Byron White

“ As our system has it, one candidate wins, the others lose. Arguably the losing candidates' supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. ”

“ This was the assertion that whatever the individual voting power of Marion County voters in choosing legislators may be, they nevertheless have more effective representation in the Indiana general assembly for two reasons. First, each voter is represented by more legislators and therefore, in theory at least, has more chances to influence critical legislative votes. Second, since multimember delegations are elected at large and represent the voters of the entire district, they tend to vote as a bloc, which is tantamount to the district having one representative with several votes. ”

“ As the trial court saw it, ghetto voters could not be adequately and equally represented unless some of Marion County's general assembly seats were reserved for ghetto residents serving the interests of the ghetto majority. But are poor Negroes of the ghetto any more underrepresented than poor ghetto whites who also voted Democratic and lost, or any more discriminated against than other interest groups or voters in Marion County with allegiance to the Democratic Party, or, conversely, and less represented than Republican areas or voters in years of Republican defeat? ”

“ Conceding that all Marion County voters could fairly be said to be represented by the entire delegation, just as is each voter in a single-member district by the winning candidate, the District Court thought the ghetto voters' claim to the partial allegiance of eight senators and 15 representatives was not equivalent to the undivided allegiance of one senator and two representatives; nor was the ghetto voters' chance of influencing the election of an entire slate as significant as the guarantee of one ghetto senator and two ghetto representatives. ”

“ On the record before us plaintiffs' position comes to this: that although they have equal opportunity to participate in and influence the selection of candidates and legislators, and although the ghetto votes predominantly Democratic and that party slates candidates satisfactory to the ghetto, invidious discrimination nevertheless results when the ghetto, along with all other Democrats, suffers the disaster of losing too many elections. But typical American legislative elections are district-oriented, head-on races between candidates of two or more parties. ”

“ The court identified an area of the city as a ghetto, found it predominantly inhabited by poor Negroes with distinctive substantive-law interests and thought this group unconstitutionally underrepresented because the proportion of legislators with residences in the ghetto elected from 1960 to 1968 was less than the ghetto's proportion of the population, less than the proportion of legislators elected from Washington Township, a less populous district, and less than the ghetto would likely have elected had the county consisted of single-member districts. ”

“ In fashioning relief, the three-judge court appeared to embrace the idea that each member of a bloc-voting delegation has more influence than legislators from a single-member district. But its findings of fact fail to deal with the actual influence of Marion County's delegation in the Indiana Legislature. Nor did plaintiffs' evidence make such a showing. That bloc voting tended to occur is sustained by the record, and defendants' own witness thought it was advantageous for Marion County's delegation to stick together. ”

“ The short of it is that we are unprepared to hold that district-based elections decided by plurality vote are unconstitutional in either single- or multi-member districts simply because the supporters of losing candidates have no legislative seats assigned to them. As presently advised we hold that the District Court misconceived the Equal Protection Clause in applying it to invalidate the Marion County multimember district. ”

“ It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district. ”

“ Party control of nominations, the inability of voters to know the candidate and the responsibility of legislators to their party and the county at large make it difficult for any legislator to diverge from the majority of his delegation and to be an effective representative of minority ghetto interests. ”

“ Only two black candidates were slated and nominated including one in the district that contains only a very small part of the ghetto area where the black candidate overwhelmingly defeated the white candidate in a head-on race notwithstanding a very substantial white voting majority. In a district that was almost entirely ghetto a white candidate won almost all of the vote in a head-on race against a black candidate who campaigned primarily on the basis of skin color. ”

“ The voting strength of this racial group has been minimized by Marion County's multi-member senate and house district because of the strong control exercised by political parties over the selection of candidates, the inability of the Negro voters to assure themselves the opportunity to vote for prospective legislators of their choice and the absence of any particular legislators who were accountable for their legislative record to Negro voters. ”

“ There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many, if not most, multi-member districts to survive analysis under the District Court's view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed at providing representation for minority parties or interests. ”

“ Absent evidence or findings we are not sure, but it seems reasonable to infer that had the Democrats won all of the elections or even most of them, the ghetto would have had no justifiable complaints about representation. The fact is, however, that four of the five elections were won by Republicans, which was not the party of the ghetto and which would not always slate ghetto candidates-although in 1962 it nominated and elected one representative and in 1968 two representatives from that area. ”

“ In asserting discrimination against voters outside Marion County, plaintiffs recognize that Fortson, Burns, and Kilgarlin proceeded on the assumption that the dilution of voting power suffered by a voter who is placed in a district 10 times the population of another is cured by allocating 10 legislators to the larger district instead of the one assigned to the smaller district. ”

