BROWN v. THOMPSON

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ORAL ARGUMENT OF SUELLEN L. DAVIDSON, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear arguments first this morning in Brown against Thomson, Secretary of State of the State of Wyoming.

Ms. Davidson, you may proceed whenever you are ready.

Mr. Davidson: Mr. Chief Justice, may it please the Court.

A simple straightforward issue is being presented today for your review.

The issue is whether a county may constitutionally receive a representative to its state house of representatives based merely upon its status as a county and without regard to its population.

In addition to other legal considerations which will be presented in argument, it is important that the Court have the benefit of a brief factual overview.

When faced with the decennial task of reapportioning its legislative membership in 1981, the Wyoming State Legislature determined that the population of the state of Wyoming had grown by 3... pardon me... 137,141 persons, or in other words by 24 percent.

Each of the state's 23 counties had experienced a population growth but one, Niobrara County.

Instead the population of that county had stabilized during the ten year period, from 1970 to 1980, at 2,924 persons.

As introduced in the house, the 1981 Reapportionment Act provided for a membership of 63 members in the house of representatives.

A statutory ratio formula based upon population considerations was used to determine which counties would receive representatives.

Again--

Unidentified Justice: Ms. Davidson, is this material which you are speaking of now in the record somewhere, or in the opinion of the District Court?

Mr. Davidson: --Yes, Mr. Justice, most of this material is in the record.

Based upon the statutory ratio formula each of the state's 23 counties, again with the exception of one, Niobrara County, would receive at least one representative.

The 1981 Reapportionment Act then passed the house of representatives providing that the house membership would continue to be comprised of 63 members, but Niobrara County would be combined with its neighboring county of Goshen.

The senate, however, changed the 1981 Reapportionment Act and instead provided that the house membership should be increased to 64.

The additional representative would be awarded to Niobrara County.

The Act then was committed to the conference committee where it soon became very apparent that the committee would be deadlocked and remain deadlocked unless a compromise was effected.

Such a compromise was struck.

The compromise was that Niobrara County would receive the 64th member.

But at the same time too, if any court determined that the gratuitous grant of a representative to Niobrara County was unconstitutional, then Niobrara would be combined with Goshen County.

There must have been a strong realization in the Wyoming State Legislature that there would be a strong possibility, a probability, that the provision would be struck.

In 1964, a three-judge panel, in the case of Schaefer versus Thomson, had already determined that Article 3, Section 3, of the Wyoming State Constitution was not to be applied in future instances involving apportionment of the Senate, for the article provided that each county would constitute a senatorial district.

And each county would, therefore, receive a senator.

Unidentified Justice: Ms. Davidson, did you attack the apportionment scheme as a whole, or just as it applied to the one county?

Mr. Davidson: Mr. Justice, we attacked it just as to the one county.

Unidentified Justice: Why not the whole plan?

Mr. Davidson: Although there was an awareness that the whole plan was probably unconstitutional, we received a directive from our clients to attack only that portion of the reapportionment act which gave Niobrara County a representative, because it was a feeling that any consideration other than population was wrong and clearly an award had been made to this county based upon its status as a political subdivision.

Unidentified Justice: You don't think you've weakened your case by this tactic?

Mr. Davidson: I think certainly we may have done so in the district court level.

Unidentified Justice: Did... why are you so concerned about the grant of a single representative to this one county?

Mr. Davidson: I think, Mr. Justice, we go back to the fact again that the grant was given purely because of its status as a political subdivision.

That people's voting rights were diluted substantially in giving them not only that particular sort of grant--

Unidentified Justice: But you don't care about the rest of the state?

Mr. Davidson: --I can't say that.

That is not true.

Of course, we care about the rest of the state, and so, frankly, do our clients.

But at that time--

Unidentified Justice: May I ask you--

Mr. Davidson: --Maybe if I can give you some background that that would be instrumental.

Unidentified Justice: --Would you as part of that background tell us who your clients are and what their interest is in winning this lawsuit?

Mr. Davidson: Yes, I surely will.

There, of course, are seven named plaintiffs or appellants in this case, each of whom represent one of the most populous counties in the state of Wyoming.

In addition, these ladies represent the League of Women Voters.

By a referendum which was passed by the League of Women Voters at their state convention, it was determined that the one grant, the one county grant to Niobrara, would be attacked.

It was also too a feeling of that group that they would be unable to pass a broader referendum so as to attack the whole reapportionment plan.

Unidentified Justice: In your state does the League... is it statewide in its organization?

Mr. Davidson: Yes, it is.

Yes, it is.

