# Mahan v. Howell (410 U.S. 315)/Concurrence-dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurrence/Dissent Brennan
[p333] MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, concurring in part and dissenting in part.
I agree with the Court in No. 71-373, City of Virginia Beach v. Howell, that the joinder by the District Court of three senatorial districts in the Norfolk-Virginia Beach area to create one multimember senatorial district for the 1971 election was permissible under the special [p334] circumstances of this case. Cf. Whitcomb v. Chavis, 403 U.S. 124, 176-179 (1971) (DOUGLAS, J., concurring and dissenting); see Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richardson, 384 U.S. 73, 88 (1966). I dissent, however, in No. 71-364, Mahan v. Howell, from the Court's action in setting aside the District Court's finding that the apportionment of the State House of Delegates violated the Equal Protection Clause of the Fourteenth Amendment.
The Court approves a legislative apportionment plan that is conceded to produce a total deviation of at least 16.4% from the constitutional ideal. Of course, "the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State." Swann v. Adams, 385 U.S. 440, 445 (1967). "What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case." Reynolds v. Sims, 377 U.S. 533, 578 (1964). Since very reapportionment case presents as its factual predicate a unique combination of circumstances, decisions upholding or invaliding a legislative plan cannot normally have great presidential significance. Abate v. Mundt, 403 U.S. 182, 189 (1971) (BRENNAN, J., dissenting). But language in the Court's opinion today suggests that more may be at stake than the application of well-established principles to a novel set of facts. In my view, the problem in the case before us is in no sense one of first impression, but is squarely controlled by our prior decisions. See Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Swann v. Adams, supra; Reynolds v. Sims, supra; Davis v. Mann, 377 U.S. 678 (1964); Roman v. [p335] Sincock, 377 U.S. 695 (1964). It is appropriate, therefore, to call to mind again the controlling principles and to show that, properly applied to the facts of the case before us, they preclude a reversal of the District Court's decision.

## I

Virginia's recently amended Constitution provides that "members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly," and "[e]very electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as practicable, representation in proportion to the population of the district." Art. II, § 6. Pursuant to that requirement, the General Assembly in 1971 divided the Commonwealth into 52 legislative districts from which the 100 members of the House of Delegates were to be elected.
On the basis of 1970 census figures, which set the population of the Commonwealth at 4,648,494, each delegate should ideally represent 46,485 persons. While the legislature's plan does not disregard constitutional requirements to the flagrant extent of many earlier cases, it does, nevertheless, demonstrate a systematic pattern of substantial deviation from the constitutional ideal. Under the 1971 plan, more than 25% of the delegates would be elected from districts in which the population deviates from the ideal by more than 5%. Almost 60% of the delegates would represent districts that deviate by more than 3%. Four legislators would be elected from districts that are overrepresented or underrepresented by more than 8%. And the maximum deviation—the [p336] spread between the most overrepresented and the most underrepresented districts—would be at least 16.4%, and might be as high as 23.6%, depending on the method of calculation.
Assuming a maximum deviation of 16.4%, the legislature's plan is still significantly less representative than many plans previously struck down by state and lower federal courts. Appellees maintain, however, that the total deviation, properly computed, is in fact 23.6%—a figure closely approximating the 25.65% deviation that led us to invalidate the Senate plan in Swann v. Adams, supra, the 26.48% deviation that led us to invalidate the House plan in Kilgarlin v. Hill, 386 U.S. 120 (1967), and the 24.78% deviation that led us to invalidate the House plan in Whitcomb v. Chavis, 403 U.S. 124, 161-163 (1971). Appellees arrive at the figure of 23.6% by taking into account the deviations in floterial districts, see App. 81-83, and appellants seem to concede that 23.6% is an accurate indicator of the total deviation. See Brief for Appellant Commonwealth of Virginia 7.
