held to be the guiding principle which would lead towards the effectuation of this goal.
But, this is not just solely a question of numbers.
Basically, people want to be adequately represented in Congress, and the question then becomes who is being injured?
If the result of creating a congressional district representing conservationist interest is such that the district is 6% or 7% from the state mean, is anyone else in the state really being injured to any way or extent?
Perhaps, in the very abstract sense, they are, but if one vote is 94th or 100th of another vote, I would say the injury really only lie in the abstract.
Justice Abe Fortas: Well, in the Midland County case, I wrote an opinion in connection with the local government problem and made arguments of that sort.
I regret to remind you that that was a dissenting opinion.
I don't believe it should've been, but that's the way it turned out.
Mr. George D. Zuckerman: Yes, Your Honor.
Justice Abe Fortas: But, you are arguing then that these qualitative factors are constitutionally relevant.
Mr. George D. Zuckerman: I am.
Justice Abe Fortas: Do you see a difference between that kind of an interest, say, con -- representation of conservationist interest on the one hand and gerrymandering on the other in terms of constitutional relevance?
Mr. George D. Zuckerman: Well, let me get to the issue of gerrymandering because I think that presents rather complicated facts.
Justice Abe Fortas: And I hope you'll say something about 6 and 8 -- districts 6 and 8.
Mr. George D. Zuckerman: Yes, I will.
First, let me say at the outset that this Court has never held that partisan gerrymandering presents a cognizable issue under the Fourteenth Amendment.
I would say, on the facts of this case, it would be hard to imagine a weaker test case than the present one to bring forth this issue.
There is a great deal of confusion, first of all, about what gerrymandering means.
The evil of the original gerrymandering districts of Massachusetts was not that they took the shape of a salamander or a dragon.
The evil there was that the result was expected to produce a completely disproportionate share of seats to one party, when I say disproportionate, I mean that because of -- that the lines were drawn in such a way that one party was expecting to get many more seats than their general voting patterns in the state would entitle them to.
I think we often lose sight of this and, looking at district lines in the abstract, compactness certainly is esthetically pleasing but it is not the sole answer.
You could have perfectly compact districts and you could still have partisan abusers, if any, upon where various groups lie within the state.
Now, assuming that gerrymandering presented a justiciable issue, I believe it should be evident that appellant has failed to present any evidence which would justify this Court overturning the districts on that basis.
First of all, any districting plan there is always going to be certain districts which are going to favor one party and districts which would favor another party.
Professor McKay, in one of his articles entitled “Reapportionment Reappraised,” has himself said that legislative representation lines are never neutral.
If you look at any one district, you could always argue that if the lines were drawn to the left two blocks or to the right three blocks, party A or party B might have won the election.
What I think of one terms of gerrymandering is the definition which is found in the encyclopedia of social sciences, which I have set forth in my brief, and this speaks of the abuse of power by a party that is dominant at the time in the legislature so as to maximize its political strength throughout the state.
Now, no one has shown that there was any abuse under New York's present lines.
In terms of political realities, they could have been an abuse because the Democratic Party controlled the State Assembly and the Republican Party controlled the State Senate.
The only two examples that appellant has been able to point so are the 35th district and the 6th district.
Now, the 35th district is located in the lower central valley of New York.
It's this district right here.
It is rather an elongated district and I admit it is not esthetically pleasing if the lines are viewed in the abstract, but it is a perfectly logical district.
It consists of eight agrarian counties.
They are all small in population.
The boundaries of the district, exactly follows the boundaries of these counties and, as for the argument that this was drawn with some partisan intent and view, as upon counsel has conceded, although it was expected to produce a Republican congressman in each of the four elections that have taken place since this district was created.
The Democratic candidate has won the election.
Turning to Queens, we have the example of the 6th congressional district, and what appellant is basically arguing is that if the 6th district was drawing somewhat differently, a Republican candidate might not have won that district.
Again, in terms of realities, I doubt there's very much because, in the last election, the Republican congressman, they carry the district by a margin of 2-1.
In fact, it is misleading when you come to New York City, just talking in terms of Republican as against Democratic.
The people of New York City are quite sophisticated in who they vote for.
That particular candidate is a Republican but he happens to have a very liberal persuasion and he happens to draw a large number of votes from Democrats and Independents.
What appellant tries to seize upon is the fact that, at the hearing below, a witness representing the majority leader of the State Senate said that he saw nothing wrong with a district, the 6th district, electing a Republican congressman.
What he was saying, if his remarks are read in the full context, was that the Republican Party generally captures about 43% of the vote in the borough of Queens.
Therefore, he couldn't see anything wrong in having them elect one candidate in the four districts that are allotted to Queens.
In fact, if the Democrats won all four districts, the argument could've been made that this was not fair and effective representation.