In fact--

Unidentified Justice: Now I come back to my question.

Why didn't you just attack the whole apportionment, the whole state apportionment of the house?

Mr. Davidson: --Hopefully, I had explained that but if I may once again.

What happened was a referendum had been passed by the League of Women Voters which authorized the attack of only that one portion of the reapportionment plan.

It was felt by the membership or by the leadership of that group that no broader authority would ever be given because of the political ramifications and arguments that would be presented by the membership in attacking or considering... pardon me... that broader authority.

Unidentified Justice: Your clients have to reach a sort of a political compromise, I suppose, just the way the legislature does.

Mr. Davidson: Yes, that is in fact true.

Unidentified Justice: But that political compromise is not binding on us, I hope?

Mr. Davidson: Pardon me?

Unidentified Justice: That political compromise is not binding on us, I hope?

Mr. Davidson: No, sir, it is not.

Unidentified Justice: Why is it here at all?

Mr. Davidson: Pardon me, again?

Unidentified Justice: If we decide, this will apply to the other counties or just one county?

Mr. Davidson: I think, Mr. Justice, that your authority goes as far as you want it to go, and certainly my clients are not going to be unhappy if your decision reaches beyond the consideration of this one county.

Unidentified Justice: But I'd be bound by the pleadings in the case?

Mr. Davidson: I think not, Mr. Justice.

And I go back to two decisions.

The initial decision of Reynolds versus Sims, and also Swann versus Adams.

Particularly in the Swann case, there was a situation where this Court looked at the apportionment of the senate, although only one issue had been brought to the Court for its attention, the reapportionment plan of the house.

And the Court in that case determined that it would exceed the pleadings and it would address the issue which involved the senate.

Unidentified Justice: I just don't understand how the League of Women Voters or any other private organization can limit this Court.

Mr. Davidson: They cannot.

I do not believe that they can.

Unidentified Justice: I should have said tried to.

Mr. Davidson: Yes, Your Honor.

One thing that is important for you to understand is that all parties stipulated that the overall relative range was 89 percent in the 64 plan and that the ratio was 3.25 to one, while the 63 plan had an overall relative range of 66 percent and a ratio of 2.09 to one.

The three-judge panel, of course, found that the 64 plan, the vote dilution suffered by the appellants below, was de minimis and even if it ware or were not, as the case may be, that there were rational state policies which would justify the discrepancy.

Unidentified Justice: Could I... could I ask you, did you attack the alternative--

Mr. Davidson: The 63 plan?

Unidentified Justice: --No.

Did you say that the conference committee or the bill says if this provision for this county is stricken, then it would be combined with another county?

Mr. Davidson: Yes, that is correct.

Unidentified Justice: Did you attack that part of it?

Mr. Davidson: No, we did not, Mr. Justice.

Unidentified Justice: Well what's the... suppose that this county is combined with the next county, or whichever county it's to be combined with.

Mr. Davidson: Yes.

Unidentified Justice: What then would be the maximum deviation between the largest county and the smallest county?

Mr. Davidson: The overall--

Unidentified Justice: Or the... the largest district and the smallest district.

Mr. Davidson: --Thank you.

The overall relative range would remain the same under the 63 plan at 66 percent.

Unidentified Justice: And that would be between what?

Mr. Davidson: That would be the difference between the most over-represented county and the most under-represented county, which would be Washakie as being the most under-represented, and Sublette as being the most over-represented county.

In this instance, Niobrara was combined with a contiguous county, Goshen County.

The plaintiff's complaint was dismissed with prejudice.

Thereafter, of course, this appeal ensued.

Since the Court, in the 1964 case, Reynolds versus Sims, held that both houses of a bicameral state legislature must be apportioned on the basis of equal population, the reapportionment law has been more clearly defined in the 1973 cases of Gaffney versus Cummings, White versus Regester, and Mahan versus Howell.

The first two cases stand for the proposition that if the overall relative range of a reapportionment plan exceeds 9.9 percent, then a prima facie violation of the equal protection clause has been deemed to have occurred.

The 9.9 percent hurtle in this case is very easy to jump.

The overall relative range of the 64 plan is 89 percent.

But Mahan versus Howell goes one step further.

Even if the overall relative range exceeds the minimum 9.9 percent limitation, the state can save the reapportionment plan by showing that there are legitimate considerations incident to the effectuation of a rational state policy.

Basically a two-prong test applies.

First, is the state's policy furthered by plan.

And secondly, if it is, are there deviations... are the deviations within acceptable limitations?

