Kirkpatrick v. Preisler/Concurrence Fortas

by Abe Fortas

United States Supreme Court

394 U.S. 526

Kirkpatrick  v.  Preisler

 Argued: Jan. 13, 1969. --- Decided: April 7, 1969

Mr. Justice FORTAS, concurring.

I concur in the judgment of the Court in these cases, but I cannot subscribe to the standard of near-perfection which the Court announces as obligatory upon state legislatures facing the difficult problem of reapportionment for congressional elections.

In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), this Court recognized that 'it may not be possible to draw congressional districts with mathematical precision,' and it held that the Constitution requires that they be drawn so that, 'as nearly as is practicable,' each representative should cast a vote on behalf of the same number of people.

The Court now not only interprets 'as nearly as practicable' to mean that the State is required to 'make a good-faith effort to achieve precise mathematical equality,' but it also requires that any remaining population disparities 'no matter how small,' be justified. It then proceeds to reject, seriatim, every type of justification that has been-possibly, every one that could be advanced.

I agree that the state legislatures should be required to make 'a good-faith effort to achieve' a result that allocates the population or the residents ^[1] of the State in roughly equal numbers to each district, based upon some orderly and objective method. ^[2] In my view, the State could properly arrive at figures for current population by taking the latest census returns and making modifications to allow for population movements since the last census (which the Court seems to find acceptable). It could also, in my opinion, discount the census figures to take account of the presence of significant transient or nonresident population in particular areas (an adjustment as to which the Court indicates doubt). If the State should proceed on some appropriate population basis such as I have suggested, producing approximately equal districts, trial courts, in my judgment, would be justified in declining to disapprove the result merely because of small disparities, in the absence of evidence of gerrymandering-the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes.

In considering whether the State has 'approximated' an equal division and allocation of the population, I sympathize with the majority's view that a de minimis rule of allowable disparities tends to demean in theory and in practice the constitutional objective because it suggests that it is not necessary even to aim at equality. On the other hand, to reject de minimis as a statement of the limits on the rule of equality should not lead us to toss aside the wise recognition of the inscrutability of fact and the imperfection of man which is implicit in the Wesberry standard: 'as nearly as practicable.' This phrase does not refer merely to arithmetical possibilities. Arithmetically, it is possible to achieve division of a State into districts of precisely equal size, as measured by the decennial census or any other population base. To carry out this theoretical possibility, however, a legislature might have to ignore the boundaries of common sense, running the congressional district line down the middle of the corridor of an apartment house or even dividing the residents of a single-family house between two districts. The majority opinion does not suggest so extreme a practical application of its teaching, and I mention it only because the example may dramatize the fallacy of inflexible insistence upon mathematical exactness, with no tolerance for reality.

Whatever might be the merits of insistence on absolute equality if it could be attained, the majority's pursuit of precision is a search for a will-o-'-the-wisp. The fact is that any solution to the apportionment and districting problem is at best an approximation because it is based upon figures which are always to some degree obsolete. No purpose is served by an insistence on precision which is unattainable because of the inherent imprecisions in the population data on which districting must be based. The base to which Missouri's legislature should have adhered precisely, according to the majority, is the 1960 decennial census. The legislature's plan here under review was enacted in 1967. Assuming perfect precision for the 1960 census when taken, ^[3] by 1967, because of the movement of population within the State as well as in-and-out migration, substantial disparities had arisen between the real distribution of population in the State and that reflected in the 1960 census base here so zealously protected by the Court. ^[4]

Nothing that I have said should be taken as indicating that I do not believe that the Wesberry standard requires a high degree of correspondence between the demonstrated population or residence figures and the district divisions. Nor would I fix, at least at this relatively early stage of the reapportionment effort, a percentage figure for permissible variation. ^[5]

In the present cases, however, I agree that the judgment of the District Court should be affirmed. The history of this reapportionment and of the legislature's failure to comply with the plain and patient directions of the three-judge District Court and the failure of the legislature to use either accurate 1960 census figures or other systematically obtained figures for all the districts-these factors strongly support the District Court's refusal to accept the Missouri plan. It is true that on the average, there was only a 1.6% variation from what the majority quaintly calls the 'ideal' (meaning the 1960 census figures) and in only three of the 10 districts was there a variation of 2% or more, and it is also true that there is no finding of gerrymandering. But regardless of the possibility that variances within this range might in some situations be considered tolerable within Wesberry's standard, I agree that we should sustain the District Court's rejection of the plan in light of the history of the cases and the record of the plan's preparation.

Notes

1. I would find it constitutionally entirely acceptable for a State to base its apportionment on numbers of residents, rather than total population, in each district at the time the districts are established. This would permit adjustments to take account, for example, of distortions resulting from large numbers of nonresidents at military installations or colleges in an area.
2. In Avery v. Midland County, 390 u.S. 474 495, 88 S.Ct. 1114, 1125, 20 L.Ed.2d 45 (1968), I argued in a dissenting opinion that consideration of disparate local interests might be appropriate with respect to defining certain types of local government units exercising limited governmental powers. I noted there, however, that the same factors could not justify departing from the one man, one vote theory in state legislatures-or, I might now add, congressional districts-because of the general and basic nature of the function performed.
3. The basic enumeration error in the census-that is the variation which would be observed between successive enumerations of the same area-is very low. Second surveys of selected areas, conducted by specially trained enumerators, produced counts varying by only about 1% for the whole population from the counts of the regular enumerators. For particular groups in the population, the variance was significantly larger. See U.S. Bureau of the Census, Evaluation and Research Program of the U.S.C.ensuses of Population and Housing, 1960, 'Accuracy of Data on Population Characteristics as Measured by Re-interviews,' Ser. ER 60, No. 4 (1964), Table 24, p. 22.
4. The Census Bureau has estimated that of Missouri's 114 counties, 50 lost population between 1960 and 1966, while 64 gained. The independent city of St. Louis lost 57,900, or 7.7%; St. Louis County gained 146,000 or 20.8%. Outside St. Louis City and County, the absolute change ranged from a 22,100 increase in St. Charles County to a 7,100 decrease in Dunklin County. The percentage change ranged from a 41.7% increase in St. Charles County to a 21.4% decrease in Holt County. Estimates of the Population of Counties: July 1, 1966 (Report No. 3), Current Population Reports, Population Estimates, Ser. P-25, No. 407 (Bureau of the Census, October 10, 1968) 11-13.
5. Cf. Reynolds v. Sims, 377 U.S. 533, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964):

'For the present, we deem it expedient not to attempt to spell out any precise constitutional tests. What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case. Developing a body of doctrine on a case-by-case basis appears to us to provide the most satisfactory means of arriving at detailed constitutional requirements in the area of state legislative apportionment.'