UNITED STATES DEPARTMENT OF COMMERCE v. MONTANA

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Argument of Kenneth W. Starr

Chief Justice Rehnquist: We'll hear argument now in No. 91-860, the United States Department of Commerce v. Montana.

General Starr.

Mr. Starr: Mr. Chief Justice, and may it please the Court:

Article I, Section 2, Clause 3 of the Constitution provides that representatives shall be apportioned among the several states according to their respective numbers.

This case brings before the Court the judgment of a three judge district court holding unconstitutional the act of Congress that since 1941 has governed the apportionment of representatives among the several states.

As the Court has been informed, a three judge district court in Massachusetts has very recently come to the opposite conclusion, rebuffing a constitutional challenge mounted by the Commonwealth of Massachusetts.

The Montana case and the Massachusetts case in its wake have resurrected a controversy as old as the Constitution itself, how to deal with the problem of fractional remainders in the apportionment of representatives to the states.

The fractional remainder problem arises because of two things.

First, the Constitution by its terms requires that no matter how sparsely populated the state, each state shall have at least one representative in the House.

And secondly, the implicit Constitutional requirement, that no district shall transgress or cross a state line.

Unknown Speaker: Strangely enough, we haven't been consistent over the century, have we?

Mr. Starr: The Congress has not been consistent in terms of the specific method that has been employed, but what Congress has done, Justice Blackmun, is to examine what it believes to be the most appropriate method, including, as the Court is aware, at the founding that Congress in 1792 in response to the debate in those early years determined in the wake of President Washington's veto to disregard fractional remainders entirely.

And that was the history of apportionment for the first 5 decades.

It was only in the 1840 census that the method was changed, and indeed over the decades Congress has used no fewer than four methods of apportionment.

Unknown Speaker: Well, there's another factor that enters in, isn't there, the fact that the House of Representatives has a limited number of members?

Mr. Starr: That's exactly right.

Unknown Speaker: And that is not in the Constitution, is it?

Mr. Starr: That is not.

It has always been thought, as has this question, to be a matter entrusted to the judgment of the Congress of the United States.

In fact in federalist '55 Madison said quite plainly that no political problem admits of a less precise solution than the size of the House of Representatives.

And the issue before the Court today flows quite naturally from that, because until 1911 Congress always had the option, which it exercised from time to time, of increasing the size of the House of Representatives.

But again, that is not a textually committed power.

Nonetheless it is one that has, from the founding of the republic been one that is viewed as falling to Congress and not admitting the--

Unknown Speaker: Well, this problem in Massachusetts and Montana certainly could be cured by increasing the size.

Mr. Starr: --Yes, it could.

The problem of fractional remainders would not, there would still have to be a method for dealing with fractional remainders.

But Montana could eventually get an additional representative were Congress willing to increase the size of the House.

But Madison wisely advised at the founding that a representative body should not be so numerous that it becomes similar to an Athenian assembly, and yet it should be large enough to be representative of the people as a whole.

And since 1911 the Congress has fixed the size of the House of Representatives at 435, and neither court now to address this issue has suggested that it would be appropriate for the judiciary to mandate to override Congress' judgment as to the size of its own House.

Unknown Speaker: Has any calculation been done to show how large the House would have to be in order to have precise apportionment?

Mr. Starr: In order to have precise apportionment, I am not sure that that calculation has been done.

At least I am certainly not aware of any calculation.

Unknown Speaker: Mr. Starr, what is the status of the Massachusetts case?

Mr. Starr: The status is that a final judgment has been rendered, and the United States is presently considering precisely what to do.

And there are several alternatives that we are presently actively considering and we will come to closure on that within a matter of a very few days.

As the Court is aware, the Massachusetts court directs action to be taken by March 31.

That again is a decision, as the Court is aware, that rejected the constitutional challenge but overturned the apportionment on non constitutional grounds.

Unknown Speaker: I'm not sure that you would ever solve the fractional remainder problem by any reasonable increase in the size of the House of Representatives.

If you increased it to a point where Montana was clearly entitled to two, you'd probably have a situation where Washington was almost entitled to a couple more, but not exactly.

I mean, I don't think reasonable increases in the size of the House would ever solve the fractional remainder problem.

Mr. Starr: I think the point is well taken.

It would not ultimately solve it.

