John Marshall Harlan II

“ It is said that one cannot find any rational standard in what the Tennessee Legislature has failed to do over the past 60 years. But surely one need not search far to find rationality in the Legislature's continued refusal to recognize the growth of the urban population that has accompanied the development of industry over the past half decade. The existence of slight disparities between rural areas does not overcome the fact that the foremost apparent legislative motivation has been to preserve the electoral strength of the rural interests notwithstanding shifts in population. ”

“ IV Apart from such policies as those suggested which would suffice to justify particular inequalities, there is a further consideration which could rationally have led the Tennessee Legislature, in the exercise of a deliberate choice, to maintain the status quo. Rigidity of an apportionment pattern may be as much a legislative policy decision as is a provision for periodic reapportionment. In the interest of stability, a State may write into its fundamental law a permanent distribution of legislators among its various election districts, thus forever ignoring shifts in population. ”

“ Indeed, I would hardly think it unconstitutional if a state legislature's expressed reason for establishing or maintaining an electoral imbalance between its rural and urban population were to protect the State's agricultural interests from the sheer weight of numbers of those residing in its cities. A State may, after all, take account of the interests of its rural population in the distribution of tax burdens, e.g., American Sugar Rfg. ”

“ Hood, 327 U.S. 678, 682-683, for failure of the complaint to state a claim upon which relief could be granted, the judgment of the District Court was correct.
In conclusion, it is appropriate to say that one need not agree, as a citizen, with what Tennessee has done or failed to do in order to deprecate, as a judge, what the majority is doing today. Those observers of the Court who see it primarily as the last refuge for the correction of all inequality or injustice, no matter what its nature or source, will no doubt applaud this decision and its break [p340] with the past. ”

“ I would think it all the more compelling for us to follow this principle of self-restraint when what is involved is the freedom of a State to deal with so intimate a concern as the structure of its own legislative branch. ”

“ The relevant provisions of the Tennessee Constitution are Art. II, §§ 5 and 6:
Sec. 5. Apportionment of representatives. — The number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each, and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided, that any county having two-thirds of the ratio shall be entitled to one member. Sec. 6. Apportionment of senator. ”

“ And I understand it to be conceded by at least some of the majority that this policy is not [p349] rendered unconstitutional merely because it favors rural voters.
Once the electoral apportionment process is recognized for what it is — the product of legislative give-and-take and of compromise among policies that often conflict — the relevant constitutional principles at once put these appellants out of the federal courts. ”

“ It is further alleged that, even as of 1901, the apportionment was invalid in that it did not allocate state legislators among the counties in accordance with the formula set out in Art. II, § 5, of the Tennessee Constitution. In support of this, the appellants have furnished a Table which indicates that, as of 1901, six counties were overrepresented and 11 were underrepresented. But that Table, in fact, shows nothing in the way of significant discrepancy; in the instance of each county, it is only one representative who is either lacking or added. ”

“ The pattern suggested by the appellants in Exhibits "A" and "B" attached to their complaint is said to be a "fair distribution" which accords with the Tennessee Constitution, and under which each of the election districts represents approximately equal voting population. But even when tested by the "adjusted" formula, the plan reveals gross "total representation" disparities that would make it appear to be a "crazy quilt." ”

“ Similarly, Rhea County's almost 9,000 voters would find their voting strength so diluted as to be practically nonexistent.
↑ . For example, it is primarily the eastern portion of the State that is complaining of malapportionment (along with the Cities of Memphis and Nashville) . But the eastern section is where industry is principally located and where population density, even outside the large urban areas, is highest. ”

“ It is not inequality alone that calls for a holding of unconstitutionality; only if the inequality is based on an impermissible standard may this Court condemn it.
What then is the basis for the claim made in this case that the distribution of state senators and representatives is the product of capriciousness or of some constitutionally prohibited policy? It is not that Tennessee has arranged its electoral districts with a deliberate purpose to dilute the voting strength of one race, cf. ”

“ Such a framework unavoidably [p342] leads to unreliable arithmetic inequalities under any mathematical formula whereby the counties' "total representation" is sought to be measured. It particularly results in egregiously deceptive disparities if the formula proposed in my Brother CLARK's opinion is applied.
That formula computes a county's "total representation" by adding (1) the number of "direct representatives" the county is entitled to elect; (2) a fraction of any other seats in the Tennessee House which are allocated to that county jointly with one or more others in a "floterial district" ”