Butterworth v. Dempsey

229 F. Supp. 754

• Court: District Court, D. Connecticut
• Decided: June 22, 1964
• Docket: Civ. 9571
• Status: Published

Opinions

TIMBERS, District Judge:

QUESTION PRESENTED

The question here presented is whether the Connecticut General Assembly as now constituted denies plaintiffs the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States. We hold that the districting of the Senate and the apportionment of the House so debase the voting rights of plaintiffs in the choice of the members of both houses as to result in an invidious discrimination against plaintiffs who thereby are denied the equal protection of the laws.

PARTIES TO THE ACTION

Plaintiffs are ten resident citizens and voters of Connecticut from six urban and suburban towns,¹ suing for themselves and other Connecticut voters similarly situated.

Defendants are the Governor, Secretary of the State, Treasurer and Comptroller of Connecticut, sued in their official capacities and particularly with respect to their duties in the holding of general elections to the legislature and in certifying the results of such elections. The Secretary of the State, in addition, is sued in her capacity as Commissioner of Elections representing all state and municipal election officials charged with duties in the holding of general elections to the legislature.

Other resident citizens and voters were permitted to intervene, including the chairmen of the Republican and Democratic State Central Committees who were permitted to intervene as individuals, not as political leaders.

CLAIMS OF THE PARTIES

Plaintiffs in their complaint seek (i) a declaratory judgment that their constitutional rights are impaired by the mal-apportionment² of both houses of the General Assembly; (ii) injunctive relief against the holding of general elections, other than elections at large, to the General Assembly in 1964 until the House has been reapportioned and the Senate redistricted so as not to impair plaintiffs’ constitutional rights; and (iii) such further relief as may be just and equitable. Plaintiffs also filed, and pressed at the hearing, a motion for partial summary judgment claiming at this time only the declaratory judgment prayed for in the complaint.

Defendants in their answer and at the hearing took no position with respect to the critical issues in the case but did request an opportunity to comply with any decree entered by the Court.

Intervenor Bailey supports generally the position of plaintiffs, claiming mal-apportionment of both Senate and House.

The Pinney intervenors admit malap-portionment of the Senate; but they vigorously assert that apportionment of the House based upon the principle of unit representation, using the towns as local units, complies with the Constitution of Connecticut and does not violate the Constitution of the United States, so long as the Senate is based on the principle of equality of population. The Pin-ney intervenors also filed, but did not press at the hearing, a motion to dismiss the complaint for failure to state a cause of action, questioning the power of this Court to declare invalid a legislative apportionment system embodied in a state constitution.

JURISDICTION

This Court has jurisdiction over the subject matter and the parties pursuant to 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 1343(3) and (4).

Since the action draws into question provisions of the statutes and Constitution of Connecticut, a special statutory district court of three judges was convened to hear and determine the case pursuant to 28 U.S.C. §§ 2281-2284.

HEARING AND RECORD

The Court held a hearing on October 22, 1963, at which counsel were heard on the motion for partial summary judgment as well as on the merits of the case. No oral evidence was presented.

The record before the Court consists of the pleadings; facts established by stipulation and by requests for admissions pursuant to Rule 36, Fed.R.Civ.P.; and affidavits.

After the death of Judge CLARK and the designation of Judge SMITH in his pláce, counsel agreed that the Court should hear and determine the case on this record including a transcription of the oral arguments, which course has been followed.

THE SENATE

Under the Connecticut Constitution adopted in 1818 and amendments thereto, the legislature consists of a bicameral General Assembly. The upper-house, the Senate, is comprised presently of 36 members.

Article Third, Section 5, adopted in 1901, raised the minimum number of Senate districts to 24, the maximum to-36. The last general redistricting was in 1903 when the General Assembly divided the State into 35 districts. A thirty-sixth district (Greenwich) was add■ed in 1941. Aside from the addition of .the thirty-sixth district in 1941 and some ■shifting of boundaries in New Haven, there has been no valid redistricting of the Senate since 1903, more than 60 years, despite numerous legislative pro-jposals.

Article Third, Section 5, also provides That in districting the Senate, “regard :shall be had to population in the several -districts, that the same may be as nearly equal as possible under the limitations •of this section.” The limitations referred to are that Senate districts shall .always be composed of contiguous territory; that neither the whole nor a part •of one county shall be j oined to the whole •or a part of another county to form a district; that no town shall be divided unless for the purpose of forming more than «one district wholly within the town; and that each county shall have at least one •senator.

