OCTOBER TERM, 1991
Syllabus
UNITED STATES DEPARTMENT OF COMMERCE ET AL.
v. MONTANA ET
AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MONTANA
No. 91-860. Argued March 4, 1992-Decided March 31, 1992
Article I, § 2, of the Constitution requires apportionment of
Representatives among the States "according to their respective
Numbers." A 1941 federal statute provides that after each decennial
census "the method known as the method of equal proportions" shall
be used to determine the number of Representatives to which each
State is entitled. Application of that method to the 1990 census
caused Montana to lose one of its two seats in the House of
Representatives. If it had retained both seats, each district would
have been closer to the ideal size of a congressional district than
the reapportioned single district. The State and several of its
officials (hereinafter Montana) sued appropriate federal defendants
(hereinafter the Government) in the District Court, alleging,
inter alia, that the existing apportionment method violates
Article I, § 2. A three-judge court, convened pursuant to 28 U. S.
C. § 2284, granted Montana summary judgment on this claim, holding
the statute unconstitutional because the variance between the
single district's population and that of the ideal district could
not be justified under the "one-person, one-vote" standard
developed in
Wesberry v.
Sanders, 376 U. S. 1, and other
intrastate districting cases.
Held: Congress exercised its apportionment authority
within the limits dictated by the Constitution. Pp.447-466.
(a) The general admonition in Article I, § 2, that apportionment
be made "according to [the States'] respective numbers" is
constrained by three constitutional requirements: the number of
Representatives shall not exceed one for every 30,000 persons; each
State shall have at least one Representative; and district
boundaries may not cross state lines. In light of those constraints
and the problem of fractional remainders-i.
e., the
fractional portion of the number that results when the State's
total population is divided by the population of the ideal district
must either be disregarded or treated as equal to one
Representative because each State must be represented by a whole
number oflegislators-Congress has considered and either rejected or
adopted various apportionment methods over the years, the most
recent method tried being the method of equal proportions, also
known as the "Hill Method." A National Academy of Sciences
committee recommended that method as the fairest of the five
443
methods the committee felt could lead to a workable solution to
the fractional remainder problem. If Congress had chosen the method
of the harmonic mean, also known as the "Dean Method," Montana
would have received a second seat after the 1990 census.
pp.447-456.
(b) This Court rejects the Government's argument that Congress'
selection of any of the alternative apportionment methods presents
a "political question" that is not subject to judicial review under
the standards set forth in
Baker v.
Carr, 369 U. S. 186, 217.
Significantly, the Government does not suggest that all
congressional decisions relating to apportionment are beyond
judicial review, but merely argues that the District Court erred in
concluding that the Constitution requires the greatest possible
equality in the size of congressional districts, as measured by
absolute deviation from ideal district size. Thus, the controversy
here turns on the proper interpretation of the relevant
constitutional provisions. As in
Baker itself and the
apportionment cases that followed, the political question doctrine
does not place this kind of constitutional interpretation outside
the proper domain of the Judiciary. Pp.456-459.
(c) Congress had ample power to enact the statutory procedure at
issue and to apply the Hill Method after the 1990 census. It is by
no means clear that the facts here establish a violation of the
Wesberry one-person, one-vote standard. Although Montana's
evidence demonstrated that application of the Dean Method would
decrease the absolute deviation from the ideal district size, it
also would increase the relative difference between the ideal and
the size of the districts both in Montana and in Washington, the
only State that would have lost a Representative under the Dean
Method.
Wesberry's polestar of equal representation does not
provide sufficient guidance to determine what is the better measure
of inequality. Moreover, while subsequent intrastate districting
cases have interpreted the
Wesberry standard as imposing a
burden on the States to make a good-faith effort to achieve precise
mathematical equality, that goal is rendered illusory for the
Nation as a whole by the constraints imposed by Article I, § 2: the
guarantee of a minimum of one Representative for each State and the
need to allocate a fixed number of indivisible Representatives
among 50 States of varying populations. The constitutional
framework that generated the need for a compromise between the
interests oflarger and smaller States must also delegate to
Congress a measure of discretion broader than that accorded to the
States, and Congress' apparently good-faith decision to adopt the
Hill Method commands far more deference, particularly as it was
made after decades of experience, experimentation, and debate, was
supported by independent scholars, and has been accepted for a half
century. Pp. 459-466.
775 F. Supp. 1358, reversed.
STEVENS, J., delivered the opinion for a unanimous Court.
444
Solicitor General Starr argued the cause for
appellants.
With him on the briefs were Assistant Attorney General Gerson,
Deputy Solicitor General Roberts, Edwin S. Kneedler, Michael Jay
Singer, and Mark B. Stern.
Marc Racicot, Attorney General of Montana, argued the
cause for appellees. With him on the brief were
Clay R.
Smith, Solicitor, and
Elizabeth S.
Baker,
Assistant Attorney General. *
JUSTICE STEVENS delivered the opinion of the Court. Article I, §
2, of the Constitution requires apportionment of Representatives
among the several States "according to their respective Numbers." 1
An Act of Congress passed in 1941 provides that after each
decennial census "the method known as the method of equal
proportions" shall be used to determine the number of
Representatives to which each State is entitled.2 In this case a
three-judge District Court
* Kenneth O.