Now, finally, I would like to bring to the Court's attention the fact that, regardless of the outcome of this appeal, New York will have to draw a new congressional districting lines after the 1970 census because, according to all projections of the United States Census Bureau, the State of the New York really lose at least one congressional seat.
We feel the present Act is constitutional.
We would just report.
If this Court, however, should feel that there is any defect in any of these lines, we would ask that, under equitable considerations, the drawing of new lines be deferred until the 1970 census figures are available.
Justice Byron R. White: When would that be?
Mr. George D. Zuckerman: I would imagine that would be in 1971.
Justice Byron R. White: It would mean it'd be probably available in 1972.
Mr. George D. Zuckerman: No, I would say that the 1972 election will be held under new lines.
Certainly, I think the legislature should have the figures by the end of 1971, even if we have to pay more money to get them.
I might say that --
Justice Byron R. White: Clearly enough for seven.
Mr. George D. Zuckerman: This would carry through --
Justice Byron R. White: Agree with the statute.
Mr. George D. Zuckerman: Well for one more election.
If there are no further questions?
Justice Byron R. White: Well, I take it, the gerrymander argument really doesn't depend on any disparities in numbers, does it?
Mr. George D. Zuckerman: No.
Justice Byron R. White: I mean the districts could be equal in population and if the gerrymander argument is good here, it would be good there.
Mr. George D. Zuckerman: Right, this is the -- that argument does not -- well, of course, disparities might be one example, but let me -- as -- while you're bringing that up, let me begin to turn to the example in the Adirondacks where we said that Lewis was kept in the 31st district, not in the 32nd.
Now, this entire area here is Republican.
The Republican candidates for Congress captured both the 31sth and the 38th districts by very large margins.
So, the reason that the -- that Lewis County was kept in the 31st certainly was not for partisan reasons.
Justice Byron R. White: Well, do you concede that the 30 -- that the Adirondack area, the 331st, is it?
Mr. George D. Zuckerman: The 31st.
Justice Byron R. White: And, do you concede that the -- that there was deliberate attempt to put the Adirondack Counties in one district?
Mr. George D. Zuckerman: Yes.
Justice Byron R. White: To -- in order to lump together the so-called conservationist interest?
Mr. George D. Zuckerman: Basically, yes.
In fact, Lewis County, what occured --
Justice Byron R. White: Is that any different with deliberately putting in the 31st district either all Democrats or all Republicans?
Mr. George D. Zuckerman: Well, as I said, the idea there was to try to get a congressman who would represent the dominant position in this area.
Justice Byron R. White: Do you say that the 35th was a deliberate attempt to lump together all rural interests?
Mr. George D. Zuckerman: What we were looking for were logical districts, I --
Justice Byron R. White: Well, you say it's perfectly testifiable to -- deliberately to --
Mr. George D. Zuckerman: Not if it created --
Justice Byron R. White: Put together or --
Mr. George D. Zuckerman: No, Your Honor, not if it created large disparities in population.
Justice Byron R. White: Well, I know, but there's no -- no, not at all, but it was done to put together all the people of one interest or one persuasion.
Mr. George D. Zuckerman: Well, one basic -- this is the -- this area is agrarian.
Justice Byron R. White: Yes?
Mr. George D. Zuckerman: And they have been together for many years in one particular district.
This is what the people wanted of their representatives.
This is the brochure that was brought to the New York legislature.
Justice Byron R. White: Do you say you suggest that it is justified, that it's wholly proper for the legislature, that it's not questionable constitutionally for the legislature to draw the district lines based upon the character of the interest groups who are defined by the districting?
Mr. George D. Zuckerman: I'm not saying that the legislature was required to order that --
Justice Byron R. White: No but --
Mr. George D. Zuckerman: In every case.
Mr. George D. Zuckerman: What I'm saying here is --
Justice Byron R. White: Do that, do you say it may do that?
Mr. George D. Zuckerman: Where there are not disparities in population of any appreciable extent and where this is in an area of the state where it's not logically where the people want this.
Where this is the impression that they bring to bear on the legislature.
Otherwise, if the legislature --
Justice Byron R. White: So, in the 31st, the legislature could say “Well, we're going to put all the conservation interests together, that the straight giving them representative and the 35th were going to give the rural interest of that who were in that counties represented it, And then, down in the city, we're going to draw a district so that the Negros have representative and other women which are Catholics will have a representative.
Justice William O. Douglas: How about those who are opposed to freeways, you're going to get a district for them too?
Mr. George D. Zuckerman: That would be rather difficult if we key to the principle of contiguity.
What I'm saying is that, I believe, to try to get fair and effective representation, it may not impermissible in states like New York to give recognition to some of these interests.