In 1953 the General Assembly enacted legislation to redistriet the Senate. The Connecticut Supreme Court of Errors struck down this legislation, holding mandatory that provision of Article Third, Section 5, which allows only that session of the General Assembly next after completion of the United States census to redistrict the Senate. Cahill v. Leopold, 141 Conn. 1, 103 A.2d 818 (1954).

Measured by any of the recognized standards, the malapportionment of the Senate is clearly demonstrated.³ The disparity between the most populous district (the Twenty-fifth with 175,940 inhabitants) and the least populous district (the Tenth with 21,627 inhabitants) is in a ratio of eight to one.⁴ Based upon a 1960 state population of 2,535,234, the norm for each Senate district is 70,423, from which the deviations in the present districting of the Senate are striking: the average population of the five most populous districts is 159,721 (compared with the norm of 70,423), indicating a deviation of 226.8% from the norm; the average population of the five least populous districts is 28,722, or 40.8% of the norm; of the 36 districts, 25 deviate more than 25% from the norm, 17 below and 8 above.⁵ A majority of the Senate is elected by 31.9% of the total population; the 17 districts 25% or more below the norm contain 27.6% of the population and elect 47.2% of the Senate membership; the 8 districts 25% or more above the norm contain 43.9% of the population and elect 22.2% of the Senate membership.⁶

Obviously the present districting of the Senate deviates sharply from the requirement of districts of approximately equal population contemplated by the Connecticut Constitution. All parties agree that the Senate must be redistricted.

With respect to the Senate, we hold:

(1) That the present districting of the Senate so debases the voting rights of plaintiffs as to result in an invidious discrimination against plaintiffs who thereby are denied the equal protection of the laws;

(2) That the Senate must be redistricted promptly in such a way as to achieve substantially equal weighting of the votes of all voters — in accordance with the guidelines indicated in Judge CLARK’S opinion ⁷ and pursuant to a decree to be formulated by this Court;⁸

(3) That in so redistricting the Senate, the limitations in Article Third, Section 5, of the Connecticut Constitution, in view of the supremacy clause of the Constitution of the United States,⁹ cannot bar action to comply with federal constitutional requirements.¹⁰

THE HOUSE

The House consists of 294 representatives.¹¹ Each of the 169 towns, the basic local governmental subdivision in the State, has either one or two representatives in the House.

The town unit basis for representation in the House is found in Article Third, Section 3, of the Connecticut Constitution. Each town with more than 5,000 inhabitants is entitled to two representatives. Each new town must have a population of at least 2,500 before being entitled to one representative; prior to reaching a population of 2,500, new towns are treated as voting districts of the towns from which they were set off, for the purpose of electing the representative or representatives to which the parent town is entitled. Towns which had two representatives when the Connecticut Constitution of 1818 was adopted retain the right to that number.¹²

The town with the largest population (Hartford, 162,178) has the same number ■of representatives — 2—in the House as the smallest town (Union, 383).¹³ The vote of a resident of Union is weighted 424.5 times as heavily as the vote of a resident of Hartford.¹⁴ Based on the 1960 state population, the norm for each town is 8,623, from which the deviations in the present apportionment of the House are substantial: representatives of the ten most populous towns and cities ■each represent an average of 49,441 people, or 573.4% of the norm; representatives of the ten least populous towns each represent an average of 629 people, or '7.3% of the norm; of the 169 towns, •only 23 deviate less than 25% from the norm; of the remaining towns, 119 have populations per representative 25% or more below the norm, 27 have populations per representative 25% or more above the norm.¹⁵ A majority of the House is elected by 11.9 % of the total population; the 27 towns having populations per representative 25% or more above the norm contain 64.2% of the population and elect 18.3% of the House membership; the 119 towns having populations per representative 25% or more below the norm contain 20.4% of the population and elect 66% of the House membership ¹⁶

None of the parties to this action seems seriously to support the existing House apportionment. It discriminates between voters in towns of large population; between voters in towns of small population; and, through the grandfather clause, between voters in small towns of similar size.

Plaintiffs contend that the present House apportionment results in an invidious discrimination against inhabitants of urban and suburban towns in favor of inhabitants of smaller towns without logical relation to any justifiable classification of voters represented in the House. Intervenor Bailey supports plaintiffs’ contention.

The Pinney intervenors contend for preservation of so much of the House plan of apportionment as gives recognition to the town as a unit of representation by giving to each town equal representation in the House.

