LOCATION: American Trust & Security Company
DOCKET NO.: 71-1476
DECIDED BY: Burger Court (1972-1975)
CITATION: 412 US 772 (1973)
DECIDED: Jun 18, 1973
ARGUED: Feb 26, 1973 / Feb 27, 1973
Robert G. Dixon, Jr. - for appellant
Robert A. Satter -
Robert Satter - for appellees
Facts of the case
Media for Gaffney v. CummingsAudio Transcription for Oral Argument - February 27, 1973 in Gaffney v. Cummings
Audio Transcription for Oral Argument - February 26, 1973 in Gaffney v. Cummings
Warren E. Burger:
-- arguments next in 71-1476, Gaffney against Cummings.
Mr. Dixon you may proceed.
Robert G. Dixon, Jr.:
Mr. Chief Justice, may it please the Court.
This case is here on direct appeal from a three-judge District Court in Connecticut which invalidated the official state legislative enforcement plan.
We appear here in defense of that official state plan.
The plan was devised by a bipartisan board of three members including a tie-breaker under the state constitution which constitution thereby tries to incorporate an anti-gerrymandering spirit in the very reprocess of the apportionment activity.
The plan of the board was subjected to litigation promptly in both state and federal court.
The federal court denied a plea of extension and on April 4, 1972, he did invalidate that plan.
An appeal was promptly taken and also a submission of a motion for a stay order, the motion was referred by Mr. Justice Marshall to the Court and on June 12, 1972, this Court stayed the adverse District Court judgment.
That had two effects. One was to bar implementation of a Master’s plan which had been under preparation, under now stayed judgment and more importantly perhaps and also on the way for conducting the 1972 election of state legislators in Connecticut under the official state plan, that was done.
Along the way, there was a supplementary mandamus action in state court to clarify one or two clerical errors.
The claim was reviewed by the state court and the State Supreme Court found that no constitutional impediment under the state constitution to use of the state plan.
The large question therefore here is whether Connecticut can continue the use of this official state reinforcement plan, gerrymander of the 1970 decade.
In a more precise fashion, the federal issues are three, population equality, justification of deviations as such be needed and the plaintiff-appellees’ allegations of gerrymandering.
Turning first to the population issue, we assert, and most strongly assert that trivial deviations of the sort in Connecticut and I’ll mention those in a second, trivial deviations present no prima facie case.
Therefore, the plan would remain presumptively constitutional unless plaintiff-appellees could introduce proof of a non-population nature of discrimination.
We think that a concept of a presumptive constitutionality concept keyed to a lack of a prima facie case, if there are trivial deviations is implicit in Swann against Adams, and was not settled in Swann against Adams and is implicit in the dissented opinions in Kirkpatrick against Preisler.
What are these Connecticut deviations which we find so trivial?
In percentage terms, the most deviant district from ideal in the Connecticut Senate deviates by only 0.9%.
For the Lower House, most deviant district from ideal deviates by only 3.9%.
Over these percentage terms, must be put in a context of the size of the district being created to become meaningful and likewise the available census data we look to the census data.
We find that the most deviant district in either house in Connecticut deviates from ideal by fewer than 800 census-persons, for the Lower House, 789, for the Senate 787.
You might well ask if the population deviation in real census terms is identical virtually why a percentage -- or the percentages is so different, the answer is in the size of the districts.
Connecticut has 36 State Senate seats, average population, 84,000 roughly, 800 population deviants, census body is deviant on that base because there’s only 0.9% deviation.
Connecticut has 151 assembly districts, average population about 20,000 on that base the same trivial 800 person deviation, gives you only a -- since they raise the percent deviation to a 3.9%.
In terms of the census data which was the building unit for the apportionment board of the 2,700 census units available to the board, 88% in exceed 400 in census population and yet the average deviation in Connecticut in either House is under 400.
By contrast, Howell against Mahan -- Mahan against Howell last week, excuse me, the most deviant district from ideal was I believe was about 4,400.
The figures of the Connecticut type, we suggest are really on target in the Reynolds against Sims sense of substantial equality or of not -- or in showing that the vote of each voter in a state, be approximate or equal to that of any other on target and therefore constitute no dilution of voting power.
Hence we suggest that this case could fit the general principle of treating trivial deviations of this sort as constituting no prima facie case of dilution of voting power as being presumptively constitutional.
More precisely and we’ve suggest this for Connecticut and not for the nation necessarily about a rule if we divide as follows for Connecticut making more precise this presumptive constitutionality concept.