“ Although each legislator in Marion County is arguably responsible to all the voters, including those in the ghetto, ' (p) artial responsiveness of all legislators is (not) * * * equal (to) total responsiveness and the informed concern of a few specific legislators.' [7]
5. The apportionment statutes of Indiana as they relate to Marion County operate to minimize and cancel out the voting strength of a minority racial group, namely Negroes residing in the Center Township ghetto, and to deprive them of the equal protection of the laws. ”

“ It is a philosophy which ignores or overcomes the fact that the scheme of the Constitution is not one of majoritarian democracy, but of federal republics, with equality of representation a value subordinate to many others, as both the body of the Constitution and the Fourteenth Amendment itself show on their face. ”

“ If there are less appropriate subjects for federal judicial inquiry, they do not come readily to mind. The suggestion implicit in the Court's opinion that appellees may ultimately prevail if they can make their record in these and other like respects should be recognized for what it is: a manifestation of frustration by a Court that has become trapped in the 'political thicket' and is looking for the way out. ”

“ Carr have never intimated that 'one man, one vote' meant 'one white man, one vote.' Since 'race' may not be gerrymandered, I think the Court emphasizes the irrelevant when it says that the effect on 'the actual voting power' of the blacks should first be known. They may be all Democratic or all Republican ”

“ However, Professor Banzhaf's model also reveals that minor variations in assumptions can lead to major variations in results. For instance, if the temper of the electorate changes by one-half of one percent, [40] each individual's voting power is reduced by a factor of approximately 1,000,000. Or if a few of the 300,000 voters are committed-say 15,000 to candidate A and 10,000 to candidate B [41] -the probability of any individual's casting a tie-breaking vote is reduced by a factor on the rough order of 120,000,000,000,000,000,000. ”

“ Little time need be spent on the District Court's decision to redistrict the entire State. The court found that there were already impermissible population variances between districts under the current apportionment plan. The ratio between the largest and smallest Senate district was 1.327 to 1. For the House it was 1.279 to 1. The court also found that the new Marion County districts would also have impermissible population variances when compared to existing districts. ”

“ If majoritarianism is to be rejected as a rule of decision, as the Court implicitly rejects it today, then an alternative principle must be supplied if this earlier line of cases just referred to is still to be regarded as good law. ”

“ Legislation dealing with uniquely urban problems may be routinely approved when urban delegations are in agreement but encounter insuperable difficulties when the delegations are split internally. See Kovach, Some Lessons of Reapportionment, 37 Reporter 26, 31 (Sept. 21, 1967) .↑ See Appendix to opinion, post, p. 164.↑ It does not appear that the Marion County multi-member district always operated to exclude Negroes or the poor from the legislature. In the five general assemblies from 1960-1968, the county's Center Township ghetto had one senator and four representatives. ”

“ Y Y Y The theory hypothesizes that the true test of voting power is the ability to cast a tie-breaking, or 'critical' note. In the population of three voters as shown above, any voter can cast a critical vote in four situations; in the other four situations, the vote is not critical since it cannot change the outcome of the election. ”

“ Criticism is rooted in their winner-take-all aspects, their tendency to submerge minorities and to overrepresent the winning party as compared with the party's statewide electoral position, a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests. ”

“ The problem of the gerrymander is how to defeat or circumvent the sentiments of the community. The problem of the law is how to prevent it. As Mr. Justice Harlan once said 'A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues.' Wells v. ”

“ Since most citizens find it possible to participate only as qualified voters in electing their representatives, ' (f) ull and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.' Ibid. Hence, apportionment schemes 'which give the same number of representatives to unequal numbers of constituents,' 377 U.S., at 563, 84 S.Ct., at 1382, unconstitutionally dilute the value of the votes in the larger districts. ”

“ Washington Township, the upper middle-class and wealthy suburban area having 14.64% of the population of Marion County, was the residence of 52.27% of the senators and 41.79% of the representatives. Center Township, having 41.14% of the population (approximately three times as large) , was the residence of 9.51% of the senators (less than one-fifth of Washington Township) and 17.91% of the representatives (approximately three-sevenths of Washington Township) .' 305 F.Supp., at 1385. ”

“ In a population of n voters, where each voter has a choice between two alternatives (candidates) , there are 2n possible voting combinations. For example, with a population of three voters, A, B, and C, and two candidates X and Y, there are eight combinations:↑ Tr. 39. Plaintiffs' brief in this Court recognizes the issue: 'The obvious question which the foregoing presentation gives rise to is that of whether the fact that a voter in a large multi-member district has a greater mathematical chance to cast a crucial vote has any practical significance.' Brief of Appellees (Plaintiffs) 14.↑ Cf. ”