MAHAN v. HOWELL
In 1971, the Virginia legislature reapportioned itself. The plan for the House of Representatives provided for 100 representatives from 52 districts with each House member representing an average of 46,485 constituents(with a variance between largest and smallest being 16.4 percent, compared to the ideal 3.89 percent). Henry Howell challenged the plan as unconstitutional because its population deviations were too large to satisfy the principle of "one person, one vote." This case was decided together with City of Virginia Beach v. Howell and Weinberg v. Prichard.
Was the Virginia reapportionment plan invalid under the Equal Protection Clause of the Fourteenth Amendment?
Legal provision: Equal Protection
The Court found that the plan was constitutional under the Equal Protection Clause as described in Reynolds v. Sims. The Virginia plan is not to be judged by the more stringent congressional standards in Section 2 of Article I. The Equal Protection Clause requires a state to make an "honest and good faith effort" to construct districts of as nearly equal population as practicable. Some deviations from the equal population principle are valid if based on legitimate considerations of a "rational state policy." The Virginia plan advanced the policy of reapportionment without sacrificing substantial equality.
Argument of Andrew P. Miller
Chief Justice Warren E. Burger: We’ll hear arguments first this morning in number 71-364 and 71-373, consolidated cases in Mahan against Howell and Virginia Beach against Howell.
Mr. Attorney General, you may proceed.
Mr. Andrew P. Miller: Mr. Chief Justice and may it please the Court.
As Attorney General of Commonwealth, I am here today representing its State Board of Elections in these cases.
I think it might be helpful if at the outset, I sketch very briefly the factual background involved here due to the complexities of that background.
Under the revised Virginia Constitution, Article II, Section 6, reapportionment, unlike many states was required in 1971.
Under schedule of that Constitution, Section 5, the Virginia General Assembly was required to convene in session on January 6, 1971 for the purpose of reapportionment.
As a result, two acts were adopted and the first, Section 24.1-12.1 establishing 52 districts for the Virginia House of Delegates.
There are hundred members of that body.
This plan consisted of single-member districts, multi-member districts and floater districts.
Also, Section 24.1-14.1 establishing 40 single-member districts for the 40 member Senate of Virginia.
As soon as these acts were approved on March 1, 1971, they were forwarded to the Attorney General of the United States pursuant to the Voting Rights Act of 1965.
There were three suits bought and I’ll touch on them to the extent that they are relevant here.
First, on March 8, by Mr. Duval alleging a failure to provide equal representation and also objecting to multi-member districts as such; By Mr. Perez, who is not here today, alleging a failure to provide equal representation and seeking the creation of a single multi-member district in Fairfax County, rather than the two multi-member districts consisting of five delegates each, which were created by the General Assembly.
That case was filed on March of 22. On the March the 2nd, the Attorney Governor Howell, who is here with us today, also filed a suit, again alleging failure of equal representation but that suit was limited to the Fifth, Sixth, and Seventh Senate Districts.
Those districts are located in Norfolk and a portion of Virginia Beach.
As I said earlier, they are single-member districts and cut across jurisdictional lines.
In addition, the cities of Virginia Beach and Norfolk intervened.
Mr. Frazier is here representing the City of Virginia Beach this morning and the City of Norfolk is not represented by counsel and there were a group of plaintiff interveners, taking the position that multi-member districts were inappropriate because of the fact that they constituted a delusion of the Negro vote.
Mr. Howell, in his case, took the opposing position that in fact, the creation of single-member districts represented in the Norfolk-Virginia Beach area, a delusion of the Negro vote.
And I want to emphasize the contrast that we have here because it shows how peculiarly these considerations are ones which a legislature such as the General Assembly of Virginia has great difficulty in solving.
There are different points of view with respect to multi-member and single-member districts.
Now, the different points of view as to what the effect to the creation of these districts are.
So the General Assembly was faced with exceedingly difficult task.
The Lower court found that variations existed in their plans, which exceeded what the court considered permissible limits on the basis of numbers only.
As to the House of Delegates, the Court proceeded to draw its own plan rather than allowing the General Assembly to proceed once the constitutional guidelines have been established to the Court and the same thing occurred with respect to the Senate.
The Court's House of District Plan, house of delegates plan, fragmented various governmental entities within the Commonwealth, shifted one delegate from the Tidewater area to Northern Virginia, denied, Mr. Duval’s prayer for single-member districts and denied, Mr. Perez’ prayer for a large multi-member district in Fairfax County.
The plan itself resulted in a variation from norm of some 10.27%, this is the Court plan.
As for the Senate, the Fifth, Sixth and Seventh Districts, which I refer to, the Court found that the population of those districts were almost at the norm, but because of a housing sample relating to some 36,000 sailors who were counted by the census in Norfolk because of the fact that the ships they are on are “home-ported” at Norfolk.
This census showing that some 21,000 of these individuals had addresses outside of the Fifth Senatorial District in which the naval base is located, established a multi-membered district consisting of the Fifth, Sixth and Seventh Senatorial Districts.
In other words, those districts were combined into a single district which of course, represented an anomaly as far as the Senate plan is concerned because otherwise it was completely a single district plan as desired by the General Assembly.
I want to mention before I proceed further, certain dates because I think they will set the background for what I will be addressing myself to.
On May 7, I already mentioned that the plans were forwarded to the Attorney General of the United States, the Attorney General filed with State objections under the Voting Rights Act in two respects.
One, the division line between Senate Districts five and six which I have just referred to, and also to the five multi-member districts in the House, that objection being based on the Lower court decision in the case of Chavis versus Whitcomb.
On May the 10th, the General Assembly reconvened, but this Court had not decided the Chavis case.
The Lower court had not acted and consequently, the General Assembly recessed to await the Chavis decision and to give the time for the Court to act with respect to these suits which were pending before it.
On May the 24th, the Court entered an order on first hearing, which said in essence that on or before June 15th, 1971, Virginia was to adopt and submit to the Attorney General of the United States, curative legislation with respect to the two objections I have just mentioned.
If that were not done by that date, then the Court would proceed the trial.
On June the 3rd, the General Assembly came back into session.
Senate Bill 125 was introduced to cure the Attorney General's objections to the Senate plan, which constituted the drawing of a single line between the fifth and sixth Districts.
And then, the General Assembly recessed until June, the 7th, to await this Court’s decision in Chavis versus Whitcomb.
On June the 7th, Chavis versus Whitcomb was decided.
The Attorney General of the United States withdrew his objections to the House plan.
The General Assembly passed Senate Bill 125, curing the objection with respect to the Senate line in districts five and six.
Consequently, the Court’s order, which I refer to on May 24th, was fully complied with and so the General Assembly recessed until August 16th, the subject of course, to being reconvened earlier for the Court to decide the issues before it.
On June the 16th, there was such a hearing.
On July the 2nd, the Court in its order found the plans constitutionally defective, but instead of permitting the General Assembly to come back into session and to act on the guidelines established in the Court’s opinion as to what in fact would be a constitutionally appropriate, reapportionment plan proceeded to mandate on itself.
On July 8th, the General Assembly reconvened, directed the Attorney General of the Commonwealth to appeal the case to the Supreme Court of the United States and adjourn since there was nothing further, which the General Assembly of Virginia could do under those circumstances.
Thus today, we start a second round or second decade of reapportionment litigation with the hope that guidelines maybe established in order that states throughout the country will not be faced with subsequent rounds of litigation as to what in fact is constitutionally permitted in terms of the drawing of legislated district lines.
I want to address myself for a few minutes to the House plan and then to the Senate plan and then I will cease at that point and Mr. Frazier will deliver his argument.
With respect to the House, the lower court’s decision was based on numbers and numbers alone when it struck down the validity of the Virginia House and Delegate's plan.
The lower court relying on this Court’s previous decisions in Kirkpatrick and Wells, both of course being congressional redistricting cases, not state legislative cases, found variations exceeding those which were struck down in those two cases.