I meant to suggest that Montana's concern about maintaining its two representatives would be solved under the existing method if the size of the House were increased by approximately six or seven representatives, then under this apportionment method it would eventually be entitled to that additional representative.

But I think the Chief Justice is making the critical point here.

Someone is going to be a winner and someone is going to be a loser, inevitably.

And in 1980, in the wake of that apportionment, Montana was quite pleased because it was comparatively over represented, and the two representatives who are parties to this action trumpeted the virtues of the equal proportions method.

Which again suggests that ultimately this is a debate that should go on among the states as represented in the Congress of the United States, and thus we do believe that this is a matter that is entrusted to the discretion of the Congress.

Unknown Speaker: Of course there's no express delegation to the Congress in the Constitution to do this, is there?

Mr. Starr: There is none, but it has been viewed, as Justice Story stated in the 1830's in Prigg against Pennsylvania, as flowing ineluctably from the very nature of the plan of power.

Unknown Speaker: Did the present method of apportionment, did that, that was an act of Congress, was it?

Mr. Starr: Yes.

Unknown Speaker: Did it have to be signed by the President?

Mr. Starr: Yes.

It was an act of Congress that was--

Unknown Speaker: Well, it's not just delegated to the Congress alone then.

Mr. Starr: --Oh, I am sorry, in terms of the presentation.

Congress has done this by an act of Congress, by statute, and presenting it, and no one has questioned that that is a matter that is entrusted to the political branches, that that is--

Unknown Speaker: Well, but not to the Congress.

Mr. Starr: --Not to the Congress entirely, but to the political branches, but Congress' discretion is quite broad.

But to answer your question specifically, Justice White, the statute was enacted in 1941 with the expectation that this would bring stability and finality to the process.

This is obviously, since elections are effected in the House of Representatives every two years, a matter that cries out for a quick and speedy resolution, and that's why Congress has imposed very precise and demanding statutory duties in terms of the time table for completing the census, for doing the calculations and then making the report from the President to the Congress.

Unknown Speaker: General Starr, what if Congress decided to apportion it roughly, for the most part according to population, but put an upper limit?

Congress says, you know, California is getting awfully big, and we think just as there's a minimum limit there ought to be a maximum limit too.

What if it did that?

Could we review that?

Mr. Starr: I think not.

Unknown Speaker: We could not review it?

Mr. Starr: I think that would be a matter entrusted to the political process--

Unknown Speaker: Really?

Congress could--

Mr. Starr: --as long as it is according to their respective numbers, and it seems to me that as long as the--

Unknown Speaker: --I'm saying it's not according to their numbers.

They're saying California, once California has more than a certain number, we don't care how big California gets, that's too big.

We're not going to allow any more.

Mr. Starr: --But as long as it is tying it to respective... and I think it is.

You're suggesting that it's not, but I think although we are at the outer perimeter of Congress' discretion, it seems to me that Congress does have that discretion if it so chooses.

But may I supplement that by this?

History illuminates the meaning of the text, and it certainly is clear that what Congress has been struggling to do over these many decades is to come as close to quota as possible, and there's no question that equal proportions advances that.

Unknown Speaker: I think you've given, you've given Wyoming the solution, or Montana.

I mean, that's the way to do it, just take some representatives away from California and parcel them out.

This is not really a big problem for the Congress.

I thought it was a really big problem.

[Laughter]

Mr. Starr: Well, that is a matter that Congress could consider, but the fact that it has not done so, Justice Scalia, suggests the wisdom and the efficacy of the political process.

Unknown Speaker: Or it may suggest that the representatives from California can outvote the representative from Montana.

[Laughter]

Mr. Starr: And perhaps are not so eleemosynary-minded as might be suggested.

Unknown Speaker: If you were a member of the Congress and that somewhat startling proposal were made, would you think you were violating your duties under the Constitution as a congressman if you voted for that bizarre solution?

Mr. Starr: In my own view, as opposed to what is appropriate for judicial review, I would be informed by history.

I would be guided by that.

And the point I was making, Justice Kennedy, in response to Justice Scalia is this, that Congress has always sought to employ a method that gets at quota, as close as possible in round numbers to the precise numerical entitlement.

Unknown Speaker: Well, but suppose you were met with that proposal.

Would you consider it consistent with your constitutional duty to support that, if you supported that proposal after you reviewed history, et cetera?

