Vander Linden v. Hodges (9/30/1999, No. 98-2174)

Filed: October 6, 1999

Plaintiffs – Appellants,

versus

James H. Hodges, etc., et al,

Defendants – Appellees.

On page 3, section 1, lines 7-8 — “Herbert E. Buhl, III, Columbia, South Carolina,” is added to the counsel listing.

For the Court – By Direction

/s/ Patricia S. Connor

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEIL A. VANDER LINDEN; FORREST E.

OTT; ANN Y. HART; PEGGY A.

DUFEK; VINCENT JOHNSON; ALICE J.

CICENIA; GWENDOLYN L. GROOMS;

ROBERT H. WATERS; ANITA L.

FRANKLIN,

Plaintiffs-Appellants,

and

BUFORT BLANTON,

Plaintiff,

v.

JAMES H. HODGES, Governor, in his

capacity as Governor of South

Carolina; DAVID H. WILKINS, in his

No. 98-2174

official capacity as Speaker of the

South Carolina House of

Representatives; DORCHESTER

COUNTY LEGISLATIVE DELEGATION;

GEORGE H. BAILEY, in his

representative capacity as a member

of the State House of

Representatives; THE SOUTH

CAROLINA SENATE; DEFENDANT

CLASS; SOUTH CAROLINA HOUSE OF

REPRESENTATIVES; JOHN DOE, Chair

of the Dorchester County

Legislative Delegation; BILL

BRANTON, Senator; CONVERSE A.

CHELLIS, III, Representative; ROBERT

W. HARRELL, JR., Representative;

GILDA COBB-HUNTER, Representative;

ANNETTE YOUNG-BRICKELL,

Representative,

Defendants-Appellees,

and

NICK THEODORE, in his official

capacity as Lieutenant Governor

and presiding officer of the South

Carolina Senate; ROBERT J. SHEHEEN,

in his official capacity as Speaker

of the South Carolina House of

Representatives; JAMES B. ELLISOR,

in his offical capacity as Executive

Director of the South Carolina State

Election Commission; STATE OF

SOUTH CAROLINA,

Defendants.

UNITED STATES OF AMERICA,

Amicus Curiae.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Patrick Michael Duffy, District Judge.

(CA-91-3635-2-11)

Argued: April 7, 1999

Decided: September 30, 1999

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Motz wrote the

majority opinion, in which Judge Michael joined. Judge Niemeyer

wrote a dissenting opinion.

2

COUNSEL

ARGUED: Moffatt Laughlin McDonald, AMERICAN CIVIL LIB-

ERTIES UNION FOUNDATION, INC., Atlanta, Georgia, for Appel-

lants. David Reece Williams, III, Columbia, South Carolina; James

Emory Smith, Jr., Columbia, South Carolina; Thomas Stuart White,

Charleston, South Carolina, for Appellees. ON BRIEF: Neil Bradley,

Maha Zaki, Cristina Correia, AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, INC., Atlanta, Georgia; Herbert E.

Buhl, III, Columbia, South Carolina, for Appellants.

Paula Gail Benson, Columbia, South Carolina, for Appellee Senate;

Charles Molony Condon, Columbia, South Carolina, for Appellees

Wilkins and House; Samuel W. Howell, IV, Charleston, South Caro-

lina, for Appellees Legislative Delegation and Doe; Charles F. Reid,

Columbia, South Carolina, for Appellee Speaker; Charles E. Carpen-

ter, Jr., Columbia, South Carolina, for Appellee Beasley.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In this case we consider the legality of South Carolina’s county

legislative delegation system. The district court upheld this system in

the face of constitutional and statutory challenges. Because county

legislative delegations constitute elected governmental bodies to

which the constitutionally mandated “one person, one vote” require-

ment applies, we reverse and remand for further proceedings.

I.

Except as noted, the district court found or the parties stipulated to

the following facts.

Persons residing and voting in various South Carolina counties

(collectively, the voters) brought this action on behalf of themselves

and all others similarly situated against the Governor of South Caro-

lina, the South Carolina legislature, the Speaker of the House, and

other state officials (collectively, the State). The voters assert that the

State’s legislative delegation system violates the United States Consti-

3

tution, the Voting Rights Act of 1965, 42 U.S.C.A. § 1973 (West

1994), and the Civil Rights Act of 1957, id. § 1971(a).

Legislative delegations have played a critical role in the gover-

nance of South Carolina counties for more than a century. As the dis-

trict court noted, “for generations legislative delegations of the

General Assembly controlled virtually every aspect of local govern-

ment.” Both parties’ experts testified that the legislative delegation

system took shape at the end of the 19th century, after a constitutional

amendment in 1890 removed local government from the hands of

locally elected officials. The experts agreed that the system of locally

elected county government was rejected partly because it had resulted

in the election of large numbers of African-American officials.

The voters’ expert testified that the legislative delegation system,

which developed in place of locally elected county government, was

similarly created out of fear of African-American voting power. Even

the State’s expert conceded that fear of the demands of emancipated

slaves was one factor that led to the creation of the legislative delega-

tion system. Moreover, the experts agreed that the legislative delega-

tion system arose against the backdrop of a white supremacist

movement, led by Governor Ben Tillman, that sought to diminish

African-American voting power. This effort, the experts further

explained, led to the effective disfranchisement of the African-

American population through the adoption of the South Carolina Con-

stitution of 1895.