In Connecticut the town rather than the county has been the basic local unit of government; for all practical purposes the county as a unit of government has been abolished. The town, however, is not in any sense independent. New towns may be created by the legislature and often have been (as late as 1921) by taking territory from one or more existing towns. Forms of government in towns have changed. Some retain the old town meeting; some have adopted a representative town meeting; some have council-manager forms of government; some have incorporated as cities or have cities within their borders; some contain or contained boroughs with governmental functions, fire, water, school and other limited purpose taxing districts; some have combined with other towns in districts for some purposes. The tendency of modern times has been to grant a large measure of autonomy to the people of the towns to choose and change their form of management of local affairs. Ultimate control, however, remains with the legislature.

In earlier days when the towns were largely self-sufficient, distant from one another in time of travel, relatively equal in population and in contribution to the common defense and in support of the established church, when indeed the cost of sending more than one representative to a legislative body was a problem to some communities, there were persuasive considerations that might overbalance the desirability of a strict “one man, one vote” plan of representation.

The Pinney intervenors in their defense of the “unit principle” rely primarily upon history, and the failure to change, as justification for the present discrimination in the House.¹⁷ They must admit — aside from the fact that the unit principle in its purest form of equal representation of each town has never been the law of Connecticut — that historical inertia has led not to a defensible unit representation but to one logically indefensible in its two to one discrimination between units of the same size and character.

Reliance by the Pinney intervenors on the so-called “federal analogy” is likewise, in our view, misplaced. The Connecticut Compromise did permit representation in the United States Senate to be based on the states as geographical units, with representation in the United States House of Representatives to be based on population. But the discrimination permitted by the Connecticut Compromise between voters of the states in the indirect choice of senators was necessary to obtain adherence of sovereign states to the Union. After failure of the federal system of the Confederation • — one vote, one state — the convention, seeking to improve the Articles of Confederation, was divided between advocates of a purely national government and advocates of the existing federal scheme in strengthened form. The compromise, suggested by the Connecticut delegates and eventually adopted, combined “national” and “federal” features; the provision for Senate representation by states was necessitated — when approval of the Constitution hung in doubt —by having to obtain adherence of the smaller states to the Union. There is no such problem within this or other states. The government of each state is supreme within the state except to the extent it has relinquished some of its powers to the United States. No state is a federal union of sovereign towns or counties.

The Pinney intervenors further argue that unit representation in the House is necessary to the existence of a bicameral legislature; that if representation in both houses were based on population “all purpose and reason for maintaining a bicameral state legislature would be destroyed”; and that “the principle of unicameralism — so long shunned by all but one of our states — would be not only more logical but also more economical.” We disagree. This argument flies in the face of the experience of many other states, including our neighbor Massachusetts where representation in both houses is based on population. Generally, representatives in the less numerous-branch speak for wider areas and of course a more numerous constituency; they can be expected to be less parochial than the representatives of the smaller constituencies of the more numerous house; and such factors as differing lengths of term, staggered terms and age limitations may further differentiate the two bodies.

Underlying the entire position of the Pinney intervenors in defending the principle of the town as a unit of representation in the House is the claim that such unit representation is rational because necessary to prevent a city majority from tyrannizing a small town minority in the legislature.¹⁸ This claim we emphatically reject.

The equal protection clause of the Fourteenth Amendment provides that ■“No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” ¹⁹ In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962), where plaintiffs (as in the instant case) alleged denial of equal protection of the laws through malapportionment of a state legislature resulting in .debasement of their votes, the Supreme Court held (369 U.S. 186, 237):

“The right asserted is within the reach of judicial protection under the Fourteenth Amendment.”

The “right asserted” there, as here, should be kept clearly in mind. It is the citizen’s right to an effective vote free of arbitrary impairment by the state. The equal protection clause is not concerned with desires to perpetuate political philosophies, geographical entities, historical anomalies. It is equally and impartially unconcerned with the protection of any minority, save one: the minority of one embodied in the individual citizen.

When the “right asserted” is kept in focus, the remedy to vindicate that right becomes clear. In the context of this case, it is to afford equality, insofar as possible, to the efficacy of all men’s votes in the election of their legislative representatives. Unless all voters have an equal voice in the election of those who make the laws, equal protection in the formulation of those laws cannot be guaranteed to all voters.

Justices Black and Douglas, dissenting in South v. Peters, 339 U.S. 276, 279, 70 S.Ct. 641, 643, 94 L.Ed. 834 (1950), put it this.way:

“The creation by law of favored groups of citizens and the grant to them of preferred political rights is the worst of all discriminations under a democratic system of government.”

In Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), the Court squarely rejected the argument that votes in rural areas could be weighted more heavily than votes in urban areas in choosing a governor ²⁰ (372 U.S. 368, 379):

“Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.”

The Court went on in Gray v. Sanders to say (372 U.S. 368, 379-381):

“The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications.

******

“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote.”

The contentions of the Pinney intervenors, which have been urged with force and eloquence, cannot be lightly brushed aside. In a State whose legislature antedates the Constitution of the United States by a century and a half and whose delegates to the constitutional convention contributed so vitally to the basic structure of our federal government, history is important. Likewise, such matters as the increasing autonomy granted to Connecticut towns and the position of eminence achieved by the legislature of Connecticut in various fields of endeavor, are entitled to careful consideration.

In exercising the judicial duty imposed upon us by Baker v. Carr, supra, with respect to questions once thought to be purely political, we have weighed with care each of the arguments advanced concerning the apportionment of the House. We conclude that application of the unit principle either in its present adaptation in Connecticut or in its pure form results or would result in such great disparities of voter representation in the House as to violate plaintiffs’ constitutional rights.

The Supreme Court has not said, nor do we, that perfect numerical equality of population in voting districts is necessary to equal protection of the laws. But mere historical existence of towns or cities as local units of government of varying ages does not constitute a logical or rational basis for discrimination between inhabitants of such units as voters represented in the House. Since we find no logical or rational basis for the existing apportionment, and the vast disparity between the weight of votes of electors of the various towns greatly debases the franchise of those in towns of larger population, invidious discrimination is plainly shown.

With respect to the House, we hold:

(1) That the present apportionment of the House so debases the voting rights of plaintiffs as to result in an invidious discrimination against plaintiffs who thereby are denied the equal protection of the laws;

(2) That the House must be reapportioned promptly in such a way as to achieve substantially equal weighting of the votes of all voters — in accordance with the guidelines indicated in Judge CLARK’S opinion ²¹ and pursuant to a decree to be formulated by this Court;²²

(3) That in so reapportioning the House, no state constitutional or statutory limitations (including Article Third, Section 3, of the Connecticut Constitution), in view of the supremacy clause of the Constitution of the United States,²³ can bar action to comply with federal constitutional requirements.²⁴

FORMULATION OF DECREE AND FURTHER PROCEEDINGS

Mindful that the foregoing decision on the issues presently before us is hardly more than the beginning of our task, we intend to proceed promptly with the formulation of a decree and the execution thereof.

Counsel are requested to settle a decree as follows:

(1) Not later than March 2, 1964, counsel will serve and file their proposed forms of decree, accompanied by supporting mem-oranda.

(2) Not later than March 9, 1964, counsel will serve and file any objections to the proposed forms of decree, together witn answering memoranda.

(3) On March 16, 1964, at 10:30 A.M., in the second floor courtroom of the United States Courthouse, New Haven, the Court will hear arguments by counsel on the proposed forms of decree,- following which the Court will enter an appropriate decree.

In submitting their proposed forms of decree, counsel are requested, in addition to complying with the foregoing opinion of the Court, to consider:

(a) The guidelines indicated by Judge CLARK for redistricting the Senate and reapportioning the House so as to bring both within federal constitutional dimensions.²⁵

(b) The advisability of the Court’s appointing a special master, pursuant to Rule 53, Fed.R.Civ. P., to hold hearings under instructions from the Court with respect to the details of redistricting the Senate and reapportioning the House and to report to the Court with reasonable promptness thereon.

(c) The feasibility of utilizing an appropriate electronic computer technique to minimize partisanship in the redistricting and reapportionment ordered by the Court.²⁶

(d) The advisability of some procedure for assuring periodic reapportionment of the General Assembly to keep it currently within constitutional dimensions.

(e) The stage in the proceedings at which the decree should be made appealable.

For obvious reasons we would prefer to have the necessary redistricting of the Senate and reapportionment of the House done by or under the direction of the General Assembly than by the Court. But the hour is late. And we cannot blind ourselves to the deadlock of many years within the legislature over the issue. Hardly a year ago this Court invited the Governor and General Assembly to cooperate with and assist the Court “toward solving probably the most difficult governmental problem of our age.” ²⁷

The 1963 session of the legislature adjourned without acting on the problem.