Now, if numbers must be the sole criteria of the Virginia plan, we submit that the Court should not have looked only at the maximum variation of plus 9.6% and minus 6.8% depending on the calculations of the floater district concept.
It should have considered that of 52 house districts, 35 were within 4% of the norm, that of 52 house districts, only two exceeded 8%, that of 52 house districts, the average deviation from the norm was only 3.8%, that of the 52 house districts, a majority of the delegates elected by or in those districts would be elected by 49.3% of the population of the State.
But we further submit that numbers and numbers alone viewed in the manner in which the lower court viewed them on the overall aspect as I have just presented them to you, cannot be what this Court meant in Reynolds versus Sims when it stated that “one man, one vote” means an individual is entitled to fair and effective representation.
That is the constitutional criteria which we submit must be met.
It cannot be numerically measured alone for purposes of State legislative reapportionment.
But it can be, we submit, measured by two-pronged test.
One, is the apportionment of the house in question based on a permissible standard.
Two, there is the plan approached population equality as closely as possible in consistency with that rationale.
The rationale of the Virginia plan is very simple.
It is one suggested by this Court that a State can accord political subdivisions, some independent representation and at least one body of the State legislature, as long as the basic standard of equality of population among districts is maintained.
That was the rationale adopted in Virginia and today it is more important than ever before under the newly adopted Virginia Constitution because under this Constitution which went into effect in 1971, counties of which we have 95 in the State as well as cities are given the opportunity to have enacted for them numerous local or special legislation applicable to specific problems which that jurisdiction as a jurisdiction, maybe confronted with.
Now the second test that we suggest was also met.
The lower court specifically found that disparities in the Virginia plan cannot be reduced at all if the integrity of political subdivisions are mandated.
No plan has been presented, which keeping intact local political subdivision boundaries for one House of a bicameral legislature achieves closer population equality.
How then can the lower court’s decision as to the house plan be upheld?
Only in two ways, neither of which were sustainable in this instance.
First that the Court finds, that the rationale or the Virginia plan, is one that is not permissible or is one that was not rationally applied.
According to political subdivisions, independent representation is, we submit, permissible.
The policy of Virginia in this regard was rationally applied.
Appellant Duval's argument that there is no provision in the Virginia constitution allowing independent representation ignores a basic constitutional principle and that is that a State Constitution is a document of limitation.
Nothing in Virginia’s Constitution prohibits according to political subdivisions independent representation.
Virginia has not abandoned her policy, a traditional policy of according political subdivisions independent representation.
She did change this policy as far as the Senate is concerned but clearly, in light with this Court’s language and opinion in Reynolds versus Sims, this does not mandate an abandonment of this policy in the House also.
In fact, the design of Virginia’s reapportionment was to balance the two Houses of her General Assembly in this respect.
The only other manner in which the decision of the Lower court can be sustained is if this Court now decides that the principles of congressional redistricting are also applicable to legislative redistricting.
We submit, they are none; for if there were numbers and numbers alone which we're concerned with, there would be no need to determine whether various rationales, as suggested by this Court in previous opinions could be applied because the only rationale would be numbers.
There would be no need to determine whether one House of a bicameral legislature balances inequities in another House.
Now for this Court to make applicable to legislative redistricting, the congressional redistricting decisions would repudiate its past enunciation that numbers and numbers alone, though most important, are not the sole criteria, that a balancing concept of a bicameral legislature is constitutionally acceptable, and that the maintenance of political subdivisions is a permissible, a rationale.
Congressional redistricting, allocating representatives to Congress is entirely different from allocating State delegates for each State’s legislative processes.
The relationship of congressional districts to the Federal Government simply cannot be compared with that of legislative districts or to a State Government for reasons I have previously assigned.
There is one other way in which the court’s decision below may be sustained and that is for this Court to agree with everything that has been stated here today, within the State that nonetheless percentage variation is impermissible, that the percentage is too much.
But for this Court to say that would be saying it on the basis of numbers and numbers alone.
For we have already demonstrated that Virginia has applied a permissible rationale in a consisted manner and we have come as close to population equality as possible in conformity with that rationale.
The last aspect to the lower court’s decision, which affected the House of Delegates plan was the removal of the delegate from Tidewater area to Northern Virginia.
This was done essentially on the basis of projected population growth.
The Virginia General Assembly did not use population projections and this non-use, we submit, is permissible.
In any event, to apply the population projections only in one part of the State rather than utilize them consistently and rationally throughout the State, clearly is contrary to the Ad Hoc application, which this Court discouraged in Kirkpatrick.
I do not have to stand here and argue why the General Assembly did not use population projection.
As seen in the appendix at page 66, the projections on the basis of fertility assumptions, industrial development, present and planned highway and many other considerations, all of which the General Assembly felt too speculative for proper utilization.
As far as the Senate is concerned, there is one simple issue.
May apportionment be based on the decennial census or must have been based on a sample housing survey conducted by a review of zip codes. Virginia adopted two policies with respect to the Senate.
The first policy was that the entire Senate would consist of single-member districts.
One does not have to read many cases to come to the conclusion that this is a matter peculiarly within the expertise of various state legislatures.
And the second choice that Virginia made was the adoption of a total population apportionment base.
Obviously, there are various basis which a state might adopt, but in Virginia, the intent, as demonstrated in the debates of the Virginia constitutional revisions as quoted in our reply brief on page 8, was for redistricting to include every human being living and counted, balloted at decennial census of the United States Government.
That means that the lower court was faced with what we submit, were two valid constitutional policies.
It ignored both.
It found that the apportionment base was not proper simply because a sample zip code housing survey showed that of the 36,000 sailors enumerated aboard vessels, approximately 50% had addresses outside the Fifth Senatorial District.
If the Court had bothered to consistently apply this sample housing survey, it would have seen that the survey at least purported to show that not only that 18,000 had addresses outside the fifth senatorial district, but that approximately half of these addresses, in other words 9,000 or 9,500 were outside of the fifth, sixth and seventh senatorial districts because they lived in other jurisdictions in the Hampton roads area, the cities of Portsmouth and Chesapeake, the cities of Newport News and Hampton.
And I think it is well-settled that a State has great latitude in choosing its own apportionment base and I submit that the base chosen by Virginia is constitutionally permissible and consequently should be approved by this Court.
Chief Justice Warren E. Burger: Mr. Frazier.
Argument of Harry Frazier Iii
Mr. Harry Frazier Iii: Mr. Chief Justice and may it please the Court.
The City of Virginia Beach stands shoulder by shoulder with the Commonwealth of Virginia in upholding the General Assembly’s House redistricting plan and in urging the reversal of the District Court decision in this case.
The City of Virginia Beach is not involved in the senate side of the controversy.
Our position here this morning is that a State reapportionment plan should be judged not solely on mathematical comparisons, but it should be judged also on the quality of the representation that it affords the people.
Now, it seems to us that this Court cannot uphold the District Court below, without overruling a great deal of what this Court said in Reynolds against Sims.
The District Court plan itself contains significant deviations from population equality without any policy justification whatsoever.
The District Court said in its opinion this.
“While we have endeavored to reach a perfect mathematical division, we had been unable to do so because of the multiplicity of delegates, the geography of the State, and the diversity of population concentrations.”
So, if you look at numbers and that’s all the District Court did, its own plan comes up with a variation of 10% but no basis of that was given, no effort was made to justify that kind of variation at all.
As the Attorney General has pointed out, the greater variation in the Virginia plan was the result of a rational basis, a desire to preserve the integrity of political subdivisions and to give them an effective voice in one House of the General Assembly.
Now, if the District Court was serious in what it said and was going to abide by the numbers alone, it could have done a whole lot better job than it did.
So, without being able to do better than it did and without affording any basis whatsoever for its position, we think its plan must fall.
Justice William H. Rehnquist: Mr. Frazier, wouldn’t there be some questions as to the propriety of the District Court being a source of policy judgments as to what factors are to be considered other than numbers?
Mr. Harry Frazier Iii: Very definitely, we feel that this Court has leaned over backwards on occasion after occasion to say that policy decision is one for the legislature, not for the District Court at all.