By 1900, county government had come to be controlled by the

General Assembly. Under this system, the residents of each county

elected one senator and, depending on the county’s population, one

or more representatives to the General Assembly. The legislators thus

elected from each county constituted the county’s legislative delega-

tion. In practice, local legislation was formulated by the legislative

delegation for the relevant county and then enacted by the General

Assembly at large with no scrutiny. See Duncan v. County of York,

228 S.E.2d 92, 95 (S.C. 1976). As the district court explained, “in

addition to being state legislators, members of the Senate and House

were effectively the county legislature and governing board.”

The structure of county legislative delegations in South Carolina

remained unchanged until legislative districts were redrawn following

4

establishment of the one person, one vote rule in 1964. See Reynolds

v. Sims, 377 U.S. 533 (1964). This redistricting produced legislative

districts that sometimes crossed county lines. As a result, “the com-

plexion of the legislative delegation changed,” the district court noted,

“such that there was no longer a county-oriented legislative delegation

elected by the voters of an entire county and answerable to the people

of that county.”

Instead, redistricting created a situation in which South Carolina

legislators are elected from districts that contain parts of more than

one county. Upon election to the General Assembly, each legislator

automatically becomes a member of the legislative delegation of

every county containing territory that falls within the legislator’s dis-

trict. Generally, each member of a delegation has one vote in delega-

tion decisions regardless of the number of constituents that he or she

has in the county. The voters presented uncontroverted evidence that

some legislators are members of the legislative delegation of a county

in which they have relatively few constituents, and that some are even

members of delegations for counties in which they have no constitu-

ents at all.

In 1973, South Carolina amended its Constitution in order to vest

much of the power over county affairs in locally elected county offi-

cials. But county legislative delegations still retain statutory authority

over certain aspects of local government. Indeed, the parties stipu-

lated that “County Legislative Delegations perform numerous and

various general county governmental functions prescribed by state

law.”1 They further stipulated that these “numerous” and “general

county and governmental functions” include:

(a) making and/or recommending appointments to boards

and commissions;

_________________________________________________________________

1 Although Defendants South Carolina House of Representatives and

House Speaker David H. Wilkins did not stipulate to the phrase “and var-

ious general county governmental,” they did agree to the accuracy of the

facts set forth in the stipulations, i.e. that the delegations actually “per-

form numerous . . . functions prescribed by state law,” including the nine

specifically described powers set forth above. See J.A. 184.

5

(b) approving and/or recommending the expenditure of

money allocated by the South Carolina General Assembly

for highways, parks, recreation, tourism, and other matters;

(c) approving the budgets of local school districts;

(d) initiating referenda regarding the budgetary powers

and the election of governing bodies for a special purpose

in public service districts;

(e) approving the reimbursement of expenses for county

planning commissioners;

(f) approving county planning commission contracts with

architects, engineers, and other consultants;

(g) altering or dividing school districts of counties;

(h) reducing existing special school levies in counties and

school districts;

(i) submitting grant applications for planning, develop-

ment and renovating park and recreation facilities.

In 1991, the voters filed this action challenging the county legisla-

tive delegation system. The district court stayed the case to permit the

General Assembly to fashion an appropriate alternative to the present

system. When the General Assembly failed to come up with any alter-

native, the district court reactivated the case.

The voters maintain that because each member of a county legisla-

tive delegation has one vote regardless of how many of the member’s

constituents live in the county, the delegation system dilutes the vot-

ing power of county residents from more populous areas. The system,

according to the voters, thus violates the one person, one vote require-

ment that the Supreme Court has held derives from the Equal Protec-

tion Clause of the Fourteenth Amendment to the United States

Constitution. See Reynolds, 377 U.S. 533; U.S. Const. amend. XIV

§ 1. The voters also argue that the delegation system discriminates

6

against African-Americans in purpose and effect in contravention of

the Constitution, the Voting Rights Act of 1965, and the Civil Rights

Act of 1957.

After a bench trial, the district court rejected both contentions.

Because we conclude that the county legislative delegation system

violates the constitutionally mandated one person, one vote require-

ment, we must reverse. In view of this holding, we need not reach the

voters’ alternative claim as to the asserted racially discriminatory pur-

pose and effect of the delegation system.

II.

The Supreme Court has concluded that “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.” Reynolds, 377 U.S. at 577.2

The Court has since extended this one person, one vote require-

ment to local government, yielding the “general rule” that

whenever a state or local government decides to select per-

sons 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, and when mem-

bers of an elected body are chosen from separate districts,

each district must be established on a basis that will insure,

as far as is practicable, that equal numbers of voters can vote

for proportionally equal numbers of officials.

_________________________________________________________________

2 The State’s contention that the political question doctrine totally pre-

cludes judicial consideration of this case cannot prevail in the face of

Reynolds, Baker v. Carr, 369 U.S. 186 (1962), and their progeny. In

those cases, the Supreme Court held that “if discrimination is sufficiently

shown, the right to relief under the equal protection clause is not dimin-

ished by the fact that the discrimination relates to political rights.” Baker,

369 U.S. at 209-10 (internal quotation marks omitted).

7

Hadley v. Junior College Dist. of Metro. Kansas City, 397 U.S. 50,

56 (1970).