Eikenberry, Attorney General
of Washington,
James M.
Johnson, Senior Assistant Attorney General, and
Carole
A. Ressler, Assistant Attorney General, filed a brief for the
State of Washington as
amicus curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the Commonwealth of Massachusetts by
Scott Harshbarger,
Attorney General,
Dwight Golann and
Steve Berenson,
Assistant Attorneys General, and
John P. Driscoll, Jr., Edward
P. Leibensperger, and
Neil P. Motenko, Special Assistant
Attorneys General; and for the Crow Tribe of Indians et al. by
Dale T. White, Jeanne S.
Whiteing, and
Daniel
F.
Decker.
1 Article I, § 2, originally provided that "Representatives ...
shall be apportioned among the several States ... according to
their respective Numbers, which shall be determined by adding to
the whole Number of free Persons, including those bound to Service
for a Term of Years, and excluding Indians not taxed, three fifths
of all other Persons."
Section 2 of the Fourteenth Amendment modified this provision by
establishing that "Representatives shall be apportioned among the
several States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not
taxed."
255 Stat. 761-762; 2 U. S. C. §2a(a).
445
held that statute unconstitutional because it found that the
method of equal proportions resulted in an unjustified deviation
from the ideal of equal representation.3 The Government's appeal
from that holding requires us to consider the standard that governs
the apportionment of Representatives among the several States. In
view of the importance of the issue and its significance in this
year's congressional and Presidential elections, we noted probable
jurisdiction and ordered expedited briefing and argument. 502 U. S.
1012 (1991). We now reverse.
I
The 1990 census revealed that the population of certain States,
particularly California, Florida, and Texas, had increased more
rapidly than the national average. The application of the method of
equal proportions to the 1990 census caused 8 States to gain a
total of 19 additional seats in the House of Representatives 4 and
13 States to lose an equal number.5 Montana was one of those
States. Its loss of one seat cut its delegation in half and
precipitated this litigation.
According to the 1990 census, the population of the 50 States
that elect the members of the House of Representatives is
249,022,783.6 The average size of the 435 congressional districts
is 572,466. Montana's population of 803,655 forms a single
congressional district that is 231,189 persons larger than the
ideal congressional district. If it had retained its two districts,
each would have been 170,638 persons smaller than the ideal
district. In terms of absolute
3775 F. Supp. 1358, 1366 (Mont. 1991).
4 Three States, California, Florida, and Texas, accounted for 14
of those gains; five States, Arizona, Georgia, North Carolina,
Virginia, and Washington, each gained one seat. 2 App. 20.
5 New York lost three seats; Illinois, Michigan, Ohio, and
Pennsylvania each lost two seats; and Iowa, Kansas, Kentucky,
Louisiana, Massachusetts, Montana, New Jersey, and West Virginia
each lost one seat.
Ibid. 6See
ibid.
446
difference, each of the two districts would have been closer to
ideal size than the single congressional district.
The State of Montana, its Governor, Attorney General, and
Secretary of State,7 and the State's two Senators and
Representatives (hereinafter collectively referred to as Montana)
filed suit against appropriate federal defendants (the Government)
in the United States District Court for the District of Montana,
asserting that Montana was entitled to retain its two seats. They
alleged that the existing apportionment method violates Article I,
§ 2, of the Constitution because it "does not achieve the greatest
possible equality in the number of individuals per representative"8
and also violates Article I, § 2, and Article I, § 7, because
reapportionment is effected "through application of a mathematical
formula by the Department of Commerce and the automatic transmittal
of the results to the states" 9 rather than by legislation on which
Members of Congress vote in the normal manner. A threejudge
District Court, convened pursuant to 28 U. S. C. § 2284, granted
Montana's motion for summary judgment on the first claim. 10
The majority of the three-judge District Court decided that the
principle of equal representation for equal numbers of people that
was applied to intrastate districting in
Wesberry v.
Sanders, 376 U.
S. 1 (1964), should also be applied to the apportionment of
seats among the States. Under that standard the only population
variances that are acceptable are those that "are unavoidable
despite a goodfaith effort to achieve absolute equality, or for
which justification is shown,"
Kirkpatrick v.
Preisler, 394
U. S. 526, 531 (1969). The District Court held that the
variance between
7 The three state officials brought suit on behalf of all voters
in Montana. 8 Complaint' 19.
9Id., n 28-29.
10 Having granted summary judgment on the first claim, the
District Court found it unnecessary to reach the merits of the
claim relating to the automatic method of apportionment. 775 F.
Supp., at 1366.
447
the population of Montana's single district and the ideal
district could not be justified under that standard. The majority
refused to accord deference to the congressional decision to adopt
the method of equal proportions in 1941 because that decision was
made without the benefit of this Court's later jurisprudence
adopting the "one-person, one-vote" rule. Accordingly, the District
Court entered a judgment declaring the statute void and enjoining
the Government from effecting any reapportionment of the House of
Representatives pursuant to the method of equal proportions.ll
Circuit Judge O'Scannlain dissented. After noting that Congress
has used four different apportionment formulas during the country's
history, and that it is not possible to create 435 districts of
equal size when each district must be located entirely within a
single State, he concluded that the goal of any apportionment
formula must be a "'practical approximation'" to a population-based
allocation.12 He analyzed the two formulae proposed by Montana and
concluded that the State had failed to demonstrate that either was
better than the one that had been chosen by Congress.13
II
The general admonition in Article I, § 2, that Representatives
shall be apportioned among the several States "according to their
respective Numbers" is constrained by three requirements. The
number of Representatives shall not ex-
11 Ibid.
12Id., at 1369 (quoting 2 J. Story, Commentaries on the
Constitution of the United States § 676 (1833)).