This Court has found that neither history, topography, geography, sparseness of population, vastness of area, economic considerations like tax consequences or uniqueness, are factors which have been found to be rational state policy.

In Mahan, though, the integrity of maintaining political subdivisions was found to be a rational state policy, yet the overall relative range did not exceed 16.4 percent.

The state of Wyoming, in this case, hangs its hat on the same sort of rational justification.

That is, that the maintenance of the integrity of political subdivisions saves the 64 plan.

There are other factual incidences, though, that differentiate this case from the Mahan case.

The first factor which is necessary to consider is that the Virginia General Assembly had been authorized by constitution not only to act general law, but to act specific or local law in regard to the government, organization and powers of cities, counties and towns.

That sort of authority is specifically prohibited by our Wyoming state constitution.

No such authority is given to our Wyoming state legislature.

Lastly, the Virginia plan produced the most minimal deviation possible while keeping the counties intact.

In Wyoming, in this case, there was no showing that the state of Wyoming had made an honest good-faith effort to produce the minimal deviations possible.

Unidentified Justice: But there is... I suppose it's almost self-demonstrating that if Niobrara County is to have one member of the legislature, the alternative... an alternative plan that would both provide for a minimal deviation and that, would give Wyoming a two or three hundred member house of representatives.

Mr. Davidson: Yes, that is true.

If we want back and used the smallest county as the most basic unit... it would be an incremental unit... in determining membership of the house, it would well exceed three hundred members.

Unidentified Justice: Ms. Davidson, what practical harm do your various clients in the more populous counties of Wyoming suffer as a result of giving Niobrara a representative rather than half a representative.

Mr. Davidson: That's a very good question.

If I may I would ask the Court to consider these examples.

Appellant Margaret Brown resides in Carbon County, Wyoming.

In the past ten years, that county has grown by approximately 7,500 persons.

The county received the same amount of representation that it did in 1973, three members, but the vote dilution which has occurred there is on a scale of 2.49 to one.

In other words, Mrs. Brown's vote is two and a half times less valuable, if you will, than a vote cast in Niobrara County.

Unidentified Justice: But if it's statewide it really doesn't make a whole lot of difference what the people in Niobrara County do or their one out of 64 representatives do, does it?

Mr. Davidson: If I understand you to say, what is the impact of an individual voter, statewide, it would not be very great.

If I may though, Mr. Justice--

Unidentified Justice: Isn't that again the weakness of your case?

Mr. Davidson: --I think not.

Unidentified Justice: In attacking just the one county?

Mr. Davidson: I think it is not, because the Court in past instances have said that any time a vote cast in one part of a state is worth substantially less than a vote cast anywhere else in the state, then there must be some sort of tremendous vote dilution which has occurred.

In this case, we find that the maximum vote ratio is 3.25 to 1.

In other words, an individual in Washakie County who casts a vote finds that his vote is worth 3.25 times less that, than a vote passed in Niobrara County.

I think even more in point, maybe more illustrative, is the case of appellant Jane Maxwell, who lives in Laramie County, my county.

During the past ten years the county's population has grown by 12,000, almost 12,500 people.

And we find that in that instance that only has that county not maintained the original legislative grant... or in other words, number of representatives... of 11 that it had in 1970, but during the past decade, because of population shifts and such, it actually lost two representatives.

You compare that to a situation where the county has grown four times that of the stagnant population of Niobrara and you see that there is a very substantial divergency that has occurred.

Unidentified Justice: Would anything in a court order directing the Wyoming legislature to follow the 63-member plan rather the 64-member plan and merge Niobrara with whatever the other county is.

That wouldn't get Laramie County back the two representatives that you say it has lost?

Mr. Davidson: That is true.

It would not get back the two representatives which the county has lost.

But, again, we look to the fact that a county as a political unit, received a representative.

People somehow were lost in the shuffle.

Unidentified Justice: What about the State's constitution, does that have some part on the response you just gave?

Mr. Davidson: Yes, well, there are two considerations which our Wyoming State constitution asks us to look at.

First, as I've already stated, that each county shall constitute a representative district, while at the same time in the very same provision, our constitution provides that reapportionment shall occur on a basis of population.

And the two sort of thoughts or ideas are in congress in this case.

Unidentified Justice: May I ask you a hypothetical question?

Supposing we agreed with you the plan as it was presently structured was unconstitutional, and we suggested that the appropriate remedy might be to have a resident of Niobrara County remain in the legislature but be elected by the state at large.

Would that cure the objection for you?

Mr. Davidson: I think it would not, Your Honor.

If... if I may, let me make sure I understand.