Justice Byron R. White: Do you have to win the -- do you have to be right in what you just said to --
Mr. George D. Zuckerman: No, Your Honor.
Justice Byron R. White: If you win this --
Mr. George D. Zuckerman: No, this is --
Justice Byron R. White: Gerrymandering?
Mr. George D. Zuckerman: This is just a view point, but I don't feel the ar -- the gerrymandering argument, I feel, is so weak under the circumstances of this case that, on throwing this in as --
Justice Byron R. White: Well, apparently, they haven't seized on the stone theory about your argument.
Mr. George D. Zuckerman: On the strong?
Justice Byron R. White: Yes, about the 31st district.
Well, that's alright.
Mr. George D. Zuckerman: Well, certainly, we have -- when we talk about partisans gerrymandering, one for the little party as opposed to another, and there really is no argument that could be made in the new lines of the 31st district.
Chief Justice Earl Warren: Mr. Zukcerman, on your argument on gerrymandering, you stress the fact that there was no partisan districting here, that it was agreed by both sides that this was alright.
Would you -- do you think that if we consider that there has been gerrymandering here, that it would be in the -- any less wrong if it had been accomplished just because the members of the legislature or the members of Congress wanted to have their own districts protected and did it for that reason rather than for partisan reasons?
Mr. George D. Zuckerman: Well, that only played in elements in this regard, Your Honor, that since they thought there would be new district lines after the 1970 census, they thought it would be foolish to completely wipe all the old districts off the map and start in a vacuum.
They thought it would be desirable to make as few changes as possible rather than have three completely different changes in congressional constituencies within about a six-year period.
Chief Justice Earl Warren: Thank you.
Rebuttal of Robert B. Mckay
Mr. Robert B. Mckay: May it please the Court.
Two brief specific points, one in response to Mr. Justice White's earlier question about Gong versus Kirk.
As I see the District Court opinion in that case, which is at 278 F. Supp. 133 which I believe is the one that was affirmed by this Court, the reference there is to the disparity in population of only 8,000.
Mr. Robert B. Mckay: Now, whether there is something else was developed between the time of the --
Justice Byron R. White: There was.
There was a motion for reconsideration in the District Court which brought the other figures to the District Court's attention, and the figures were discussed in the jurisdictional statement in response here to some extent.
Now, could you I ask you, you would make the same argument on gerrymander here whether there was any population disparity or not.
Mr. Robert B. Mckay: Yes, sir, I would.
It is emphasized and exaggerated by the two facts of substantial population deviations, otherwise unexplained, and the lack of compactness --
Justice Byron R. White: And --
Mr. Robert B. Mckay: Which makes the districting suspect and then there is also affirmative evidence in this case.
Justice Byron R. White: Well, is it also your claim here thought that the population disparities themselves are -- were energized by a gerrymandering motive?
Mr. Robert B. Mckay: Yes, sir, at least in part.
Now, let me give some examples of that, if I may.
Perhaps I should first make reference to the citation to my own writing on the fact that the drawing of political lines is never neutral, of course, that's true, but the objective in the constitution and of the earlier decisions of this Court, as I understand it, is to make sure that it'd be as neutral as possible and it'd be as free of erroneous non-permissible considerations as possible.
We go then right to the question of whether it's permissible to have a conservationist viewpoint represented or a religious viewpoint represented or a congressman who represents a racial or socioeconomic or political --
Justice Byron R. White: Or urban district.
Mr. Robert B. Mckay: Or urban district.
Without the urban districts, it pretty well will be represented where you have a substantial city and, indeed, it would be my own belief that, as far as possible, to protect against gerrymandering the city should be kept intact.
The district lines, whether it'd be cities or counties or townships or whatever the case may be, should be adhered to where possible, and that is what has not been done in New York City in the State of New York.
Justice Hugo L. Black: They should be what?
Rebuttal of George D. Zuckerman
Mr. George D. Zuckerman: They should be adhered to, to the extent possible, to protect against the gerrymander.
Now, the question was raised by Mr. Justice Fortas.
Justice Hugo L. Black: Do your attack -- challenge rest on gerrymandering as one independent ground of yours that there is gerrymander?
Mr. George D. Zuckerman: Yes, sir.
Justice Hugo L. Black: It does not depend at all on one with the disparity of the voters in the one man-one vote.
Rebuttal of Robert B. Mckay
Mr. Robert B. Mckay: We make both arguments, Your Honor.
Justice Hugo L. Black: You what?
Mr. Robert B. Mckay: We make both arguments, but there are substantial population inequalities that are not explained by any rationally permissible ground and that there is a gerrymander.
That is --
Justice Hugo L. Black: Well now, which constitutional provision do you allow as to the gerrymander?
Mr. Robert B. Mckay: On both the Equal Protection Clause of the Fourteenth Amendment and Article 1 Section 2.