13 Montana alleged that the "method of the harmonic mean" or the
"method of smallest divisors" would yield a fairer result.
Subsequent to the decision below, a District Court in Massachusetts
rejected a challenge to Congress' adoption of the method of equal
proportions. In that litigation, Massachusetts plaintiffs asserted
that the superiority of another method, that of "major fractions,"
demonstrated that the method of equal proportions was
unconstitutional.
Massachusetts v.
Mosbacher, Civ.
Action No. 91-11234-WD (Mass., Feb. 20, 1992).
448
ceed one for every 30,000 persons; each State shall have at
least one Representative; and district boundaries may not cross
state lines.14 Although the text of Article I determined the
original apportionment that the Framers had agreed upon,15 it did
not explain how that specific allocation had been made.
When Congress first confronted the task of apportionment after
the census of 1790 (and after Vermont and Kentucky had been
admitted to the Union), it considered using the constitutional
minimum of 30,000 persons as the size of each district. Dividing
that number into the total population of 3,615,920 indicated that
the House of Representatives should contain 120 members. When the
number 30,000 was divided into the population of individual States,
each quotient was a whole number with a fractional remainder. Thus,
the use of the 30,000 divisor for Connecticut's population of
236,841 indicated that it should have 7.89 Representatives, while
Rhode Island, with a population of 68,446, should have 2.28
Representatives. Because each State must be represented by a whole
number of legislators, it was necessary either to disregard
fractional remainders entirely or to treat some or all of them as
equal to a whole Representative.16
14 The first and second requirements are set forth explicitly in
Article I, § 2, of the Constitution. The requirement that districts
not cross state borders appears to be implicit in the text and has
been recognized by continuous historical practice. See 775 F.
Supp., at 1365, n. 4;
id., at 1368 (O'Scannlain, J.,
dissenting).
15 Section 2, cl. 3, required an enumeration of the population
to be made within three years after the first meeting of Congress
and provided that "until such enumeration shall be made, the State
of New Hampshire shall be entitled to chuse three, Massachusetts
eight, Rhode-Island and Providence Plantations one, Connecticut
five, New-York six, New Jersey four, Pennsylvania eight, Delaware
one, Maryland six, Virginia ten, North Carolina five, South
Carolina five, and Georgia three."
16 See M. Balinski & H. Young, Fair Representation, Meeting
the Ideal of One Man, One Vote 10-13 (1982) (hereinafter Balinski
& Young).
449
In the first apportionment bill passed by Congress, an
additional Representative was assigned to the nine States whose
quotas had the highest fractional remainders. Thus, Connecticut's
quota of 7.89 gave it 8 and Rhode Island's smaller remainder was
disregarded, giving it only 2. Although that method was supported
by Alexander Hamilton, Thomas Jefferson persuaded President
Washington to veto the bill, in part because its allocation of
eight Representatives to Connecticut exceeded the constitutional
limit of one for every 30,000 persons.17
In response to that veto, Congress adopted a proposal sponsored
by Thomas Jefferson that disregarded fractional remainders entirely
(thus giving Connecticut only seven Representatives). To overcome
the basis for the veto, the size of the House was reduced from 120
to 105 members, giving each Representative an approximate
constituency of 33,000 instead of 30,000 persons. Although both the
total number of Representatives and the size of their districts
in-
17 See
id., at 16-22. President Washington's veto message
read as follows:
"Gentlemen of the House of Representatives:
"I have maturely considered the act passed by the two Houses
entitled 'An act for an Apportionment of Representatives among the
several States, according to the first Enumeration;' and I return
it to your House, wherein it originated, with the following
objections:
"First. The Constitution has prescribed that Representatives
shall be apportioned among the several States according to their
respective numbers; and there is no one proportion or divisor
which, applied to the respective numbers of the States, will yield
the number and allotment of Representatives proposed by the
bill.
"Second. The Constitution has also provided that the number of
Representatives shall not exceed one for every thirty thousand;
which restriction is, by the context, and by fair and obvious
construction, to be applied to the separate and respective numbers
of the States; and the bill has allotted to eight of the States
more than one for every thirty thousand, "G. WASHINGTON"
3 Annals of Congo 539 (1792).
450
creased,18 Jefferson's method of disregarding fractional
remainders was used after each of the next four censuses. Today
mathematicians sometimes refer to that method as the "method of
greatest divisors," and suggest that it tends to favor large States
over smaller States.19
In 1832, Congress considered, but did not adopt, a proposal
sponsored by John Quincy Adams that was the exact opposite of the
Jefferson method. Instead of disregarding fractional remainders,
Adams would have treated every fraction as a unit. Thus, using the
former example as a hypothetical, both Connecticut and Rhode Island
would have received one more Representative under the Adams method
than they actually received under the Jefferson method. The Adams
method is sometimes described as the "method of smallest divisors"
and is said to favor the smaller States.20 It has never been
endorsed by Congress.
