GAFFNEY v. CUMMINGS

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Argument of Robert A. Satter

Chief Justice Warren E. Burger: -- 76, Gaffney against Cummings.

Mr. Satter, you have about 19 minutes left.

Mr. Robert A. Satter: Mr. Chief Justice and may it please the Court.

The issues in a reapportionment case can be framed as follows: one, the standard of equality that’s going to be applied; two, the nature or the type of a rational state policy which would justify deviations in excess of that standard; and three, the tolerable limits of the deviations, even if they are justified.

Expressing or framing the issues in that fashion sets a blueprint for the kinds of evidence necessary to prove a case of this nature and establishes the legal questions necessary to decide it and let me endeavor to apply these principles to our case before us.

As to the standard of equality, we urge that, that continue to be a strict as it has been and that the cause, that the greatest cause of the success of reapportionment in the 1970’s which I eluded to yesterday that 50% of the states have achieved a deviation of 5% or less is because of the strictness of that standard.

Now, the equal as practicalable expression in Reynolds is kind of a wavering line and does not state the standard with sufficient precision.

I urge upon this Court to continue the standard expressed in the Kirkpatrick case, namely that the states be required to achieve as price -- as precise the mathematically quality as they can and only limited population variances which are unavoidable will be permitted unless they can be justified.

Now, those words and that standard are uncomfortable to the reapportionment.

I know because I have been in the back rooms with the reapportionments.

But it is necessary that it'd be uncomfortable for them because the only thing that assures a respect for the constitutional right of the individual citizen to an equally weighted vote, the only thing that assures a respect for the constitutional right of the individual citizen to an equally weighted vote is the language of the opinions of this Court.

And I urge that you do not adopt the de minimis rule that has been asked of you by the appellants.

Certainly, it should not be applied in this case where the deviations are 7.8%, which is in excess of what 50% of the states have already achieved.

And in the cases which have required that close a deviation, less than 5%, they over and over again say in their opinions, the lower court say there is no de minimis rule.

And as it was pointed out in Kirkpatrick, once you establish a de minimis rule that becomes the target at which the reapportioners will aim at, and not at precise equality.

Moreover, we urge you not to adopt any presumption of constitutionality in this case as the appellants have urged upon you.

Essentially, the argument is the same.

The great expansion of civil rights in this country, and now by civil rights, I mean the rights that have derived from the Equal Protections Clause of the Fourteenth Amendment, the rights that have come from the First Amendment, freedom of speech and freedom of religion, and the rights that come from the other amendments to the Constitution, in my judgment, derived their fundamental source from three basis causes.

First; the standing of citizens to sue, that was terribly important.

Giving a standing to citizens to sue for these important rights and as kind of a subdivision of that, a kind of expansion of the whole notion under the Federal Rules of Class Actions.

Secondly; the availability of lawyers and the willingness of lawyers to take these cases; and thirdly, not necessarily an absence of the presumption of constitutionality in these basic civil rights cases, but at least a kind of dip in the presumption of constitutionality.

In order to lower the threshold of the burden of proof upon the plaintiffs for them to establish a prima facie case, and then require the states to come forward in these basic civil rights cases and explain or to justify why they have created an unequal treatment.

And I would trust that that basic kind of underlying rule that you have adopted in these basic civil rights cases would not be changed in this kind of a case or in any of the civil rights cases.

Now, let’s apply the standard of equality to the case before us.

The deviation in this case, the range of deviation which I previously defined from top to bottom was 7.8%.

A plan was submitted by the plaintiffs showing that the deviation in this case could have been 2.6%, the range of deviation could have been 2.6%.

That plan was based on the same census material as was available to the board.

It was prepared by an unquestioned expert.

The expert and the plan itself was known to the appellants, was given to them at least two weeks before the trial in accordance within a pretrial order, a pretrial conference order of the trial judge.

The plaintiff said -- excuse me, the appellants said the opportunity to depose the plaintiff’s expert before trial.

They had the opportunity to cross-examine him at trial as to whether or not the plan that was submitted indicated that there was an opportunity to avoid the deviation in the board plan.