And we propose to emphasize this in several ways before we are through today but we feel and one of their arguments is that there is a fundamental violation of due process when the District Court arbitrarily took the bit in its teeth and said, this is your plan.
This, we think is a second, but very important phase of the problem before the Court today.
Now, returning to the basic problem of State reapportionment, we think that a fundamental principle here is that Reynolds rejects mathematical precision as a constitutional requirement and recognizes the validity of representation of political subdivisions as such.
Justice Potter Stewart: As I understand, in your position, Mr. Frazier, it is that there is a substantial difference between what is constitutionally required under Article I, Section 2, with respect to congressional apportionment or districting, from what is required under the Fourteenth Amendment of the Constitution and specifically, the Equal Protection Clause with respect to reapportionment of state legislatures and that this Court has consistently recognized that difference.
Do you take -- is that your position?
Mr. Harry Frazier Iii: That is our position--
Justice Potter Stewart: And the Wesberry against Sanders which was based on Article I, Section 2 illustrates that in particularly when one reads Mr. Justice Clark’s opinion different from the Court saying that in Wesberry against Sanders, he would apply the different test of the Equal Protection Clause in the Fourteenth Amendment.
Mr. Harry Frazier Iii: And as that is brought down today in Kirkpatrick, the phrase as nearly as practicable appears whereas in Reynolds, construing the Equal Protection Clause, it is substantial equality.
And what we are faced with today, I believe, is the first opportunity the Court has had to decide the question.
What worry -- what right are we headed in the decade of the 70’s?
Do they mean the same thing, these phrases, or do they not?
We, of course, submit that they do not.
Now, we find that there is no place, no valid place in the Congress of the United States for a representation of political subdivisions as such because in Congress, we are concerned with the formulation of national policy.
And the interest of the states are being represented, yes, but cities, counties, we do not see that there is any basis that we can argue here for our saying that they need to be separately heard.
And I think this is evidenced by the historical fact that for the first 50 years of our country, you had at large representations in many congressional districts.
But there is a place in the States for this type of representation and we think this Court specifically so stated in Reynolds.
Local government entities are frequently charged with various responsibilities incident to the operation of State Government.
In many states, much of the legislature’s activity involves the enactment of so-called local legislation directed only to the concerns of political subdivisions.
We see no reason why that is not as valid today as it was in 1964 and when we look at the Commonwealth of Virginia and the session of its General Assembly, most recently held, a 104 of a 133 local bills were introduced in the House of Delegates.
This is where the localities find their primary voice and their primary source of representation.
So, that we think, has a rational basis to support it.
We feel that there are numbers of phrases, points, in the Reynolds decision that must be overlooked, swept out under the rug if the decision of the lower court is to be upheld.
Now, what is the result of affirming that decision of the lower court?
First, reapportionment will then be reduced to a mathematical exercise.
If this Court is to say today, Kirkpatrick governs congressional and State reapportionment then all we got to do is become a slave to numbers maybe even to computers and little judgment will be exercised.
As Mr. Justice Rehnquist has pointed out, policy decisions were no longer be permitted in how you structure at least one House of the Legislature, either House of the Legislature, you do it by the numbers.
Then we would be concerned only with the extremes of the variations in the numbers and that’s what the District Court did here.
It took the most over-represented, the most under-represented, and added up the percentages and said, that’s bad, we can’t have it.
You do it our way and this is our plan, but what happens here, you have no quality of representation.
No consideration of who the people in a given jurisdiction can vote for.
Political subdivisions will be largely ignored as such, this mix of rendering obsolete bicameral legislatures.
What will be the difference between the Senate and the House of Delegates in the Commonwealth of Virginia or any other of the states?
The differences would merely be how long the members are elected for and how many people they represent; the size of the districts.
The only validity that I can see for affirming the District Court would be to achieve the uniformity in congressional and state reapportionment mechanics, possibly this would cut down on the amount of litigation.
I am not a bit sure that it would but what is the prize that you pay for doing this.
We think there is a loss of quality in representation.
We think the fallacy of the District Court numbers game is demonstrated very clearly in the case of the City of Virginia Beach.
What happened at Virginia Beach?
The General Assembly’s plan there was not perfect.
According to Mr. DuVal’s theory of valuing floater delegates, Virginia Beach was represented -- under represented by 7.3%.
The District Court reduced that under representation to approximately 2.5%, but it took 29,000 Virginia Beach citizens, put them over into Norfolk’s multimember district, where they now vote with 307,000 people in a seven-member district.
So, what has happened to the quality of the representation for those 29,000 people?
They’re not a part of Virginia Beach.
They must vote for Norfolk and how will the delegates in the General Assembly from Norfolk feel if a matter comes before the General Assembly that pits Norfolk, the interest of Norfolk against that of Virginia Beach.
Obviously, they’re not going to go with the 29,000; they’re going to go with the 307,000.
The District Court has sacrificed the community interest of Virginia Beach.
Now, this is done too in the Senate because 40,000 members of the Senate, in the Senate -- 40,000 of Virginia Beach people in the Senate district are combined with 75,000 Norfolk citizens in a multimember district.
I am sorry what was started off as a single-member district, it is now a multimember district; 40,000 Virginia Beach citizens and 307,000 Norfolk citizens, the same sort of thing.
Now, we could live with this in the Senate.
We find it hard to live with, in both Houses where the discrimination against Virginia Beach is so pointed.
One right to have solved this, if the Court is the final arbiter of these political decisions, was not to take 29,000 from Virginia Beach and put them over in Norfolk’s multimember district.
It would have been to move one seat to Virginia Beach and take 13,000 Norfolkians and put them into the Virginia Beach, saying, to reverse the flow, if you will, to balance some equities but the Court didn’t do that.
This comes back to a question of remedies, to a question of policy on which the City of Virginia Beach had no say.
But coming back to the subject of community interest to making effective representation in the General Assembly for political subdivisions, Norfolk and Virginia Beach sit side by side.
They’re different types of cities, they have different problems.
The City of Norfolk in its brief has painted this picture very clearly, much more clearly, I am afraid, than I could have done.
It is pointed out that the interest of budding political subdivisions can be adverse and then it lists areas in which they are adverse.
In the question of water supply or the regulation of water rates and services, Norfolk has got all the water; Virginia Beach has none.
Virginia Beach has to rely on Norfolk for water service and in matters of this area, if legislative policy is involved, their interests are different.
The piggy-back income tax is something that Norfolk would desperately like to have as would any core city.
Virginia Beach of a different nature would not like to have it.
So, community interests are sacrificed, not only in Virginia Beach, in the case that I am concerned with, but they are sacrificed everywhere that the District Court has moved lines around to disregard the integrity, purposefully accorded political subdivisions by the General Assembly.
Nothing is being given in return for getting mathematical equality.
There are at least nine counties and two cities in the State that have suffered by having bunches of their people arbitrarily put here or there by the District Court plan.
So, Virginia Beach is a prime example of what happens when the political subdivisions are ignored in this instance.
Now, coming to the remedies in the case, there are many remedies that were available here if the District Court had found the General Assemblies plan to have been invalid.
Justice Potter Stewart: (Inaudible) I have read the brief of the City of Norfolk, who is an appellee in this case.
As I understand that the city is not going to be represented here in oral argument today or is it?
Mr. Harry Frazier Iii: I understand that it is not being represented.
It was an intervener as --
Justice Potter Stewart: Right and it is an appellee --
Mr. Harry Frazier Iii: It is indeed.
Justice Potter Stewart: -- on an amicus, but it's not going to be represented in oral argument today.
You referred to that brief until it’s the dramatic presentation of the basic differences between Virginia Beach and Norfolk.
Do you understand as brief, do you understand what they’re asking the Court to do?
Mr. Harry Frazier Iii: I think they have sort of turned around and joined our team.
I think --
Justice Potter Stewart: (Inaudible) in an appellee’s brief just for the position of taking.
Is somebody going to explain that to us?
