LOCATION: Cumberland Hospital
DOCKET NO.: 69
DECIDED BY: Warren Court (1962-1965)
CITATION: 377 US 678 (1964)
ARGUED: Nov 14, 1963 / Nov 18, 1963
DECIDED: Jun 15, 1964
Facts of the case
Acting on behalf of residents, taxpayers, and qualified voters in Arlington and Fairfax County, Virginia, Harrison Mann challenged Virginia's 1962 amended statutory apportionment scheme as unrepresentative. Harrison called for a redistribution of legislative representation among the counties and independent cities of the state "substantially in proportion to their respective populations." When Levin Davis appealed an adverse three-judge district court ruling on behalf of Virginia's Secretary and State Board of Elections, the Supreme Court granted certiorari.
Did Virginia's apportionment scheme violate the Fourteenth Amendment's Equal Protection Clause?
Media for Davis v. MannAudio Transcription for Oral Argument - November 14, 1963 in Davis v. Mann
Audio Transcription for Oral Argument - November 18, 1963 in Davis v. Mann
Davis, Secretary, State Board of Elections et al., versus. Harrison Mann.
Mr. McIlwaine, you may continue your argument.
Robert D. McIlwaine, III:
Thank you Mr. Chief Justice, may it please the Court.
Under the principles formulated in the brief and advocated at the bar of this Court, the Solicitor General undertakes to condemn the Virginia reapportionment system as violative of the second postulate he lays down in that the Virginia system allegedly departs from the per capita standard without rhyme or reason.
Counsel for the Commonwealth deny that the Virginia system may be criticized upon this ground but we believe it is clear from the evidence in this case that the relatively minor departures which exist in the Virginia system are occasioned by a legislative attempt to assure a proper diffusion of political initiative as between thinly populated areas of the state and those having concentrated masses in conformity with the law laid down by this Court in MacDougall and recently reapproved in -- reaffirmed in Baker against Carr.
As we attempted to point out last Thursday, the MacDougall principles were stated by this Court in Baker to constitute several princ -- precedents and to constitute below of the case.
As we understand it, advancement of this reason effectively removes us from the -- without rhyme or reason category of the Solicitor General but presumably impales us upon the opposite form of the dilemma erected by his third postulate that is that the reason advanced does not constitute a permissible purpose of state legislative apportionment.
As we understand it, the Solicitor General likened operation of these two principles to the opposing action of a pair of shears, either we do not have a reason or if we do have a reason, it is a legally impermissible one.
In response to this, we assert that the assurance of a proper diffusion of political initiative between thinly populated areas and those having concentrated masses is as a matter of law, a permissible purpose of state apportionment, one expressly sanctioned by this Court in MacDougall.
Such differ -- since which occur as a result of the diffusion effectively causes the minority or thinly populated areas of the state to be represented in the counsels of Government to prevent such areas from being completely overridden by the sheer weight of numbers while still living to the areas having concentrated masses, the practical opportunity for asserting their weight at the polls which is not available to the thinly populated areas.
Two aspects of the presentation of the case at bar stand out in connection with this reason.
The first is, we believe that in none of his briefs which he has filed in the various reapportionment cases now under consideration, has the Solicitor General attempted to meet the argument predicated upon MacDougall.
In his brief in the New York case, he brushes the MacDougall principle aside as a generality.
In his compendious brief in the Maryland case, he asserts that MacDougall, despite its citation by various members of this Court in Baker has no application to state reapportionment cases.
And in his brief filed in the case at bar, the Solicitor General does not make any reference to the MacDougall case or even cite it in his brief.
And this absence of any reference or citation is highlighted we believe by the fact that in our brief, we advanced the MacDougall principle as being foremost among the principles which are applicable to cases of this character.
The second aspect we believe is that in reliance upon -- in defense of his position, the Solicitor General relies upon the dissenting opinion of Mr. Justice Black and Mr. Justice Douglas in the MacDougall case.
We therefore think it is unarguably clear that acceptance of the views of the Solicitor General necessarily entails a flat rejection of the MacDougall principle and overruling of the holding of that case and the elevation of the minority view to the position of the majority view.
The Solicitor General's arguments, we feel cannot be countenance under the existing law as to what may be deemed a proper diffusion of political power between thinly populated and heavily populated areas, counsel for the Commonwealth lack the ability to state dispositively where the outer limits of propriety lie in this field or to articulate the criteria by which these outer limits shall be ascertained.
Fortunately, we feel that in the case at bar is it -- it is not necessary for us to do so.
We take this position only that where a state has so structured its legislature as to achieve a balance, an almost perfect balance between the representation of thinly populated and heavily populated areas, has achieved this balance without giving rise to any population-variance ratio which exceeds that of the Electoral College of the United States and has achieved this balance in a method which causes its state to rank eighth in fairness of representation based solely on population in the United States that such a reapportionment as this clearly constitutes a proper diffusion as to what more or what less may also constitute a proper diffusion, we need not say.
We do point out however that the reapportionment systems of at least nine states which could not possibly pass most under the rigorous standard that I had just laid down have already been approved in Federal District Courts and in the Supreme Courts of the various states, the States of Florida, Georgia, Idaho, Illinois, Louisiana, Maryland, New Jersey, New York, and Ohio.
In these states, the population-variance ratios range from 8-to-1 to 62-to-1 and all of these states are beneath Virginia on the index of representativeness or fairness of representation computed solely on the basis of per capita principles.
We therefore submit that if the Virginia reapportionment system is annulled, it necessarily follows that the reapportionment systems of these nine states which rank less fair than Virginia must also be annulled as well are the -- as well as the reapportionment systems of the other 33 states which also have reapportionment systems which are not as fair on a per capita basis as Virginia's.
We also state that if the Virginia apportionment system is annulled and those are the other nine states is approved, is it not incontestably true that the decisions of the federal courts in these cases will themselves become a topsy-turvical of gigantic proportions and will not these opinions form a pattern or a crazy quilt without rational basis laid down by the judiciary rather than by the legislature.
We have one other suggestion in connection with our observations and that is that if the principles advocated by the Solicitor General are so fundamental and pervasive as he suggested they are, is it not more than passing strange that Judges Waterman, Levet and Ryan of New York, Judge Weick, Weinmann and Peck of Ohio, Judges Wisdom, West and Ellis of Louisiana, Judge Schnackenberg and Campbell of Illinois, the entire Supreme Court of the State of Idaho and Judges Jones, McCree and Dyer of Florida did not only fail to apply these principles but did not even recognize their existence.
With respect to the two technical points, we would like to stress that if the military related population may effectively be removed or excluded in determining the inhabitants of a particular area for the purposes of representation then even under the figures advocated by the Solicitor General, all foundation for any claim by the City of Norfolk that it has been discriminated against by the challenged statutes disappears.
For under those figure, Norfolk is only slightly underrepresented in the Senate and is indeed actually overrepresented in the House of Delegates of Virginia.
We should like to call the Court's attention to what we believe to be fundamental deficiencies in the majority opinion, in that at no point in the majority opinion of the court below, is any reference made to any evidence whatever put in by the defendants in defense of the Virginia reapportionment system.
Your Honors have seen the record in this case, the latter half of which -- is in -- involves the 11 exhibits which we introduced in support of the Virginia reapportionment system.