Mr. Starr: In terms of my own perception I would be more guided by history, frankly, and I would view it as difficult to depart from history.

I think history illumines the meaning of the text.

Nonetheless, I do think in terms as a matter of raw power that Congress could see fit to engage in, and my colleagues therefore who might not share my perspective as to the illumination that history provides, might very well say we do have a political problem in this country that we want to solve, namely the largest states have become a little bit too large and we need to in fact give a little bit of bias in favor of the smaller states.

But there is still a rational relationship to population.

That's what can't be done, quite clearly.

It would be not only anticonstitutional, it would be clearly unconstitutional to simply ignore the numbers or ignore the population of the respective states.

Unknown Speaker: There has to be some rational relation?

Mr. Starr: Correct.

And I do think that is subject to judicial review.

That's why we have said that the political question doctrine does not shield all aspects of Congress' action, and certainly if there were a violation of a specific textual requirement, then the courts can in fact call Congress to account for that.

But as long as there's a rational relationship to population, then it seems to us that that is a matter that the political process should in fact handle.

Unknown Speaker: Well, General Starr, you're using the political question idea then not as meaning barring adjudication, but as a very heightened form of deference.

Mr. Starr: Well, that's one way of formulating it.

I think what I am suggesting is that the precise issue of which of competing apportionment methods that are indisputably related to population, once we reach that stage then it seems to us that that issue is shielded from... and why is that, because under, for a variety of reasons, but under Baker v. Carr what Congress is making in choosing one apportionment method over another is a basic policy choice about equity and fairness among the states.

Unknown Speaker: Well, sir, I'm not sure if that qualifies as the traditional political question which, you know, at one time was said a thicket that courts should just stay out of, or simply saying that given the constitutional standard of according to their respective numbers, it leaves all sorts of reasonable alternatives open to Congress that would be reviewed only if the alternative weren't reasonable.

Mr. Starr: I think the Court could come at it from that method of analysis as well by virtue of the broad powers that Congress enjoys under the necessary and proper clause, and that was the method that the Massachusetts three judge court engaged in or used in rejecting the constitutional claim.

But our basic submission is this, that it is quite wrong to believe, as the three judge court in Montana did, the majority did, that this Court's articulation of the one person, one vote standard, which of course was articulated and applied in the in-state setting that was at issue in Wesberry and in Karcher against Daggett, is applicable in this setting when that standard or ideal of absolute equality cannot in fact be achieved.

I should hasten to add that these methods are extremely similar in terms of their results.

Each uses the population of the state as the numerator.

The divisor varies from method to method, and there are certain variations.

But all of the, the three principle, I should say, competing methods are extremely close in terms of the results.

We're therefore quite far removed from what this Court was concerned about in Wesberry, the problem of rotten boroughs, as it were, which was of concern at the founding in terms of the gross disparity in district sizes.

Unknown Speaker: Mr. Starr, can I ask you a question about the methods as a group?

Is it true that for all of them, focusing on the fractional remainder point that you say, like California has, what is it, 52 and 1/8 is--

Mr. Starr: Yes.

Unknown Speaker: --then all of those would require that California get either 52 or 53?

Mr. Starr: Three of the methods would, two would not.

The Adams method, which our colleagues also urged upon the district court, would result in what we call a quota violation.

It would actually give California only 50 seats.

The Jefferson method, which ignores fractional remainders, also resulted in quota violations in the 1830 apportionment, and that was one of the primary reasons that Webster--

Unknown Speaker: I thought that always took the next higher number, didn't it?

Jefferson?

Mr. Starr: --Well, it did, and yet for mathematical reasons that I don't pretend to understand, the Jefferson method had a particular methodology to it that resulted in a quota violation in the 1830 census in reapportionment.

And that prompted both Webster on the one hand and Adams on the other to come forward with their method.

Webster's was employed.

Again the Congress employed the Vinton or Hamilton method in the 1850 methods, and what Congress was seeking to do in this area is find the best possible choice that maximized various indicia of equity, of fairness.

And they thought that equal proportions did that, and it clearly does not violate quota.

It could not have violated quota.

When we have gone back and taken the numbers back to 1792, equal proportions would never have done what Jefferson and Adams could do and in fact did do in 1830.

