# Avery v. Midland County/Dissent Harlan

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United States Supreme Court
390 U.S. 474
Avery v. Midland County
Argued: Nov. 14, 1967. --- Decided: April 1, 1968
Mr. Justice HARLAN, dissenting.
I could not disagree more with this decision, which wholly disregards statutory limitations upon the appellate jurisdiction of this Court in state cases and again betrays such insensitivity to the appropriate dividing lines between the judicial and political functions under our constitutional system.
I believe that this Court lacks jurisdiction over this case because, properly analyzed, the Texas judgment must be seen either to rest on an adequate state ground or to be wanting in 'finality.' The history of the Texas proceedings, as related in the Court's opinion, ante, at 477-478, clearly reveals that the decision of the Texas Supreme Court disallowing the present county apportionment scheme rests upon a state as well as a federal ground. The state ground-Art. V, § 18, of the Texas Constitution was clearly adequate to support the result. This should suffice to defeat the exercise of this Court's jurisdiction. See, e.g., Department of Mental Hygiene of Cal. v. Kirchner, 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753; Herb v. Pitcairn, 324 U.S. 117, 125 126, 65 S.Ct. 459, 462-463, 89 L.Ed. 789.
Nor does this Court have jurisdiction to review the Texas Supreme Court's statement that in reapportioning the county in the future the county commissioners may take into account factors other than population. That holding obviously does not amount to a '(f)inal judgment' within the meaning of 28 U.S.C. § 1257. The traditional test of finality of state court judgments has been whether the judgment leaves more than a ministerial act to be done. See, e.g., Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 382, 73 S.Ct. 749, 751, 97 L.Ed. 1094; Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68, 68 S.Ct. 972, 976, 92 L.Ed. 1212. It is clear that the acts which must be performed in order to bring about a new apportionment of Midland County are very far from ministerial in character, and conceivably might even result in satisfying petitioner's demands without further litigation. For example, since the statement of the Texas Supreme Court regarding nonpopulation factors was merely advisory and not mandatory, the county commissioners might choose to reapportion the county solely on the basis of population, thus leaving petitioner with nothing about which to complain. Since the requirement of finality is an unwaivable condition of this Court's jurisdiction, see, e.g., Market St. R. Co. v. Railroad Comm'n of State of Cal., 324 U.S. 548, 551, 65 S.Ct. 770, 772, 89 L.Ed. 1171, I consider that this case is not properly before us.
On these scores, I would dismiss the writ as improvidently granted.
On the merits, which I reach only because the Court has done so, I consider this decision, which extends the state apportionment rule of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, to an estimated 80,000 units of local government throughout the land, both unjustifiable and ill-advised.
I continue to think that these adventures of the Court in the realm of political science are beyond its constitutional powers, for reasons set forth at length in my dissenting opinion in Reynolds, 377 U.S., at 589, 84 S.Ct., at 1395 et seq. However, now that the Court has decided otherwise, judicial self-discipline requires me to follow the political dogma now constitutionally embedded in consequence of that decision. I am not foreclosed, however, from remonstrating against the extension of that decision to new areas of government. At the present juncture I content myself with stating two propositions which, in my view, stand strongly against what is done today. The first is that the 'practical necessities' which have been thought by some to justify the profound break with history that was made in 1962 by this Court's decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, are not present here. The second is that notwithstanding Reynolds the 'one man, one vote' ideology does not provide an acceptable formula for structuring local governmental units.
The argument most generally heard for justifying the entry of the federal courts into the field of state legislative apportionment is that since state legislatures had widely failed to correct serious mal-apportionments in their own structure, and since no other means of redress had proved available throgh the political process, this Court was entitled to step into the picture. While I continue to reject that thesis as furnishing an excuse for the federal judiciary's straying outside its proper constitutional role, and while I continue to believe that it bodes ill for the country and the entire federal judicial system if this Court does not firmly set its face against this loose and short-sighted point of view, the important thing for present purposes is that no such justification can be brought to bear in this instance.
No claim is made in this case that avenues of political redress are not open to correct any malapportionment in elective local governmental units, and it is difficult to envisage how such a situation could arise. Local governments are creatures of the States, and they may be reformed either by the state legislatures, which are now required to be apportioned according to Reynolds, or by amendment of state constitutions. In these circumstances, the argument of practical necessity has no force. The Court, then, should withhold its hand until such a supposed necessity does arise, before intruding itself into the business of restructuring local governments across the country.