And finally, there was a finding by the Court or at least an implied finding by the Court that it had accept it as a reliable demonstration of how greater equality could’ve been achieved with the materials on hand, and the Court so expressly stated that.

And this is the way these cases have been tried.

They where tried in Swann that way.

A party puts in a plan that shows that greater deviations are possible, and the deviations in the plan are avoidable, and that’s a perfectly litigable issue.

It is subjected to objective proof, namely the use of the census data, the pretrial conference can require that any plans which are going to be submitted by any party shall be provided to the other parties for examination.

Their witnesses shall be determined and you have a litigable issue upon which a court on the basis of objective evidence can find an answer and render a finding.

And in this case, the Court found that the plan of the plaintiffs was a reliable, valid, and accurate expression of the possibility for reducing of -- reducing the deviations.

Now, let me turn for a moment to the argument made by the appellants that the average population of census units has some meaning and there is some opportunity to as an object of standard as to what the Court should aim at.

That average population of census units is a figure with no meaning whatever, what is it?

You take the total population of a State, you take a haphazard number which represents all the census units in a particular census, namely the block groups, the enumeration districts, etcetera.

You divide them together, you divide one to the other, and that's your average census unit; average population of a census unit.

It means nothing statistically.

It means nothing in the objective utility.

It has no operative utility in the development of the plan because the important thing is what is the size of the lowest census units.

Districts -- legislative districts are put together by various census units.

You want to know how many there are of a small -- of the small population units and compare that number with the number of districts which have to be made.

And here, there were a 151 districts, but there were over -- there were 240 of the census units which where below 300.

And in fact, the plan which we developed showed that only four of those census units -- over -- only four of the districts with the same census material had to be over 200 people.

Now, the question is having arrived at the fact that the deviations are avoidable, is there any justification for them?

The District Court found that partisan political structuring was a substantial cause of the numerical deviation of the board plan here.

“If partisan political balancing were eliminated as a factor, a closer approach to perfect equality could be achieved.”

Now the question is, is political structuring a legitimate state interest which justifies these deviations?

And we assert to Your Honors that it is not.

It is not listed among the permissible justifications in the Reynolds case.

It is expressly rejected in the Kirkpatrick case where this Court said practical politics cannot justify population disparities.

The consideration of political party strength was deemed to be in quotes “in apposite” in the Ely v. Klahr case.

This so-called political balancing doesn’t serve a governmental purpose such as a respect for town lines where you have towns who have an interest in the State legislature.

It is not supported by any State Constitution or any state statute and finally, it is much too wide in avenue of subterfuge, to be allowed as a justification because it will always be brought out, because that is always the reason for any deviation that a plan gets, that that the plan has.

It is not an objective standard and if allowed, a political balancing, a political compromise, if all these political business is ever allowed as a justification for a deviation, it will press this Court to the tolerable limits as to what it will accept because it will always be paraded out before you.

Now, what is it, well, what further is the reason why you should reject it as a rational state policy?

Remember, in order to achieve it, you in the kind of political structure we're talking about, you take the total statewide vote for each political party in all of these individual district elections, and you say that the percentage of the total vote in each of these individual election, that total is to be the same percentage as the political party candidates win for the -- win in the legislature.

Now, that number of adding up, that all of these individual districts, single district elections is meaningless because these individual single district elections are disparate and they go off on a many different reasons.

On local tax questions, on a question of sex education in the schools, on the question of, I know of an Attorney who lost an election, representative candidate because he represented a black person in the purchase of a house in a local town.

And add up those numbers in these individual single district elections and say that that total has any meaning, in my judgment is like adding up apples, and ancient hockey sticks and deflated basketballs.

It doesn’t mean anything.

But because it’s an irrational number, it also creates your rational consequences.

Now, this marvelous cartoon that’s sitting before you, during the course of my argument, reveals what I’m talking about.