In support of their one person, one vote claim, the voters here pre-

sented demographic reports showing that the delegation system devi-

ates from the standard of equal, population-based representation set

by the Supreme Court. The reports demonstrated that by one measure,

45 of the 46 legislative delegations in South Carolina deviate from the

equal population standard by amounts that range from 75.15% to

330.56%, and that by another measure, 44 of the 46 delegations devi-

ate from the standard by amounts that range from 34.86% to

418.47%. The State proffered no evidence that in any way contra-

dicted these findings.

The Supreme Court has held that districts with a maximum devia-

tion from equal population of 16.5% violate the one person, one vote

mandate in the absence of a compelling justification for the deviation.

Connor v. Finch, 431 U.S. 407, 416-17 (1977). The State offers no

such justification–in fact no justification of any kind–for the devia-

tions caused by the delegation system. Indeed, in light of the fact that

some members of the county legislative delegations represent literally

uninhabited territory in the counties they supposedly represent, it

seems highly unlikely that any adequate justification for the current

system could be provided.

Perhaps for this reason, the State does not maintain that the dispari-

ties between the populations represented by various delegation mem-

bers are not great enough to violate the one person, one vote principle.

Rather, it contends, and the district court held, that the one person,

one vote principle does not apply to the county legislative delega-

tions. The district court seems to have based this holding on two con-

clusions: (1) the legislative delegations are not selected “by popular

election” and (2) the delegations do not “perform governmental func-

tions.” Hadley, 397 U.S. at 56. We consider each of these conclusions

in turn.

III.

In deciding that county legislative delegations are not popularly

elected, the district court initially found that members of the delega-

8

tions are appointed. The court then analogized this case to Sailors v.

Board of Educ., 387 U.S. 105 (1967), in which the Supreme Court

held that the one person, one vote requirement did not apply to an

appointed county school board exercising essentially administrative

functions. Id. at 108, 110.

In this case, however, the undisputed facts surrounding the selec-

tion of delegation members do not permit the conclusion that they are

appointed officials. First, no appointment process leads to the desig-

nation of a legislator as a member of a legislative delegation. Second,

the concept of an appointment presumes the existence of an appoint-

ing authority; nothing in the record even suggests that any official or

body exercises the power to appoint members of the legislative dele-

gations. Rather, the power to determine the membership of a legisla-

tive delegation resides in the electorate. It is thus clear, and the State

essentially concedes on appeal, see Brief of Appellees at 10; Tape of

Oral Argument (Apr. 7, 1999), that the district court’s finding that

members are appointed to the delegations constitutes error. In fact,

individuals become delegation members not through appointment but

rather simply by virtue of their popular election to the legislature.

Sailors, therefore, is inapposite.

The district court did not, however, rely exclusively on Sailors.

Rather, the court alternatively reasoned that the one person, one vote

requirement does not apply to the county legislative delegation sys-

tem because delegation members “are not elected to the delegations

as that term is generally understood,” in that they become delegation

members automatically upon their election to the General Assembly.

Delegation membership, the district court explained, is therefore sim-

ply “part of the job of being a member of the General Assembly.”

The Supreme Court’s decision in Board of Estimate v. Morris, 489

U.S. 688 (1989), prohibits adoption of this rationale. In Morris, voters

challenged the structure of the Board of Estimate of New York City.

The Board’s membership included the city’s five borough presidents,

each of whom was elected by the residents of his or her respective

borough. The boroughs varied greatly in population, yet each had

equal representation on the Board of Estimate. The voters claimed

that the Board’s structure therefore violated the one person, one vote

requirement.

9

The district court in Morris rejected this claim. Following reason-

ing similar to that of the district court in the case at hand, it held that

the Board was not popularly elected because no independent election

was held to select its members:

The Board . . . is not an elected body: it consists of a group

of public officials who are already constitutionally elected

to their respective offices as required by law. . . . No provi-

sion is made in the Charter for the election of a board of

estimate. Membership and participation in the assigned

activities of the Board is simply a part of the prescribed

duties of the respective offices to which the designated offi-

cials were already elected.

Morris v. Board of Estimate, 551 F. Supp. 652, 656 (E.D.N.Y. 1982).

The Supreme Court decisively repudiated this rationale.3 The

_________________________________________________________________

3 In arguing its position, the city urged the Supreme Court to employ

the Banzhaf Index, a mathematical formula used “to determine an indi-

vidual voter’s power to affect the outcome of a board vote.” Morris, 489

U.S. at 697. The Court flatly rejected resort to such a device, finding that

it “did not reflect the way the board actually works,” but rather was a

“theoretical explanation of each board member’s power to affect the out-

come of board actions.” Id. at 699. The Court concluded that the “popula-

tion based approach of [its] cases from Reynolds[, 377 U.S. at 577,]

through Abate [v. Mundt, 403 U.S. 182, 185 (1971),]” constituted the

proper approach. Id. at 698. The Court explained that although the “equal

protection approach reflected” in Reynolds might not be perfect, “it does

assure that legislators will be elected by, and represent citizens in, dis-

tricts of substantially equal size” and “does not attempt to inquire

whether, in terms of how the legislature actually works in practice, the

districts have equal power to affect a legislative outcome. This would be

a difficult and ever-changing task, and its challenge is hardly met by a

mathematical calculation that itself stops short of examining the actual

day-to-day operations of the legislative body.” Morris, 489 U.S. at 699

(emphasis added).