Unidentified Justice: It would take care of the voting disparity.

It would take care of the disparity in voting power between people in your county and elsewhere.

In fact, the people in Niobrara County then would have a lesser vote than anybody else in the state.

Mr. Davidson: But, Mr. Justice, you still are limiting who can be qualified to sit in that seat.

If I understand--

Unidentified Justice: But, you have no interest in that as I understand it.

Your only interest is in the weight of your vote... of your clients' vote.

Mr. Davidson: --We are also very concerned that the County of Niobrara receives a seat, and Niobrara would continue to receive a seat, as I understand your hypothetical.

Unidentified Justice: Well supposing all of... the whole legislature was elected at large, but they provided residence requirements just exactly as they have now.

Would that be unconstitutional?

And everybody then had an equal vote for every legislator.

Mr. Davidson: I don't know that it would be unconstitutional given prior rulings of this Court.

However, it would be very unworkable in another sense.

I do not believe that it would--

Unidentified Justice: If you agree that may that would not be unconstitutional, it seems to me you must also agree that my first hypothetical would not be unconstitutional, because then the voting power as for the people who voted for the Niobrara legislator would be equally distributed throughout the state.

Mr. Davidson: --But, again--

Unidentified Justice: You wouldn't like it, I understand.

You would want that county to be represented.

Mr. Davidson: --Sure.

Unidentified Justice: But your claim must be founded on the constitution in order to prevail here.

Mr. Davidson: But, again, you would have a very small group of people, the citizens of Niobrara, who would be receiving one representative.

And I think that that's where we find the substantial disparity occurs.

Unidentified Justice: Ms. Davidson, this type of plan has been in existence since 1913, as i recall, has I not?

Mr. Davidson: I believe a more accurate statement might be, Mr. Justice, that Niobrara County has received a representative since the county's creation in 1913.

Unidentified Justice: Since what?

Mr. Davidson: Since the County's creation in 1913.

Unidentified Justice: Yes.

And has this type of plan been approved by three-judge courts before?

Mr. Davidson: Yes, but there were different factors to be considered at that point of time.

Additionally, those courts did not have the full benefit of this Court's most recent rulings.

Unidentified Justice: What were the dates of those decisions?

Mr. Davidson: There was a 1964 case.

Unidentified Justice: Was that after Reynolds v. Sims?

Mr. Davidson: Yes, it was.

Subsequent to that there was 1965 case and my... maybe giving you a small explanation... the 1964 case involved the attack of the reapportionment of the Wyoming state house and state senate.

The court found that the Wyoming state senate plan constituted an invidious discrimination.

But it did not so find as regards the Wyoming house of representatives.

It continued to maintain jurisdiction, if you will, of the case.

And, later in 1965, when the legislature took no action to remedy the inequities that were apparent, the court came back in and then ordered a court ordered apportionment.

Again in 1971, there was an attack on the Wyoming state house of representatives.

The court again found that there was no violation of the equal protection clause, but interestingly enough, the court in that case did not use the standards of measurement which this Court had endorsed.

Instead, it looked at what sort of changes had occurred from the 1965 court ordered plan, and found that there was no discrimination than in that instance.

And of course then this case followed.

Unidentified Justice: Were... were any of these cases reviewed here?

Mr. Davidson: Yes, Your Honor, there was one, Harrison versus Schaefer which trailed on the heels of the 1965 case.

Unidentified Justice: And there was a summary affirmance in that instance?

Mr. Davidson: Yes, there was.

If I may, there's one other distinguishing factor, again, in all of these instances.

A statutory ratio formula was used.

And in all of those instances, Niobrara County was found to justify or to be deserving of a grant one legislator.

But in this instance, in applying the statutory ratio formula, we find that it does not have enough population to justify a representative.

The statutory formula told us that we needed to round to the nearest whole number, and any time that that whole number... pardon me... the ratio percentage could be rounded to the whole number of one, then the county would be entitled to a representative.

But in this case, the only way that Niobrara's percentage could be rounded was down to zero, so it deserved none.

Unidentified Justice: May I ask one other general question?

Does the record tell us anything about the political makeup of the legislature of Niobrara County.

What political party is involved?

Mr. Davidson: I believe that there may be some reference in the record as to the political makeup of Niobrara County.

And as I recall, Your Honor, if your specific question is what is that makeup, that they have a Republican representative.

Unidentified Justice: And, what is the majority of the legislature?

Mr. Davidson: Republican.

Unidentified Justice: Is there a significant... I mean... is it a closely... what is the makeup of the legislature basically, do you recall, generally?

How many... how big is the Republican majority of the legislature?