Mr. Harry Frazier Iii: Well, I think the reason they’re not being represented orally is the limitation on the number of counsel permitted to argue.
Justice Potter Stewart: Oh!
I would trust somebody would -- maybe other people understand this brief but I didn’t and I--
Mr. Harry Frazier Iii: Well, I interpreted it to mean this.
Certainly, Norfolk is not going to concede our point that it should suffer any loss of representation for the gain of Virginia Beach.
Justice Potter Stewart: That’s quite understandable, of course.
Mr. Harry Frazier Iii: Quite understandable, but they also recognize the importance that we lay stress on for representation of local government in the lay -- in one House of the legislative body and they are pointing out in an effective way the particulars in their case where interest of Virginia Beach and Norfolk are so different.
That is my understanding of --
Justice Potter Stewart: And what is their position as to what they think the Court ought to do, that it thinks Norfolk, you know?
Mr. Harry Frazier Iii: Well, I think their position is that the General Assembly’s plan was acceptable and should have been upheld and this is a justification in terms of their particular circumstances for upholding the General Assembly’s plan and reversing the District Court.
Now, my time is approximately up.
What I wanted to get back to is the matter of remedies which in the substantive -- in the importance of the substantive area cancel easily be overworked.
What we are saying here is that the General Assembly should have been given an opportunity to correct this situation if correction was needed.
The General Assembly was standing by, willing to act.
It had time to act.
It could act quickly.
It has acted effectively before when it has been told to correct its reapportionment, but it was not accorded that time.
At the worst, the Court could have said, “Alright, hold your 1971 elections under this plan but fix it for next time” And that’s what it did and what it specifically approved in the Arizona case, Ely versus Klahr where three successive reapportionment plans had been declared unconstitutional and the District Court still said, “Okay, hold it under this invalid plan, but fix it for next time.”
Now, even if the District Court should be so bold as to write its own plan, the basic concepts of due process require that you at least give the parties an opportunity to be heard.
Here, there was no indication as to what the Court would do on this case.
It hadn’t said the State’s plan was unconstitutional.
It had not made any effort. No parties had come forward and talked about specific relief.
How could Virginia Beach have known that 29,000 of its people would be summarily dumped into a mammoth district over in Norfolk?
These interests were never given any chance to be heard, so that regardless of the validity of the General Assembly’s plan in an unfairness and violation of due process by the District Court demands reversal.
Chief Justice Warren E. Burger: Thank you, Mr. Frazier.
Argument of Henry E. Howell, Jr.
Mr. Henry E. Howell, Jr.: Mr. Chief Justice and justices, I represent the plaintiffs in the suit that was filed on March 3rd challenging the validity of a certain portion of the Senate reapportionment of council as Senator Peter Babalas of Norfolk.
Our case was separate, but we come up here on a unitary opinion that dealt with two separate cases.
At the outset, if Your Honors please, it’s often important to know that the Constitution of Virginia was changed since the day that I had the privilege of sharing the side with the distinguished Attorney, Mr. Edmund Campbell and argue Mann v. Davis.
When we argued Mann v. Davis, the rule that governs reapportionment of Congress that the district shall be contiguous has become compact and contained as nearly as practicable the same number of inhabitants which contained in one section of our Constitution and that language was not embodied in another section which merely said, that we should reapportion the State legislature every ten years.
But when the people went to the polls in 1970 to amend the Constitution, they dictated that the same test for congressional reapportionment, governed state legislative reapportionment.
So, if this distinguished tribunal has taken the Virginia case to hand down a ruling that they should be a more given the joints when it comes to cutting the legislative pie into a 100 slices then they should be in the slicing of the congressional pie into 10 slices, it’s the wrong case.
We cited in our brief --
Justice Potter Stewart: Here with the Virginia Constitution, we are dealing here with the Federal Constitution, so then can you say --
Mr. Henry E. Howell, Jr.: I understand.
Justice Potter Stewart: Any case is the right case.
When we are talking about -- if that issue is presented under the Federal Constitution.
Mr. Henry E. Howell, Jr.: If Your Honor, please but Judge Albert Bryan pointed out that the Fourteenth Amendment mandate in Virginia had been underscored so that in our constitution we have anticipated and adopted a majority opinion in the Preisler Kirkpatrick gainst --
Justice Potter Stewart: (Inaudible) the constitutional, federal constitutional validity of what's your legislature did, isn’t that correct?
Mr. Henry E. Howell, Jr.: If Your Honor, please, I am submitting that when our Constitution says that the House of Representative of the United States and the members of the Senate and the House of Delegates shall be elected from the districts established and every district shall be composed of contiguous compact territory and shall be so constituted as to give us nearly as practicable representation in proportion to the population of a district that in that State, there can be no constitutional difference in what measures up to the test of nearly as practicable.
Justice Potter Stewart: (Inaudible) in understanding that the issue here is the federal constitutional validity of what your Virginia legislature did.
Now, maybe your legislature violated your own State Constitution, but that’s no concern to us here?
Mr. Henry E. Howell, Jr.: Right, we will not chase that rabbit if Your Honor please because it is not necessary.
In the Senate case, we have a plan involved with the Fourteenth Amendment of the Constitution of the United States and every reapportionment opinion that is ever been handed down by this Court.
And at that point, if Your honor please, I would ask the Court to pull out of the appendix a map of the City of Norfolk because we are a distinctive city.
There are maybe a few other cities that can brag about being the largest naval base in the world, but I don’t think so.
And now, in the light of the decision in this case, it is all in this map.
The big quite area that looks somewhat like snowfall in the winter time is a naval operating base.
That’s in the upper left hand corner of the exhibit.
That could be what --
Chief Justice Warren E. Burger: (Inaudible)
Mr. Henry E. Howell, Jr.: Excuse me Mr. Chief Justice.
That district, that first district to your left is district five, the middle district was district six and then the remainder is district seven.
Now, we are focusing attention on the unconstitutionality of district five.
Behind a fence, that has to be there for security purposes, the United States census delegated to the Navy Department the task of enumerating sailors.
When the Navy has enough trouble of its own without undertaking the 100 years of experience, the Department of Commerce has acquired through the Census Department.
So, you will find in the exhibits, if Your Honor please a typical military approach to taking the census.
They sent them on to aboard the ships, signed a certificate is to how many crew members are assigned to vessels “home-ported” in this example at Norfolk, Virginia on the day we take the census.
Count on as if they lived aboard the ships and had no family homes in the Norfolk area and in that mandate and I do not blame the Department of Navy.
If I criticize anybody I would criticize the Census Department for delegating to the Navy a very sophisticated task and that is of counting the total number of habitants within the United States of America.
But having seen that we have 50,000 people behind that fence, if we were to just take this arbitrary Census Tract, Census Tract 000999.
It consists of these little white lines projecting out into the Elizabeth River known as the piers at the naval base and we have as an exhibit the total number of vessels that were “home-ported” at these piers.
And there were 38,000 people that were considered as being residents along this pier.
When in fact -- now we are not just relaying upon the testimony of Professor Reed who had some 30 years experience as a census enumerator and whose documents are well established in the transcript, but we had un-contradicted testimony of Admiral Cob who was a commandant of the Fifth Naval District and Mr. Bergmannsheil, the Assistant Administrative from Management to the Fifth Naval District and both of them testified without contradiction that at least 50% of the people that were counted in 000999 along those piers actually lived with their families, their wives and children in other sections of the general area.
So, if Your Honor please, on this we are going to subscribe to a phantom population as being in compliance with what I think was a magnificent principle that restored Representative Government throughout this nation and State legislative bodies and in Congress too.
If we go for phantom populations, we have destroyed the vitality of “one person, one vote” and then you will see all kind of phantom schemes for artificially complying with having nearly as practicable, the same number of inhabitants.
Justice Potter Stewart: How far would your argument Mr. Howell, your claim here is that it was unconstitutional to accept census figures for the reason that you have explained that census figures with respect to a certain district in Norfolk were invalid and unsound and inaccurate because the census with respect to that district delegated the job to the navy which did it by counting the number of men on the ships.
