LOCATION: Frontiero's Residence
DOCKET NO.: 71-364
DECIDED BY: Burger Court (1972-1975)
CITATION: 410 US 315 (1973)
ARGUED: Dec 12, 1972
DECIDED: Feb 21, 1973
Andrew P. Miller - Argued the cause for the appellants in No. 71-364
Clive L. DuVal, II - Pro se, argued the cause in both cases
Harry Frazier, III - Argued the cause for the appellant in No. 71-373
Henry E. Howell, Jr. - Pro se, argued the cause for appellees Howell et al. in both cases
Facts of the case
In 1971, the Virginia legislature reapportioned itself. The plan for the House of Representatives provided for 100 representatives from 52 districts with each House member representing an average of 46,485 constituents(with a variance between largest and smallest being 16.4 percent, compared to the ideal 3.89 percent). Henry Howell challenged the plan as unconstitutional because its population deviations were too large to satisfy the principle of "one person, one vote." This case was decided together with City of Virginia Beach v. Howell and Weinberg v. Prichard.
Was the Virginia reapportionment plan invalid under the Equal Protection Clause of the Fourteenth Amendment?
Media for Mahan v. Howell
Audio Transcription for Oral Argument - December 12, 1972 in Mahan v. Howell
Warren E. Burger:
We’ll hear arguments first this morning in number 71-364 and 71-373, consolidated cases in Mahan against Howell and Virginia Beach against Howell.
Mr. Attorney General, you may proceed.
Andrew P. Miller:
Mr. Chief Justice and may it please the Court.
As Attorney General of Commonwealth, I am here today representing its State Board of Elections in these cases.
I think it might be helpful if at the outset, I sketch very briefly the factual background involved here due to the complexities of that background.
Under the revised Virginia Constitution, Article II, Section 6, reapportionment, unlike many states was required in 1971.
Under schedule of that Constitution, Section 5, the Virginia General Assembly was required to convene in session on January 6, 1971 for the purpose of reapportionment.
As a result, two acts were adopted and the first, Section 24.1-12.1 establishing 52 districts for the Virginia House of Delegates.
There are hundred members of that body.
This plan consisted of single-member districts, multi-member districts and floater districts.
Also, Section 24.1-14.1 establishing 40 single-member districts for the 40 member Senate of Virginia.
As soon as these acts were approved on March 1, 1971, they were forwarded to the Attorney General of the United States pursuant to the Voting Rights Act of 1965.
There were three suits bought and I’ll touch on them to the extent that they are relevant here.
First, on March 8, by Mr. Duval alleging a failure to provide equal representation and also objecting to multi-member districts as such; By Mr. Perez, who is not here today, alleging a failure to provide equal representation and seeking the creation of a single multi-member district in Fairfax County, rather than the two multi-member districts consisting of five delegates each, which were created by the General Assembly.
That case was filed on March of 22. On the March the 2nd, the Attorney Governor Howell, who is here with us today, also filed a suit, again alleging failure of equal representation but that suit was limited to the Fifth, Sixth, and Seventh Senate Districts.
Those districts are located in Norfolk and a portion of Virginia Beach.
As I said earlier, they are single-member districts and cut across jurisdictional lines.
In addition, the cities of Virginia Beach and Norfolk intervened.
Mr. Frazier is here representing the City of Virginia Beach this morning and the City of Norfolk is not represented by counsel and there were a group of plaintiff interveners, taking the position that multi-member districts were inappropriate because of the fact that they constituted a delusion of the Negro vote.
Mr. Howell, in his case, took the opposing position that in fact, the creation of single-member districts represented in the Norfolk-Virginia Beach area, a delusion of the Negro vote.
And I want to emphasize the contrast that we have here because it shows how peculiarly these considerations are ones which a legislature such as the General Assembly of Virginia has great difficulty in solving.
There are different points of view with respect to multi-member and single-member districts.
Now, the different points of view as to what the effect to the creation of these districts are.
So the General Assembly was faced with exceedingly difficult task.
The Lower court found that variations existed in their plans, which exceeded what the court considered permissible limits on the basis of numbers only.
As to the House of Delegates, the Court proceeded to draw its own plan rather than allowing the General Assembly to proceed once the constitutional guidelines have been established to the Court and the same thing occurred with respect to the Senate.
The Court's House of District Plan, house of delegates plan, fragmented various governmental entities within the Commonwealth, shifted one delegate from the Tidewater area to Northern Virginia, denied, Mr. Duval’s prayer for single-member districts and denied, Mr. Perez’ prayer for a large multi-member district in Fairfax County.
The plan itself resulted in a variation from norm of some 10.27%, this is the Court plan.
As for the Senate, the Fifth, Sixth and Seventh Districts, which I refer to, the Court found that the population of those districts were almost at the norm, but because of a housing sample relating to some 36,000 sailors who were counted by the census in Norfolk because of the fact that the ships they are on are “home-ported” at Norfolk.
This census showing that some 21,000 of these individuals had addresses outside of the Fifth Senatorial District in which the naval base is located, established a multi-membered district consisting of the Fifth, Sixth and Seventh Senatorial Districts.