[p337] The District Court pointed out that the "range of deviation may exceed 16.4%," 330 F.Supp. 1138, 1139 n. 1 (ED Va. 1971), but it had no occasion to consider whether 23.6% was the more accurate figure because of its finding that "[u]nder either mode of calculation... the statewide range of deviation will not pass constitutional muster." Ibid. Although conceding that the District Court did not reject or disparage appellees' assertion of a 23.6% deviation, the Court nevertheless reaches the perplexing conclusion that we "confine our consideration to the figures actually found by the court and used to support its holding of unconstitutionality"—16.4%. Ante, at 319, n. 6. But if the legislature's plan does, in fact, "pass constitutional muster" on the assumption of a 16.4% deviation, then it is surely fair to ask whether the plan would still be valid assuming a total deviation of 23.6%. The Court refuses either to confront the question directly or to render it moot by determining that the figure of 23.6% is irrelevant because improperly derived. Instead, it attempts to obscure the issue by contending that the Commonwealth and the city of Virginia Beach disputed appellees' assertion of a 23.6% total deviation. That contention is wholly incorrect. Neither in the answers filed in the District Court, nor in the briefs, nor at oral argument did the Commonwealth or the city of Virginia Beach quarrel with appellee's method of calculating the deviation in floterial districts. See n. 4, supra. The Court's refusal to consider the question can only mean that appellees have the option of reopening this litigation in the District Court in an attempt to persuade that court that the true measure of the [p338] deviation is 23.6% and that a deviation of this order is fatal to the Commonwealth's plan.
In my view, there is no need to prolong this litigation by resolution in the court below of an issue that this Court should, but inexplicably does not, decide. The District Court correctly held that deviations of the magnitude of even 16.4% are sufficient to invalidate the legislature's plan. And that court added—again correctly—that "[i]n reapportionment cases the burden is on the State to justify deviations from parity by 'legitimate considerations incident to the effectuation of a rational state policy.' Reynolds v. Sims, 377 U.S. 533, 579 (1964); see Swann v. Adams, 385 U.S. 440, 444 (1967). The State has provided no governmental necessity for strictly adhering to political subdivision lines." 330 F.Supp., at 1140. Accordingly, the District Court promulgated its own apportionment plan, which significantly reduced the extent of deviation.
Under the District Court's plan, the maximum deviation would be 7.2%, excluding one district which is geographically isolated from the mainland of the Commonwealth. And, even including that isolated district, the maximum total deviation would not exceed 10.2%. But the substantial reduction in the maximum deviation does not in itself make clear the full measure of the improvement achieved by the District Court's plan. The number of delegates whose districts deviate from the norm by 3% or more would be almost cut in [p339] half, from 58 to 32. And of the 32 districts still exceeding the 3% mark, only one—the geographically isolated district—would exceed the mean by more than 3.7%. In short, while the District Court did not achieve its stated goal of "perfect mathematical division" because of the "multiplicity of delegates, the geography of the State and the diversity of population concentrations," 330 F.Supp., at 1147, its plan would still produce measurably greater equality of representation.
Appellants necessarily concede that the District Court's plan would reduce the inequality in population per district, but they defend the legislature's plan on the ground that "tolerance of political jurisdictional lines is justification for some deviation," Brief for Appellant Commonwealth of Virginia 24. They maintain that the legislature's plan achieved the highest degree of equality possible without fragmenting political subdivisions. The principal question presented for our decision is whether on the facts of this case an asserted state interest in preserving the integrity of county lines can justify the resulting substantial deviations from population equality.

## II

The holdings of our prior decisions can be restated in two unequivocal propositions. First, the paramount goal of reapportionment must be the drawing of district lines so as to achieve precise equality in the population of each district. "[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of [p340] equal population as is practicable." Reynolds v. Sims, 377 U.S., at 577; see also Kirkpatrick v. Preisler, 394 U.S., at 531. The Constitution does not permit a State to relegate considerations of equality to secondary status and reserve as the primary goal of apportionment the service of some other state interest.
Second, it is open to the State, in the event that it should fail to achieve the goal of population equality, to attempt to justify its failure by demonstrating that precise equality could not be achieved without jeopardizing some critical governmental interest. The Equal Protection Clause does not exalt the principle of equal representation to the point of nullifying every competing interest of the State. But we have held firmly to the view that variations in weight accorded each vote can be approved only where the State meets its burden of presenting cogent reasons in explanation of the variations, and even then only where the variations are small. See, e.g., Abate v. Mundt, 403 U.S. 182 (1971); Kirkpatrick v. Preisler, supra; Swann v. Adams, supra.
