Appeal from D.C. Conn. Reported below: 341 F. Supp. 139.
Application for stay presented to MR. JUSTICE MARSHALL, and by him referred to the Court, granted. MR. JUSTICE STEWART would deny the application.
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.
We denied a motion for expedited consideration of that appeal on May 22, 1972. 406 U.S. 942. Appellant promptly moved the lower court for a stay of its
March 30 decision, and when that stay was denied on May 26, 1972, appellant came here.
Earlier this Term, in another reapportionment case, MR. JUSTICE POWELL, in an in-chambers opinion, 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, 404 U.S. 1201, 1203.
"Irreparable harm," 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*fn1
Indeed, appellant concedes that the question of which plan can be most easily implemented is a "non-issue."*fn2
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 ...