Karcher v. Daggett

462 U.S. 725

Case Year: 1983

Case Ruling: 5-4, Affirmed

Opinion Justice: Brennan

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Marshall, O'Connor, Stevens


1st Concurring Opinion

Author: Stevens


1st Dissenting Opinion

Author: Powell


2nd Concurring Opinion



2nd Dissenting Opinion

Author: White


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


After completion of the 1980 census, the clerk for the U.S. House of Representatives informed the governor of New Jersey that the number of representatives to which the state was entitled had decreased from fifteen to fourteen. Not only would the New Jersey legislature have to redesign its congressional districts to take population mobility into account, but it also would have to eliminate one. In 1981 the legislature passed two congressional reapportionment bills. The governor vetoed the first. The second was signed into law, but became the target of considerable criticism, because it diluted minority voting-strength in Newark. Consequently, in January 1982 the legislature passed the Feldman Plan, a revised reapportionment act named for the president pro tem of the state senate who wrote the bill. Under this plan, the average congressional district contained 526,059 people. The mean variation from this average was 0.1384 percent, or 726 people. The difference between the largest and smallest of the fourteen districts was 3,674 people, or a disparity of 0.6984 percent. Before passing the Feldman Plan, the legislature considered other plans, one of which would have allowed a maximum population difference of only 2,375 people, or 0.4514 percent of the average district.

Shortly after the Feldman Plan became law, a group of individuals, including all incumbent Republican members of Congress from New Jersey, joined in a suit against Speaker Alan Karcher and other state officials. Their goal was to have the reapportionment law declared unconstitutional. The district court ruled in their favor, finding that the legislature had failed to engage in a good faith effort to achieve absolute population equality. The state appealed.



... Article I, section 2, ... "permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown."... [ Reynolds v. Sims, 1964.]

Thus two basic questions shape litigation over population deviations in state legislation apportioning congressional districts. First, the court must consider whether the population differences among districts could have been reduced or eliminated altogether by a good-faith effort to draw districts of equal population. Parties challenging apportionment legislation must bear the burden of proof on this issue, and if they fail to show that the differences could have been avoided the apportionment scheme must be upheld. If, however, the plaintiffs can establish that the population differences were not the result of a good-faith effort to achieve equality, the State must bear the burden of proving that each significant variance between districts was necessary to achieve some legitimate goal....

Appellants' principal argument in this case is addressed to the first question described above. They contend that the Feldman Plan should be regarded per se as the product of a good-faith effort to achieve population equality because the maximum population deviation among districts is smaller than the predictable undercount in available census data.

Kirkpatrick [ v. Preisler, 1969] squarely rejected a nearly identical argument.... Adopting any standard other than population equality, using the best census data available, ... would subtly erode the Constitution's ideal of equal representation. If state legislators knew that a certain de minimis level of population differences was acceptable, they would doubtless strive to achieve that level rather than equality.... In this case, appellants argue that a maximum deviation of approximately 0.7% should be considered de minimis. If we accept that argument, how are we to regard deviations of 0.8%, 0.95%, 1%, or 1.1%? Any standard, including absolute equality, involves a certain artificiality. As appellants point out, even the census data are not perfect, and the well-known restlessness of the American people means that population counts for particular localities are outdated long before they are completed. Yet problems with the data at hand apply equally to any population-based standard we could choose. As between two standards--equality or something less than equality--only the former reflects the aspirations of Art. I, section 2....

The sole difference between appellants' theory and the argument we rejected in Kirkpatrick is that appellants have proposed a de minimis line that gives the illusion of rationality and predictability: the "inevitable statistical imprecision of the census." They argue: "Where, as here, the deviation from ideal district size is less than the known imprecision of the census figures, that variation is the functional equivalent of zero."... There are two problems with this approach. First, appellants concentrate on the extent to which the census systematically undercounts actual population--a figure which is not known precisely and which, even if it were known, would not be relevant to this case. Second, the mere existence of statistical imprecision does not make small deviations among districts the functional equivalent of equality....

The District Court found that several other plans introduced in the 200th Legislature had smaller maximum deviations than the Feldman Plan.... Appellants object that the alternative plans considered by the District Court were not comparable to the Feldman Plan because their political characters differed profoundly.... We have never denied that apportionment is a political process, or that state legislatures could pursue legitimate secondary objectives as long as those objectives were consistent with a good-faith effort to achieve population equality at the same time. Nevertheless, the claim that political considerations require population differences among congressional districts belongs more properly to the second level of judicial inquiry in these cases, ... in which the State bears the burden of justifying the differences with particularity....

By itself, the foregoing discussion does not establish that the Feldman Plan is unconstitutional. Rather, appellees' success in proving that the Feldman Plan was not the product of a good-faith effort to achieve population equality means only that the burden shifted to the State to prove that the population deviations in its plan were necessary to achieve some legitimate state objective.... [W]e are willing to defer to state legislative policies, so long as they are consistent with constitutional norms, even if they require small differences in the population of congressional districts.... Any number of consistently applied legislative policies might justify some variance, including, for instance, making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives. As long as the criteria are nondiscriminatory, ... these are all legitimate objectives that on a proper showing could justify minor population deviations.... The State must, however, show with some specificity that a particular objective required the specific deviations in its plan, rather than simply relying on general assertions. The showing required to justify population deviations is flexible, depending on the size of the deviations, the importance of the State's interests, the consistency with which the plan as a whole reflects those interests, and the availability of alternatives that might substantially vindicate those interests yet approximate population equality more closely. By necessity whether deviations are justified requires case-by-case attention to these factors....