I understand your claim as to why the census figures were invalid?
And you therefore say that it was unconstitutional to accept census figures.
Now, does that mean that in every case it’s up to the courts or the legislatures to go behind the census figures and if they find it for some reason or another, they think they are inaccurate that they are not allowed to follow them?
Mr. Henry E. Howell, Jr.: If Your Honor please, the enumeration of the total number of inhabitants was sufficient for the purpose of the census.
The census was first taken in 1790 for the sole purpose of reapportioning Congress and the un-contradicted testimony of Mr. Conrad Toper (ph) is that there is no factor considered in the taking of the census that is relevant to state legislative reapportionment.
And so, I say to you that the enumeration of the total number of inhabitants within the second congressional district was entirely accurate because all they have to do is be spread through that total area and these people were there.
They were either on ships or living in apartments and houses with their wives and children like every other American who has a job on land.
What I say is that when you have a substantial impact of people who might find and fall in the category of sailors and the state doesn't want to take the time to find where they actually live, whether they live aboard ship or live with their wives and children you defuse it by at large elections.
Justice Potter Stewart: I understand your argument but I wonder where it leads. You say it’s -- a State is not constitutionally permitted to use the figures of the United States census?
Mr. Henry E. Howell, Jr.: Not when they are artificial.
If Your Honor please --
Justice Potter Stewart: Can any litigant come in and say these census figures are artificial or inaccurate?
Mr. Henry E. Howell, Jr.: Not any.
Justice Potter Stewart: And require a Court to make its own census or a State legislature to make its own census?
Mr. Henry E. Howell, Jr.: Not any.
Justice Potter Stewart: What is that, what is the US Department of Census for?
Mr. Henry E. Howell, Jr.: Mr. Justice Stewart, but in a case where we established the opinion of Judge Albert Bryan which I don’t believe can be blinked away, said that if Your Honor please, the remainder with their families reside for most part and other sections of the City of Norfolk, he stated that it was factually without dispute that only 8,100 of the 36,693 were within the Fifth Senatorial District.
So, we have an undisputed fact of the eminent three-judge court and I say that this Court is not going to stop throwing factual findings of a lower court to the four wins and we come here in the rare position of having Judge Albert Bryan saying that it was an undisputed fact that the people just weren’t there.
The ridicularity of going for this artificial population count, a count that was adopted by Senate privileges in elections as a matter of convenience would be, if you would have single member highest districts in Norfolk, you would have 50,000 military people behind the fence entitled to a delegate.
So, you would elect Admiral Cobb soon, most of the enlisted men will elect Admiral Cobb and then when we call the session on the General Assembly, he would be out in the South Pacific responding to a breakout in the Far East, if everything then go alright and this would be absolutely ridiculous.
Now, the House of Delegates recognized that and went for at large district.
In a military area like Norfolk, you have to count these people because they are just as much interested in their children living in Rhode Island Park or Commodore Park in Norfolk.
They are just much interested in them having good schools.
They want good roads to travel on in Norfolk and Virginia until they get inside the naval base and then Uncle Sam has good roads.
They’re not worried about what’s inside the fence.
They are worried about what is on the outside of the fence.
Chief Justice Warren E. Burger: Mr. Howell, do you agree that this constitutes a collateral attack on the census figures?
Mr. Henry E. Howell, Jr.: No sir.
The census figures were not put together to assist in state legislative reapportionment, if Congress wants to give a mandate to the census and give them the money and the people.
Mr. Conrad Toper and whoever might be the Secretary of Commerce, it was Mr. Stance at the time of this particular taking, they will be happy to compute and get figures for legislative reapportionment.
I am saying that these figures are 100% correct for allocating the ten congressmen in Virginia because you’re slicing the pie in such large slices that you diffuse the military population whether they would be hanging on the end of the convoy escort piers or living in a townhouse over in the same district.
Justice Potter Stewart: Mr. Howell, In this case doing exactly or aren’t you, what the Chief Justice’s question suggests.
You’re saying that the constitution requires that we do not accept the census figures for purposes of this case.
Isn’t that your point, am I wrong?
Mr. Henry E. Howell, Jr.: Absolutely not.
Justice Potter Stewart: Now, tell me why I was wrong?
Mr. Henry E. Howell, Jr.: It's just as you would with the walk out here to get a little breath of air following this hectic day here in this distinguished tribunal and you saw a black round sphere laying in a field and wanting to play a little touch football with Justice Byron White, you picked it up and threw it to him and then he caught it, it exploded.
It is good as a bomb but it was poor as a football.
Justice Potter Stewart: Well, that really doesn’t impress me.[Laughter]
Mr. Henry E. Howell, Jr.: Now, let me get that right on point, if Your Honor please.
The Congress has not told the Department of Commerce to have the census taken, so that you could slice Virginia up into 100 delegate seats and 40 senate seats.
All they have told him to do is to take the census, so we can slice it up into ten congressional seats and they have enumerated, so that we can slice it up in ten congressional seats because Norfolk and Virginia Beach constitute the second congressional district and we diffuse this military personnel.
Justice William H. Rehnquist: (Inaudible) the Virginia legislature have done the congressional districting, so that the line between say the second district and its adjoining district were the same as between the fifth and sixth state district that you are talking about, the same fallacy would have been true for congressional apportionment, wouldn’t it?
Mr. Henry E. Howell, Jr.: Well, that could not happen because you know it takes 46000 tenant to -- takes 465,000 people to get a Congressman.
Justice William H. Rehnquist: But it’s up to the legislatures to where they draw the line between the districts and conceivably if they had drawn the congressional line at the place that they drew the state district line here, you could have the same problem?
Mr. Henry E. Howell, Jr.: It’s nearly impossible to do so.
You can’t get 465,000 people into district five or the district six or district seven.
I mean it's just -- you know when you are getting a slice of pie that big, you don’t need to worry about the preciseness.
Justice Harry A. Blackmun: How many of your navy people Mr. Howell, actually resided outside the fifth, sixth and seventh districts?
Mr. Henry E. Howell, Jr.: Just a scintilla, if Your Honor please, it was not 50%.
There is no evidence as to what small percentage lived in Chesapeake and commuted to Suffolk, Virginia, but it was just a scintilla.
Justice Harry A. Blackmun: But to the extent that this variation does exist, then Court’s own plan is not in mind with its own theory, so far as the census figures are concerned?
Mr. Henry E. Howell, Jr.: I suggest if the record is read with the care which characterizes this Court, you will find that there’s no evidence to show that any recognizable number of people lived outside of five, six and seven.
And so what now -- we show that 98% of them were within five, six and seven.
We couldn’t go looking for that one person as appellants.
I would like to address myself --
Justice Byron R. White: I take it you are saying that you don't attack the census figures at all.
They were quite accurate for what they showed.
The only thing is they didn't show where people lived and that the census figures were used, they were permissibly used but they were used in the wrong way in the sense that the census figures didn’t purport to show where people lived, only whether they were home ported?
Mr. Henry E. Howell, Jr.: Insofar as military would concern.
Justice Byron R. White: Yes.
Mr. Henry E. Howell, Jr.: They counted the wife of this sailor in her home in district six, but they counted the sailor.
He was the only person that was enumerated where he worked rather than where he lived.
Senator Babalas and his wife were counted where the senator lived with his wife, even though he may spent half of his time in Richmond.
But the sailor was counted on board of ship.
So, there was discrimination in the basic approach.
The only person who was enumerated by occupation rather than residence, and this was wrong.
Justice Byron R. White: Well, why wouldn’t that have been sensible for the District Court to have allocated between the three districts a certain proportion of the sailors who were said not to live where the census put them.
Mr. Henry E. Howell, Jr.: Because, if Your Honor please, we did not have sufficiently precise enumeration on a house-by-house basis.
The navy could have put a line, an additional line on the sampler.
Do you live with your wife within the second naval district?
If so, put your address and then we could have done it but the navy didn’t put that line.
