407 U.S. 902
92 S.Ct. 2441
32 L.Ed.2d 679
J. Brian GAFFNEY, appellant,v.Theodore R. CUMMINGS et al.
No. 71-1476 (A-1248).
Supreme Court of the United States 
                         June 12, 1972
 
      Application for stay.
 
      The application for stay of judgment of the United States
 District Court for the District of Connecticut presented to Mr.
 Justice MARSHALL and by him referred to the Court is granted.
 
 djQ  Mr. Justice DOUGLAS, dissenting.
 
      Appellant seeks to stay the judgment of a three-judge Federal
 District Court which held unconstitutional Connecticut's plan for
 apportioning its state legislature. 341 F.Supp. 139. The plan was
 adopted in September 1971, and was only in the preliminary stages
 of implementation when it was struck down as violative of the
 Equal Protection Clause on March 30, 1972. An appeal from that
 decision has been docketed in this Court. Gaffney v. Cummings, No.
 71-1476.
 
      Mr. Justice STEWART would deny the application.
 
      We denied a motion for expedited consideration of that appeal
 on May 22, 1972. 406 U.S. 942, 92 S.Ct. 2047, 32 L.Ed.2d 330.
 Appellant promptly moved the lower court for a stay of its
Page 903
 
 March 30th decision, and when that stay was denied on May 26,
 1972, appellant came here.
 
      Earlier this Term, in another reapportionment case, Mr.
 Justice Powell articulated the considerations involved in our
 review of applications for a stay of lower court judgments:
 
      'A lower court judgment, entered by a tribunal that was
      closer to the facts . . ., is entitled to a presumption of
      validity. Any party seeking a stay of that judgment bears the
      burden of showing that the decision below was erroneous and
      that the implementation of the judgment pending appeal will
      lead to irreparable harm.' Graves v. Barnes, 405 U.S. 1201,
      1203, 92 S.Ct. 752, 30 L.Ed.2d 769.
 
      'Irreparable injury,' of course, inheres in any challenge to
 legislative apportionment. If the court below erred, the Fall
 election will be held under an improper order, one which will
 doubtless affect the composition of the next state legislature.
 But this type of 'irreparable injury' affects both sides equally,
 for if the court below was correct, staying its order will cause
 irreparable harm of precisely the same dimension.
 
      There is 'irreparable injury' in a different sense if the
 court's order striking down a state apportionment is handed down
 so near the upcoming election that it is administratively
 impractical to implement an orderly election. Here, there is no
 serious claim that irreparable injury, in this sense, would result
 if a stay is not granted. The court below found as fact that there
 is ample time before the Fall election to implement the plan
 submitted by the Special Master on May 26, 1972, or any proposed
 substitute which the State or appellant might submit within a
 reasonable time.1 In-

1
Page 904
 
 deed, appellant concedes that the question of which plan can be
 most easily implemented is a 'non-issue.'2
 
      Thus, the issue determinative of the stay application is the
 probable correctness of the decision below, and, in my view,
 appellant has not met his burden 'of showing that the decision
 below was erroneous.'
 
      In Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12
 L.Ed.2d 506, we said 'the 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 equal population
 as is practicable.' Moreover, a State may not be heard to argue
 that a population variance is justified because it is de minimus.
 '[T]he 'as nearly as practicable' standard requires that the State
 make a good faith effort to achieve precise mathematical equality.
 . . . Unless population variances among . . . districts are shown
 to have resulted despite such effort, the State must justify each
 variance, no matter how small.' Kirkpatrick v. Preisler, 394 U.S.
 526, 530-531, 89 S.Ct. 1225, 22 L.Ed.2d 519.3
 
 
      A comparison of the population variances in this case with
 those disapproved in Kirkpatrick, supra, is striking. In
 Kirkpatrick, the average variation from the ideal district was
 only 1.6%. Here, assembly districts in the State Plan exhibited an
 average variation of 1.9%. In Kirkpatrick, the ratio of the
 largest to the smallest district was only 1.06 to 1. Here, the
 ratio of the largest to the smallest assembly district is 1.082


2
Page 905
 
 to 1. In Kirkpatrick, 70% of the districts were within plus or
 minus 1.88% of the ideal population figure. Here, only 51.65% of
 the assembly districts are within 2.0% of the ideal. In
 Kirkpatrick, the total variance4 was 5.97%. Here, the total
 variance of the assembly redistricting is 7.83%.
 
      It is true, of course that 'the extent to which equality may
 practicably be achieved may differ from State to State. . . .,'
 Kirkpatrick, supra, at 530, 84 S.Ct. 1362. Thus a State may be
 able to justify certain variations. Here, however, only two
 justifications are offered, and neither appear to have particular
 merit.
 