The State and the district court in this case quote the emphasized lan-

guage from Morris out of context to support their view that application

of the Reynolds one person, one vote approach to the legislative delega-

10

Morris Court recognized that members of the Board of Estimate are

not independently elected to the Board, noting instead that they “be-

come members as a matter of law upon their various elections” to

other offices. Morris, 489 U.S. at 694. Nonetheless, the Court held

that the Board itself constituted a popularly elected body to which the

one person, one vote requirement applied. Indeed, the nearly unani-

mous Morris Court held this result “certain.” Id. (“That the members

of New York City’s Board of Estimate trigger this constitutional safe-

guard is certain.”).

Members of South Carolina’s legislative delegations, like members

of the Board of Estimate in Morris, are popularly elected to other

offices and, in the same way that the officials in Morris became

Board members, become delegation members as a matter of law

“upon their various elections.” Id. For this reason, we can only con-

clude that legislative delegation members, like the Board of Estimate

members in Morris, are popularly elected for purposes of the one per-

son, one vote requirement.

IV.

Without expressly acknowledging that Morris foreclosed any con-

tention that the legislative delegations are not popularly elected

bodies, the district court attempted to distinguish Morris on the

ground that “the body in question in that case exercised broad govern-

mental powers whereas delegations exercise only limited functions.”

_________________________________________________________________

tions would require an inquiry into “how the legislature actually works

in practice.” In fact, as noted above, the Supreme Court in Morris

expressly held that, whatever its faults, the “equal protection approach

reflected in Reynolds” did “not” even “attempt” to do this. Id. (emphasis

added). Moreover, the Morris Court’s concern about judicial inquiry into

how the legislature actually works in practice was directed at prohibiting

courts from deciding vote dilution cases based on whether a particular

group has the power to affect legislative outcomes. We engage in no

such outcome-based analysis here; instead we rely entirely upon the

population-based approach of Reynolds that the Morris Court expressly

approved. See id.

11

Focusing on whether the delegations exercise governmental func-

tions seems to us entirely appropriate. After all, in Hadley the

Supreme Court held that the one person, one vote rule applies “when-

ever a state or local government decides to select persons by popular

election to perform governmental functions.” 397 U.S. at 56 (empha-

sis added). Surely it is fair to infer from this statement that the one

person, one vote rule does not apply to the election of officials who

do not “perform governmental functions.” Thus the remaining ques-

tion before us is: do the delegations perform governmental functions?

As we have noted, supra at 5, the parties stipulated that county leg-

islative delegations “perform numerous and various general county

governmental functions.” In these stipulations they list nine different

sorts of governmental power exercised by the delegations, including

numerous fiscal and regulatory powers. These stipulations would

seem to resolve the question of whether the delegations perform gov-

ernmental functions: the State has conceded that they do.

The district court, however, rejected this conclusion. The court

noted that “[t]he South Carolina Supreme Court has narrowed the

functions of delegations when [state] constitutional challenges have

been made concerning separation of power.” The court relied on

Thomas v. Cooper River Park & Playground Comm’n, 471 S.E.2d

170, 171 n.1 (S.C. 1996) (statute enabling delegation to approve pub-

lic service district tax and budget violates separation of powers provi-

sion in state constitution); Tucker v. South Carolina Dep’t of

Highways & Pub. Transp., 424 S.E.2d 468, 469 (S.C. 1992) (statute

empowering delegation to approve expenditure of certain road con-

struction funds violates separation of powers provision in state consti-

tution); Gunter v. Blanton, 192 S.E.2d 473, 475 (S.C. 1972) (statute

empowering delegation to approve increase in school tax levy violates

separation of powers provision in state constitution); Gould v. Barton,

181 S.E.2d 662, 673-74 (S.C. 1971) (separation of powers provision

in state constitution permits legislative delegation to appoint members

of parks commission, but does not permit delegation to approve com-

mission’s budget); and Spartanburg County v. Miller, 132 S.E. 673,

676-77 (S.C. 1924) (delegations may, consistent with separation of

powers clause of state constitution, be vested with power to collect

information). The district court seemed to believe that these cases

required it to consider the delegations’ powers to be limited to the

12

power to make appointments, the power to make nonbinding recom-

mendations, and the power to receive information. The State suggests

that these powers do not qualify as governmental functions within the

meaning of Hadley, and contends that if the delegations exercise pow-

ers beyond these “then the matter is one of state law” that should be

left to the state courts.

Even if we were to consider the delegations’ powers to consist only

of those approved by the South Carolina Supreme Court, however, we

could not conclude that the delegations fail to exercise governmental

functions. South Carolina law clearly regards one of these powers, the

making of appointments, as a governmental function. See Crow v.

McAlpine, 285 S.E.2d 355, 357 (S.C. 1981) (function of making

appointments may “be performed by any of the three branches of gov-

ernment”). Moreover, the United States Constitution and the constitu-

tion of every state grant appointment powers to various officials and

bodies.4 It cannot seriously be contended that the power to appoint

governmental officials fails to qualify generically as a governmental

function.

More fundamentally, though, the validity or invalidity of the dele-

_________________________________________________________________

4 See e.g., U.S. Const. art. II, § 2, cl. 2; Ala. Const. art. XV, § 276;

Alaska Const. art. III, § 19; Ariz. Const. art. V, § 12; Ark. Const. art. 6,

§ 22; Cal. Const. art. III, § 8; Col. Const. art. IV, § 23; Conn. Const. art.

4th, § 27; Del. Const. art. III, § 9; Fla. Const. art. IV, § 6; Ga. Const. art.