Mr. Davidson: Frankly, Your Honor, I don't recall.

Unidentified Justice: But you don't, there is no claim here that that is going to be affected by the outcome of this case.

Mr. Davidson: No.

No, there is no claim at all of that.

If I may capsulize, Appellants pray that Article 3, Section 3, of the Wyoming State Constitution and the 64 plan be declared unconstitutional because they give a vote to a county and not to people.

Thank you.

Chief Justice Burger: Mr. Cox?

ORAL ARGUMENT OF RANDALL T. COX, ESQ. ON BEHALF OF THE APPELLEE

Mr. Cox: Mr. Chief justice, may it please the Court.

We agree with the Appellant's characterization that this case involves the apportionment of one representative to one representative district in Wyoming.

That is, to the citizens and taxpayers of Niobrara County.

All other representatives were apportioned by the legislature by the use of a population based formula.

And that formula, as stated in the pleadings and as admitted by the Plaintiffs today... by the Appellants today... comports with applicable law.

Unidentified Justice: This is an unfair question, but in the light of decisions from this Court in the past, do you think the entire apportionment of the Wyoming House is constitutional?

Mr. Cox: Yes, your Honor, I do.

The reason that I think it's unconstitutional... that it is constitutional relates to our theory of the case as we have talked about Niobrara County in particular.

And that is, that even though there are substantial statistical deviations using the relative range figure, those deviations do not indicate any significant erosion of any person's fundamental rights of free and fair participation.

Unidentified Justice: Those deviations are higher than any that have been upheld here before.

Mr. Cox: That's correct, Your Honor.

They are considerably lower than those reapportionment plans stricken by this Court in Reynolds v. Sims and its companion cases.

They are in an area that this Court hasn't really had an opportunity to look at before, and this case is somewhat unique in that respect.

Unidentified Justice: Well... didn't we summarily affirm a three-judge court back in the '60's?

Mr. Cox: That's correct, Your Honor.

And Harrison--

Unidentified Justice: What was the deviation, there?

Mr. Cox: --The deviation was either 89 or 90 percent.

Unidentified Justice: Do you think... do you think... that affirmance is... or that three-judge court decision is consistent with our later cases?

Mr. Cox: I'm not sure what you're asking.

I think it is consistent with your later cases.

Unidentified Justice: 89 percent is consistent with them?

Mr. Cox: Yes, Your Honor.

The reason that I contend that is because this Court has looked at that percentage deviation figure as an indicator, and a very important indicator, which shows just how close a state is coming to numerical equality in its apportionment decisions.

But the Court has not invested that statistic with any particular significance, except in saying that if a plan deviates by less than then percent it is presumptively valid and there can't be threat.

The reason there can't be a threat to majority control, if you have got less than ten percent is it's statistically highly improbable to have a minority dominating the legislature, if you've got less than ten percent deviation.

If you have more than ten percent deviation, I suggest that we use the other standards that this Court has used in the past, and look at other statistical measures to see whether that indicator that says there's deviation between districts indicates some kind of fundamental impact, invidious impact upon the exercise fundamental right.

This Court talked in Reynolds v. Sims and its companion cases, the one man, one vote rule means that the majority has to control the legislature.

That if a small minority such as 25 percent in Alabama or 18 percent in Maryland has a strangle hold on the legislature then other persons, the substantive rights of the majority are threatened.

In this case, substantive rights of majority in Wyoming or the Plaintiff's in particular or the counties that they represent, are not threatened if we refer to those other statistical measures.

The reasons for that are that the number of representatives in the Wyoming house substantially exceeds the number of representative districts, a measure emphasized by this Court in Reynolds v. Sims.

Further, the legislature is responsive to the majority even if we take, deliberately, a sample of the legislative districts in the state and take those that are most overrepresented, we still find 47 percent of the... not less than 47 percent can elect the majority.

It takes at least 47 percent to elect the majority of representatives.

Unidentified Justice: Mr. Cox, is it basically your position that the state policy o having at least one representative from each county would justify any deviation no matter how large?

Mr. Cox: No, Justice O'Connor, we would not take that position.

Clearly Reynolds teaches us that although political subdivisions may be a factor that deserve consideration in apportionment, carried too far there could be a submergence of equal participation.

Unidentified Justice: What is too far, if 89 percent isn't too far?

Mr. Cox: I don't think that that statistic alone tells us the answer to that question.

I think we have to look at several of these statistics because each just measures, and sometimes in an exaggerated fashion, a particular part of the statistical picture.

Unidentified Justice: What if there are only one hundred people in this county?

