The opinion of the court was delivered by: JONES
Group 2 plaintiffs consist of ten persons who allege that they are citizens of the United States, over 21 years of age, and that they are eligible to vote in their respective States but that they are unable to vote because of their failure to meet one or more of the following requirements: (1) The State of Virginia requirement that an application to register to vote must be in one's own handwriting; (2) the requirement of the State of Virginia and of the State of Mississippi of the payment of poll taxes; (3) the State of Mississippi requirement that a voter pass a constitutional interpretation test administered in a different manner to Negroes than to white persons;
and (4) the State of Louisiana requirement that a voter answer questions on a registration form without error of any kind.
Five of these Group 2 plaintiffs are Negro citizens of the State of Virginia; four are Negro citizens of the State of Mississippi; and one of the Group 2 plaintiffs is a Negro citizen of the State of Louisiana. All Group 2 plaintiffs assert that the voter-qualification tests and conditions as applied to them by their respective States constitute a denial or abridgment of their right to vote.
All plaintiffs joined in bringing this action on their own behalf and on behalf of all other persons similarly situated. They seek a declaratory judgment against the Secretary of Commerce and the Director of the Bureau of the Census, Department of Commerce.
Plaintiffs' complaint asserts that section 2 of the Fourteenth Amendment to the Constitution; the equal protection clause of the Fourteenth Amendment and due process clause of the Fifth Amendment to the Constitution; 2 U.S.C. § 6 (1958); 2 U.S.C. § 2a (1958); 13 U.S.C. §§ 4, 5, 11, 21 and 41 (1958) require the defendants, in connection with each decennial census, to take necessary steps to prepare and to transmit to the President of the United States a statement showing the number of Representatives to which each State is entitled under section 2 of the Fourteenth Amendment, which provides as follows:
'Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.'
According to the plaintiffs' complaint the defendants are required by existing law to take a decennial census of the population of the United States for the purpose of apportioning Representatives in Congress among the several States and to report the tabulation of population for that purpose to the President of the United States, whose sole duty is to transmit to the Congress a statement of the number of Representatives to which each State is entitled. And upon receipt of such statement by Congress the House of Representatives is to be apportioned as reported therein. Plaintiffs assert that it is readily possible for defendants as well as their obligation to take steps at the next decennial census to compile figures as to denial and abridgment of the right to vote and to prepare and transmit a statement showing the number of Representatives to which each State is entitled on the basis of such figures. But, according to plaintiffs, the defendants do not intend at the next decennial census to compile such figures and make and transmit such statement.
It is further claimed by plaintiffs that, if upon the taking of the next decennial census, figures were compiled as to the denial and abridgment of the right to vote, it is likely and probable that the resulting reapportionment would give to each of the States in which the Group 1 plaintiffs reside at least one additional Representative in Congress while various other States, including the States in which Group 2 plaintiffs reside, would each lose at least one Representative in Congress.
Group 1 plaintiffs allege that refusal by the defendants to compile and make available the above described reapportionment data in connection with the next decennial census will violate their Constitutional rights. They claim that such reapportionment data is necessary to effectuate the reduction in the number of Representatives in Congress from those States which deny and abridge the right to vote and that unless such reduction is accomplished their votes will be debased and diluted to the extent that they will be of less value than the votes of the voters in the States which deny and abridge the right to vote. And Group 2 plaintiffs assert that unless the defendants compile and make available such reapportionment data in connection with the next decennial census their Constitutional rights will be violated. They claim that without that reapportionment data there will be no reduction in the number of Representatives from their respective States and that such reduction or threat thereof is a protection to them in that it will serve as a means of redressing and deterring the denial or abridgment of their right to vote.
All plaintiffs join in requesting this Court to enter a declaratory judgment that, pursuant to the above mentioned Constitutional provisions and statutes, the defendants are required at the next decennial census to compile figures as to the denial and abridgment of the right to vote and to prepare, compile and compute for transmittal to Congress an apportionment of the House of Representatives based on such figures. And, alternatively, all plaintiffs request the Court that, if it should be determined that any one or more existing statutes provide for the preparation, compilation, computation and transmittal of an apportionment in any other manner, such statutes be declared unconstitutional to the extent that they do not require defendants to comply with the provisions of section 2 of the Fourteenth Amendment to the Constitution and 2 U.S.C. § 6 (1958).
Both plaintiffs and defendants have filed memoranda briefs and the Court has heard oral argument by counsel.
In considering plaintiffs' complaint and the relief they seek, it is well to again recall the words of Justice Frankfurter in his concurring opinion in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 150, 71 S. Ct. 624, 637, 95 L. Ed. 817 (1951):
'Limitation on 'the judicial Power of the United States' is expressed by the requirement that a litigant must have 'standing to sue' or, more comprehensively, that a federal court may entertain a controversy only if it is 'justiciable.' Both characterizations mean that a court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed. The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a 'case ...