IV, § 2, para. I; Haw. Const. art. V, § 6; Idaho Const. art. IV, § 6; Ill.

Const. art. V, § 9; Ind. Const. art 5, § 18; Iowa Const. art. V, § 16; Kan.

Const. art. 1, § 11; Ky. Const. § 152; La. Const. art. IV, § 5; Me. Const.

art. V, part 1, § 8; Md. Const. art. II, § 10; Mass. Const. part 2d, ch. II,

§ 11; Mich. Const. art. V, § 3; Minn. Const. art. V, § 3; Miss. Const. art.

4, § 103; Mo. Const. art. IV, § 22; Mont. Const. art. VI, § 8; Neb. Const.

art. IV, § 1; Nev. Const. art. 4, § 12; N.H. Const. part 2, art. 46; N.J.

Const. art. V, § 1, para. 12; N.M. Const. art. V, § 5; N.Y. Const. art. V,

§ 4; N.C. Const. art. 3, § 5; N.D. Const. art. V, § 8; Ohio Const. art. IV,

§ 5; Okla. Const. art. VI, § 1; Or. Const. art. X, § 3; Pa. Const. art. IV,

§ 8; R.I. Const. art. IV, § 4; S.C. Const. art. XI, § 1; S.D. Const. art. IV,

§ 9; Tenn. Const. art. III, § 17; Tex. Const. art. III, § 24a; Utah Const.

art. VII, § 5; Vt. Const. ch. II, § 21; Va. Const. art. V, § 10; Wash. Const.

art. III, § 13; W. Va. Const. art. VII, § 8; Wis. Const. art. VI, § 4; Wyo.

Const. art. 4, § 7.

13

gations’ powers under state law is simply irrelevant; it is well estab-

lished that equal protection review of a state practice is unaffected by

the legality of the practice under state law. See Adickes v. S. H. Kress

& Co., 398 U.S. 144, 152 (1970) (involvement of state official in

racially discriminatory conspiracy provides state action necessary to

show violation of Equal Protection Clause “whether or not the actions

of the [official] were officially authorized, or lawful”); Snowden v.

Hughes, 321 U.S. 1, 11 (1944) (legality of action under state law irrel-

evant to whether it violates federal Equal Protection Clause); see also

Home Tel. & Tel. v. City of Los Angeles, 227 U.S. 278, 287

(1913) (inquiry concerning whether state has authorized action of state

official violating Fourteenth Amendment “is irrelevant”). As the

Supreme Court has explained, the illegality of a state action under

state law “can neither add to nor subtract from its [federal] constitu-

tional validity.” Snowden, 321 U.S. at 11. Indeed, in Reynolds itself,

the plaintiffs complained that the Alabama legislature had not been

reapportioned for over sixty years in contravention of a provision in

the Alabama Constitution requiring reapportionment every ten years.

377 U.S. at 540. The fact that the challenged apportionment scheme

stood in violation of the state constitution did not prevent the

Supreme Court from striking it down as violative of the federal Equal

Protection Clause. See id. at 584.

In evaluating the voters’ equal protection claim, therefore, we must

consider the powers presently exercised by the delegations without

regard to whether those powers have been or would be ruled unconsti-

tutional by the state supreme court. As noted above, the parties have

stipulated that the delegations actually “perform numerous and vari-

ous general county governmental functions,” including approving or

recommending expenditures for various activities, approving local

school district budgets, initiating referenda regarding special-purpose

governing bodies in public service districts, approving reimbursement

of expenses for county planning commissioners, approving county

planning commission contracts, altering or dividing county school

districts, reducing special school levies, submitting grant applications

for park and recreation facilities, and making or recommending

appointments.

Although the stipulations do not cite the particular statutes that pro-

vide the sources of the specified powers, examination of the South

14

Carolina Code reveals statutes giving the delegations precisely the

powers described. Specifically, these statutes grant the delegations (1)

the power to approve the payment of funds distributed to counties

containing state forest lands, S.C. Code Ann. § 48-23-260 (Law. Co-

op. 1987); (2) the power to approve refunds of state gasoline taxes,

id. §§ 12-27-390, 12-28-2730 (Law. Co-op. 1998); (3) the power to

obtain the release of infectious waste contingency funds, id. § 44-93-

170; (4) the power to approve the budgets of certain educational com-

missions, id. §§ 59-53-440, 59-53-550 (Law. Co-op. 1990 & Supp.

1998); (5) the power to initiate a referendum to determine the budget-

ary powers and election of the governing bodies of special purpose

and public service districts, id. § 4-11-265 (Law. Co-op. 1986); (6)

the power to approve the alteration or division of school districts, id.

§ 59-17-20 (Law. Co-op. 1990); and (7) the power to approve the

reduction of certain school tax levies, id. § 59-73-110 (Law. Co-op.