The District Court properly applied the two-part test of Kirkpatrick v. Preisler to New Jersey's 1982 apportionment of districts for the United States House of Representatives. It correctly held that the population deviations in the plan were not functionally equal as a matter of law, and it found that the plan was not a good-faith effort to achieve population equality using the best available census data. It also correctly rejected appellants' attempt to justify the population deviations as not supported by the evidence. The judgment of the District Court, therefore, is



As an alternative ground for affirmance, the appellees contended at oral argument that the bizarre configuration of New Jersey's congressional districts is sufficient to demonstrate that the plan was not adopted in "good faith." This argument, as I understand it, is a claim that the district boundaries are unconstitutional because they are the product of political gerrymandering.... As I have previously pointed out, political gerrymandering is one species of "vote dilution" that is proscribed by the Equal Protection Clause....

Like JUSTICE WHITE, I am convinced that judicial preoccupation with the goal of perfect population equality is an inadequate method of judging the constitutionality of an apportionment plan. I would not hold that an obvious gerrymander is wholly immune from attack simply because it comes closer to perfect population equality than every competing plan. On the other hand, I do not find any virtue in the proposal to relax the standard set forth in Wesberry and subsequent cases, and to ignore population disparities after some arbitrarily defined threshold has been crossed. As one commentator has written: "Logic, as well as experience, tells us ... that there can be no total sanctuaries in the political thicket, else unfairness will simply shift from one form to another." Rather, we should supplement the population equality standard with additional criteria that are no less "judicially manageable." In evaluating equal protection challenges to districting plans, just as in resolving such attacks on other forms of discriminatory action, I would consider whether the plan has a significant adverse impact on an identifiable political group, whether the plan has objective indicia of irregularity, and then, whether the State is able to produce convincing evidence that the plan nevertheless serves neutral, legitimate interests of the community as a whole....


... I respectfully dissent from the Court's unreasonable insistence on an unattainable perfection in the equalizing of congressional districts....

... One must suspend credulity to believe that the Court's draconian response to a trifling 0.6984% maximum deviation promotes "fair and effective representation" for the people of New Jersey....

There can be little question but that the variances in the New Jersey plan are "statistically insignificant." Although the Government strives to make the decennial census as accurate as humanly possible, the Census Bureau has never intimated that the results are a perfect count of the American population. The Bureau itself estimates the inexactitude in the taking of the 1970 census at 2.3%, a figure which is considerably larger than the 0.6984% maximum variance in the New Jersey plan....

If today's decision simply produced an unjustified standard with little practical import, it would be bad enough. Unfortunately, I fear that the Court's insistence that "there are no de minimis population variations, which could practicably be avoided, but which nonetheless meet the standard of Art. I, section 2, without justification," ... invites further litigation of virtually every congressional redistricting plan in the Nation. At least 12 States which have completed redistricting on the basis of the 1980 census have adopted plans with a higher deviation than that presented here, and 4 others have deviations quite similar to New Jersey's. Of course, under the Court's rationale, even Rhode Island's plan--whose two districts have a deviation of 0.02% or about 95 people--would be subject to constitutional attack....

The only way a legislature or bipartisan commission can hope to avoid litigation will be to dismiss all other legitimate concerns and opt automatically for the districting plan with the smallest deviation. Yet no one can seriously contend that such an inflexible insistence upon mathematical exactness will serve to promote "fair and effective representation." The more likely result of today's extension of Kirkpatrick is to move closer to fulfilling Justice Fortas' prophecy that "a legislature might have to ignore the boundaries of common sense, running the congressional district line down the middle of the corridor of an apartment house or even dividing the residents of a single-family house between two districts." Such sterile and mechanistic application only brings the principle of "one man, one vote" into disrepute....

... Although I am not wedded to a precise figure, in light of the current range of population deviations, a 5% cutoff appears reasonable. I would not entertain judicial challenges, absent extraordinary circumstances, where the maximum deviation is less than 5%. Somewhat greater deviations, if rationally related to an important state interest, may also be permissible. Certainly, the maintaining of compact, contiguous districts, the respecting of political subdivisions, and efforts to assure political fairness constitute such interests.

I would not hold up New Jersey's plan as a model reflection of such interests. Nevertheless, the deviation involved here is de minimis, and, regardless of what other infirmities the plan may have, constitutional or otherwise, there is no violation of Art. I, section 2--the sole issue before us. It would, of course, be a different matter if appellees could demonstrate that New Jersey's plan invidiously discriminated against a racial or political group....


I join JUSTICE WHITE's excellent dissenting opinion, and reaffirm my previously expressed doubt that "the Constitution--a vital and living charter after nearly two centuries because of the wise flexibility of its key provisions--could be read to require a rule of mathematical exactitude in legislative reapportionment." White v. Weiser (1973) (concurring opinion)....