It seems to us, in short, that the basic error of the three judge court was to transplant to alien soil a standard that does not apply, and in the process grossly intruded into the province of Congress which quite clearly has carefully, elaborately considered which method is best and chose that method, and sought to achieve something that Joseph Story in his commentaries in the 1830's suggested was very important, and that was stability and predictability.

Congress thought it achieved that in 1941, with the irony that Senator Hugo Black urged the adoption of equal proportions, the author of Wesberry against Sanders.

This was viewed as a fair method that created a balance between the interests of large and small states, as well as being emphatically, enthusiastically recommended by distinguished panels of mathematicians.

I'd like to reserve the remainder of my time, if I may.

Unknown Speaker: Very well, General Starr.

General Racicot, we'll hear from you.

Argument of Marc Racicot

Mr. Racicot: Mr. Chief Justice, and may it please the Court:

If I could first of all answer a couple of questions that were posited during the Solicitor's argument.

First of all with Justice Kennedy, how large would the House have to be to accommodate if the standard proposed by the State of Montana were adopted, namely the Dean method, the accommodation would occur in terms of adding two members, and then all three states, Washington, Massachusetts, and Montana, would then at that point in time have the representatives that they have currently been notified that they would secure.

In terms of your question, Mr. Chief Justice, concerning fractional remainders, that will always be a problem until such time as the constitutional maximum is reached, which would be 1 for every 30,000, and of course that would approach 8,600 representatives which is quite obviously not a palatable solution, I would suspect.

And in reference to the Adams method, Justice Stevens, you requested why is it that it can in fact create something known as the Alabama paradox, and that is because it ignores all the fractional remainders, and as a consequence it ends up providing fewer seats.

You run out of seats before in fact all of them are ultimately presented.

The question in Montana's view is does the standard for population equality enunciated in Wesberry and Kirkpatrick and Karcher apply to Congress?

Does it apply to their congressional reapportionment duties?

Or put another way, should the same standard of fairness required of all other governmental bodies, including local government bodies, apply to Congress when they apportion?

Contrary to the suggestions of the United States in their brief, this Court is not being asked to second guess experts in the field of mathematics or to direct and any way dissect the statistical underpinnings of the five historically recognized apportionment methods, nor be able to distinguish between all the very complicated mathematical concepts that are involved in all five of these various formulas.

The Court in our judgment need only determine which of the methods, which all have a different measure of equity, and which one of those methods is designed to meet the constitutional goal that has been articulated by this Court in the intrastate setting concerning apportionment.

Unknown Speaker: General Racicot, would you indicate whether you think that in your view Congress has ever apportioned the fractions in a way that meets the Constitution?

It has used four different methods.

I have the impression from reading your brief that none of them would have met your test.

Mr. Racicot: Justice O'Connor, in view of the decisions of this Court, that is precisely what we mean to indicate.

Although there has never been a case--

Unknown Speaker: I think that's sort of an extreme position to take when we're trying to interpret what the Constitution requires and when the practice has gone back so far in the Nation's history of permitting Congress to make this sort of a determination.

Mr. Racicot: --Justice O'Connor, I think a close examination of the apportionment history of this country would find that there has been more accommodation than there has been any process sustained in principle.

And that in fact if one takes a look at the cases that have been put forth by this Court with the intrastate reapportionment processes that occur, one will find a very simple thread throughout all of them, and that is, number one, you determine an ideal population district, the district size, by taking the total amount of the population and dividing the number of seats that are available.

That determines an ideal district size, and then all the deviations are measured from that ideal district size.

The only formula that is agreed by all of the parties that does that is the Dean method, which has never been used.

So in our judgment, although there have certainly been accommodations throughout our history, the Dean method has never been used, and as a consequence does not come to the point where it meets this Court's demands within the intrastate setting.

And the question then becomes, in our judgment, whether or not we are going to require of Congress the same expectations that we require of states and other local government entities.

Unknown Speaker: But don't you agree that the situation of the intrastate redistricting even for Congress is quite dramatically different than the situation of assigning representatives to 50 different states?

Mr. Racicot: Mr. Chief Justice, that is true because of the obvious constitutional requirements that there be no more than 1 for every 30,000, and also that state boundaries be respected.

We cannot reach as much mathematical precision as we can within the intrastate setting, but applying the same rules that have been used in those cases to Congress will allow us to get much closer.

Unknown Speaker: Well, why, why would we apply those same rules?

