Reported below: 347 F.Supp. 453.
Affirmed on appeal from D.C. M. D. La.
MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.
The Louisiana constitutional provisions, which this Court today upholds against appellant's renewed constitutional attack, provide for the election of the State's Supreme Court Justices from election districts that are established without regard to population. Voters in five districts, composed of varying numbers of parishes, elect one justice each. A sixth district elects two justices. La. Const., Art. VII, § 9. The record before the District Court indicated that there was "considerable deviation between the population of some of the [election] districts," 347 F.Supp. 453, 454,*fn1 and that, therefore, the votes of some qualified voters, depending on the happenstance of residence, were of less value in electing justices than others cast elsewhere. But the District Court refused even to consider this evidence and, relying on a few isolated sentences in Hadley v. Junior College District, 397 U.S. 50 (1970), concluded that "the concept of one-man, one-vote apportionment does not apply to the judicial branch of the government." 347 F.Supp., at 454. Summary judgment was entered against appellant, who had attacked the Louisiana scheme under the Equal Protection Clause of the Fourteenth Amendment.
In Hadley, we held that the one-person, one-vote principle extended to the election of trustees for a consolidated junior college district. Mr. Justice Black, writing for the Court, stated broadly that, as a general rule, "whenever a state or local government
decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election." 397 U.S., at 56. The District Court in this case seized upon the phrase "persons . . . to perform governmental functions," and concluded that such persons were limited to "officials who performed legislative or executive type duties." 347 F.Supp., at 455.*fn2 I find no such limiting import in the phrase. Judges are not private citizens who are sought out by litigious neighbors to pass upon their disputes. They are state officials, vested with state powers and elected (or appointed) to carry out the state government's judicial functions. As such, they most certainly "perform
governmental functions." Indeed, this Court held precisely that nearly a decade ago, in Gray v. Sanders, 372 U.S. 368 (1963), by invalidating Georgia's county unit system that had been used for counting Democratic Party primary votes for United States Senator, Governor, statehouse officers, justices of the Supreme Court, and judges of the Court of Appeals. Nowhere did we suggest that the county unit system was any less unconstitutional for the election of judges than for the election of governor. On the contrary, with the most direct language possible, the Court stated:
"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 idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions." Id., at 379-380.
We have held that a State may dispense with certain elections altogether (see Sailors v. Board of Education, 387 U.S. 105 (1967); cf. Fortson v. Morris, 385 U.S. 231 (1966)) and we have suggested that not all persons must be permitted to vote on an issue that may affect only a discernible portion of the public, see Kramer v. Union Free School District, 395 U.S. 621, 632 (1969). What I had thought the apportionment decisions at least established is the simple constitutional principle that, subject to narrow exceptions,*fn3 once a State chooses to
select officials by popular vote, each qualified voter must be treated with an equal hand and not be subjected to irrational discrimination based on his residence. See Reynolds v. Sims, 377 U.S. 533, 554-555 (1964). Nothing could be plainer from Mr. Justice Black's statement in Hadley, 397 U.S., at 54-55:
"While the office of junior college trustee differs in certain respects from those offices considered in prior cases, it is exactly the same in the one crucial factor -- ...