You would be arguing the same thing, wouldn't you?

Mr. Cox: That's correct, Your Honor.

Unidentified Justice: Even though the deviation might be five hundred percent?

Mr. Cox: That's correct, Your Honor.

But, fortunately, we're not presented with that.

Unidentified Justice: And would you be making the same argument if there were five counties like Niobrara?

Mr. Cox: If we looked at all of the statistics and we that there wasn't a threat to the people of the other state, I would be comfortable doing that.

But, when you start getting into a number of counties that are far away, you could get into a situation, like in Reynolds, where a few rural counties with a tiny fraction of the state's population were dominating the legislature.

If we look at it from that angle, there is no way we have enough rational state interest here to justify that--

Unidentified Justice: So you are really suggesting to us that we return to that... give more weight to that equation?

We used to do that, a way back in the '60s.

Mr. Cox: --I wasn't aware that the Court had departed from that.

I find frequent references to that standard, and it really seems tome that the approach taken in Reynolds and its companions, looking at all those measures to determine whether there is invidious discrimination, is a good approach.

If we examine the effects of this decision to give one representative to Niobrara County upon the plaintiffs, than the analysis comes down to what happens to the plaintiffs if we have that extra representative or if we don't.

If we look at those statistics we see that 46 percent of the population of Wyoming resides in the seven counties represented by the plaintiffs, the appellants.

The elect 28 of 64 representatives.

If Niobrara County's legislator were withdrawn, they would elect 28 of 63.

If we look at a percentage to see which... how much percentage of control each of those counties has in the legislature, they would each gain.03 or.07 of a percent of increased power, if you will, in the Wyoming legislature if Niobrara County's representative were withdrawn.

The district--

Unidentified Justice: These women in the state that... in the House of Representative, there is one person which unconstitutionally elected.

Would anybody have a right to contest that?

Mr. Cox: --If--

Unidentified Justice: It's only one vote out of three hundred.

Mr. Cox: --There's no question that the plaintiffs have to raise this issue, Your Honor.

Unidentified Justice: Would they be entitled to relief from an unconstitutional representative, just one?

Suppose it's a... it's an imbecile.

Would you have a right to object to that and prevail?

Mr. Cox: To an imbecile serving in the legislature, Your Honor?

Unidentified Justice: Yes.

Mr. Cox: Yes, I think they would have a right to object to that.

Unidentified Justice: Why don't these people have a right to object, here?

Mr. Cox: They have a right to object.

Their burden is to show that there is an injury to a substantial--

Unidentified Justice: Isn't that an injury to them?

Mr. Cox: --It is an injury in a theoretical sense as the district court--

Unidentified Justice: Injury... theoretical?

Mr. Cox: --Yes.

Well, we can measure the injuries statistically, Your Honor.

And if we do measure--

Unidentified Justice: How do you get around a vote that's an illegal vote.

It hurts.

There's no degree involved.

Mr. Cox: --What we're suggesting to the Court is we look at the nature and the degree of injury here.

And if we look at the nature of the injury--

Unidentified Justice: But you do admit that there is an injury?

Mr. Cox: --There is deviation from strict population equality.

Unidentified Justice: The word was "injury".

Mr. Cox: I can't find the injury in the statistically significant sense, Your Honor.

The district court looked at these figures.

And they focused on the substantive rights of the plaintiffs, their counties, and other voters in Wyoming.

Unidentified Justice: A large portion of the opinion was taken up with the fact that this case has been there four times before.

That was a large part of the opinion, wasn't it?

Mr. Cox: That was cited in the opinion, yes, Your Honor.

Unidentified Justice: So all that we're saying is, is it another run of the same thing?

Mr. Cox: Well, in... the district court was correct in that this, if we take our worse possible jaundice view of this represent... of this apportionment plan, it contains nothing more dilutive of votes than anything previously reviewed by the court... by the district court.

I don't know that we particularly have to stand on that if we take a fresh look at the nature of the injury that's alleged here--

Unidentified Justice: Well, that appeared here once before.

Mr. Cox: --Yes, that's correct, Your Honor.

The opinion also talks about the nature and degree of the alleged injury and the arguments put forth by the state to justify the deviation from strict population equality.

We certainly can't deny the existence of those statistics.

And the reasons for this disctricting decision I believe are more important in Wyoming than in Virginia or any other state whose apportionment plans have been reviewed to date.

Local governmentst in Wyoming, like local governments in most states particularly counties and school districts are charged with important public duties and provide essential public services and construction of public works and so forth.