The validity of these propositions and their applicability to the case before us are not at all diminished by the fact that Kirkpatrick v. Preisler and Wells v. Rockefeller, 394 U.S. 542 (1969)—two of the many cases in which the propositions were refined and applied—concerned the division of States into federal congressional districts rather than legislative reapportionment. Prior to today's decision, we have never held that different constitutional standards are applicable to the two situations. True, there are significant differences between congressional districting and legislative apportionment, and we have repeatedly recognized those differences. In Reynolds v. Sims, for example, we termed "more than insubstantial" the argument that "a State can rationally consider according political subdivisions some independent representation in at least one body [p341] of the state legislature, as long as the basic standard of equality of population among districts is maintained." 377 U.S., at 580. See also id., at 578; Abate v. Mundt, supra. But the recognition of these differences is hardly tantamount to the establishment of two distinct controlling standards. What our decisions have made clear is that certain state interests that are pertinent to legislative reapportionment can have no possible relevance to congressional districting. Thus, the need to preserve the integrity of political subdivisions as political subdivisions may, in some instances, justify small variations in the population of districts from which state legislators are elected. But that interest can hardly be asserted in justification of malapportioned congressional districts. Kirkpatrick v. Preisler, supra. While the State may have a broader range of interests to which it can point in attempting to justify a failure to achieve precise equality in the context of legislative apportionment, it by no means follows that the State is subject to a lighter burden of proof or that the controlling constitutional standard is in any sense distinguishable.
Our concern in Kirkpatrick v. Preisler was with the constitutional requirement that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964). We rejected the State's argument that "there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the 'as nearly as practicable' standard.... Since 'equal representation for equal numbers of people [is] the fundamental goal for the House of Representatives,' Wesberry v. Sanders, supra, at 18, the 'as nearly as practicable' standard requires that the State make a good-faith effort to achieve precise mathematical equality. See Reynolds v. Sims, 377 U.S. 533, 577 (1964)." Kirkpatrick v. Preisler, [p342] supra, at 530-531. Moreover, we held, id., at 532, that "[i]t was the burden of the State 'to present... acceptable reasons for the variations among the populations of the various... districts....' Swann v. Adams, supra, at 443-444."
The principles that undergirded our decision in Kirkpatrick v. Preisler are the very principles that supported our decision in Swann v. Adams, a case involving the apportionment of a state legislature. The opinion in Kirkpatrick does not suggest that a different standard might be applicable to congressional districting. On the contrary, the "as nearly as practicable" standard with which we were concerned is identical to the standard that Reynolds v. Sims specifically made applicable to controversies over state legislative apportionment. See Reynolds v. Sims, supra, at 577. See also Hadley v. Junior College District, 397 U.S. 50, 56 (1970). And the holding in Kirkpatrick that the State must bear the burden of justifying deviations from population equality not only rested squarely and exclusively on our holding in Swann v. Adams, but even defined the test by quotation from Swann. See Kirkpatrick v. Preisler, supra, at 532.
In Swann v. Adams we held that variations in the population of legislative districts must be justified by the State by presentation of "acceptable reasons for the variations." 385 U.S., at 443. And a comparison of the opinion for the Court in Swann with the views expressed by two Justices in dissent, see Swann v. Adams, supra, at 447-448 (Harlan, J., dissenting), decisively refutes any suggestion that unequal representation will be upheld so long as some rational basis for the discrimination can be found. A showing of necessity, not rationality, is what our decision in Swann requires.
If Swann does not establish the point with sufficient clarity, then surely our decision in Kilgarlin v. Hill, [p343] 386 U.S. 120 (1967), where we elucidated and applied the principles of Swann, removes all doubt. There, the District Court had sustained the state apportionment plan on two grounds, one of which we termed a "burden of proof" ruling. The lower court held that appellants "had the burden not only of demonstrating the degree of variance from the equality principle but also of 'negat[ing] the existence of any state of facts which would sustain the constitutionality of the legislation.' 252 F.Supp. 404, 414." Id., at 122. We squarely rejected that statement of the controlling legal standard, and held that under Swann v. Adams, "it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here [a total deviation of 26.48%] are sufficient to invalidate an apportionment plan." Ibid. We also rejected the District Court's second ground of decision: namely, that the deviations were amply justified by the State's attempt, wherever possible, to respect county boundaries. Significantly, the opinion stated that "[w]e are doubtful... that the deviations evident here are the kind of 'minor' variations which Reynolds v. Sims indicated might be justified by local policies counseling the maintenance of established political subdivisions in apportionment plans. 377 U.S. 533, 578-579. But we need not reach that constitutional question, for we are not convinced that the announced policy of the State of Texas necessitated the range of deviations between legislative districts which is evident here." Id., at 123 (emphasis supplied).

