Mahan v. Howell

Justice Brennan, writing for the minority, said the Court had had no basis for dismissing out of hand DuVal's contention that the gap between the smallest and the largest district was actually 23.6 percent. If DuVal was right, that would make the gap in Virginia almost as large as the 26.48 percent gap in another case--and the Court had found that gap too large.

Second, Brennan said, the Court was wrong to claim that there were two separate standards, one for congressional districts, the other for state legislatures. Perhaps a state might need to use different procedures to figure out how to create legislative districts, but that was far from saying that the two types of districts had different standards.

Finally, Brennan said, the Court was wrong to give so much weight to preserving existing political subdivisions. The most important criterion in drawing electoral districts was to make them as nearly equal in size as possible, so that every person's vote would count equally. Besides, Brennan said, the burden of proof in showing the importance of existing political subdivisions was on the state--and the state had failed to meet that burden. Brennan pointed out that even under the state's plan, many voters from small towns would be lumped into districts with larger towns. He failed to see the difference between that situation and one in which a town was broken up into two districts. He added two more objections:

Of the 124 political subdivisions in the Commonwealth, only 12 would be divided by the District Court's plan. More significant, the number of persons [taken out of their home political subdivisions by the plan] . . . would still be less than 1 percent of the total state population.

Clearly, the Court was divided on the question of whether the state redistricting plan did indeed violate the Equal Protection Clause of the Fourteenth Amendment. This type of argument--local control versus civil rights--would continue in various forms and in various locations for the next several decades.