In 1842, Congress abandoned the Jefferson method in favor of an
approach supported by Senator Daniel Webster. The Webster method
took account of fractional remainders that were greater than
one-half by allocating "one additional representative for each
State having a fraction greater than one moiety." 21 Thus, if that
method had been used in 1790, Connecticut's quota of 7.89 would
have entitled it to 8 Representatives, whereas Rhode Island, with a
quota of 2.28,
18 The 1802 apportionment Act continued the ratio of 33,000,
which then corresponded to a House of 141 Members. Act of Jan. 14,
1802, 2 Stat. 128. The third apportionment established a ratio of
35,000, which provided a House of 181 Members. Act of Dec. 21,
1811, 2 Stat. 669. The 1822 apportionment Act increased the ratio
to 40,000 and the size of the House to 213. Act of Mar. 7, 1822, 3
Stat. 651. The 1832 apportionment Act provided for 240 districts
representing an average of 47,700 persons each. Act of May 22,
1832, ch. 91,4 Stat. 516. See generally L. Schmeckebier,
Congressional Apportionment 111-113 (1941).
19 See Balinski & Young 73-75.
20 Ibid.
21 Act of June 25, 1842, 5 Stat. 491.
451
would have received only 2. The Webster method is also described
as the "method of major fractions."
In 1850, Congress enacted legislation sponsored by
Representative Vinton endorsing the approach that had been
sponsored by Alexander Hamilton after the first census.22 Although
this method was used during the balance of the 19th century, it
occasionally seemed to produce paradoxical results.23 Congress
rejected it in 1911, reverting to the Webster method. In that year
Congress also passed legislation that ultimately fixed the number
of Representatives at 435.24
After the 1920 census Congress failed to pass a reapportionment
Act, but debates over the proper method of apportionment ultimately
led to a request to the National Academy of Sciences to appoint a
committee of experts to review the subject. That committee,
composed of respected mathematicians, recommended the adoption of
the "method of equal proportions." Congress used that method in its
ap-
22 Act of May 23, 1850, §§ 24-26, 9 Stat. 432-433. Under the
Hamilton/ Vinton method, the Nation's population was divided by the
size of the House (set at 233 in 1850) to determine the ratio of
persons per Representative. This ratio was then divided into the
population of a State to establish its quota. Each State would
receive the number of Representatives corresponding to the whole
number of the quota (ignoring the fractional remainders). The
remaining seats necessary to bring the nationwide total to the
proper size (233 in 1850) would then be distributed to the States
with the largest fractional remainders. In practice, the method was
not strictly followed. See Balinski & Young 37; Chafee,
Congressional Reapportionment, 42 Harv. L. Rev. 1015, 1025
(1929).
23 The Hamilton/Vinton method was subject to the "Alabama
paradox," a mathematical phenomenon in which a State's number of
Representatives may
decrease when the size of the House is
increased. See Balinski & Young 38-40; Chafee,
Congressional Reapportionment, 42 Harv. L. Rev., at 1026.
24 The 1911 statute actually specified 433 Representatives but
authorized an additional Representative for Arizona and New Mexico
when they were admitted to the Union. See 37 Stat. 13. Additional
Representatives were also authorized when Alaska and Hawaii were
admitted to the Union in 1959, but the number thereafter reverted
to 435, where it has remained ever since. See 72 Stat. 345; 73
Stat. 8.
452
portionment after the 1930 census, and formally adopted it in
the 1941 statute at issue in this case.25
The report of the National Academy of Sciences committee noted
that Congress had properly rejected the Hamilton! Vinton method,
and concluded that the use of only five methods could lead to a
workable solution of the fractional remainder problem.26 In the
opinion of the committee mem-
25 Act of Nov. 15, 1941, § 1, 55 Stat. 761-762,2 U. S. C. §2a.
That Act also made the reapportionment process self-executing,
eliminating the need for Congress to enact an apportionment Act
after each decennial census:
"(a) On the first day, or within one week thereafter, of the
first regular session of the Eighty-second Congress and of each
fifth Congress thereafter, the President shall transmit to the
Congress a statement showing the whole number of persons in each
State, excluding Indians not taxed, as ascertained under the
seventeenth and each subsequent decennial census of the population,
and the number of Representatives to which each State would be
entitled under an apportionment of the then existing number of
Representatives by the method known as the method of equal
proportions, no State to receive less than one Member.
"(b) ... It shall be the duty of the Clerk of the House of
Representatives, within fifteen calendar days after the receipt of
such statement, to send to the executive of each State a
certificate of the number of Representatives to which such State is
entitled under this section."
26 The five were the "method of smallest divisors," the "method
of the harmonic mean," the "method of equal proportions," the
"method of major fractions," and the "method of greatest divisors."