1990). The delegations are also vested with the power to directly

appoint numerous governmental officials, including state board of

education members, S.C. Const. art. XI, § 1; transportation committee

members, S.C. Code Ann. § 12-28-2740 (Law. Co-op. Supp. 1998);

and trustees of public hospitals, id. § 44-7-670 (Law. Co-op. 1985).5

_________________________________________________________________

5 South Carolina law also provides the delegations with numerous fiscal

and regulatory powers not referenced in the stipulations. These include:

(1) the power to direct the levy of taxes for the benefit of county hospi-

tals, id. § 44-7-1100 (Law. Co-op. Supp. 1985); (2) the power to approve

the issuance of general obligation bonds by the governing authority of

regional airport districts, id. § 55-17-20 (Law. Co-op. 1992); (3) the

power to waive penalties for a taxpayer’s failure to make the required

annual statement listing real and personal property, id. § 12-37-900

(Law. Co-op. 1977); (4) the power to approve the borrowing of funds by

a regional higher education commission, id. § 59-57-40; (5) the power to

approve the acquisition of real property through the Heritage Trust Pro-

gram, id. § 51-17-140 (Law. Co-op. Supp. 1998); (6) the power to create

county and regional housing authorities, id. §§ 31-3-720, 31-3-910 (Law.

Co-op. 1991); (7) the power to permit abolition of special police districts,

id. § 23-27-110 (Law. Co-op. 1989); (8) the power to approve the condi-

tions for public use of lakes and ponds, id. § 50-13-2020 (Law. Co-op.

Supp. 1998), to approve the licensing of new hunting preserves, id. § 50-

11-1210, to regulate the use of certain animal traps, id. § 50-11-2410,

and to direct a closed season on fish for sixty days, id. § 50-13-60; (9)

the power to approve certain new or amended fishing regulations, id.

15

In considering the delegations’ powers to be confined within the

state constitutional boundaries delineated by the state supreme court,

the district court ignored both the express stipulations of the parties

and the numerous statutes cited above. Moreover, the court did not

find that the legislative delegations have in practice observed the lim-

its set by the state supreme court. And indeed, nothing in the record

suggests that the delegations have limited their activities in this man-

ner. Rather, the undisputed record evidence shows that legislative del-

egations “perform numerous and various general county

governmental functions,” including some that may well be beyond

their authority under the state constitution. For example, the delega-

tions regularly approve particular local agency budgets pursuant to

statute, despite South Carolina Supreme Court rulings striking down

two statutes that gave similar budget-approval powers to certain dele-

gations. See Thomas, 471 S.E.2d at 171 n.1; Gould, 181 S.E.2d at

674. Thus, for purposes of equal protection review we must regard the

undisputed record evidence (including most notably the parties’ stipu-

lations) and the state statutes currently on the books, rather than court

rulings invalidating a handful of other statutes, to be determinative of

the powers exercised by the legislative delegations.

Given the array of state statutes empowering the delegations to per-

form fiscal, regulatory, and appointive functions and the parties’ stip-

ulation that the delegations do “perform” such functions, we have

little difficulty concluding that the legislative delegations exercise

“governmental functions” and so fall within the scope of the one per-

son, one vote mandate.

_________________________________________________________________

§§ 50-19-2230, 50-19-2520, 50-19-2630; (10) the power to authorize a

county to abandon its free or rental textbook system, id. § 59-31-270

(Law. Co-op. 1990); and (11) the power to approve the use of vote

recorders, id. § 7-13-1310 (Law. Co-op. 1977), and polling places for

voting precincts, id. §§ 7-7-30, 7-7-40, 7-7-55, 7-7-80, 7-7-100, 7-7-110,

7-7-120, 7-7-170, 7-7-210, 7-7-250, 7-7-270, 7-7-340, 7-7-390, 7-7-410,

7-7-450, 7-7-480, 7-7-501, 7-7-520, 7-7-530 (Law. Co-op. Supp. 1998).

While the record is silent as to whether delegations actually exercise any

of these additional powers, we note that the list of powers in the stipula-

tions of the parties does not purport to be exhaustive.

16

Finally, we note that, contrary to the district court’s suggestion, the

relative modesty of the delegations’ powers in comparison to those of

some other elected bodies does not render the delegations so unimpor-

tant that the one person, one vote rule should not be applied to them.

The Supreme Court has specifically addressed, and rejected, such a

contention:

If the purpose of a particular election were to be the deter-

mining factor in deciding whether voters are entitled to

equal voting power, courts would be faced with the difficult

job of distinguishing between various elections. We cannot

readily perceive judicially manageable standards to aid in

such a task. It might be suggested that equal apportionment

is required only in “important” elections, but good judgment

and common sense tell us that what might be a vital election

to one voter might well be routine to another. In some

instances the election of a local sheriff may be far more

important than the election of a United States Senator. If

there is any way of determining the importance of choosing

a particular governmental official, we think the decision of

the State to select that official by popular vote is a strong

enough indication that the choice is an important one.

Hadley, 397 U.S. at 55.

Thus the fact that the powers of the delegations are less extensive

than, say, the enormous powers of the New York Board of Estimate

is beside the point. See Morris v. Board of Estimate, 831 F.2d 384,

385 (2d Cir. 1987), aff’d, 489 U.S. 688 (1989). In view of the wide

range of fiscal, regulatory, and appointive powers that the delegations

exercise, the conclusion that the delegations are covered by the one

person, one vote rule is inescapable.

V.

Our good colleague in dissent acknowledges that members of legis-

lative delegations are popularly “elected rather than appointed,” post

at 31, and does not dispute that the state defendants have stipulated

that the legislative delegations perform nine different sorts of govern-

mental powers. See J.A. 184-85, 431. Furthermore, the dissent appar-

17

ently recognizes that the one person, one vote principle applies to

popularly elected officials who exercise governmental functions. Yet

our dissenting colleague would conclude that delegation members do

not perform governmental functions and so “vigorously disagree[s]”

with our holding that the one person, one vote principle applies to

them. Post at 36. The tone of that disagreement requires a brief

response.

