|Colegrove v. Green
64 F.Supp. 632, affirmed.
[ Frankfurter ]
[ Rutledge ]
[ Black ]
Colegrove v. Green
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS
MR. JUSTICE FRANKFURTER announced the judgment of the Court and an opinion in which MR. JUSTICE REED and MR. JUSTICE BURTON concur.
This case is appropriately here, under § 266 of the Judicial Code. 28 U.S.C. § 380 on direct review of a judgment of the District Court of the Northern District of Illinois, composed of three judges, dismissing the complaint of the appellants. These are three qualified voters in Illinois districts which have much larger populations than other Illinois Congressional districts. They brought this suit against the Governor, the Secretary of State, and the Auditor of the State of Illinois, as members ex officio of the Illinois Primary Certifying Board, to restrain them, in effect, from taking proceedings for an election in November, 1946, under the provisions of Illinois law governing Congressional districts. Illinois Laws of 1901, p. 3. Formally, the appellants asked for a decree, with its incidental relief, § 274(d) Judicial Code, 28 U.S.C. § 400 declaring these provisions to be invalid because they violated various provisions of the United States Constitution and § 3 of the Reapportionment Act of August 8, 1911, 37 Stat. 13 as amended, 2 U.S.C. § 2a in that, by reason of subsequent changes in population, the Congressional districts for the election of Representatives in the Congress created by the Illinois Laws of 1901 (Ill.Rev.Stat.Ch. 46 (1945) § 154-56) lacked compactness of territory [p551] and approximate equality of population. The District Court, feeling bound by this Court's opinion in Wood v. Broom, 287 U.S. 1, dismissed the complaint. 64 F.Supp.632.
The District Court was clearly right in deeming itself bound by Wood v. Broom, supra, and we could also dispose of this case on the authority of Wood v. Broom. The legal merits of this controversy were settled in that case, inasmuch as it held that the Reapportionment Act of June 18, 1929, 46 Stat. 21, as amended, 2 U.S.C. § 2(a), has no requirements "as to the compactness, contiguity and equality in population of districts." 287 U.S. at 8. The Act of 1929 still governs the districting for the election of Representatives. It must be remembered that not only was the legislative history of the matter fully considered in Wood v. Broom, but the question had been elaborately before the Court in Smiley v. Holm, 285 U.S. 355, Koenig v. Flynn, 285 U.S. 375, and Carroll v. Becker, 285 U.S. 380, argued a few months before Wood v. Broom was decided. Nothing has now been adduced to lead us to overrule what this Court found to be the requirements under the Act of 1929, the more so since seven Congressional elections have been held under the Act of 1929 as construed by this Court. No manifestation has been shown by Congress even to question the correctness of that which seemed compelling to this Court in enforcing the will of Congress in Wood v. Broom.
But we also agree with the four Justices (Brandeis, Stone, Roberts, and Cardozo, JJ.) who were of opinion that the bill in Wood v. Broom, supra, should be "dismissed for want of equity." To be sure, the present complaint, unlike the bill in Wood v. Broom, was brought under the Federal Declaratory Judgment Act which, not having been enacted until 1934, was not available at the time of Wood v. Broom. But that Act merely gave the federal courts competence to make a declaration of rights, even though [p552] no decree of enforcement be immediately asked. It merely permitted a freer movement of the federal courts within the recognized confines of the scope of equity. The Declaratory Judgment Act "only provided a new form of procedure for the adjudication of rights in conformity" with "established equitable principles." Great Lakes Co. v. Huffman, 319 U.S. 293, 300. And so the test for determining whether a federal court has authority to make a declaration such as is here asked is whether the controversy "would be justiciable in this Court if presented in a suit for injunction . . ." Nashville, C. & St.L. R. Co. v. Wallace, 288 U.S. 249, 262.
We are of opinion that the appellants ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power which cannot be met by verbal fencing about "jurisdiction." It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature, and therefore not meet for judicial determination.
This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity. Compare Nixon v. Herndon, 273 U.S. 536, and Lane v. Wilson, 307 U.S. 268, with Giles v. Harris, 189 U.S. 475. In effect, this is an appeal to the federal courts to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation. Because the Illinois legislature has failed to revise its Congressional Representative districts in order to reflect great changes, during more than a generation, in the distribution of its population, we are asked to do this, as it were, for Illinois. [p553]
Of course, no court can affirmatively re-map the Illinois districts so as to bring them more in conformity with the standards of fairness for a representative system. At best, we could only declare the existing electoral system invalid. The result would be to leave Illinois undistricted, and to bring into operation, if the Illinois legislature chose not to act, the choice of members for the House of Representatives on a statewide ticket. The last stage may be worse than the first. The upshot of judicial action may defeat the vital political principle which led Congress, more than a hundred years ago, to require districting. This requirement, in the language of Chancellor Kent,
was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each state a due influence in the choice of representatives, so as not to leave the aggregate minority of the people in a state, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils.