1 App. 17.
Each of the methods corresponds to a different formula for
producing a "priority list." A priority list is the mechanical
method used in modern apportionments to translate a particular
method of apportionment into a particular assignment of
Representatives. The technical process of forming the priority list
proceeds as follows. First, one Representative is assigned to each
State to satisfy the constitutional guarantee. Second, the
population of each State is divided by a certain tabulated series
of divisors. Third, the quotients for all the States are arranged
in a single series in order of size, beginning with the largest
quotient, for the 51st Member of the House. This forms the priority
list. The series of quotients is different for each of the five
apportionment methods. See Chafee, Congressional Reapportionment,
42 Harv. L. Rev., at 1029, n. 39.
The following are the divisors by which a State's population is
divided under each method ("n" is the number of the State's next
seat):
453
bers, given the fact that it is impossible for all States to
have districts of the same size, the best method was the one that
minimized the discrepancy between the size of the dis-
See ibid. For example, the 1990 census indicated that the most
populous States were California and New York. California had a
population of 29,839,250, and New York had a population of
18,044,505. See 2 App. 20. Under the method of smallest divisors,
the quotients are:
|
second seat
(divisor:
n-1=1) |
third seat
(divisor:
n-1=2) |
| California |
29,839,250 |
14,919,625 |
| New York |
18,044,505 |
9,022,252 |
See 2 App. 53. Under the method of greatest divisors, the
quotients are:
|
second seat
(divisor:
n=2) |
third seat
(divisor:
n=3) |
| California |
14,919,625 |
9,946,417 |
| New York |
9,022,252 |
6,014,835 |
Under any method, the first 50 seats are assigned one to each
State. If the method of smallest divisors is employed, the 51st
seat is assigned to California, and the 52d seat is assigned to New
York. Under the method of greatest divisors, however, California is
assigned both the 51st and the 52d seats because the quotient for
its third seat is 9,946,417, which is higher than the quotient for
New York's second seat, which is 9,022,252.
454
tricts in any pair of States. Under their test of fairness, a
method was satisfactory if, for any pair of States, the transfer of
one Representative would not decrease the discrepancy between those
States' districts.27 The choice of a method depended on how one
decided to measure the discrepancy between district sizes. Each of
the five methods could be described as the "best" in the sense of
minimizing the discrepancy between districts, depending on the
discrepancy measure selected. The method of the harmonic mean, for
example, yielded the fairest apportionment if the discrepancy was
measured by the absolute difference between the number of persons
per Representative. The method of major fractions was the best
method if the discrepancy was measured by the absolute difference
between the number of Representatives per person (also known as
each person's "share" of a Representative).28 The method of equal
proportions produced the fairest apportionment if the
discrepancy
27 The committee explained the test as follows:
"Let the population of a State be
A and the number of
Representatives assigned to it according to a selected method of
apportionment be
a, and let Band
b represent the
corresponding numbers for a second State. Under an ideal
apportionment the population
Ala, Bib of the congressional
districts in the two States should be equal, as well as the numbers
alA, biB, of Representatives per person in each State. In
practice it is impossible to bring this desirable result about for
all pairs of States.
"In the opinion of the committee the best test of a desirable
apportionment so far proposed is the following:
"An apportionment of Representatives to various States, when the
total number of Representatives is fixed, is mathematically
satisfactory if for every pair of States the discrepancy between
the numbers
Ala and
Bib cannot be decreased by
assigning one or more Representative to the State
A and one
fewer to the State
B, or vice versa, or if the two numbers
alA and
biB have the same property." 1 App. 18.
28 A person's "share" of a Representative is the reciprocal of
the population of a person's district. For example, in an ideal
district under the 1990 census, each person has a share of
1/572,466 of a Representative.
455
was measured by the "relative difference" 29 in either the size
of the district or the share of a Representative.30
The report concluded by endorsing the method of equal
proportions. The committee apparently preferred this method for two
reasons. First, the method of equal proportions minimized the
relative difference both between the size of congressional
districts and between the number of Representatives per person.
Second, in comparison with the other four methods considered, this
method occupied an intermediate position in terms of favoring small
States over large States: It favored small States more than major
fractions and greatest divisors, but not as much as smallest
divisors or the harmonic mean.31
If either the method of smallest divisors or the method of the
harmonic mean, also known as the "Dean Method," had been used after
the 1990 census, Montana would have received a second seat. Under
the method of equal proportions, which was actually used, five
other States had stronger claims to an additional seat because
Montana's claim to a second seat was the 441st on the equal
proportions "priority list," see n. 26,
supra.32 Montana
would not have received
29 "The relative difference between two numbers consists of
subtracting the smaller number from the larger number and then
dividing the result by the smaller number." 1 App. 24 (Ernst
Declaration).
30 See ibid.
31 See
id., at 19. The committee considered only the
extent to which each method favored the small or large States in
comparison to the other methods. The committee did not attempt to
determine absolute bias. Some scholars have asserted that in
absolute terms, the method of equal proportions favors small States
over large States and that the method of major fractions is the
method with the least inherent bias between small and large States.
See Balinski & Young 72-78. That contention has been disputed.
See
Massachusetts v.
Mosbacher, Civ. Action No.
9111234-WD (Mass., Feb. 20, 1992), p. 57.
322 App. 35.
456
a second seat under either the method of major fractions or
greatest divisors.
III
The Government argues that Congress' selection of any of the
alternative apportionment methods involved in this litigation is
not subject to judicial review. Relying principally on
Baker
v.
Carr, 369
U. S. 186 (1962), the Government contends that the choice among
these methods presents a "political question" not amenable to
judicial resolution.
In
Baker v.
Carr, after an extensive review of our
prior cases involving political questions, we concluded:
"It is apparent that several formulations which vary slightly
according to the settings in which the questions arise may describe
a political question, although each has one or more elements which
identify it as essentially a function of the separation of powers.
Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality
of embarrassment from multifarious pronouncements by various
departments on one question.
"Unless one of these formulations is inextricable from the case
at bar, there should be no dismissal for nonjusticiability on the
ground of a political question's presence. The doctrine of which we
treat is one of 'political questions,' not one of 'political
cases.' The courts cannot reject as 'no law suit' a bona fide
controversy as
457
to whether some action denominated 'political' exceeds
constitutional authority." Id., at 217.
The Government insists that each of the factors identified in
Baker supports the conclusion that the question presented
here is committed to the "political branches" to the exclusion of
the Judiciary. Significantly, however, the Government does not
suggest that all congressional decisions relating to apportionment
are beyond judicial review. The Government does not, for instance,
dispute that a court could set aside an apportionment plan that
violated the constitutional requirement that "[t]he number of
Representatives shall not exceed one for every thirty Thousand."33
Further, with respect to the provision that Representatives "shall
be apportioned among the several States ... according to their
respective Numbers,"34 the Government acknowledges that Congress
has a judicially enforceable obligation to select an apportionment
plan that is related to population.35 The gravamen of the
Government's argument is that the District Court erred in
concluding that the Constitution imposes the more rigorous
requirement of greatest possible equality in the size of
congressional districts, as measured by absolute deviation from
ideal district size. The Government then does not dispute Montana's
contention that the Constitution places substantive limitations on
Congress' apportionment power and that violations of those
limitations would present a justiciable controversy. Where the
parties differ is in their understanding of the content of these
limitations. In short, the Government takes issue not with the
existence of a judicially enforceable right, but with the
definition of such a right.
When a court concludes that an issue presents a nonjusticiable
political question, it declines to address the merits of
33 U. S. Const., Art. I, § 2, cl. 3.
34 Ibid.
35 See Brief for United States 24-34; Tr. of Oral Arg.
10-13.
458
that issue. See
Gilligan v.
Morgan, 413 U. S. 1, 10-12
(1973); Baker v.
Carr, 369 U. S., at 197; see also
Colegrove v.
Green, 328 U. S. 549, 552-556
(1946) (plurality opinion). In invoking the political question
doctrine, a court acknowledges the possibility that a
constitutional provision may not be judicially enforceable.36 Such
a decision is of course very different from determining that
specific congressional action does not violate the Constitution.37
That determination is a decision on the merits that reflects the
exercise of judicial review, rather than the
abstention from judicial review that would be appropriate in
the case of a true political question.
The case before us today is "political" in the same sense that
Baker v.
Carr was a "political case." 369 U. S., at
217. It raises an issue of great importance to the political
branches.38 The issue has motivated partisan and sectional debate
during important portions of our history. Nevertheless, the reasons
that supported the justiciability of challenges to state
legislative districts, as in
Baker v.
Carr, as well
as state districting decisions relating to the election of Members
of Congress, see,
e. g., Wesberry v.
Sanders, 376 U.
S. 1 (1964);
Karcher v.
Daggett, 462 U. S. 725 (1983),
apply with equal force to the issues presented by this litigation.
The controversy between Montana and the Government turns on the
proper interpretation of the relevant constitutional provisions. As
our previous rejection of the political question doctrine in this
context should make clear, the interpretation of the apportionment
provisions of the Constitution is well within the competence of the
Judiciary. See
36 See Henkin, Is There a "Political Question" Doctrine?, 85
Yale L. J. 597, 599 (1976).
37 See M. Redish, The Federal Courts in the Political Order
116-117 (1991).
38 Not only is the composition of the House of Representatives
implicated by the case, but also the composition of the electoral
college that elects the President. That college includes
representation from each State equivalent to the sum of its
Senators and Representatives. U. S. Const., Art. II, § 1, cl.
2.
459
Davis v.
Bandemer, 478 U. S. 109, 123
(1986);
Baker v.
Carr, 369 U. S., at 234-237; cf.
Gilligan v.
Morgan, 413 U. S., at 11. The political
question doctrine presents no bar to our reaching the merits of
this dispute and deciding whether the District Court correctly
construed the constitutional provisions at issue.
Our previous apportionment cases concerned States' decisions
creating legislative districts; today we review the actions of
Congress. Respect for a coordinate branch of Government raises
special concerns not present in our prior cases, but those concerns
relate to the merits of the controversy rather than to our power to
resolve it. As the issue is properly raised in a case otherwise
unquestionably within our jurisdiction, we must determine whether
Congress exercised its apportionment authority within the limits
dictated by the Constitution. See
INS v.
Chadha,
462 U. S. 919,
940941 (1983);
Powell v.
McCormack, 395 U. S. 486, 521
(1969). Without the need for another exploration of the
Baker factors, it suffices to say that, as in
Baker
itself and the apportionment cases that followed, the political
question doctrine does not place this kind of constitutional
interpretation outside the proper domain of the Judiciary.
IV
In
Wesberry v.
Sanders, 376 U. S. 1 (1964), the
Court considered the claim of voters in Fulton County, Georgia,
that the disparity between the size of their congressional district
(823,680) and the average size of the 10 districts in Georgia
(394,312) deprived them of the right "to have their votes for
Congressmen given the same weight as the votes of other Georgians."