They were in hurry to fight a war.
They regretted the fact, but somebody told them to participate in the census and they got rid of it as quick as they could.
Justice Byron R. White: Would you have objected if the Court had said we are going to split these military people equally between the three districts?
Mr. Henry E. Howell, Jr.: Yes.
Justice Byron R. White: Why would you have?
Mr. Henry E. Howell, Jr.: In an area like Norfolk, I do not believe in single-member districts because --
Justice Byron R. White: You may not believe in them but the legislature did?
Mr. Henry E. Howell, Jr.: No, that’s -- you brought me to a very interesting point.
Justice Byron R. White: Yes, very interesting point as to what the District Court was permitted to do.
If it could have observed the legislative policy, why shouldn’t it have done so, if it could have done so permissibly?
Mr. Henry E. Howell, Jr.: I want to say that there was no legislative policy.
I was an incumbent --
Justice Byron R. White: Well, what was the legislative plan that said single-member districts?
Mr. Henry E. Howell, Jr.: If they had said it, then --
Justice Byron R. White: Well that was the plan was, wasn’t it?
Mr. Henry E. Howell, Jr.: That’s the plan they came up with in about 35 minutes figuratively speaking.
About a day and a half I’d like to show you, there’s no expertise behind the Senate plan.
Justice Byron R. White: Whatever it was, the plan --
Mr. Henry E. Howell, Jr.: It's politics behind it --
Justice Byron R. White: The legislative plan that was declared unconstitutional, opted for single-member districts in the Senate?
Mr. Henry E. Howell, Jr.: Well, we would have come here and said that in Norfolk where the blacks are a minority and where they do not constitute a majority in either one of the three senatorial districts.
We created a primary, at that time at primarily all white district five, a primarily all white district seven suburbia and then in the middle district, we came up with about 60% White and 40% Black, that’s a rough approximation, the demographers may put the geometry on it, but that’s roughly it.
So, where we now have, we’ve elected a black delegate.
No one’s ever run as a black senator, but we have elected a black delegate in the House at large but if we set up this bars which have been condemned and Justice Douglas has gone out, but a magnificent condemnation of bars in reapportionment.
Justice Byron R. White: The argument that as the legislature -- but what about the relevance of this to the constitutional question of whether the District Court was applied to do what it did rather than --
Mr. Henry E. Howell, Jr.: I’d say that single-member districts would dilute the black vote in a city like Norfolk, if you know the balance because you’re going to get two white senators who are not going to a single Black lodge or church and they are going to have a deaf ear to every black request that comes as we try to appeal to the majority of all.
Right now, we have a scramble in Norfolk.
We go every place, and the most of the outs to the Exbuala (ph) clubs, to the Italian folks, or people of brick background black and white.
We are all looking for votes, we go all over the city and everybody gets an ear.
Justice Byron R. White: I take it then, even if they have done anything wrong with the single-member district seem so far as the allocation of the military was concerned, you would have argued that single-member districts in that area was unconstitutional anyway?
Mr. Henry E. Howell, Jr.: Yes sir my time is up and I do not wish to trespass.
I would merely sit down by saying, that if you will read my brief, you would see that the incumbent senators were given the option to have single-member or multimember, either one but because we couldn’t agree that had to do it overnight and we round up with what we did.
But if the incumbent senators in congressional district number two could have agreed, we wouldn't be here today.
I am glad to say we don’t have too many people against us today insofar as Virginia Beach is concerned and other appellees.
Chief Justice Warren E. Burger: Mr. DuVal.
Argument of Clive L. Duval
Mr. Clive L. Duval: Mr. Chief Justice, may it please the Court.
I am appearing as counsel pro se.
I was a lead plaintiff in the lower court action which we challenge the Virginia General Assembly’s House of Delegate plan, and as the result of which the lower court throughout the assembly’s plan adopted its own reapportionment plan for the House of Delegates.
I am interested in only the house of delegate plan.
We did not challenge the Senate plan in any respect.
At the beginning of my argument, I would like to make claim to the Court that I diametrically disagree with the Attorney General and counsel for Virginia Beach who apparently believe that this Court can affirm the lower court only on the Kirkpatrick versus Priesler basis of mathematical exactness.
This is certainly not the case, in my opinion, and I would urge upon the Court that there is ample authority by which you could affirm the lower court’s decision on the basis of the basic cases in State reapportionment matters, that is Reynolds versus Sims, Roman versus Sincock and Swann versus Adams.
I’m just saying, Mr. Justice Stewart that I believe the Court has ample authority to affirm the lower court’s decision on the basis of the long standing cases such as Reynolds, Roman versus Sincock and Swann versus Adams.
Justice Potter Stewart: The basic state reapportionment?
Mr. Clive L. Duval: The basic state reapportionment cases.
I am well aware of the Kirkpatrick holding.
I know that this matter is under discussion in the Court here.
I’m not interested in the outcome in this case because I rely basically on the Swann case written by Mr. Justice White, In which case, the Court held that the issue on evaluating the constitutional validity of the State legislative reapportionment scheme is whether “there has been faithful adherence to a plan of population-based representation with such minor deviations only as may occur in recognizing certain factors that are free from many taint of arbitrariness or discrimination.”
Now, the position that I am taking here is that the assembly, House of Delegates’ plan flunked the test set down and the statement I just read you.
And then first of all because it discriminated against Northern Virginia as a region in the House of Delegates plan and that was arbitrary and discriminatory and within the band that I just mentioned.
This Court in 1971, specifically condemned a plan that has such a taint of arbitrariness or discrimination in Abate versus Mundt in which Justice Marshall wrote and I quote, “We have underscored the danger apportionment structures that contain a built-in bias tend to favor the particular geographic areas or political interests or which necessarily will tend to favor for example less popular districts over their more highly populated neighbors,” citing Hadley versus Junior College District.
Now, the facts, we believe clearly show discrimination against the number of districts and seats represented in the Northern Virginia area.
Thus all 19 seats in Northern Virginia, delegate seats were underrepresented by an average of 4.3%.
In terms of population, Northern Virginia was underrepresented by 38,100 persons.
Justice Byron R. White: What does the Court plan do for you?
Mr. Clive L. Duval: A Court plan reduces the -- by about half.
We got a delegate, another delegate is given to us to even it out.
Those under representation is corrected and spread out across the State.
Justice Byron R. White: And you are underrepresented, under the --
Mr. Clive L. Duval: We are underrepresented by a small amount as of the 1970 census but because of our very rapidly growing population, our population as of August 1 actually would have entitled less to 21 delegates, not just 20 or 19 but 21 under the 46,485 ideal population.
Now, under the assembly passed reapportionment redistricting plans, in the conventional redistricting plan, Northern Virginia was entitled to a -- by its population to 20% of the congressional seats and it got them.
In the Senate plan, it got 20% of the senate seats.
But in the House plan, it was given only 19% and of course that’s what brought us in the Court.
We felt that this discrimination against this us particularly unfair because of the population growth trends.
Northern Virginia for the last decade and now is growing much more rapidly than the rest of the State.
In the last decade, its growth rate, average annual growth rate was three times that of the rest of the State.
And this Court has held in a number of decisions, a Virginia case that came before you on reapportionment, Davis versus Mann and Kilgarlin versus Hill and then Kirkpatrick that it is proper for the legislature and for reapportioning Court to consider the matter of growth and population.
In Kilgarlin in fact, the Court approved a over representation of one particular area because the District Court showed that that was a very rapidly growing district.
Though we say that the assembly plan not only discriminated against Northern Virginia, but the other side of it was that there was substantial over representation or a bias in favor of the Tidewater area and thus as to 11 Tidewater delegate seats and there was an over representation by an average of 7% per seat.
Justice William H. Rehnquist: Mr. DuVal.
Mr. Clive L. Duval: Yes sir.
Justice William H. Rehnquist: How did you determine what counties and cities comprise Northern Virginia for the purpose of your decision?