      It is primarily argued that the variations are justified by a
 legitimate state interest in achieving 'a partisan balancing of
 strength in each house.' The District Court explained the concept
 as follows:
 
      'The partisan balancing of strength in each house, termed by
      interveningdefendant [appellant in this Court] a 'fair
      political balance' and by plaintiffs [appellees herein]
      'political gerrymandering' was obtained by so adjusting the
      census areas utilized as building blocks into the structuring
      of Senate and House districts that, on the basis of the vote
      for all the Senate candidates of each party in the elections
      of 1966, 1968 and 1970, whichever party carried the state
      should carry a majority of Senate seats proportional to the
      statewide party majority, and likewise in the House, based on
      the party vote for all the House candidates of each party in
      the same three elections.
 
      'In one or more House and one or more Senate districts some
      accommodation was also made in


3
Page 906
 
      the interest of retaining in office a particular incumbent.'
      341 F.Supp. 139.
 
      This Court has never decided whether political gerrymandering
 or 'fair political balance' is per se unconstitutional,
 irrespective of population variances. See, e. g., Wells v.
 Rockefeller, 394 U.S. 542, 544, 89 S.Ct. 1234, 22 L.Ed.2d 535. But
 we have said, in no uncertain terms, that gerrymandering is not a
 justification where population variances do result. In
 Kirkpatrick, for example, we even rejected the State's attempt
 to justify the population variances there present on the ground
 that the variations were necessary to avoid gerrymandering.
 
      '[A]n argument that deviations from equality are justified in
      order to inhibit legislators from engaging in partisan
      gerrymandering is no more than a variant of the argument,
      already rejected, that considerations of practical politics
      can justify population disparities.' 394 U.S., at 534, 89
      S.Ct. 1225.
 
      Thus, whether or not Connecticut may gerrymander its
 legislature if population equality is preserved, it may not do so
 when population disparities result.
 
      An additional consideration urged to justify the
 discrepancies is the State's interest in preserving town lines.
 But any weight factor this would ordinarily have is rendered
 insignificant by the fact that the State's own plan cuts across 47
 towns to create assembly districts, and 23 towns to create senate
 districts. See Whitcomb v. Chavis, 403 U.S. 124, 162 n. 42, 91
 S.Ct. 1858, 29 L.Ed.2d 363.
 
      Appellant has one final argument. Attempting to litigate the
 merits of the Special Master's plan, he argues that implementation
 of that plan would exceed the equity power of the federal court
 under our recent decision in Sixty-Seventh Minnesota State Senate
 v. Beens, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.2d 1. But the
 merits of the Special Master's plan are not before this Court.
 Indeed, in


4
Page 907
 
 denying the stay below, the District Court obligated itself to
 'set down for hearing with all reasonable dispatch the plan
 submitted by the Special Master and any other plans submitted.'
 Whatever appellant's objections to the Master's plan might be, he
 should first air them in the District Court which stands ready to
 hear them.
 
      Additionally, even were the Special Master's plan at issue,
 appellant's objections would not be well taken. This is not a case
 in which the size of a state house is 'slashed' in half, as in
 Minnesota State Senate, supra. Here, the District Court merely
 reduced the size of Connecticut's house from 151 members to 144,
 in order that the number of house district be an even multiple of
 the 36 senate districts.5 A house of such size is expressly
 contemplated by the Connecticut Constitution.6 The District
 Court's action is simply a 'minor variation,' allowing senate and
 house districts to be drawn with congruent boundaries, that is
 well within the remedial powers of an equity court.7
 
      I dissent from the Court's order granting this stay.



1
 The legislature has recently acted to remove whatever
 procedural roadblocks there might be to implementation of the
 Master's plan or any other which the court below might adopt.
 Public Act 220, May 16, 1972. The District Court indicated that
 the legislature will shortly submit a plan of its own for the
 court's consideration. 341 F.Supp. 139.


2
 Appellant's Reply Memorandum, at 3. See also appellant's
 Motion for Stay of Judgment, at 8.3 It is irrelevant to this comparison that Kirkpatrick
 involved congressional rather than state legislative
 redistricting. In either case, the burden is on the State to
 demonstrate a valid justification for any population variance, no
 matter how small.


4
 The 'total variance' in an apportionment plan is derived
 by adding together the percentage variation from the ideal of the
 two districts which are respectively the most over- and
 under-populated.


5
 Minor variations for this purpose were approved in the
 Minnesota State Senate case. 406 U.S., at 187, 92 S.Ct. 1477, and
 cases cited in n. 10.6 Art. III, § 4, of the Connecticut Constitution provides
 that 'The house of representatives shall consist of not less than
 one hundred twenty-five and not more than two hundred twenty-five
 members. . . .'7.Appellant also objects to the extent to which the Master's
 plan dishonors town boundaries. It is undisputed, however, that
 town boundaries cannot be preserved intact in all cases under any
 constitutional plan. The Master's plan, drawn with the
 preservation of as many town lines as possible as an express
 consideration (though a subordinate one to the goal of population
 equality), cuts across only 60 towns in creating assembly
 districts, and 30 towns in creating senate districts. These
 figures compare favorably with those in the State's plan, ante, at
 906.