1 Kent, Commentaries (12th ed., 1873) *230-231, n.(c). Assuming acquiescence on the part of the authorities of Illinois in the selection of its Representatives by a mode that defies the direction of Congress for selection by districts, the House of Representatives may not acquiesce. In the exercise of its power to judge the qualifications of its own members, the House may reject a delegation of Representatives at large. Article I, § 5, cl. 1. For the detailed system by which Congress supervises the election of its members, see, e.g., 2 U.S.C. § § 201226; Bartlett, Contested Elections in the House of Representatives (2 vols.); Alexander, History and Procedure of the House of Representatives (1916) c. XVI. Nothing is clearer than that this controversy concerns matters that bring courts into immediate and active relations with party contests. From the determination of such issues, this Court has traditionally held aloof. It is hostile to [p554] a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law.
The appellants urge with great zeal that the conditions of which they complain are grave evils, and offend public morality. The Constitution of the United States gives ample power to provide against these evils. But due regard for the Constitution as a viable system precludes judicial correction. Authority for dealing with such problems resides elsewhere. Article I, § 4 of the Constitution provides that
The Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, . . .
The short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House, and left to that House determination whether States have fulfilled their responsibility. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people. Whether Congress faithfully discharges its duty or not, the subject has been committed to the exclusive control of Congress. An aspect of government from which the judiciary, in view of what is involved, has been excluded by the clear intention of the Constitution cannot be entered by the federal courts because Congress may have been in default in exacting from States obedience to its mandate.
The one stark fact that emerges from a study of the history of Congressional apportionment is its embroilment in politics, in the sense of party contests and party interests. The Constitution enjoins upon Congress the duty of apportioning Representatives "among the several States . . . according to their respective Numbers, . . ." [p555] Article I, § 2. Yet Congress has, at times, been heedless of this command, and not apportioned according to the requirements of the Census. It never occurred to anyone that this Court could issue mandamus to compel Congress to perform its mandatory duty to apportion. "What might not be done directly by mandamus could not be attained indirectly by injunction." Chafee, Congressional Reapportionment (1920) 42 Harv.L.Rev. 1015, 1019. Until 1842, there was the greatest diversity among the States in the manner of choosing Representatives, because Congress had made no requirement for districting. 5 Stat. 491. Congress then provided for the election of Representatives by districts. Strangely enough, the power to do so was seriously questioned; it was still doubted by a Committee of Congress as late as 1901. See e.g., Speech of Mr. (afterwards Mr. Justice) Clifford, Cong.Globe, April 28, 1842, 27th Cong., 2d Sess., App. p. 347; 1 Bartlett, Contested Elections in the House of Representatives (1865) 47, 276; H.R.Rep. No. 3000, 56th Cong., 2d Sess. (1901); H.R.Doc. No. 2052, 64th Cong., 2d Sess. (1917) 43; United States v. Gradwell, 243 U.S. 476, 482, 483. In 1850, Congress dropped the requirement. 9 Stat. 428, 432-33. The Reapportionment Act of 1862 required that the districts be of contiguous territory. 12 Stat. 572. In 1872, Congress added the requirement of substantial equality of inhabitants. 1 7 Stat. 28. This was reinforced in 1911. 37 Stat. 13, 14. But the 1929 Act, as we have seen, dropped these requirements. 46 Stat. 21. Throughout our history, whatever may have been the controlling Apportionment Act, the most glaring disparities have prevailed as to the contours and the population of districts. Appendix I summarizes recent disparities in the various Congressional Representative districts throughout the country, and Appendix II gives fair samples of prevailing gerrymanders. For other illustrations of glaring inequalities, see 71 Cong.Rec. [p556] 2278-2279, 2480 et seq.; 86 Cong.Rec. 4369, 4370-71, 76th Cong., 2d Sess. (1940); H.R.Rep. No. 1695, 61st Cong., 2d Sess. (1910); (1920) 24 Law Notes 124; (October 30, 1902) 75 The Nation 343, and see, generally, Schmeckebier, Congressional Apportionment (1941), and, on gerrymandering, see Griffith, The Rise and Development of the Gerrymander (1907).
To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress. The Constitution has many commands that are not enforceable by courts, because they clearly fall outside the conditions and purposes that circumscribe judicial action. Thus, "on Demand of the executive Authority," Art. IV, § 2, of a State, it is the duty of a sister State to deliver up a fugitive from justice. But the fulfillment of this duty cannot be judicially enforced. Kentucky v. Dennison, 24 How. 66. The duty to see to it that the laws are faithfully executed cannot be brought under legal compulsion, Mississippi v. Johnson, 4 Wall. 475. Violation of the great guaranty of a republican form of government in States cannot be challenged in the courts. Pacific Telephone Co. v. Oregon, 223 U.S. 118. The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and, ultimately, on the vigilance of the people in exercising their political rights.
Dismissal of the complaint is affirmed.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
For opinions of RUTLEDGE and BLACK, JJ., see post, pages 564, 566. [p557]
DISPARITIES IN APPORTIONMENT SHOWING DISTRICTS IN
EACH STATE HAVING LARGEST AND SMALLEST POPULATIONS
1946 1928* 1897*
Dist. Population Dist. Population Dist. Population
ALA 9th 459,930 9th 310,054 2d 188,214
6th 251,757 6th 170,188 7th 130,451
ARIZ 2 Representatives 1 Representative Not yet admitted
Elected at large.