South Carolina’s express stipulation that the delegations do in fact

perform a wide variety of budgetary, appointive, and other functions

presents an unanswerable obstacle to our dissenting colleague’s the-

ory. The dissent does not attempt to surmount that obstacle by claim-

ing that the detailed powers, which the state defendants have

stipulated that the delegations perform, do not constitute governmen-

tal functions. Nor does the dissent maintain that the Governor, Senate,

and House of Representatives of South Carolina were without author-

ity to so stipulate, or that these state officers did not freely enter into

the stipulations. Rather, the dissent attempts to avoid the impact of the

stipulations by mischaracterizing them. Only by doing so can the dis-

sent contend that our reliance on facts stipulated to by the State itself

constitutes reliance on “hypotheticals” and “assumptions.” Post at 26.

Our dissenting colleague maintains that the stipulations do not state

the facts agreed to by the parties (“they are not facts at all”), but only

“purported summaries of state statutes agreed to by some of the par-

ties.” Post at 27. Our colleague misreads the stipulations. At the out-

set of the stipulations, all of the parties, by counsel, state that they:

stipulate to the accuracy of the following facts and that they

may be used in connection with plaintiffs’ motion for class

certification, motion for summary judgment, and for any

other purpose in this litigation . . . .

J.A. 182 (emphasis added). Although defendants South Carolina

House of Representatives and Speaker Wilkins did not stipulate that

the delegations’ powers constitute “various general county govern-

mental” powers, J.A. 184 n.1, all defendants agreed that the legisla-

tive delegations actually “perform numerous . . . functions prescribed

by state law.” J.A. 184. Most importantly, all defendants stipulated

that the functions presently performed by the legislative delegations

18

include “approving . . . the expenditures of money . . .; approving the

budgets of local school districts; . . . approving the reimbursement of

expenses . . .;” and “reducing existing special school levies . . . .” Id.

The stipulations are not and do not purport to be”summaries of state

statutes.” Post at 27. Rather, the stipulations set forth the parties’

agreement as to the powers actually exercised by members of the leg-

islative delegations.

By stipulation, the parties in this case thus unmistakably agreed

that the delegations perform a variety of functions beyond those

authorized by the state’s highest court–including approving the bud-

gets, expenditures, contracts, and reimbursements of certain govern-

mental agencies. The State did not attempt to disprove these

stipulated facts. Indeed, the district court expressly recognized that

“[t]he parties herein have stipulated” that “[v]arious [c]ounty

[l]egislative [d]elegations perform numerous . . . functions prescribed

by state law.” See J.A. 429-32. Moreover, not even on appeal has the

State argued that the stipulations do not establish the facts so stipulated.6

Nevertheless, the dissent simply refuses to acknowledge the force of

the stipulations. Instead it maintains that, despite the stipulations, we

“[a]ssum[e]–without any record support or district court finding–

that legislative delegations . . . perform functions beyond those autho-

rized by South Carolina state law as interpreted by the South Carolina

Supreme Court.” Post at 26.

_________________________________________________________________

6 The dissent argues that reliance on the stipulations as to the powers

presently exercised by the legislative delegations somehow constitutes

“engaging in . . . speculation about how legislative delegations conduct

themselves.” Post at 27. Tellingly, however, the defendants do not even

suggest such a contention. Neither the State defendants nor the voters

have ever disagreed over the powers the delegations presently exercise,

suggested that the stipulations do not accurately set forth these powers,

or challenged the stipulations. Thus, as the dissent notes, post at 27, the

voters in their reply brief state that they do “not challenge any of the

powers exercised by legislative delegations . . . .” As the voters explained

in text omitted by the dissent, they do not challenge the delegations’

powers “any more than the plaintiffs in Reynolds v. Sims challenged the

powers of the Alabama legislature. What plaintiffs do challenge is the

method by which county delegations are elected.” Reply Br. at 7-8.

19

Our dissenting colleague apparently believes that something more

than a stipulation is required to prove the underlying stipulated facts.7

But a stipulation, by definition, constitutes “[a]n express waiver made

. . . preparatory to trial by the party or his attorney conceding for the

purposes of trial the truth of some alleged fact . .. the fact is thereaf-

ter to be taken for granted; so that the one party need offer no evi-

dence to prove it and the other is not allowed to disprove it . . . . It

is, in truth, a substitute for evidence, in that it does away with the

need for evidence.” 9 Wigmore, Evidence § 2588, at 821 (Chadburn

1981) (emphasis added). See 2 McCormack on Evidence § 254 (West

1992) (stipulations “have the effect of withdrawing a fact from issue

and dispensing wholly with the need for proof of the fact”).

This court has had no difficulty in relying upon stipulations that a

party engaged in a certain kind of activity, without requiring any addi-

tional “proof” as to the particulars of the underlying activity. See, e.g.,

United States v. Clark, 993 F.2d 402, 405-06 (4th Cir. 1993) (Nie-

meyer, J.). And more than a century ago, the Supreme Court estab-

lished that “[t]he power of the court to act in the disposition of a trial

upon facts conceded by counsel is as plain as its power to act upon

the evidence produced.” Oscanyan v. Arms Co., 103 U.S. 261, 263

(1880) (“any fact, bearing upon the issues involved, admitted by

counsel, may be the ground of the court’s procedure equally as if

established by the clearest proof”). The dissent’s theory, requiring

something more than a stipulation, would appear to render not only

our decision, but also that of the Supreme Court in Oscanyan,

improper. Judicial authority does not, however, flow in that direction.

