407 U.S. 902
92 S.Ct. 2441
32 L.Ed.2d 679
J. Brian GAFFNEY, appellant,
Theodore R. CUMMINGS et al.
No. 71-1476 (A-1248).
Supreme Court of the United States
June 12, 1972
Application for stay.
The application for stay of judgment of the United States
District Court for the District of Connecticut presented to Mr.
Justice MARSHALL and by him referred to the Court is granted.
djQ Mr. Justice DOUGLAS, dissenting.
Appellant seeks to stay the judgment of a three-judge Federal
District Court which held unconstitutional Connecticut's plan for
apportioning its state legislature. 341 F.Supp. 139. The plan was
adopted in September 1971, and was only in the preliminary stages
of implementation when it was struck down as violative of the
Equal Protection Clause on March 30, 1972. An appeal from that
decision has been docketed in this Court. Gaffney v. Cummings, No.
Mr. Justice STEWART would deny the application.
We denied a motion for expedited consideration of that appeal
on May 22, 1972. 406 U.S. 942, 92 S.Ct. 2047, 32 L.Ed.2d 330.
Appellant promptly moved the lower court for a stay of its
March 30th decision, and when that stay was denied on May 26,
1972, appellant came here.
Earlier this Term, in another reapportionment case, Mr.
Justice Powell articulated the considerations involved in our
review of applications for a stay of lower court judgments:
'A lower court judgment, entered by a tribunal that was
closer to the facts . . ., is entitled to a presumption of
validity. Any party seeking a stay of that judgment bears the
burden of showing that the decision below was erroneous and
that the implementation of the judgment pending appeal will
lead to irreparable harm.' Graves v. Barnes, 405 U.S. 1201,
1203, 92 S.Ct. 752, 30 L.Ed.2d 769.
'Irreparable injury,' of course, inheres in any challenge to
legislative apportionment. If the court below erred, the Fall
election will be held under an improper order, one which will
doubtless affect the composition of the next state legislature.
But this type of 'irreparable injury' affects both sides equally,
for if the court below was correct, staying its order will cause
irreparable harm of precisely the same dimension.
There is 'irreparable injury' in a different sense if the
court's order striking down a state apportionment is handed down
so near the upcoming election that it is administratively
impractical to implement an orderly election. Here, there is no
serious claim that irreparable injury, in this sense, would result
if a stay is not granted. The court below found as fact that there
is ample time before the Fall election to implement the plan
submitted by the Special Master on May 26, 1972, or any proposed
substitute which the State or appellant might submit within a
reasonable time.1 In-
deed, appellant concedes that the question of which plan can be
most easily implemented is a 'non-issue.'2
Thus, the issue determinative of the stay application is the
probable correctness of the decision below, and, in my view,
appellant has not met his burden 'of showing that the decision
below was erroneous.'
In Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12
L.Ed.2d 506, we said 'the Equal Protection Clause requires that a
State make an honest and good faith effort to construct districts,
in both houses of its legislature, as nearly of equal population
as is practicable.' Moreover, a State may not be heard to argue
that a population variance is justified because it is de minimus.
'[T]he 'as nearly as practicable' standard requires that the State
make a good faith effort to achieve precise mathematical equality.
. . . Unless population variances among . . . districts are shown
to have resulted despite such effort, the State must justify each
variance, no matter how small.' Kirkpatrick v. Preisler, 394 U.S.
526, 530-531, 89 S.Ct. 1225, 22 L.Ed.2d 519.3
A comparison of the population variances in this case with
those disapproved in Kirkpatrick, supra, is striking. In
Kirkpatrick, the average variation from the ideal district was
only 1.6%. Here, assembly districts in the State Plan exhibited an
average variation of 1.9%. In Kirkpatrick, the ratio of the
largest to the smallest district was only 1.06 to 1. Here, the
ratio of the largest to the smallest assembly district is 1.082
to 1. In Kirkpatrick, 70% of the districts were within plus or
minus 1.88% of the ideal population figure. Here, only 51.65% of
the assembly districts are within 2.0% of the ideal. In
Kirkpatrick, the total variance4 was 5.97%. Here, the total
variance of the assembly redistricting is 7.83%.