Mr. Clive L. Duval: It is a -- for a number of purposes, it is a state planning district, it’s the counties of Arlington, Fairfax, Loudoun and Prince William and the cities of Alexandria, Fairfax and Falls Church.
They’re considered for certain planning purposes to be a separate planning district.
Justice William H. Rehnquist: They’re under state legislation?
Mr. Clive L. Duval: Yes, under state legislation.
Justice William H. Rehnquist: And that is the principal reason for your suggesting that these be treated as a group for comparison with other areas?
Mr. Clive L. Duval: Yes, it was a convenient way of considering Northern Virginia as a district already regularized by state law.
In the same way most of the Tidewater jurisdictions are lumped in a particular planning district down there.
When I speak of Tidewater, I’m again speaking of a planning district identified in affect the Tidewater communities.
As I say, 11 Tidewater delegates seats were overrepresented by 7% a piece.
The population in the Tidewater would represent an over representation of 36,650 persons.
On the basis of these facts that I have reported to you, the lower court, we say found that there was discrimination on a built-in bias against Northern Virginia and favor of Tidewater, not in those exact words but the lower court found pervasive under representation in districts in Northern Virginia, and over representation in Tidewater.
As a result of which, one delegate seat was removed from Tidewater and transferred to Northern Virginia to eliminate this built-in bias.
Justice Potter Stewart: Following up my brother Rehnquist’s question, does Tidewater have a specific kind of definition or meet some bounds on identity just as Northern Virginia does?
Mr. Clive L. Duval: Yes sir.
There is a planning, at least there is a planning district under state laws set forth in my brief at page 4 here, as used here in Tidewater area means the counties of Isle of Wight, Mount Simon, South Hampton, cities of Chesapeake, Franklin, Norfolk, Portsmouth, Suffolk and Virginia Beach.
For certain State purposes these jurisdictions are grouped in State planning district 20.
Now, my second point is that the -- of course were objectionable population deviations in this plan that do not meet the Swann test of minor variations.
I emphasize this only really as these deviations reflect the bias and discrimination that we believe was present in the House of Delegates plan enacted by the legislature.
Percentage wise, including all the districts and there were four floaters here, the overall variation from population equality between smallest and biggest district was 23.6%.
The total population difference between biggest and smallest districts was 10,973 persons and I call your attention to the fact that in Abate, Justice Marshall said that, and there the 11.9% was the total deviation which the Court upheld because of various factors.
Justice Marshall said, “And nothing we say today should be taken to imply that even these factors, those that were considered to uphold the 11.9% degree of deviation, justifies substantially greater deviations from population equality.”
I might also note in passing that the 23.6 total deviation in the legislator's plan -- the legislature's plan is almost doubled at 10-15% variation between largest and smallest districts which Justice White said in his dissent in Kirkpatrick as a personal rule of thumb wouldn’t bother him too much.
Our third point is that the justification which the State of Virginia Beach relies on, presents for these variations even though we say they can't be justified because they weren’t minor but the one the State relies on, the only one, simply doesn’t hold water, in that the State has not consistently applied a respect for the integrity of boundary lines in drawing its reapportionment plans and that includes the House of Delegates plan.
As Governor, Lieutenant Governor Howell pointed out our 1970 Constitution requires that every electoral district without any distinction between the House of Delegates districts, Senate districts or congressional districts comply with the population, equal population principle.
Also all of the reapportionment, redistricting plans adopted by the Virginia General Assembly disregards subdivision lines in one degree or another.
The congressional and Senate plans in many respects, the House of Delegates reapportionment plan in the case of one county.
But beyond that, the House of Delegates plan has a board provision in it which opens the door to frequent violations of the integrity of subdivision lines.
That is that Act says that the description of all legislative districts are final on the effective date of enactment, March 1, 1971, notwithstanding future boundary changes by annexation, merger, consolidation or the voiding of boundary changes.
Now, at the present time, half a dozen of cases pending in Virginia in the Federal or State courts in which are the counties are seeking to repeal annexation of part of their land for various reasons and having been annexed before March 01, 1971 by adjacent city, where cities are trying to bite off chunks in neighboring counties.
And any or all of these cases, the result could be a disregard of subdivision lines because if in effect a city where compelled to disgorge a part of a county, annexed prior to March 01, 1971, then of course, the line would pick up a part of the county, the existing legislative district.
Or if a city prevails in annexing part of the county in the future, and there are three such cases now pending, then a legislated district would cut part of the city.
My fourth point is directed to appellant’s main thrust here that the Lower Court should not have formulated its own plan but rather should have sent the plan back to the General Assembly for action.
Now, it’s obvious that in most cases, Court should leave reapportionment to the legislature.
The point is that in this case, there is simply wasn’t time to do it or havoc would have been created with the elective processes of Virginia.
The primary election set by law for June 8 had already once been postponed in this case.
Candidates for the General Assembly running in those primaries were to file for revised districts within two weeks after the Court handed down its plan.
And it seems perfectly clear that the lower court could not as a practical matter, have given guidelines to The assembly, sent the matter back to the assembly, received back whatever plan they developed, reviewed it, modified it, held hearings, ordered in to effect without great disruption to Virginia’s elective procedures.
For example, it would have obviously compressed to the very end the filing dates for candidates.
The primary would certainly – probably had to been postponed for the second time from September 14.
Campaigns would have been compressed and perhaps the general election would have to been postponed.
I submit to Your Honors that what the lower court did was entirely proper in accordance with the holding and opinion in Reynolds versus Sims where the Court stated that lower courts would have a wide latitude in developing “remedial techniques” and that these techniques “will probably often differed depending on local conditions.”
The Court there further stated and I think it’s particularly pertinent to this case that in a warning or withholding immediate relief the court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of State election laws and should act and rely up on general equitable principles.
Of course, as this Court has pointed out in Beans, the discretion of reapportioning court is not unlimited but it is certainly broad.
I can tell that the Court proceeded properly and in accordance with equitable principles.
First of all and most important to us it abolished the discrimination we complained of, and gave us the additional delegate we are entitled to.
Also acting reasonable, I believe, because it took the assembly’s House of Delegate plan and simply modified it as necessary to reduce the population deviations by about one half, the result being that the Court’s plan in Virginia, we have 134 counties and cities.
The courts plan found it necessary to cross boundary lines in the case of only 12 of these counties and cities.
So, I believe and submit to you that the Court’s plan was entirely reasonable and proper.
And finally, Your Honors, as a practical matter, I submit that it’s unnecessary for the Supreme Court to further consider this case at this stage.
First of all, I want to remind you that the appeal here is from an interlocutory order below.
Also, the Virginia General Assembly will meet next month at a regular session and under the clear holding in Connor versus Williams, it could have caused at that time enact or reenact any reapportionment legislation it saw fit, subject only of course to proper constitutional considerations.
Now if it does so, at the coming General Assembly, that plan presumably would be referred back to the lower court for consideration and modification perhaps.
If then, further appeals are taken to this Court, the situation deemed desirable by the Court in Connor versus Williams will then occur.
The Court will then have it -- will then have which it does not now have a final order before it on appeal covering the entire State.
As I say, it is only an interlocutory order that is before you now.
Now, if on the other hand the General Assembly and it is much more likely fails to enact a new plan of reapportionment, its continued inaction will demonstrate very clearly, I submit to Your Honors, that the assembly now has no objection whatsoever to the District Court’s plan.
And this, as a matter of practicalities, I believe is the actual situation.
Here are the facts; in 1971, the Attorney General of Virginia, my good friend Mr. Miller was asked to take this appeal by the 1971 assembly elected under the old law.
Since then, a new General Assembly has been elected and is sitting and acting -- acted at the assembly session earlier this year and passed laws for the Government of Virginia.
Justice William H. Rehnquist: Mr. DuVal, couldn’t we count on that new General Assembly if it decided that it no longer wanted to prosecute this appeal, that so advised the Attorney General?
Mr. Clive L. Duval: I think it might well do so.
That is a perfectly good contingency, I believe and at the past 72 session, Your Honors, the House of Delegates did not even consider much less enact as it could have done under Connor versus Williams, any new reapportionment legislation.