## III

I would affirm the District Court's decision because, on this record, the Commonwealth of Virginia failed—just as the State of Florida failed in Swann v. Adams and the State of Texas failed in Kilgarlin v. Hill—to justify [p344] substantial variations in the population of the districts from which members of the House of Delegates are elected. The panel that heard the case below consisted of four judges, all from Virginia, and I share their unanimous view that the Commonwealth failed to prove that the variations were justified by a need to insure representation of political subdivisions or a need to respect county boundaries in the drawing of district lines.
If variations in the population of legislative districts are to be upheld, the Court must determine, before turning to the justifications that are asserted in defense of the variations, that they are "free from any taint of arbitrariness or discrimination." Ante, at 325, quoting from Roman v. Sincock, 377 U.S., at 710. Appellees alleged before the District Court that the legislature's reapportionment plan did indeed discriminate against one region of the State—the Northern Virginia suburbs of Washington, D.C. Each House seat in Northern Virginia would be underrepresented by an average of 4.3% under the 1971 plan, and several would be underrepresented by as much as 6.3%. In view of what it termed the "pervasive under-representation in districts in Northern Virginia," 330 F.Supp., at 1146, the District Court ordered the transfer of one delegate out of the systematically overrepresented Tidewater region and into Northern Virginia.
In Abate v. Mundt, supra, at 185-186, we pointed out that we have
   "never suggested that certain geographic areas or political interests are entitled to disproportionate representation....
   "Accordingly, we have underscored the danger of apportionment structures that contain a built-in bias tending to favor particular geographic areas or political interests or which necessarily will tend to favor, for example, less populous districts over their more [p345] highly populated neighbors, see Hadley v. Junior College District, 397 U.S. 50, 57-58 (1970)."
The District Court found as a fact that the 1971 plan did include a "built-in bias tending to favor [a] particular geographic area." Conveniently, the Court discerns no need even to acknowledge this critical finding of fact, and sets it aside without explanation. We have no basis for concluding that the finding is clearly erroneous, and that finding requires an affirmance of the District Court's decision without regard to the Commonwealth's asserted justifications for the inequalities in district population.
But even assuming that the Commonwealth's plan can be considered free of any "taint of arbitrariness or discrimination," appellants have failed to meet their burden of justifying the inequalities. They insist that the legislature has followed a consistent practice of drawing district lines in conformity with county boundaries. But a showing that a State has followed such a practice is still a long step from the necessary showing that the State must follow that practice. Neither in the Virginia Constitution nor in any Act of the Assembly has Virginia explicitly indicated any interest in preserving the integrity of county lines or in providing representation of political subdivisions as political subdivisions. Cf. Reynolds v. Sims, supra, at 580-581. On the contrary, the Constitution establishes a single standard for both legislative apportionment and congressional districting, and that standard requires only that lines be drawn so as to insure, "as nearly as is practicable," representation in proportion to population. [p346] And the origins of the constitutional provision make clear that equality in district population, not the representation of political subdivisions, is the Commonwealth's pre-eminent goal.
Moreover, in asserting its interest in preserving the integrity of county boundaries, the Commonwealth offers nothing more than vague references to "local legislation," without describing such legislation with precision, without indicating whether such legislation amounts to a significant proportion of the legislature's business, and without demonstrating that the District Court's plan would materially affect the treatment of such legislation.
[p347] The Court assumes that county representation is an important goal of Virginia's reapportionment plan, ante, at 326-328, and appellants suggest that the plan can be justified, at least in part, by the effort "to give an independent voice to the cities and counties [the legislature] daily governs." Brief for Appellant Commonwealth of Virginia 33. If county representation is indeed the Commonwealth's goal, then the apportionment plan adopted in 1971 itself falls far short of that objective. Appellants describe the problem in the following terms:
   "Under the Court's plan, a situation could arise where the 1602 citizens of Wythe County, Virginia, who were placed in the Sixth Legislative District are opposed to local legislation pending in the General Assembly for their county. They must voice such opposition to the delegates representing 91,620 other persons in the Sixth Legislative District composed of the Counties of Carroll, Floyd and Montgomery [p348] and the City of Radford, rather than oppose only their 20,537 fellow citizens of Wythe County." Brief for Appellant Commonwealth of Virginia 27.