There is another reason why the Court should at least wait for a suitable period before applying the Reynolds dogma to local governments. The administrative feasibility of judicial application of the 'one man, one vote' rule to the apportionment even of state legislatures has not yet been demonstrated. A number of significant administrative questions remain unanswered, and the burden on the federal courts has been substantial. When this has thus far been the outcome of applying the rule to 50 state legislatures, it seems most unwise at this time to extend it to some 80,000 units of local government, whose bewildering variety is sure to multiply the problems which have already arisen and to cast further burdens, of imponderable dimension, on the federal courts. I am frankly astonished at the ease with which the Court has proceeded to fasten upon the entire country at its lowest political levels the strong arm of the federal judiciary, let alone a particular political ideology which has been the subject of wide debate and differences from the beginnings of our Nation.
There are also convincing functional reasons why the Reynolds rule should not apply to local governmental units at all. The effect of Reynolds was to read a long debated political theory that the only permissible basis for the selection of state legislators is election by majority vote within areas which are themselves equal in population-into the United States Constitution, thereby foreclosing the States from experimenting with legislatures rationally formed in other ways. Even assuming that this result could be justified on the state level, because of the substantial identity in form and function of the state legislatures, and because of the asserted practical necessities for federal judicial interference referred to above, the 'one man, one vote' theory is surely a hazardous generalization on the local level. As has been noted previously, no 'practical necessity' has been asserted to justify application of the rule to local governments. More important, the greater and more varied range of functions performed by local governmental units implies that flexibility in the form of their structure is even more important than at the state level, and that by depriving local governments of this needed adaptability the Court's holding may indeed defeat the very goals of Reynolds.
The present case affords one example of why the 'one man, one vote' rule is especially inappropriate for local governmental units. The Texas Supreme Court held as a matter of Texas law:
'Theoretically, the commissioners court is the governing body of the county and the commissioners represent all the residents, both urban and rural, of the county. But developments during the years have greatly narrowed the scope of the functions of the commissioners court and limited its major responsibilities to the nonurban areas of the county. It has come to pass that the city government * * * is the major concern of the city dwellers and the administration of the affairs of the county is the major concern of the rural dwellers.' 406 S.W.2d 422, 428.
Despite the specialized role of the commissioners court, the majority has undertaken to bring it within the ambit of Reynolds simply by classifying it as 'a unit of local government with general responsibility and power for local affairs.' See ante, at 483. Although this approach is intended to afford 'equal protection' to all voters in Midland County, it would seem that it in fact discriminates against the county's rural inhabitants. The commissioners court, as found by the Texas Supreme Court, performs more functions in the area of the county outside Midland City than it does within the city limits. Therefore, each rural resident has a greater interest in its activities than each city dweller. Yet under the majority's formula the urban residents are to have a dominant voice in the county government, precisely proportional to their numbers, and little or no allowance may be made for the greater stake of the rural inhabitants in the county government.
This problem is not a trivial one and is not confined to Midland County. It stems from the fact that local governments, unlike state governments, are often specialized in function. Application of the Reynolds rule to such local governments prevents the adoption of apportionments which take into account the effect of this specialization, and therefore may result in a denial of equal treatment to those upon whom the exercise of the special powers has unequal impact. Under today's decision, the only apparent alternative is to classify the governmental unit as other than 'general' in power and responsibility, thereby, presumably, avoiding application of the Reynolds rule. Neither outcome satisfies Reynolds' avowed purpose: to assure 'equality' to all voters. The result also deprives localities of the desirable option of establishing slightly specialized, elective units of government, such as Texas' county commissioners court, and varying the size of the constituencies so as rationally to favor those whom the government affects most. The majority has chosen explicitly to deny local governments this alternative by rejecting even the solution of the Texas Supreme Court, which held that the present county apportionment was impermissible but would have allowed the new apportionment to reflect factors related to the special functions of the county commissioners court, such as 'land areas, geography, miles of county roads and taxable values,' 406 S.W.2d, at 428, as well as population.
Despite the majority's declaration that it is not imposing a 'straitjacket' on local governmental units, see ante, at 485, its solution is likely to have other undesirable 'freezing' effects on local government. One readily foreseeable example is in the crucial field of metropolitan government. A common pattern of development in the Nation's urban areas has been for the less affluent citizens to migrate to or remain within the central city, while the more wealthy move to the suburbs and come into the city only to work. The result has been to impose a relatively heavier tax burden upon city taxpayers and to fragmentize governmental services in the metropolitan area. An oft-proposed solution to these problems has been the institution of an integrated government encompassing the entire metropolitan area. In many instances, the suburbs may be included in such a metropolitan unit only by majority vote of the voters in each suburb. As a practical matter, the suburbanites often will be reluctant to join the metropolitan government unless they receive a share in the government proportional to the benefits they bring with them and not merely to their numbers. The city dwellers may be ready to concede this much, in return for the ability to tax the suburbs. Under the majority's pronouncements, however, this rational compromise would forbidden: the metropolitan government must be apportioned solely on the basis of population if it is a 'general' government.