Id., at 3. This Court upheld the claim, concluding that
Article I, § 2, had established a "high standard of justice and
common sense" for the apportionment of congressional districts:
"equal representation for equal numbers of people." 376 U. S., at
18. The constitutional command that Representatives be chosen "by
the People of the several
460
States" meant that "as nearly as is practicable one man's vote
in a congressional election is to be worth as much as another's."
Id., at 7-8. Writing for the Court, Justice Black
explained:
"It would defeat the principle solemnly embodied in the Great
Compromise-equal representation in the House for equal numbers of
people-for us to hold that, within the States, legislatures may
draw the lines of congressional districts in such a way as to give
some voters a greater voice in choosing a Congressman than others.
The House of Representatives, the Convention agreed, was to
represent the people as individuals, and on a basis of complete
equality for each voter." Id., at 14.
In subsequent cases, the Court interpreted that standard as
imposing a burden on the States to "make a good-faith effort to
achieve precise mathematical equality."
Kirkpatrick v.
Preisler, 394 U. S., at 530-531; see also
Karcher v.
Daggett, 462 U. S., at 730.
Our cases applying the
Wesberry standard have all
involved disparities in the size of voting districts within the
same State. In this case, however, Montana contends, and a majority
of the District Court agreed, that the
Wesberry standard
also applies to apportionment decisions made by Congress and that
it was violated because of an unjustified variance between the
population of Montana's single district and the ideal district
size.
Montana's evidence demonstrated that if Congress had used the
method of the harmonic mean, sometimes referred to as the "Dean
Method," instead of the method of equal proportions, sometimes
called the "Hill Method," to apportion the districts, 48 of the
States would have received the same number of Representatives,
while Washington would have received one less-eight instead of
nine-and Montana would have received one more. Under an
apportionment undertaken according to the Hill Method, the absolute
differ-
461
ence between the population of Montana's single district
(803,655) and the ideal (572,466) is 231,189; the difference
between the average Washington district (543,105) and the ideal is
29,361. Hence, the sum of the differences between the average and
the ideal district size in the two States is 260,550. Under the
Dean Method, Montana would have two districts with an average
population of 401,838, representing a deviation from the ideal of
170,638; Washington would then have eight districts averaging
610,993, which is a deviation of 38,527 from the ideal district
size. The sum of the deviations from the ideal in the two States
would thus be 209,165 under the Dean Method (harmonic mean), while
it is 260,550 under the Hill Method (equal proportions). More
generally, Montana emphasizes that the Dean Method is the best
method for minimizing the absolute deviations from ideal district
size.
There is some force to the argument that the same historical
insights that informed our construction of Article I, § 2, in the
context of intrastate districting should apply here as well. As we
interpreted the constitutional command that Representatives be
chosen "by the People of the several States" to require the States
to pursue equality in representation, we might well find that the
requirement that Representatives be apportioned among the several
States "according to their respective Numbers" would also embody
the same principle of equality. Yet it is by no means clear that
the facts here establish a violation of the
Wesberry
standard. In cases involving variances within a State, changes in
the absolute differences from the ideal produce parallel changes in
the relative differences. Within a State, there is no theoretical
incompatibility entailed in minimizing both the absolute and the
relative differences. In this case, in contrast, the reduction in
the absolute difference between the size of Montana's district and
the size of the ideal district has the
462
effect of increasing the variance in the
relative
difference 39 between the ideal and the size of the districts in
both Montana and Washington.4o Moreover, whereas reductions in the
variances among districts within a given State bring all of the
affected districts closer to the ideal, in this case a change that
would bring Montana closer to the ideal pushes the Washington
districts away from that idea1.41
39 See n. 29,
supra.
40 Under the Hill Method (equal proportions), the relative
differences between Montana's and Washington's districts and the
ideal, respectively, are 40.4% and 5.4%; under the Dean Method
(harmonic mean), they are 42.5% and 6.7%. See 1 App. 27.
The absolute and relative differences between the actual average
district size and the ideal district size in an apportionment using
the Hill Method (Montana has one Representative, and Washington has
nine Representatives) are as follows:
|
Average
District
Size |
Absolute
Difference
From Ideal |
Relative
Difference
From Ideal |
| Montana |
803,655 |
231,189 |
40.4% |
| Washington |
543,105 |
29,361 |
5.4% |
| Total Absolute Difference |
|
260,550 |
|
The absolute and relative differences between the actual average
district size and the ideal district size in an apportionment using
the Dean Method (Montana has two Representatives, and Washington
has eight Representatives) are as follows:
|
Average
District
Size |
Absolute
Difference
From Ideal |
Relative
Difference
From Ideal |
| Montana |
401,828 |
170,638 |
42.5% |
| Washington |
610,993 |
38,527 |
6.7% |
| Total Absolute Difference |
|
209,165 |
|
The relative difference from the ideal is less both for Montana
and for Washington in a Hill apportionment; the total absolute
difference from the ideal is less in a Dean apportionment.