What distiguishes Wyoming from most states is there are explicit and strict constituional limits on the abilities of counties to raise money whether taxing or borrowing.

In comparing those limits to other states such as Delaware, Maryland even our neighboring states Montana and Colorado, we see that counties in other states have significantly greater ability to rasie revenue.

In addition in wyoming we do not have provisions for county self rule.

In order for a county to obtain the necessary powers to deal with new growing situations and new needs such as we see in the mineral boom areas of Wyoming, they need help from the legislature.

If we look at every local government in Wyoming we see that they are unable to raise sufficient revenues to provide an acceptable level of public services.

Accordingly, the legislature has enacted a number of supplemental revenue schemes to provide monies on a variety of criteria, not all of which are consistent, to help local governments, like counties and school districts, supply essential public services.

Those political decisions to figure out what criteria should be used in revenue distribution, to determine which new taxes should be imposed, or in the case of school funding, to determine whether a greater share of local tax resources should be taken by the state and redistributed under new criteria, those decisions, of course, affect the very lifeblood of local government in Wyoming.

And those decisions, of course, are made in the legislature.

Quite simply, local government in Wyoming is dependent on the legislature.

There's a certain vulnerability of counties like Niobrara that is set forth in the record, that because of political decisions made in the state legislature, Niobrara County is contributing substantially more revenues in the forms of excise taxes and school foundations monies to the state, which is then distributed to other local governments throughout the state, than that county is getting back through those same distribution programs.

Unidentified Justice: If you do not prevail here, what is... what could be the immediate consequence of such a holding?

Mr. Cox: That is somewhat speculative, Your Honor.

Unidentified Justice: The county would have no representation until the legislature comes up with a new plan, would that be the result?

Mr. Cox: That's correct, Your Honor.

Unidentified Justice: Well, I though there was a provision that if you fail here the arrangement of a combination with Goshen County would become effective.

Mr. Cox: The two counties would be combined.

Unidentified Justice: Yes.

Mr. Cox: Yes.

Unidentified Justice: Well, then this county doesn't lose if that happens.

Mr. Cox: If loses effective representation, Your Honor.

Goshen County has got about three times as many registered voters as Niobrara County.

Unidentified Justice: It would share a representative with the other county.

Mr. Cox: It would share a representative in a theoretical sense.

It would have very little effect upon that representative's actions as a political matter.

Unidentified Justice: In other words, are you saying the voters in that other county don't need the people in this county?

Mr. Cox: Unfortunately, that's true.

If we examine... and this is in the record... of we examine the interests of those two counties in a number of state revenue programs, we see that the two counties are diametrically opposed.

For instance, Niobrara County taxpayers provide a good deal of oil and gas severance tax to the state, a lot more than they get back, whereas Goshen County is exactly the opposite.

Very little of that money goes to the state and they draw many hundreds of thousands of dollars of that money every year.

The same analysis in greater numerical terms applies to school funding.

Niobrara County contributes a substantial amount... by county I'm referring, of course, to the taxpayers and to taxes collected by the county.

That money goes to the state in a much greater proportion.

As a matter of fact, there are no school funding supplements received by Niobrara County, whereas Goshen County receives on of the largest distributions of revenue from the foundation program, of any county.

And, in addition, Goshen County has gone to the legislature and gotten specific local apportionments to help them maintain their education system.

To expect a representative to balance those competing considerations in a joint district like that is to really expect the impossible.

A representative is going to have to make a choice as to how these revenue distribution and spending provisions work and he's going to have to favor the more populist county unless he wants to be a one-term legislator.

Unidentified Justice: I don't understand, though, your the Chief Justice that if you lose there has to be legislative action before the situation can be corrected.

Is that so?

Mr. Cox: I think I might have misunderstood the question, Your Honor.

Unidentified Justice: Because I gather... whether the plan is workable or not, if you lose then the combination with Goshen becomes a effective, doesn't it?

Mr. Cox: That's correct.

Unidentified Justice: And whether or not the legislature does something further will be--

Mr. Cox: Up to the legislature, that's correct.

If this Court disapproves the apportionment of a representative to the citizens of Niobrara County, then the combination plan goes into effect automatically.

What Reynolds v. Sims tells us about this case is that the interest of political subdivisions can be considered by the legislature so long as those interests are related to a rational legitimate state purpose, and so long as the legislature does not go too far.

We submit to you that in providing Niobrara County with a much needed representative the legislature of Wyoming has not gone too far.

There is ample evidence of legitimate state interests to justify the numerical deviation.

If, as in Reynolds and its companion cases, there were a substantial erosion of majority control so that a minority could injure other rights of a majority of state's population, that's a different story.