If you’re going to take the excess plurality of a particular political party in a particular district, a section of the state and say that that excess plurality can be the basis for his -- for that party electing candidates in another part of the state, you got to wiggle and jiggle and ferret it out, parties, candidates, party votes all over the State, and that is what happens.

That’s a district.

This is assembly district number 13, this is number 14 and this is 12 and this is 14, that’s an indecent piece of drawing.

This is what could have if you are interested in seeking some form of rationality.

That’s the same districts, but they’re irrationally arranged.

This is another indecent district in Windsor and Bloomfield, and that’s the way -- this is the way that that district could’ve been rearranged.

Justice Byron R. White: Mr. Satter, would you think a scheme of proportional representation would be constitutional?

Mr. Robert A. Satter: I think that to design a scheme of rea -- a proportion representation?

Justice Byron R. White: Yes, which would just frankly reflect as accurately as possible the party strengths in the state?

Mr. Robert A. Satter: Yes, if you took the whole state instead of one district, I would not object to that.

I mean I think I cannot see it.

Justice Byron R. White: This is -- this sounds like there is an attempt to approach some proportional representations through the districts, especially with districting?

Mr. Robert A. Satter: That is right.

But the problem is --

Justice Byron R. White: And isn’t it --

Mr. Robert A. Satter: It sounds like it, yes.

But in fact, it results in a distortion of the districts to a frightful extent.

It justifies the mutalization of the individual districts.

Justice Byron R. White: But result wise, it does approach to some extent proportional representation?

Mr. Robert A. Satter: It attempts to approach it, yes.

Chief Justice Warren E. Burger: Going back to the second, you want to finish --

Mr. Robert A. Satter: Yes sir.

Chief Justice Warren E. Burger: -- your response to Justice White?

Going back to your second chart or map, would you turn back to that?

Let me ask you a question about it.

That’s your ideal solution.

Are those two districts precisely the same in numbers?

Mr. Robert A. Satter: Oh yes.

They are exactly the same.

Chief Justice Warren E. Burger: Precisely?

Mr. Robert A. Satter: Oh, absolutely.

The same geographic area is covered in the these, but this is what happened and the consequence of this is, is that least that you get a questioning of the fitness of the whole reapportionment system, and somewhat, a disrespect for the whole legitimacy of the plan.

Now, the point I want to end with is that reapportionment is over essentially for the 1970’s.

The flood tide of litigation is past, but if you change the rules, particularly the rules about the strictness of the standard, you’re going to open the floodgates again.

And this case is the kind of a case that can announce to the country that there has been no retreat for the one-man-one-vote doctrine.

That the strict standards of equal -- of equal population for the districts is still required, and that political structuring is not a justifiable excuse for not reaching that standard.

And finally I would say to you this, that if we are wrong as to the standard of equality, if we are wrong, which I hope we are not, both for the sake of this case and for the sake of the country, and for the sake of what will happen in general, in terms of litigation, If we are wrong, then we urge that this case be remanded to the District Court, to take advantage of the decision in the Mahan case which appears to -- which not appears, but which expressly gives to the states the opportunity to loosen the strictness of deviations or/of equality when there is a justifiable basis for respect for town lines.

And here, if you permit, if the District Court can find that it can permit under the circumstances of the case, a 15% deviation, range of deviation, then we can more carefully respect town lines in our State.

And for these reasons Your Honor, I urge that the district – that the judgment of the District Court below be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Satter.

Mr. Dixon, you have some time left?

Argument of Robert G. Dixon

Mr. Robert G. Dixon: Mr. Chief Justice, may it please the Court.

Opposing counsel stated yesterday that he had no quarrel with the state plan regarding the Senate.

He attacks primarily that part of the State plan regarding the House and yet, the census body deviation for the Senate is identical with that in the House.

In each case, match from deviation from ideal of under 800 average deviation, under 400, and the median census unit is 1000 in population.

Also the same apportionment board process was used including the political fairness of principle for the Senate as in the House.

It's concession therefore it seem to remove all federal issues from the House aspect of the case too, with the possible exemption of invidious gerrymandering within burden of proof standards of Whitcomb against Chavis.