41 Indeed, as Washington has more districts than Montana, it
could be argued that deviation from ideal district size in
Washington represents a more significant departure from the goal of
equal representation than does a similar deviation in Montana. In
his dissent in the District Court, Judge O'Scannlain noted the
potential importance of taking account of the
Relative Difference From Ideal 42.5% 6.7%
463
What is the better measure of inequality-absolute difference in
district size, absolute difference in share of a Representative, or
relative difference in district size or share? N either
mathematical analysis nor constitutional interpretation provides a
conclusive answer. In none of these alternative measures of
inequality do we find a substantive principle of commanding
constitutional significance. The polestar of equal representation
does not provide sufficient guidance to allow us to discern a
single constitutionally permissible course.
A State's compliance with
Wesberry's "high standard of
justice and common sense" begins with a good-faith effort to
produce complete equality for each voter. As our cases involving
variances of only a fraction of one percent demonstrate, that goal
is realistic and appropriate for state districting decisions. See
Karcher v.
Daggett, 462 U. S., at 730-743. In this
case, however, whether Montana has one district or two, its
variance from the ideal will exceed 40 percent.
The constitutional guarantee of a minimum of one Representative
for each State inexorably compels a significant departure from the
ideal. In Alaska, Vermont, and Wyoming, where the statewide
districts are less populous than the ideal district, every vote is
more valuable than the national average. Moreover, the need to
allocate a fixed number of indivisible Representatives among 50
States of varying populations makes it virtually impossible to have
the same size district in any pair of States, let alone in all 50.
Accordingly, although "common sense" supports a test requiring "a
goodfaith effort to achieve precise mathematical equality"
within each State,
Kirkpatrick v.
Preisler,
394 U. S., at 530-531, the constraints imposed by Article I, § 2,
itself make that goal illusory for the Nation as a whole.
number of districts in a State, rather than merely the average
size of a district. See 775 F. Supp., at 1371.
464
This commonsense understanding of a characteristic of our
Federal Government must have been obvious to the masters of
compromise who framed our Constitution. The spirit of compromise
that provided two Senators for every State and Representatives of
the People "according to their respective Numbers" in the House
must also have motivated the original allocation of Representatives
specified in Article I, § 2, itself. Today, as then, some
compromise between the interests of larger and smaller States must
be made to achieve a fair apportionment for the entire country.
The constitutional framework that generated the need for
compromise in the apportionment process must also delegate to
Congress a measure of discretion that is broader than that accorded
to the States in the much easier task of determining district sizes
within state borders. Article I, § 8, cl. 18, expressly authorizes
Congress to enact legislation that "shall be necessary and proper"
to carry out its delegated responsibilities. Its apparently
good-faith choice of a method of apportionment of Representatives
among the several States "according to their respective Numbers"
commands far more deference than a state districting decision that
is capable of being reviewed under a relatively rigid mathematical
standard.42
42 Some evidence suggests that partisan political concerns may
have influenced Congress' initial decision to adopt the equal
proportions method in 1941. The choice of this method resulted in
the assignment of an additional seat to Arkansas, a Democratic
State, rather than to Michigan, a State with more Republican
leanings. The vote to adopt equal proportions was along party lines
(except for the Democrats from Michigan, who opposed the bill). See
Balinski & Young 57-58; see also 775 F. Supp., at 1365.
Nevertheless, although Congress has considered the apportionment
problem periodically since 1941, it has not altered that initial
choice. See
Massachusetts v.
Mosbacher, Civ. Action
No. 91-11234-WD (Mass., Feb. 20, 1992), pp. 40-42. Montana does not
contend that the equal proportions method systematically favors a
particular party, nor that its retention over a 50-year period
reflects efforts to maintain partisan political advantage.
465
The District Court suggested that the automatic character43 of
the application of the method of equal proportions was inconsistent
with Congress' responsibility to make a fresh legislative decision
after each census.44 We find no merit in this suggestion. Indeed,
if a set formula is otherwise constitutional, it seems to us that
the use of a procedure that is administered efficiently and that
avoids partisan controversy supports the legitimacy of
congressional action, rather than undermining it. To the extent
that the potentially divisive and complex issues associated with
apportionment can be narrowed by the adoption of both procedural
and substantive rules that are consistently applied year after
year, the public is well served, provided, of course, that any such
rule remains open to challenge or change at any time. We see no
constitutional obstacle preventing Congress from adopting such a
sensible procedure.
The decision to adopt the method of equal proportions was made
by Congress after decades of experience, experimentation, and
debate about the substance of the constitutional requirement.
Independent scholars supported both the basic decision to adopt a
regular procedure to be followed after each census and the
particular decision to use the method of equal proportions.45 For a
half century the results of that method have been accepted by the
States and
43 See n. 25,
supra.
44 See 775 F. Supp., at 1366.
45 In his article Congressional Reapportionment, written in
1929, Zechariah Chafee, Jr., wrote:
"[B]oth mathematical and political reasons point to the Method
of Equal Proportions as the best plan for a just apportionment ....
Congress has power to delegate the task to the president or other
high official, if the size of the House and the method be
definitely indicated .... It is very desirable that this permanent
plan should embody the best method now known, so that it may
operate for many decades without constant demands for revision.
Congress will then no longer need to engage in prolonged debates
and committee hearings every ten years. Reapportionment will be
taken out of politics." 42 Harv. L. Rev., at 1047.
466
the Nation. That history supports our conclusion that Congress
had ample power to enact the statutory procedure in 1941 and to
apply the method of equal proportions after the 1990 census.
The judgment of the District Court is reversed.
It is so ordered.
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