Mr. Racicot: Because that's how population equality or district equality is achieved.

Unknown Speaker: But the directive to Congress doesn't say achieve population equality.

It says according to their respective numbers.

Mr. Racicot: Yes.

According to the respective numbers of people within those states.

And quite obviously if one takes a real close look at the constitutional convention debates, I think that that was a question that was paramount in their minds as well, was continually how are we going to reach population equality, how are people going to be equally represented.

Unknown Speaker: The directive to the states says even less than that, doesn't it?

Mr. Racicot: It does, Justice Scalia.

Unknown Speaker: In fact it says nothing at all, except republican form of government.

Mr. Racicot: That's right.

There is much more of a textural reference to this particular process than there is the one that this Court has found--

Unknown Speaker: We didn't discover that until 1964, which is, I suppose, your answer for why for almost 200 years we have never had the right solution, because this Court didn't give the answer until 1964.

Wesberry, I'm talking about.

Mr. Racicot: --That's precisely correct.

It is also agreed without any question between the parties, between the experts, between those states who have appeared as amicus, between all concerned, that the ideal district size pursuant to the 1990 census is 572,466 people.

With the Hill method, with the method of equal proportions as presently codified in statute, Montana is by far the largest district in the Nation with a population of 803,655 people.

It exceeds the ideal district size by 231,000 people, or by 40.4 percent.

So it takes in Montana 800 people to have the same voting strength as 500 have in Idaho or Rhode Island.

Now, under that method that's presently codified in the statute--

Unknown Speaker: May I ask just at this point, is it part of your submission that the Hill method is always distorted against a smaller state?

Mr. Racicot: --I believe, Your Honor, that you can always determine bias from a number of different perspectives, and that there's no consistent way to measure bias.

Unknown Speaker: But the bias under that method will not necessarily be against a smaller state, or do you contend it is?

Mr. Racicot: No, sir, we do not.

Unknown Speaker: It could have been against Massachusetts or New York or any one of the other states?

Mr. Racicot: Yes, sir.

Unknown Speaker: The larger the state... you cannot have the proportion of swing with a state that is very numerous in population, has a lot of districts.

One more or less district is not going to make the difference between 500 and 800 per representative.

Isn't the swing going to be a lot more with a small state?

Mr. Racicot: It may well be, Justice Scalia, but the--

Unknown Speaker: I think it has to be.

Mr. Racicot: --historical perspective indicates that bias is not necessarily something that can be established under those circumstances over the long course.

Unknown Speaker: The bias, there may be bias just as likely with respect to big states as small states, but the degree of it will always be much less.

Mr. Racicot: Yes.

Unknown Speaker: Okay.

Mr. Racicot: Under the method presently used by Congress there is a total range, from the largest district of Montana, at 803,000 to the smallest district, Wyoming, at 455,000 people.

There is a range, then, of 347,000 people, which is a 61 percent deviation from the ideal.

Under the method proposed by Montana, the method of harmonic means, the most populous district would be South Dakota, with 699,000 people, and the smallest would be Montana, with 401,000, which produces a range of 298,000 people, rounded off.

Unknown Speaker: May I ask you one other question when you're talking about these big percentages?

Supposing we took in a new state, like Guam, which is very much smaller than all the other states.

Inevitably the percentage distortion would be much greater.

Say there were only 100,000 people in the state, so they would get one representative when the ideal is 572,000.

So isn't there always a potential for even more dramatic distortion than you describe?

Mr. Racicot: Your Honor, because there is a requirement that each state be provided at least one, there is some built in inequity, but in our judgment that doesn't justify allowing the process to become more unequal by the application of a formula that simply doesn't produce the most equitable results.

We have then with the method of harmonic means, the method advocated by the State of Montana, a deviation of 52 percent from the ideal.

So quite obviously there will always be some opportunity for deviation.

So under the Hill method or the method of equal proportions, the statutory method presently there, there's a 61 percent deviation from the ideal, which is reduced to a 52 percent deviation from the ideal under the method of harmonic means.

And under Karcher and in the context of the intrastate reapportionment cases, this Court has held that a deviation of less than 1 percent from the ideal was not constitutionally acceptable.

Quite obviously those are different cases in different settings, but nonetheless this Court has been very, very precise in its examinations of intrastate redistricting.