These functional considerations reinforce my belief that the 'one man, one vote' rule, which possesses the simplistic defects inherent in any judicially imposed solution of a complex social problem, is entirely inappropriate for determining the form of the country's local governments.
No better demonstration of this proposition could have been made than that afforded by the admirable analysis contained in the dissenting opinion of my Brother FORTAS. But, with respect, my Brother's projected solution of the matter is no less unsatisfactory. For it would bid fair to plunge this Court into an avalanche of local reapportionment cases with no firmer constitutional anchors than its own notions of what constitutes 'equal protection' in any given instance.
With deference, I think that the only sure-footed way of avoiding, on the one hand, the inequities inherent in today's decision, and on the other, the morass of pitfalls that would follow from my Brother FORTAS' approach, is for this Court to decline to extend the constitutional experiment of Reynolds, and to leave the structuring of local governmental units to the political process where it belongs.

## Notes

* ↑ 28 U.S.C. § 1257 provides: 'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows * * *.'
* ↑ The magnitude of this break was irrefutably demonstrated by Mr. Justice Frankfurter in his dissenting opinion in Baker, 369 U.S., at 266, 300-323, 82 S.Ct. at 737, 755-767.
* ↑ See the concurring opinion of Mr. Justice Clark in Baker v. Carr, 369 U.S. 186, 251, 258-259, 82 S.Ct. 691, 727, 732; Auerbach, The Reapportionment Cases: One Person, One Vote-One Vote, One Value, 1964 Sup.Ct.Rev. 1, 68-70.
* ↑ See, e.g., United States Advisory Commission on Intergovernmental Relations, State Constitutional and Statutory Restrictions Upon the Structural, Functional, and Personnel Powers of Local Government 23-61 (1962); Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col.L.Rev. 21, 23, n. 9 (1965).
* ↑ One such question is the extent to which an apportionment may taken into account population changes which occur between decennial censuses. Cf. Lucas v. Rhodes, 389 U.S. 212, 88 S.Ct. 416, 19 L.Ed.2d 423 (dissenting opinion of this writer). Another is the degree of population variation which is constitutionally permissible. See Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501; cf. Rockefeller v. Wells, 389 U.S. 421, 88 S.Ct. 578, 19 L.Ed.2d 651 (dissenting opinion of this writer).
* ↑ See the dissenting opinion of Mr. Justice Frankfurter in Baker v. Carr, 369 U.S. 186, 266, 300-324, 82 S.Ct. 691, 737, 755 767.
* ↑ See generally W. Anderson & E. Weidner, State and Local Government 85-103 (1951).
* ↑ See, e.g., W. Anderson & E. Weidner, supra, at 171-174; United States Advisory Commission on Intergovernmental Relations for use of House Committee on Government Operations, 87th Cong., 1st Sess., Governmental Structure, Organization, and Planning in Metropolitan Areas 7 (Comm. Print 1961).
* ↑ See, e.g., United States Advisory Commission on Intergovernmental Relations, Alternative Approaches to Governmental Reorganization in Metropolitan Areas 8-9 (1962); United States Advisory Commission on Intergovernmental Relations for use of House Committee on Government Operations, 87th Cong., 1st Sess., Governmental Structure, Organization, and Planning in Metropolitan Areas 15-16 (Comm.Print 1961).
* ↑ See, e.g., W. Anderson & E. Weidner, supra, at 174-179; United States Advisory Commission on Intergovernmental Relations, Alternative Approaches to Governmental Reorganization in Metropolitan Areas (1962).
* ↑ See, e.g., United States Advisory Commission on Intergovernmental Relations, State Constitutional and Statutory Restrictions Upon the Structural, Functional, and Personnel Powers of Local Government 38, 44-53 (1962).
* ↑ See Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col.L.Rev. 21, 37 and n. 67 (1965); cf. United States Advisory Commission on Intergovernmental Relations, Factors Affecting Voter Reactions to Governmental Reorganization in Metropolitan Areas 26 27 (1962).
* ↑ Cf. H. Hart & A. Sacks, The Legal Process 662-669 (tent. ed. 1958).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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