That argument assumes that some significant number of issues will have an impact squarely on Wythe County, while having no impact, or a differing impact, on the surrounding areas. For on issues affecting the entire region or the Commonwealth as a whole—presumably the vast majority of issues—the critical concern is not that each vote in Wythe County be cast in a single district, but that each vote cast be precisely equal in weight to votes in every other part of the Commonwealth. And the argument also assumes that the issues affecting only one county are of predominant concern to the voters. Under a representative form of government, the voters participate indirectly through the election of delegates. It should be obvious that as a voter's concern with regional or statewide issues increases relative to his interest in county issues, the significance of voting outside the county will correspondingly diminish.
But even if a substantial number of issues do have an impact primarily on a single county, and even if those issues are of deep concern to the voters, it still does not follow that the legislature's apportionment plan is a rational attempt to serve an important state interest. The plan would by no means provide, even in the legislature's own terms, effective representation for each county. Thus, the fourth legislative district, which would elect one delegate under the 1971 plan, consists of Wythe, Grayson, and Bland Counties along with the city of Galax. Yet Wythe County alone, according to appellants' figures, comprises 22,139 of the 49,279 persons resident in the district. Since Wythe County makes up almost one-half of the population of the fourth district, the district's delegate is likely to champion Wythe County's cause should an issue arise that pits its interest [p349] against the interests of Grayson or Bland County or the city of Galax.
In short, the best that can be said of appellants' efforts to secure county representation is that the plan can be effective only with respect to some unspecified but in all likelihood small number of issues that affect a single county and that are overwhelmingly important to the voters of that county; and even then it provides effective representation only where the affected county represents a large enough percentage of the voters in the district to have a significant impact on the election of the delegate. But even if county representation were, in fact, a strong and legitimate goal of the Commonwealth, and even if the 1971 plan did represent a rational effort to serve that goal, it is still not clear that the legislature's plan should be upheld. The plan prepared by the District Court would achieve a much higher degree of equality in district population, and it would accomplish that salutary goal with minimal disruption of the legislature's effort to avoid fragmenting counties. Of the 134 political subdivisions in the Commonwealth, only 12 would be divided by the District Court's plan. More significant, the number of persons resident in voting districts that would be cut out of one county or city and shifted to another is 64,738, out of the total state population of 4,648,494. Thus, even making each of the logical and empirical assumptions implicit in the view that violating county lines would effectively disenfranchise certain persons on certain local issues, the number [p350] of persons affected would still be less than 112% of the total state population.

## IV

On this record—without any showing of the specific need for county representation or a showing of how such representation can be meaningfully provided to small counties whose votes would be submerged in a multi-county district—I see no basis whatsoever for upholding the Assembly's 1971 plan and the resulting substantial variations in district population. Accordingly, I would affirm the judgment of the District Court holding the plan invalid under the Equal Protection Clause of the Fourteenth Amendment.

## Notes

* ↑ The full extent of the deviation may, in fact, be substantially in excess of 16.4%, as appellees maintain and appellants seemingly concede. See infra, at 335-338.
* ↑ See, e.g., Avery v. Midland County, 390 U.S. 474 (1968); Reynolds v. Sims, 377 U.S. 533 (1964); Roman v. Sincock, 377 U.S. 695 (1964).
* ↑ See, e.g., Cummings v. Meskill, 341 F.Supp. 139 (Conn. 1972) (maximum deviation for House, 7.83%, and for Senate, 1.81%); In re Legislative Districting of General Assembly, 193 N.W.2d 784 (1972) (House, 3.8%, and Senate, 3.2%); Graves v. Barnes, 343 F.Supp. 704 (WD Tex. 1972) (9.9%); Troxler v. St. John the Baptist Parish Police Jury, 331 F.Supp. 222 (ED La. 1971) (6.2%); In re Legislative Districting of General Assembly, 175 N.W.2d 20 (1970) (House, 13%, and Senate, 12.1%); Driggers v. Gallion, 308 F.Supp. 632 (MD Ala. 1969) (at least 10%); Skolnick v. Illinois State Electoral Bd., 307 F.Supp. 691 (ND Ill. 1969) (House, 16.9%, and Senate, 14.7%); Long v. Docking, 282 F.Supp. 256, 283 F.Supp. 539 (Kan. 1968) (16.6%).