And although not precisely described in Wesberry, the way this Court has determined whether one person's vote is worth as much as another's is described with particularity in the Kirkpatrick case in 1969.

What happens in that case and in every subsequent case is this, the ideal population equality is determined by taking the total population, and in that case Missouri, dividing by the number of congressional seats that were allocated to give an ideal district size.

Then the range of variation is examined from the ideal to determine if in fact the range is acceptable.

In that case it was 25,000 people.

There were 2,260 below the ideal district size, and 13,542 above the ideal district size.

So the total range of deviation was 5.97 percent.

More important, however, is the fact that in Kirkpatrick that is when this Court first with precision and particularity described a method that was going to be utilized in determining whether or not in fact the apportionment was capable of being accepted constitutionally.

The Court then went on in 1973 to White v. Weiser, as I am certain you are all aware, and in that case disapproved plans that provided for a deviation in the range of 4.13 percent and one that also provided for a deviation, a total range of deviation of 0.284 percent in favor of one that provided a total deviation of 696 people, or a deviation, a total range of deviation of 0.149 percent.

And then of course in Karcher we know precisely what occurred, that there was in fact an ideal district size determined, then the range was determined, and the Court affirmed the district court's order striking down that districting plan which had less than 1 percent in total deviation.

Now lest anyone question whether or not in fact this has remained the principle and the method employed by this Court, I would refer the Court to the Board of Estimate of the City of New York v. Morris in 1989.

And in that particular case the Court once again pointed out that the guarantee of 1 person, one vote extended to local government apportionment as well as to congressional and state districting plans.

And quoting Daniel Webster the Court pointed out that the right to choose a representative is every man's portion of sovereign power, and that the electoral system should strive to make each citizen equal.

Unknown Speaker: How can you possibly ascribe that overriding objective?

You're saying this pushes aside everything else, all other considerations which some of these other methods take into account.

You say this is a categorical consideration.

How can you attribute that to a system which says no matter what, if we figure it all out and you don't even get one representative, we're still going to give you one?

I mean, isn't this a system that has not adopted that principle?

It has not adopted the one man, one vote principle as an overriding consideration.

Mr. Racicot: I think, Justice Scalia, that that is precisely the question before the Court.

Unknown Speaker: No, but I'm asking you how do you explain, how you reconcile with your position the fact that the Constitution itself provides for one representative even if you're not entitled to one on the basis of one person, one vote?

Mr. Racicot: There certainly is, Justice Scalia, inequity built into the system because of those provisions that require at least one to be provided every state, and one, and not having the possibility of crossing state boundaries.

But just because there is a basic level of inequity, in our judgment does not allow us to proceed further with producing further inequities.

And I think that's precisely what we're talking about here before the Court today, is what method is it that's going to be utilized?

What is the one that not only reflects the constitutional mandate, but also makes common sense and is easily understood and is the only one that measures the number of people per representative?

Unknown Speaker: But it makes it harder for you to argue that the only consideration to be taken into account is numerical parity, because that was not the only thing that Congress took into account when it set up this system.

So maybe there are other values that Congress can reasonably take account of, so long as it's basically proceeding on a numerical system.

Mr. Racicot: I think, Justice Scalia, that is the question in this case.

And quite obviously if this Court determines that to be the case, then I think that we have to take another look at state districting responsibilities as well because we certainly have not allowed them to do that in that context.

Unknown Speaker: Well, I don't think you're, that there's any question here but what the Constitution does require that every state have one representative and by implication requires that districts not cross state boundaries.

Those are not inequities.

I mean, those are constitutional provisions that are not subject to challenge here.

And so however that rubs off on state districting, I think that you've got to deal with those things not as producing inequity, as you call it, but that's what the Constitution provides for.

It suggests that equality, numerical equality is not an overriding thing, as Justice Scalia has suggested to you, I think.

Mr. Racicot: I think your point is well taken, Mr. Chief Justice.

In fact they are not inequities.

They provide a basic level of equality, and then there is of course that discretionary area beyond 50 and up to a maximum wherein Congress is allowed to achieve equality by a method that is consistent with the Constitution, with common sense, and with this Court's rulings.

And what we are alleging is that in fact that the method that is presently being used, because it measures relative equality, it measures a relative share in a representative.

Where in the Constitution, where in this Court's decision does one find the provision that people are entitled only to relative equality or to a relative share in a representative?