The clarification being that the last thing the House of Delegates, the present House of Delegates wants is a reversal of the reapportionment plan under which they were elected.
I submit to Your Honors, that under the circumstances here present where the legislative body elected and acting, under a District Court plan, a reversal of the lower court’s plan will be confusing to the voters, difficult for candidates and certainly not my judgment in the best interest the people of Virginia.
For these reasons, Your Honors, I submit that the Attorney General of Virginia and the counsel for Virginia Beach may will be the only persons in the commonwealth who are desirous of seeing this appeal, their appeal succeed.
Justice Byron R. White: Mr. DuVal, if you assume the Court thought that the particular variations in this case were justified by respect for county lines or something like that.
Was there some plan put forward in this case to -- that would have cured that and still have respected the State interest?
Mr. Clive L. Duval: No, Your Honor.
In the assembly, during the discussion of the plan there, we at Northern Virginia did submit plans that we felt would prevent any discrimination against us, but they were rejected.
When we came before the lower court, of course, our principal interest was in the Northern Virginia region and not in the State as whole; we therefore, did not propose the statewide plan.
Justice Byron R. White: And but did you propose a different arrangement on multimember districts in Northern Virginia?
Mr. Clive L. Duval: We proposed single-member districts in the Assembly and that’s what we desired, but we gave up that contention after Chavis versus Whitcomb.
Justice Byron R. White: That issue is not here then?
Mr. Clive L. Duval: That issue is not here.
Justice Byron R. White: But did you propose that if there were going to be multimember districts they ought to be only one, or two?
Mr. Clive L. Duval: In Northern Virginia -- in my case, we felt that a division of Northern Virginia to two districts of five and six delegates was simply preferable to one of 11 districts.
Justice Byron R. White: Is that issue here?
Mr. Clive L. Duval: That issue is not here.
Justice Byron R. White: Okay.
Mr. Clive L. Duval: Those issues were all dropped at the lower level.
In conclusion Your Honor, the Attorney General who lost his bark on these appellate seats in 1971 with a crew of many supporters whom I might say as you proceed, he is a very fine attorney and a close friend of mine, now finds himself in a situation reminiscent I say of Coleridge's “Ancient Mariner - Alone, alone, all all alone, alone on a wide, wide sea.”
The fact is that the Attorney General’s 1971 crew has left him and a new crew is sitting back in port in Richmond hopeful that his vessel, this appeal will sink without trace.
I ask the Court to affirm the lower court’s order or alternately to dismiss the appeals herein without prejudice.
Chief Justice Warren E. Burger: Thank you.
Mr. Attorney General.
Rebuttal of Andrew P. Miller
Mr. Andrew P. Miller: May it please the Court.
What you have just heard sounds to me, as if it’s an instant replay of certain political arguments with which this Court should not necessarily be concerned.
But with respect to the constitutional issue which is before us at this time, I would like to draw your attention to plaintiff’s exhibit number 29 because in response to Mr. Rehnquist’s point, there is a second congressional district which --
Unknown Speaker: Is it the black one?
Mr. Andrew P. Miller: Yes sir, which I believe you have in your right hand, a second congressional district consisting of the City of Norfolk and most but not all of Virginia Beach.
Now, we have three senate districts here, five, six and seven which cover all of Norfolk and a portion of Virginia Beach.
In other words, with one more senate district, one would have had the congressional district which you refer to Mr. Justice Rehnquist and consequently your point is very well taken.
I was amazed at Mr. Howell’s suggestion that in fact there are not a significant number of people who are enumerated as “home-ported” in Census Tract 999 who do not live outside of the fifth, six and seventh senatorial districts.
The facts are exactly to the contrary.
If Your Honors would turn to appendix 140, you will see a listing of zip codes.
Those zip codes show that a significant number of the individuals involved live in Chesapeake which is the city at the bottom of the map here, live in Portsmouth which is the city just off the map to my left and in Hampton and Newport News which are in fact across Hampton roads, the only way you can get there is by crossing a bridge tunnel.
In terms of evidence, which relates to this point I would like to refer Your Honors to appendix 200, and read the following colloquy which took place in the deposition.
This is Mr. Reed’s deposition which is take --
Unknown Speaker: (Inaudible)
Mr. Andrew P. Miller: Yes sir, it's in -- yes sir, it’s part of the record in the case and is in appendix on page 200, the portion I am reading sir.
Now, we have testified and also supplied an affidavit that 59% of the 36,693 or approximately 21,600 do not live in the Fifth senatorial district.
Is that correct?
And then going down, have you got it answer, 5,050 in senate district six, 7100 in the Norfolk portion of district Seven and 9500 live outside the city limits of Norfolk.
They live in Virginia Beach and some live in Chesapeake, right.
And some live in Portsmouth, right.
And some live in Newport News, right and some live in Hampton and then there is colloquy, in the end, he admits that some in fact do live in Hampton as shown by the zip codes, set forth on Appendix 140.
So, I think that lays that particular issue to rest.
Justice Byron R. White: You do not know many of the 9,500 live outside of the five, six and seventh?
Mr. Andrew P. Miller: We did know sir, we don't.
We do know that clearly significant number.
Justice Byron R. White: (Inaudible)
Mr. Andrew P. Miller: Right, well Your Honor no part of the city of Chesapeake is in five, six or seven, no part of the city of Portsmouth --
Justice Byron R. White: But some live in Chesapeake, that’s right.
Mr. Andrew P. Miller: And Hampton and Newport News.
Justice Byron R. White: But in some some you know--
Mr. Andrew P. Miller: Yes sir.
Well, he suggested that 9,500 lived out of the boundaries of the City of Norfolk, so as far -- the only portion of senate districts five, six and seven which the District Court consolidated, outside the City of Norfolk 40,000 out of a 170,000 total population of Virginia Beach.
So I would readily concede Your Honor there maybe 1,000-2,000 of the 9,500 may live in the 40,000 which are part of Virginia Beach and then put in with Norfolk but clearly you are talking about a very significant number 40% on the basis of the zip codes at the minimum which live in other cities and outside the senatorial districts in question.
Justice Byron R. White: Now, based on the zip codes, were there been some basis for the court allocating to the specific districts those sailors who didn’t live in the Census Tract that where they were would placed by the census?
Mr. Andrew P. Miller: No sir.
I don’t think it could be done as a practical matter and if I may address myself to that for just a moment.
I submit that the only way which the lower court’s decision can be upheld is for this Court to determine that it was arbitrary for the commonwealth to utilize the census.
Justice Byron R. White: Yes, but let's assume we were to uphold that but could the District Court have maintained single-member senate districts and still allocated --
Mr. Andrew P. Miller: Your honor, I was getting to that and the point is that one would simply open up Pandora’s Box, if one took that out and let me explain why because one is not only talking about naval personnel here.
We are talking about all members of the military.
We are talking about college students, we are talking about inmates of mental institutions and penitentiaries, individuals who work in one location or live there during the week and go elsewhere for the weekend.
Consequently, what Mr. Howell was suggesting in this case that one goes completely behind the census, and one will have constant litigation as to where in fact the individuals in the categories I just mentioned and that list is not exclusive should in fact be located.
I see that my time is up Your Honor.
Let me conclude by saying, in response to Mr. Justice Stewart’s observation, that we are faced here with a rational plan, unlike the situation in Swann that there was a balancing in Northern Virginia between the House of Delegates and the Senate.
One being over represented, the other being under represented and that the General Assembly will again be in session in January.
If the Court finds that there is any constitutional defect in the plan it adopted, it would be in a position to act in that session in accordance to whatever guidelines this Court lays down.
However, I urge the Court to sustain the plan, as adopted by the General Assembly, as being fully in accord with the guidelines handed down by this Court in its decision in Reynolds versus Sims.
Thank you very much.
Chief Justice Warren E. Burger: Thank you, Mr. Attorney General.
Thank you, gentlemen.
The case is submitted.