ARK 1st 423,152 1st 330,292 1st 220,261
3d 177,476 3d 180,348 4th 147,806
CALIF 3d 409,404 10th 516,283 5th 228,717
21st 194,199 2d 129,357 4th 147,642
COLO 1st 322,412 3d 281,170 2d 207,539
4th 172,847 4th 140,532 1st 204,659
CONN 1st 450,189 1st 336,027 2d 248,582
5th 247,601 5th 224,426 3d 121,792
DEL l Representative I Representative 1 Representative
FLA 1st 439,895 4th 315,292 2d 202,792
6th 186,831 2d 187,474 1st 188,630
GA 5th 487,552 5th 308,364 2d 180,300
9th 235,420 3d 205,343 11th 155,948
IDAHO 2d 300,357 2d 253,542 1 Representative
1st 224,516 1st 178,324
ILL 7th 914,053 7th 560,434 13th 184,027
5th 112,116 5th 158,092 22d 159,186
IND 11th 460,926 7th 348,061 7th 191,472
9th 241,323 4th 179,737 6th 139,359
IOWA 2d 392,052 11th 295,449 11th 203,470
4th 268,900 1st 156,594 1st 153,712
KANSAS 4th 382,546 3d 280,045 7th 278,208
3d 249,574 4th 152,378 1st 167,314
KY 9th 413,690 11th 289,766 4th 192,055
5th 225,426 8th 168,067 7th 141,461
LA 6th 333,295 6th 255,372 3d 214,785
8th 240,166 7th 204,909 2d 152,025
ME 1st 290,335 1st 195,072 4th 183,070
2d 276,695 2d 188,563 1st 153,778
MD 2d 534,568 2d 311,413 2d 208,165
1st 195,427 1st 194,568 5th 153,912
MASS 10th 346,623 8th 259,954 5th 174,866
1st 278,459 15th 217,307 6th 169,418
MICH 17th 419,007 6th 533,748 2d 191,841
12th 200,265 10th 198,679 9th 148,626
MINN 6th 334,781 5th 275,645 2d 188,480
9th 283,845 9th 112,235 6th 184,848
MISS 7th 470,781 3d 349,662 5th 224,618
4th 201,316 8th 177,185 1st 143,315
MO 12th 503,738 10th 521,587 14th 230,478
9th 214,787 8th 138,807 9th 152,442
MONT 2d 323,597 2d 333,476 1 Representative
1st 235,859 1st 215,413
NEB 1st 369,190 6th 288,090 4th 195,434
2d 305,961 1st 173,458 3d 163,674
NEV 1 Representative 1 Representative 1 Representative
NH 2d 247,033 1st 224,842 1st 190,532
1st 244,491 2d 218,241 2d 185,998
NJ 1st 370,220 8th 290,610 7th 256,093
2d 226,169 11th 228,615 8th 125,793
NM 2 Representatives 1 Representative Not yet admitted
Elected at large
NY 25th 365,918 23d 391,620 14th 227,978
45th 235,913 12th 151,605 7th 114,766
NC 4th 358,573 5th 408,139 6th 204,686
1st 239,040 3d 202,760 3d 160,288
ND 2 Representatives 2d 220,700 I Representative
Elected at large 3d 210,203
OHIO 22d 698,650 14th 439,013 2d 205,293
5th 163,561 11th 167,217 12th 158,026
OKLA 1st 416,863 3d 325,680 Not yet admitted
7th 189,547 7th 189,472
ORE 3d 355,099 1st 346,989 2d 158,205
2d 210,991 2d 160,502 1st 155,562
PA 11th 441,518 12th 390,991 4th 309,986
14th 212,979 15th 136,283 3d 129,764
RI 2d 374,463 3d 210,201 1st 180,548
1st 338,883 2d 193,186 2d 164,958
SC 2d 361,933 7th 266,956 4th 200,000
5th 251,137 2d 203,418 5th 141,750
SD 1st 485,829 2d 251,405 1 Representative
2d 157,132 3d 138,031
TENN 2d 388,938 3d 296,396 3d 199,972
5th 225,918 5th 145,403 5th 153,773
TEX 8th 528,961 2d 349,859 6th 210,907
17th 230,010 7th 211,032 1st 102,827
UTAH 2d 293,922 1st 229,907 1 Representative
1st 256,388 2d 219,489
VT 1 Representative 2d 176,596 1st 169,940
1st 175,832 2d 162,482
VA 9th 360,679 2d 312,458 9th 187,467
4th 243,165 7th 167,588 2d 145,536
WASH 1st 412,689 1st 348,474 2 Representatives
4th 244,908 4th 200,258 Elected at large
WV 6th 378,630 6th 279,072 3d 202,289
1st 281,333 4th 214,930 1st 177,840
WIS 5th 391,467 5th 276,503 6th 187,001
10th 263,088 6th 214,206 10th 149,845
WYO 1 Representative 1 Representative 1 Representative
* These years were chosen at random.[p560] [p561] [p562] [p563] [p564]