Reynolds v. Sims/Concurrence Clark
MR. JUSTICE CLARK, concurring in the affirmance.
The Court goes much beyond the necessities of this case in laying down a new "equal population" principle for state legislative apportionment. This principle seems to be an offshoot of Gray v. Sanders, 372 U.S. 368, 381 (1963), i.e., "one person, one vote," modified by the "nearly as is practicable" admonition of Wesberry v. Sanders, 376 U.S. 1, 8 (1964).  Whether "nearly as is [p588] practicable" means "one person, one vote" qualified by "approximately equal" or "some deviations" or by the impossibility of "mathematical nicety" is not clear from the majority's use of these vague and meaningless phrases. But whatever the standard, the Court applies it to each house of the State Legislature.
It seems to me that all that the Court need say in this case is that each plan considered by the trial court is "a crazy quilt," clearly revealing invidious discrimination in each house of the Legislature and therefore violative of the Equal Protection Clause. See my concurring opinion in Baker v. Carr, 369 U.S. 186, 253-258 (1962).
I therefore do not reach the question of the so-called "federal analogy." But, in my view, if one house of the State Legislature meets the population standard, representation in the other house might include some departure from it so as to take into account, on a rational basis, other factors in order to afford some representation to the various elements of the State. See my dissenting opinion in Lucas v. Forty-Fourth General Assembly of Colorado, post, p. 741, decided this date.
^ Incidentally, neither of these cases, upon which the Court bases its opinion, is apposite. Gray involved the use of Georgia's county unit rule in the election of United States Senators, and Wesberry was a congressional apportionment case.