I think in a situation like that the Court has indicated that strict scrutiny is called for.

And in the absence of a demonstrable injury to a fundamental interest here, the free and fair participation in a generally population-based apportionment plan that does not threaten the majoritarianism, then the usual standard of constitutional analysis should apply, and that is to examine legitimate state interests that justify the decision.

Unidentified Justice: --Do you thing any of... any reapportionment plan in any state should be acceptable as longs as majority rule is not threatened?

Mr. Cox: Well, of course, there are other considerations that this Court has addressed in cases like City of Mobile v. Bolden and Rogers v. Herman Lodge, but absence discrimination against the suspect class... we're not looking at a scheme designed to deprive or submerge a minority--

Unidentified Justice: So any rational state policy should justify the plan as long as minority is not put in position given the power to elect a majority to legislature?

Mr. Cox: --That's correct, Your Honor.

Unidentified Justice: That would really be a departure form one man, one vote, wouldn't it?

Mr. Cox: I don't think so, Justice Brennan, because the whole purpose of one man, one vote, as this Court observed in Connor v. Finch, is preservation of majoritarianism.

And as you creep further and further away from majoritarianism, the demonstrable injury of people's rights becomes readily apparent.

We don't have that problem here.

I don't think you have to depart from Reynolds v. Sims one bit to approve this apportionment decision.

Unidentified Justice: Mr. Cox, as a matter of history, how often has the state changed its county boundaries?

Mr. Cox: There have been isolated examples where counties have split off... maybe a large county was divided... I don't know what much about the history of that.

Unidentified Justice: Is there any... can that be done by the state legislature or does it take a constitutional amendment?

Mr. Cox: I believe it has to be... the voters of the county are involved, and then it has to be approved by the legislature.

I don't believe the constitutional amendment is required because--

Unidentified Justice: For example, if Niobrara and the adjoining county wanted to merge and become one county, they could do it by referendum within the county, approved by the state legislature, or something like that?

Mr. Cox: --Yes, I believe that could be done.

But, in fact, the citizens of Niobrara County split off from their neighboring counties some 70 years ago for reasons that are colorfully illustrated in the intervenor's briefs.

I don't think that's very likely to occur, Your Honor.

For the reasons that we have discussed, we would ask that this Court affirm the decision of the district court.

Chief Justice Burger: Do you have anything further, Ms. Davidson?

ORAL ARGUMENT OF SUELLEN L. DAVIDSON, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL

Mr. Davidson: Of course it is the appellant's position that the 89 percent overall relative range is a per se, if you will, violation of the constitution.

Greater clarification of the law has been made since the summary affirmance in Harrison versus Schaefer.

An old outdated mode of measurement of vote dilution has been used or has been propounded by the state, that is, that a minority cannot control, basically, the legislature.

The most modern and accurate measurements are brushed to the wayside.

Overall relative range is found to have no significance.

And the same, too, with ratio.

Where is the breaking point?

Appellants submit that it's somewhere around the 16.4 percent overall relative range mark that was set forth in the Mahan versus Howell case.

Even more remarkable is the fact that that breaking point has been exceeded since the summary affirmance of Harrison versus Schaefer in the state of Wyoming.

First in the case... in the 1971 case, Thompson versus Thomsom and then, again, in this case Brown versus Thompson.

If you look at the administrative responsibilities which have been given to the counties as political subdivisions, you find that they are not so unlike the other administrative arms of states which are found in the majority of the states in these United States.

Some reliance, in almost all of those instances, is based on revenue and taxation considerations.

But I ask the Court to remember that judicial remedies are available in those instances where a county may be discriminated in some manner by virtue of a vote that's taken on a tax bill or a revenue bill.

And then, if you will look, all in all, one 64th of a vote makes very, very little difference when it comes to a matter being considered typically on the floor of a legislature.

One thing I think that this Court would find to be of interest is that there are... there is at least one instance in a combination district where the minority county provides the senator to the legislature.

And it's not to say that just because Goshen and Niobrara would be combined that Niobrara County would not in fact be the county which would be sending its representative if you will... a county representative, the local member, the district member, representative to the state house.

In Wyoming political subdivisions are no more nor no lessening, as I've already stated, than the majority of other counties found in the United States.

Niobrara County, in summary has judicial remedies available should it be found that it is a victim of discrimination.

A one man-three vote principle as evidenced in this case is certainly unconstitutional.

Might the Court have any questions?

Thank you, very much.

Chief Justice Burger: Thank you, counsel.

The case is submitted.