We haven't measured shares in representatives throughout our history.

Unknown Speaker: I presume that under this Constitution the House could provide for only 50 members.

I mean, suppose the House says we want to become more prestigious than the Senate.

[Laughter]

We will have only 50 members.

Each state would have one representative, wouldn't it?

Mr. Racicot: Yes, sir.

Unknown Speaker: And that would comport with the Constitution.

Mr. Racicot: It would.

And that is why, although Montana certainly is presented in this instance as being somewhat selfish or interested only in its own developments, and quite obviously that is one of the things that we're concerned about, but we're also deeply concerned about what it is that sustains us in principle in this particular area that the jurisprudence of this Court began developing in 1964, as Justice Scalia pointed out, and it has become more refined over the course of time.

And there were certainly those who wondered whether in fact it was the proper course to pursue at every junction.

But it has produced, I think over the long haul, equality within our voting systems across the United States of America.

And as Justice White noted in Morris in 1989, and I quote, the formula for measuring constitutionality, in other words he said calculating deviation from the ideal has been utilized without exception since 1971.

The method presently being used does not calculate from the ideal population.

It measures in terms of relative equality.

So I--

Unknown Speaker: May I be sure I understand your submission?

Are you contending the Dean method is constitutionally compelled?

Mr. Racicot: --Your Honor, I believe what I'm suggesting is that the Dean method complies with the Constitution.

Whether or not another one could be developed, quite obviously I do not know.

Unknown Speaker: That was going to be my next question, because the Dean method was I guess the last one to be developed of the five that are before us.

If another one should be, someone should think up one that's even more equitable according to your submission, would that then become constitutionally compelled?

Mr. Racicot: I believe so, yes, sir, even if it disenfranchises--

Unknown Speaker: Okay.

And what about your reference to a system that's easily understood?

Is there any virtue in the most easily understood method?

Mr. Racicot: --I don't think there's any question but that the most easily understood... yes, there is, sir.

And I don't think there's any question but that the most easily understood is the Dean method, the method of harmonic means, because it deals--

Unknown Speaker: Is it really?

I've had the most difficulty understanding that one myself.

[Laughter]

The others I can understand without much difficulty, but that one I really have trouble with.

Mr. Racicot: --Perhaps it would be best if I phrased it that the result is most easily understood, because what it seeks to do is measure absolute equality, not relative equality.

And that, I guess in my judgment, is the most easily understood result.

I think it's also consistent with the Constitution and with this Court's rulings.

Unknown Speaker: Let me ask you to comment on one other thing that runs through my mind.

It may be entirely irrelevant, but to the extent we're talking about overall national fairness and so forth, is it at all relevant to consider the fact that Montana has two senators?

Mr. Racicot: No, sir, I don't believe so, because the system was set up that that was obviously the product of a great compromise, and the system was set up so that states, the corporate entities, would be represented, and then in the House where people would be represented.

And that's why this is so incredibly important.

I don't think that one can fairly and completely understand what it is like to be disadvantaged in this particular arena until such time as you personally experience it.

And quite frankly, that at that point in time, as I believe Mr. Wilson pointed out at the convention, indicated that waters of bitterness flow from unequal representation.

And quite honestly in this case what we have is a river of equality that has been demanded by this Court, and the tributaries are the states and local government, but it is Congress that sits at the headwaters.

And unless we require of Congress the same standard that we require of the states, how is it that we can expect the system to be equal?

So if we're going to allow for the method presently there, and whatever happens in this courtroom and ultimately the decision of this Court is going to say something to Congress and to the members of this Union.

And if Montana's position is upheld and the district court judgment is affirmed it will say, I believe, that the same rules apply to Congress, they go from the school house to the court house to the state house to Congress.

And if it is reversed it will say that Congress can play by a different set of rules, that it does in fact, as the Solicitor has recommended, have unfettered discretion in spite of what's demanded of the states.

So I believe painstaking precision in the drawing of congressional district boundaries by the states is going to be hollow indeed if apportionment at the national level is poisoned.

The Court has not tolerated of the states that they simply provide relatively equal amount of equality.

They require that they do that with precision.

Thank you.

Unknown Speaker: Thank you, General Racicot.

General Starr, do you have rebuttal?

You have 11 minutes remaining.