We therefore feel constrained to proceed without further delay with the schedule outlined above to formulate and execute our decree, absent prompt legislative action. We shall continue, however, to hope for legislative action. And if at any time the Governor should call the General Assembly into special session for the purpose of formulating plans to redistrict the Senate and reapportion the House, and if the General Assembly gives evidence satisfactory to this Court of its intention to act to bring the representation in both houses within federal constitutional dimensions, we shall gladly stay further proceedings in this Court to give the legislature a reasonable opportunity to perform the duty which is rightly that of the legislature to perform. In this connection we renew the invitation which Judge Clark extended on December 20, 1962: ²⁸

“And we trust the court can also count on the co-operation and assistance of the Chief Executive and the General Assembly in reaching for the correct solution. Indeed we are happy that, under the settled principles of law we are following, we need not view the state organs of government as adversaries to be given harsh mandates, but can instead look for their co-operative effort toward solving probably the most difficult governmental problem of our age.”

We wish to express our appreciation for the unusually able assistance we have received from counsel for all parties. Their briefs and other papers, as well as their oral arguments, have been of an extraordinarily-.high order and have helped the Court immeasurably in a difficult case. We are confident that we can count on counsel for continued competent assistance in the even more difficult aspects of this case which lie ahead. We especially invite counsel, the parties and all others concerned to join the Court in approaching the problems to which our decision today gives rise, not as residents of particular towns, not even primarily as residents of Connecticut, but first and foremost as Americans — resolved that fundamental federal constitutional guarantees shall be secured by prompt and practical application in our State.

CONCLUSION

Let judgment enter granting plaintiffs the declaratory judgment prayed for in the complaint; denying plaintiffs’ motion for partial summary judgment as moot; and denying the Pinney inter-venors’ motion to dismiss for failure to •state a cause of action.

1 . Oliver Butterworth, Miriam Butterworth and S. Rains Wallace (Town of West Hartford, Fifth Senatorial District); Robert Beach and Charles Jacobson (Town of Manchester, Fourth Senatorial District); George Lucas (Town of East Hartford, Fourth Senatorial District); Bradley Morehouse and John Norman (Town of Fairfield, Twenty-fifth Senatorial District); David S. Maclay (City of Bridgeport, Twenty-first Senatorial District); Albert E. Holland (City of Hartford, First Senatorial District).

Based on the 1960 census, two of the plaintiffs reside in the cities with the largest populations in the State (Hartford, 162,178 and Bridgeport, 156,748), each of which has two representatives in the House; two reside in the heaviest populated senatorial districts in the State (Twenty-fifth, 175,940 and Fifth, 173,-953), each of which has one senator in the Senate.

2 . Strictly, the correct terms are “dis-tricting” of the Senate and “apportionment” of the House. To avoid redundancy, however, we shall refer occasionally in this opinion to the apportionment or malapportionment of both houses of the General Assembly.

3 . The statistical analysis of population and representation results in this paragraph, substantially undisputed mathematically, is based on the Naess Affidavit submitted in support of plaintiffs’ motion for partial summary Judgment.

4 . The ratio of disparity between the most populous and least populous districts has been applied as a standard for measuring malapportionment in Mann v. Davis, 213 F.Supp. 577, 581 (E.D.Va.1962), pending on appeal (No. 69, this Term); Thigpen v. Meyers, 211 F.Supp. 826, 829 (W.D.Wash.1962), pending on appeal (No. 381, this Term); League of Nebraska Municipalities v. Marsh, 209 F.Supp. 189, 193 (D.Neb.1962); Sobel v. Adams, 208 F.Supp. 816, 317, supplemental opinions, 208 F.Supp. 316, 214 F.Supp. 811 (S.D.Fla.1962), pending on .appeal sub nom. Swann v. Adams (No. 297, this Term); Sims v. Frink, 208 F.Supp. 431, 440 (M.D.Ala.1962), pending •on appeal sub nom. Reynolds v. Sims (Nos. 23, 27, 41, this Term); Lisco v. McNichols, 208 F.Supp. 471, 477 (D.Colo.1962); Moss v. Burkhart, 207 F.Supp. 885, 891 (W.D.Okla.1962), pending on appeal sub nom. Williams v. Moss (Nos. 476, 534, 546, this Term); Toombs v. Fortson, 205 F.Supp. 248, 250 (N.D. Ga.1962); Sanders v. Gray, 203 F.Supp. 158, 170 n. 10 (N.D.Ga.1962), Judgment vacated and ease remanded on other grounds, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Scholle v. Hare, 367 Mich. 176, 116 N.W.2d 350, 355 (1962), reversing 360 Mich. 1, 104 N.W.2d 63 (1960), upon remand from 369 U.S. 429, 82 S.Ct. 910, 8 L.Ed.2d 1 (1962), pending on appeal sub nom. Beadle v. Scholle (No. 24, this Term) ; Sweeney v. Notte, 183 A.2d 296, 301 (R.I.1962).