It is true, of course that 'the extent to which equality may
practicably be achieved may differ from State to State. . . .,'
Kirkpatrick, supra, at 530, 84 S.Ct. 1362. Thus a State may be
able to justify certain variations. Here, however, only two
justifications are offered, and neither appear to have particular
It is primarily argued that the variations are justified by a
legitimate state interest in achieving 'a partisan balancing of
strength in each house.' The District Court explained the concept
'The partisan balancing of strength in each house, termed by
interveningdefendant [appellant in this Court] a 'fair
political balance' and by plaintiffs [appellees herein]
'political gerrymandering' was obtained by so adjusting the
census areas utilized as building blocks into the structuring
of Senate and House districts that, on the basis of the vote
for all the Senate candidates of each party in the elections
of 1966, 1968 and 1970, whichever party carried the state
should carry a majority of Senate seats proportional to the
statewide party majority, and likewise in the House, based on
the party vote for all the House candidates of each party in
the same three elections.
'In one or more House and one or more Senate districts some
accommodation was also made in
the interest of retaining in office a particular incumbent.'
341 F.Supp. 139.
This Court has never decided whether political gerrymandering
or 'fair political balance' is per se unconstitutional,
irrespective of population variances. See, e. g., Wells v.
Rockefeller, 394 U.S. 542, 544, 89 S.Ct. 1234, 22 L.Ed.2d 535. But
we have said, in no uncertain terms, that gerrymandering is not a
justification where population variances do result. In
Kirkpatrick, for example, we even rejected the State's attempt
to justify the population variances there present on the ground
that the variations were necessary to avoid gerrymandering.
'[A]n argument that deviations from equality are justified in
order to inhibit legislators from engaging in partisan
gerrymandering is no more than a variant of the argument,
already rejected, that considerations of practical politics
can justify population disparities.' 394 U.S., at 534, 89
Thus, whether or not Connecticut may gerrymander its
legislature if population equality is preserved, it may not do so
when population disparities result.
An additional consideration urged to justify the
discrepancies is the State's interest in preserving town lines.
But any weight factor this would ordinarily have is rendered
insignificant by the fact that the State's own plan cuts across 47
towns to create assembly districts, and 23 towns to create senate
districts. See Whitcomb v. Chavis, 403 U.S. 124, 162 n. 42, 91
S.Ct. 1858, 29 L.Ed.2d 363.
Appellant has one final argument. Attempting to litigate the
merits of the Special Master's plan, he argues that implementation
of that plan would exceed the equity power of the federal court
under our recent decision in Sixty-Seventh Minnesota State Senate
v. Beens, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.2d 1. But the
merits of the Special Master's plan are not before this Court.
denying the stay below, the District Court obligated itself to
'set down for hearing with all reasonable dispatch the plan
submitted by the Special Master and any other plans submitted.'
Whatever appellant's objections to the Master's plan might be, he
should first air them in the District Court which stands ready to
Additionally, even were the Special Master's plan at issue,
appellant's objections would not be well taken. This is not a case
in which the size of a state house is 'slashed' in half, as in
Minnesota State Senate, supra. Here, the District Court merely
reduced the size of Connecticut's house from 151 members to 144,
in order that the number of house district be an even multiple of
the 36 senate districts.5 A house of such size is expressly
contemplated by the Connecticut Constitution.6 The District
Court's action is simply a 'minor variation,' allowing senate and
house districts to be drawn with congruent boundaries, that is
well within the remedial powers of an equity court.7
I dissent from the Court's order granting this stay.
The legislature has recently acted to remove whatever
procedural roadblocks there might be to implementation of the
Master's plan or any other which the court below might adopt.
Public Act 220, May 16, 1972. The District Court indicated that
the legislature will shortly submit a plan of its own for the
court's consideration. 341 F.Supp. 139.
Appellant's Reply Memorandum, at 3. See also appellant's
Motion for Stay of Judgment, at 8.3 It is irrelevant to this comparison that Kirkpatrick
involved congressional rather than state legislative
redistricting. In either case, the burden is on the State to
demonstrate a valid justification for any population variance, no
matter how small.
The 'total variance' in an apportionment plan is derived
by adding together the percentage variation from the ideal of the
two districts which are respectively the most over- and
Minor variations for this purpose were approved in the
Minnesota State Senate case. 406 U.S., at 187, 92 S.Ct. 1477, and
cases cited in n. 10.6 Art. III, § 4, of the Connecticut Constitution provides
that 'The house of representatives shall consist of not less than
one hundred twenty-five and not more than two hundred twenty-five
members. . . .'7.Appellant also objects to the extent to which the Master's
plan dishonors town boundaries. It is undisputed, however, that
town boundaries cannot be preserved intact in all cases under any
constitutional plan. The Master's plan, drawn with the
preservation of as many town lines as possible as an express
consideration (though a subordinate one to the goal of population
equality), cuts across only 60 towns in creating assembly
districts, and 30 towns in creating senate districts. These
figures compare favorably with those in the State's plan, ante, at