“This court does not inquire if a more nearly ideal apportionment could be designed, even assuming agreement on what is ideal.”
How later courts described this case
- “This court does not inquire if a more nearly ideal apportionment could be designed, even assuming agreement on what is ideal.”
Written by the judges who cited it.
The opinion
TANZER, J.,
specially concurring.
I concur in the decision, but I do not join in the discussion regarding the nature of representation assured by the constitution. The opinion introduces the subject of *689 representation by acknowledging that it has numerous and contradictory meanings. That is because the term “representation” expresses a concept of political philosophy, not of law. A political observer can adjudge whether a legislator properly represents constitutents as a political matter, but it is impossible for a court to do so as a matter of law. The emphasis of the parties on the “right to representation” and the reference by the court to the “duty of representation” are inconclusive because those concepts are analytically soft. Hence, it is understandable that the opinion does not resolve the philosophical questions it poses regarding the nature of representation and it does not define as a matter of law any constitutional “right” or “duty” of representation.
In my view, the applicable political and legal concepts can and must be kept separate. Our constitution envisions a legislature which is representative politically because it is composed according to express legal requirements which are designed to assure political accountability of each legislator to the residents of a specific district which he or she “represents.” Together, the districts comprise the state as a whole and the assembly of legislators representing those districts comprises a microcosm of the entire state. The mechanism to assure political representation of each district is in the legally enforceable constitutional requirements that districts be lawfully drawn, that legislators be assigned to each of them and that the residents of each district have the right to instruct, recall and vote out their legislators. Representation cannot be commanded by a court, but a court can enforce compliance with the constitutional requirements intended to assure political accountability. That is what we do today.
When the legislature is seen in its constitutional configuration as an assembly of legislators which is representative of the state because it is composed of legislators accountable to each district of the state, then the impermissibility of a legislature composed of legislators from less than all districts is obvious. The microcosm is incomplete. The legal defect is in the unlawful composition of the legislature, not in any denial of a right or a violation of a duty of representation. The constitutional requirements for *690 the composition of the legislature simply are not met if a part is missing.
For these reaons, I agree that a senator must be assigned to each district and that the reapportionment legislation is fatally defective for failure to do so.