5 . Deviations from the “norm” (a term representing the product of dividing the total state population by the number of seats in the legislative body) have been utilized in analyzing claims of malapportionment in Mann v. Davis, supra note 4, at 581; Thigpen v. Meyers, supra note 4, at 830; Wisconsin v. Zimmerman, 209 F.Supp. 183, 186 (W.D.Wis.1962) ; Moss v. Burkhart, supra note 4, at 893; Baker v. Carr, 206 F.Supp. 341, 345 (M.D.Tenn.1962), upon remand from 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), remanding 179 F.Supp. 824 (M.D.Tenn. 1959); Maryland Committee For Fair Representation v. Tawes, 228 Md. 412, 421-422, 180 A.2d 656, 660-661 (1962), pending on appeal (No. 29, this Term); Sweeney v. Notte, supra note 4, at 301.

6 . The percentage of population which may elect a majority or other percentage of the legislative body has been considered relevant to the issue of malapportionment in Thigpen v. Meyers, supra note 4, at 831; Wisconsin v. Zimmerman, supra note 5, at 186; Sims v. Frink, supra note 4, at 438; Lisco v. McNichols, supra note 4, at 475; Moss v. Burkhart, supra note 4, at 893; Toombs v. Fortson, supra note 4, at 251; Maryland Committee For Fair Representation v. Tawes, supra note 5, at 436, 180 A.2d at 669.

7 . Appendix, p. 773.

8 . Infra p. 764.

9 . U.S.Const. art. VI, cl. 2.

10 . In Valenti v. Dempsey, 211 F.Supp. 911, 913 (D.Conn.1962), this Court held that state constitutional limitations cannot bar relief required by the federal constitution :

“ * * * under Baker v. Carr * * * [plaintiff] is pressing a federal constitutional right; and if he is correct in his federal constitutional claim, the state constitutional limitation need not be construed as a bar, for no state limitation on legislative action can prevent relief which the Federal Constitution, as construed by the Supreme Court, requires.”

We hold that the decision of the Supreme Court of Errors in Cahill v. Leopold, 141 Conn. 1, 103 A.2d 818 (1954), cannot bar or delay prompt redistricting of the Senate to comply with federal constitutional requirements.

11 . The Connecticut house is the largest state legislative body in the United States, except for the New Hampshire house.

12 . This is referred to as the “grandfather clause”.

13 . The statistical analysis in this paragraph is based on the Naess Affidavit, supra note 3.

14 . Supra note 4.

This ratio of disparity of representation between the most populous and least populous towns is the highest of any state legislative house in the United States, except for Vermont where the apportionment of both houses has been challenged. Buckley v. Hoff, Civil No. 3653, D.Vt. (Complaint filed January 22, 1963; hearing held October 29 and 30, 1963; not yet decided).

15 Supra note 5.

16 . Supra note 6.

17 . See Judge CLARK’S opinion for a brief summary of the history of apportionment in the House. Appendix, p. 769.

18 . The Pinney intervenors say in their brief (pp. 41-2) :

«* * * What is the policy behind the system of unit representation in the Connecticut House? It is nothing loss than the protection of the little from the big. * * * [T]he system was designed to prevent that tyranny of the majority whereby the large and populous urban centers could, by indifference or design, ride roughshod over the needs and desires of the less populated communities. It was an attempt to protect the minority rights of those who, absent a system of unit representation in one house of the legislature, would be

penalized for choosing to live elsewhere than a city. * * * ”

19 . U.S.Const. amend. XIV, § 1.

20 . While Gray v. Sanders is not decisive on all aspects of state legislative apportionment cases, its condemnation of weighting votes in rural areas more heavily than votes in urban areas in choosing a governor applies in principle to choosing a legislature.

²¹

22 . Infra, p. 764.

²³

24 . Valenti v. Dempsey, supra note 10, at 913.

²⁵

26 . Weaver and Hess, A Procedure For Nonpartisan Districting: Development of Computer Techniques, 73 Yale L.J. 288 (1963).

²⁷

28 . Ibid,