Opposing counsel, remarked yesterday also, there were precedent cases.

As we see it, he failed to distinguish between the state reapportionment line of cases flowing from Reynolds, Swann, to Mahan and a lot of Gaffney, from the congressional districting line of cases.

He seems to us to be arguing for an overruling of Mahan.

We welcome Mahan and simply seek to add to it.

Now, yesterday’s arguments in certain other cases in Texas urged this Court to mandate political fairness or as better phrase as equal political opportunity principle to mandate that under the Fourteenth Amendment.

That would be a large order.

It might be good depending upon the facts of given case, but that is not our case.

We do not ask this Court to mandate political fairness under the Fourteenth Amendment.

However, I want to state as in Connecticut pursues a policy, a political fairness in a conscious anti-gerrymandering spirit trying to spot pitfalls and avoid those pitfalls in a very process of devising districts which might characterized as benevolent, gerrymandering, stressing the word benevolent, purpose being to effectuate certain representation interests, political, racial or otherwise, there is no federal constitutional impediment.

I am returning now to the aspect of the case concerning our suggestion of a need for a presumptive constitutionality rule key to trivial deviations.

I suggest that as next logical step after Mahan against Howell, acts as such a rule could penalize a State which has sought a level of population equality well within Mahan against Howell.

But perhaps, perhaps thereby as weakened the plan’s connection with other rational state policies which could operate if needed at the justification level.

That circumstance absent a presumptive constitutionality rule key to trivial deviations, plaintiff could more easily, quite easily perhaps defeat the official plan by simply offering his own one body better plan either at trial week before -- two weeks before and upset a broadly constructed State plan of many inputs in it of statewide nature.

Also, it would seem to us that in the context of the Kennedy case, the plaintiff’s plan should have been before the reapportionment board, and not presented just before trial.

Certainly, on this branch of the case, the presumptive constitutionality rule, a State’s burden should not become heavier, with very trivial population deviations, then, the burden imposed on Virginia in Mahan against Howell.

With Virginia’s 4,500 body deviants from ideal, most deviant districts in the lower house compared to Connecticut’s 800.

The board did aim for zero on that same trial testimony at page 262 in our appendix, did not aim for a fixed percentage, and we will submit that even a bull’s eye in context of this volatile field of reapportionment, even a bull’s eye has a certain breadth to it.

We feel that the -- an example of an unfortunate outcome of not having a presumptive constitutionality rule, key to minuscule deviation levels of opening up everlasting one body better approach as the Iowa case Nolan against Turner which we cite and discuss in our brief.

Regarding the question of shape which really is another aspect of compactness, compactness and that required by the Connecticut State Constitution.

Really, it is only a possible alternative rational state policy, which a State might want to have, does not present a federal issue.

In Connecticut’s case as a possible alternative rational state policy, it was subordinated somewhat to the actual rational state policies adopted by the apportionment board, and they were an assiduous stress on population equality, plus the complementary concerns for minimizing town line cuts and only about 1/4 of towns where cut and avoidance of political unfairness.

Indeed, in regard to the shape compactness question, we can put it this way.

We cannot judge a quality of a girl merely by whether or not she has a pleasingly symmetrical quality and likewise in the volatile field of politics and reapportionment, shape was put in the context of the overall goal of Reynolds against Sims, stated there and repeated in the voting rights cases of that effective representation is a crucial element of the right to vote.

All we ask is that a State be allowed to implement this rational and constitutional goal through a bi-partisan commission with tiebreaker device and by further dealing in, check against the evil difficult to police of invidious gerrymandering, under the standards of Whitcomb against Chavis.

We also submit the Connecticut plan is the Titus plan in population terms known to us, given full review in this Court.

It's not been shown it'd be unfair in operation.

It serves more than one rational state purpose and until it's shown to be unfair in operation by proof meeting Whitcomb against Chavis test, then we submit there really is no constitutional basis for effective attack on it.

If there are no questions, thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Dixon.

Thank you gentlemen.

The case is submitted.