Rebuttal of Kenneth W. Starr

Mr. Starr: Very briefly, Mr. Chief Justice.

Unknown Speaker: Well, you have a lot of time, maybe you could explain the five, the five different mathematical systems to us.

[Laughter]

Mr. Starr: I would like to submit that point on the briefs.

[Laughter]

But with respect to the suggestion that equal proportions rides roughshod over concerns about absolute differences, I refer the Court to Footnote 38 in our brief, which I think goes a long way to suggesting that there is, with all respect to our colleagues from Montana, a certain artificiality about their argument, even accepting, as we urge the Court not to do, their basic proposition that Congress is bound by the Constitution to embrace a particular measure of equality.

But once we move beyond that area where we can achieve absolute equality in crossing state lines, we see in these rivers of inequality that have been referred to that under the Dean method there are very considerable inequalities.

Essentially what Montana wants, and it's quite understandable, is to go to the smallest state.

It doesn't like being the largest single district.

It wants, as it would be under its proposed method, the state that enjoys the smallest by far of the congressional districts.

And when we look to those absolute deviations in population, I shouldn't use the term deviation, but absolute differences, what we see is that it is not at all curious that an equal proportions method designed to achieve goals of equity and fairness results in a state that has been over represented for some time, now being relatively under represented for a period of time.

And that it is curious in the extreme that the Constitution of the United States would require Washington, with a higher fractional remainder than that of Montana, to lose that representative and give it to Montana with its 1.404 in comparison to Washington state's 8.538.

With respect to the articulation of the standard, yes, it's quite true that the Constitution does not speak in words of equality.

This Court has inferred that, but it has inferred it from section 1, using the term the people.

And this Court in its decisions in Yarborough and Classic over the years has viewed that as endowing a personal interest on the part of each of our citizens in participating in the political process.

Clause 3 speaks in terms of the states, a process in which Congress or the states are represented, are given their apportionment.

It is a process that speaks in terms of that which history tells us, that it has been a process entrusted to the political branches, but political branches that have been quite sensitive to the needs for basic fairness and equity.

And it is beyond dispute that the equal proportions method, among others, achieves those goals.

I thank the Court.

Chief Justice Rehnquist: Thank you, General Starr.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 91-860, United States Department of Commerce versus Montana will be announced by Justice Stevens.

Argument of Justice Stevens

Mr. Stevens: This case comes to us on appeal from a three-judge District Court in the District of Montana.

Article I Section 2 of the Constitution requires apportionment of representatives among the several states according to their respective numbers.

A statute enacted by Congress in 1941 provides that seats in the House of Representatives are apportioned among the states by a method known as the method of equal proportions.

In the apportionment following the 1990 Census, Montana's representation in the House of Representatives was reduced form two seats to one.

The state and various officials brought suit alleging that the method of equal proportions resulted in the distribution of representatives that violated the principle of equal representation that this Court has found to be required in the context of intrastate districting decisions, those made by a state legislature affecting the districts within the state.

A majority of the three-judge District Court agreed with Montana and held that the apportionment statute was unconstitutional.

The District Court relied on our cases holding that when a state legislature defines congressional districts, it must make a good faith effort to achieve precise mathematical equality.

As our cases involving variances of only a fraction of 1% demonstrate, that goal is realistic and appropriate for state districting decisions.

In this case, however, whether Montana has one district or two, its variance from the ideal district will exceed 40%.

The constitutional guarantee of a minimum of one representative for each state in execrably compels a significant departure from the ideal.

In Alaska, Vermont, and Wyoming where the statewide districts are less populous than the ideal district, every vote is more valuable than the national average.

Moreover, the need to allocate a fix number of indivisible representatives among 50 states of varying populations makes it virtually impossible to have the same size district in any pair of states, let alone in all 50.

Accordingly, although common sense supports a test requiring a good faith effort to achieve precise mathematical equality within each state, the constraints impose by Article I Section 2, itself, make that goal illusory for the nation as a whole.

In view of the constitutional constraints on the apportionment of representatives, any method will result in substantial differences between the sizes of congressional districts in different states.

A congressional decision to adapt the equal proportions method apparently reflected a good faith effort to establish a fair apportionment of representatives.

We cannot say that the alternative methods proposed by Montana would better fulfill the constitutional principle of equal representation.

Accordingly, the judgment of the District Court is reversed.

Our opinion is unanimous.