Fair representation of the vote by the people is within Article 1 Section 2 and that, of course, means equality and fairness, and the Equal Protection Clause, of course, means that there shall not be arbitrarily drawn districts.
Justice William J. Brennan: Well, being a candidate, you express those constitutional question that in addition to substantial population equality.
Constitutionally, does it also require compactness?
Mr. Robert B. Mckay: Yes, sir.
Justice William J. Brennan: And that's the way you handle -- express that gerrymandering can't be done whether it's for consummations, religious, political, or otherwise --
Mr. Robert B. Mckay: Quite correct.
Justice William J. Brennan: Because you didn't produce the element of compactness as in our constitution.
Mr. Robert B. Mckay: Yes sir.
Justice William J. Brennan: Now, I forgot some while now, but did the old 1912 statute, the federal statute, as I recall, it used to have the criteria of compactness, contiguity --
Mr. Robert B. Mckay: Compactness and contiguity.
Justice William J. Brennan: Was there also population criterion?
Mr. Robert B. Mckay: No, there was not.
Justice William J. Brennan: Now, that, of course, was repealed.
Mr. Robert B. Mckay: Yes, sir.
Justice William J. Brennan: But then the old Broom case, Broom -- in Wood versus Broom, wasn't there some consideration of compactness as a constitutional criterion or not?
Mr. Robert B. Mckay: No decision at that point.
Justice William J. Brennan: Was it raised or suggested?
Mr. Robert B. Mckay: Whether it was raised, I'm not sure, but there was no decision on that point.
Justice William J. Brennan: But, in any event, you would ask us to add to substantial population quality a constitutional requirement of compactness.
Mr. Robert B. Mckay: That's correct, sir.
Justice William J. Brennan: Now, what about contiguity?
Mr. Robert B. Mckay: And Contiguity, I think, quite clearly that --
Justice William J. Brennan: Well, then what --
Mr. Robert B. Mckay: There isn't a contiguity problem in this case.
Justice William J. Brennan: No, but what you would really have us do then, ultimately, I take it, is to convert that stat -- those statutory criterion getting the population equality --
Mr. Robert B. Mckay: Yes, sir.
Justice William J. Brennan: As we've now defined it, into constitutional criterion.
Mr. Robert B. Mckay: Yes, sir.
Justice Abe Fortas: Well, being there, may I ask you along the same lines that my brother Brennan has been asking questions.
Do you really mean that or do you mean that where there is gerrymandering, the likelihood is very great that the result of it will be to dilute or, arbitrarily, to manipulate the effect of the individual's vote so that, in short, are you talking about two constitutional principles here or one?
Mr. Robert B. Mckay: It's --
Justice Abe Fortas: One constitutional principle has been popularly called the one man-one vote principle.
Now, is gerrymandering under that heading or is it something different in constitutional terms?
Mr. Robert B. Mckay: I believe it's a function of the equality argument.
Our propositions then would run this way, that equality -- substantial equality is required.
In this case, that alone would be enough to justify reversal.
But, in addition, in order to make the equality aspect work, as someone suggested, it's only one part of a pair of pliers, the equality, in order to make it work, there must also be protection against use of the districting process for impermissible purposes, else equality serves no real function of itself.
And so, our second argument is that equality and compactness must be satisfied in reasonable ways and, where it is not satisfied, the state must explain.
Some explanations can be given but, in this case, there are no satisfactory explanations and, indeed, there is affirmative evidence of a conscious intent to gerrymander for partisan reasons.
Justice Abe Fortas: Well, if I live in the northeast section of a state and the legislature gerrymanders a state take an extreme and, therefore, absurd example to illustrate the point.
The legislature gerrymanders a state so as to put my area in within the extreme southwest portion of the state so that they'll put together a Democratic district.
Then, it seems to me, that what's happened is that my vote, as a resident of one of these extreme areas, is being manipulated.
Mr. Robert B. Mckay: Yes, sir.
Justice Abe Fortas: And that that does bear upon the principle of equal effect to my vote.
Mr. Robert B. Mckay: Quite --
Justice Abe Fortas: And it's from that principle, I take it, that you would derive the constitutional basis for your insistence upon an absence of gerrymandering.
Mr. Robert B. Mckay: Quite clearly so.
And, in this case, there is an addition.
The affirmative evidence of conscious purpose for partisan or bipartisan results and, in addition, as Mr. Zuckerman has just conceded, there was an effort to secure a conservationist district which, seems to me, pervert the old rural-urban dichotomy that was the thrust of Reynolds versus Sims originally.
Justice Abe Fortas: Yes, I understood him.
We don't have to reach this gerrymandering question because we really view that this statute with population --
Mr. Robert B. Mckay: That is correct, sir.