* ↑ "The deviations from absolute equality of population arrived at by the redistricting of the House ranged from an under-representation of plus 9.6% to an over-representation of minus 6.8%, or a total variance of 16.4%. As noted by the Court, however, the 42nd District, a floater shared by the cities of Chesapeake, Portsmouth and Virginia Beach would have as to that one instance increased the total variation to 23.6%." (Emphasis supplied.) See also Reply Brief for Appellant City of Virginia Beach 3-4.
* ↑ The deviation would be slightly in excess of 8% if floterial districts were weighted according to appellees' method of calculation. 330 F.Supp. 1138, 1147 n. 9.
* ↑ The isolated district comprises Accomack and Northampton Counties. These counties, known as the Eastern Shore, are separated from the mainland of Virginia by Chesapeake Bay and the Atlantic Ocean. They are contiguous only to the State of Maryland. The district, the 46th, is overrepresented by 6.5%.
* ↑ Reynolds v. Sims, supra, at 567: "[T]he basic principle of representative government remains, and must remain, unchanged—the weight of a citizen's vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies." See also id., at 579.
* ↑ Cf., e.g., the apportionment provision in the Indiana Constitution. Whitcomb v. Chavis, 403 U.S. 124, 136 n. 14 (1971): "A Senatorial or Representative district, where more than one county shall constitute a district, shall be composed of contiguous counties; and no county, for Senatorial apportionment, shall ever be divided." Art. 4, § 6 (emphasis supplied).
* ↑ Prior to its amendment in 1971, the Constitution provided that "[t]he General Assembly shall by law apportion the State into districts, corresponding with the number of representatives to which it may be entitled in the House of Representatives of the Congress of the United States; which districts shall be composed of contiguous and compact territory containing as nearly as practicable an equal number of inhabitants." § 55. At the same time, the Constitution provided, with respect to legislative apportionment, only that "[t]he present apportionment of the Commonwealth into senatorial and house districts shall continue; but a reapportionment shall be made in the year nineteen hundred and thirty-two and every ten years thereafter." § 43. Plainly, the adoption in 1971 of a provision, Art. II, § 6, which sets a single standard to govern legislative districting and congressional apportionment, indicates that in the minds of the draftsmen the same considerations should apply in the two situations. See Commission on Constitutional Revision, Report on the Constitution of Virginia 117 (1969): "There is no reason to make any distinction between General Assembly and congressional apportionment. For this reason, the proposed section [Art. II, § 6] combines the provisions of sections 43 and 55 so that a common set of principles applies to apportionment of legislative seats and congressional seats."
* ↑ Appellants maintain that: "[L]ocal governments carry out much of the various responsibilities of State government as well as having direct concern in the enactment of numerous local legislative enactments. This alone justifies Virginia's tradition of adherence to political jurisdictions. Moreover, the revised Virginia Constitution now allows for the first time special or local legislation for counties as well as for cities. Revised Constitution of Virginia, Article VII, Section 2. Those provisions now permit counties the constitutional flexibility formerly afforded only to cities in providing services for their citizens." Brief for Appellant Commonwealth of Virginia 27. The constitutional provision to which appellants refer declares that "[t]he General Assembly may also provide by special act for the organization, government, and powers of any county, city, town, or regional government, including such powers of legislation, taxation, and assessment as the General Assembly may determine...." It should be noted, however, that this provision permits the delegation of broad powers to local governments. It does not speak to the issue—obviously of great concern to the residents of each political subdivision—of the manner in which that delegated power will be exercised by the local government.
* ↑ To realize the goal of county representation it would, of course, be necessary to accord each county at least one representative. In the case of Virginia such a plan could not be implemented without generating vast and unconstitutional disparities in the population of the districts. And such a plan clearly could not be justified by invoking the so-called "federal analogy." See Reynolds v. Sims, supra, at 571-577.