Moreover, even the dissent’s determined disregard of the stipulated

facts as to the numerous governmental functions exercised by the del-

egations cannot explain away the delegations’ exercise of appointive

powers, which even the state supreme court has held to be within the

delegations’ prerogative under state law. The dissent argues that the

exercise of such powers does not constitute a governmental function.

_________________________________________________________________

7 Even if something more than a stipulation were necessary to prove

that the delegations exercised governmental functions, the voters have

produced such evidence. They offered uncontroverted testimony that, as

noted within, supra at 16, the delegations regularly approve certain gov-

ernmental budgets. See J.A. 264-65; 269-71.

20

This is an extraordinarily odd contention. Consider, for example, a

popularly elected state official, whose sole function was that of

appointing all of the judges in the state. Surely even the dissent would

concede that the one person, one vote principle would govern the

election of this official.

Yet the dissent, purportedly relying on the Supreme Court’s opin-

ion in Sailors, insists that the exercise of appointive powers does not

constitute a governmental function. Sailors does not so hold.8 In

Sailors, the Supreme Court did hold the one person, one vote princi-

ple inapplicable to the selection of appointed county school board

members. But, this holding did not rest on whether county school

board members or those who appointed them exercised governmental

powers; rather, Sailors turned on the fact that the challenged officials

were not popularly elected. As the Sailors Court explained:

If we assume arguendo that where a State provides for an

election of a local official or agency — whether administra-

tive, legislative, or judicial — the requirements of Gray v.

Sanders and Reynolds v. Sims must be met, no question of

that character is presented. For while there was an election

here for the local school board, no constitutional complaint

is raised respecting that election. Since the choice of mem-

bers of the county school board did not involve an election

and since none was required for these nonlegislative offices,

the principle of “one man, one vote” has no relevancy.

Sailors, 287 U.S. at 111.

_________________________________________________________________

8 The dissent’s misuse of Sailors rests on a false analogy. In Sailors,

voters challenged the selection of county school board members who had

been appointed by delegates chosen from popularly elected local school

boards. In the case at hand, the voters challenge the selection of members

of the legislative delegations, who, the dissent concedes, are popularly

“elected rather than appointed.” Post at 31. Rather than analogizing the

popularly elected legislative delegation members to the popularly elected

local school board members in Sailors, the dissent attempts to analogize

them to the delegates who had been selected by the local school boards

to appoint the county board. Indisputably, these delegates were not popu-

larly elected.

21

The Supreme Court in Sailors thus expressly disavowed any reli-

ance on the powers (“administrative, legislative, or judicial”) of the

challenged officials in holding that the one person, one vote principle

did not apply. Indeed the Court assumed that whatever the challenged

officials’ powers, Reynolds would govern if the officials were popu-

larly elected. Accordingly, Sailors provides no support for the dis-

sent’s theory that the one person, one vote requirement does not

govern popularly elected officials exercising appointive powers.

Finally, we note that our holding does not, as the dissent posits,

post at 28, “strike down as unconstitutional the existence” of the legis-

lative delegations. We do not “strike down” the delegations any more

than the Supreme Court struck down the Alabama state legislature in

Reynolds v. Sims. The delegations continue to exist, and can lawfully

exercise two-thirds of the powers that the dissent acknowledges to be

theirs: the power to receive information and the power to make non-

binding recommendations. Moreover, the delegations can continue to

exercise all of the numerous powers they presently exercise, if they

comply with the one person, one vote principle. That task is far from

impossible; it certainly does not “leave[ ] South Carolina without any

practical alternative.” Post at 34. Though they would no longer be

county-defined, the legislative delegations could be reorganized such

that each delegation represented a cluster of legislative districts. Or

the delegations could keep their current territorial configurations and

adopt a system of weighted voting. Our holding thus does nothing to

prohibit South Carolina, if it chooses, from continuing to utilize “sub-

set[s] of the legislature” to perform a “structured buffer role.” Id. at

35.

VI.

In sum, we conclude that the legislative delegations are elected

bodies that exercise governmental functions, and that therefore the

one person, one vote requirement applies to them. Because there is no

serious dispute that the delegation system fails to satisfy this require-

ment, we hold it to be unconstitutional.

We do not, however, dictate any remedy.. As the Supreme Court

noted in Reynolds, “legislative reapportionment is primarily a matter

for legislative consideration and determination, and. . . judicial relief

22

becomes appropriate only when a legislature fails to reapportion

according to federal constitutional requisites in a timely fashion after

having had an adequate opportunity to do so.” 377 U.S. at 586. We

recognize that the district court held this case in abeyance for some

time to permit the South Carolina legislature to reform the present

structure of the county legislative delegation system, which the legis-

lature unfortunately failed to do. In light of our decision here, how-

ever, the legislature may well be able to turn to the task with fresh

resolve and should, as the parties agree, be given the opportunity to

do so.. We therefore remand the case to permit the South Carolina leg-

islature to correct, subject to the approval of the district court, the

constitutional defect in the delegation system that we have identified

today.

The judgment of the district court is reversed and the case is

remanded for further proceedings.

REVERSED AND REMANDED

NIEMEYER, Circuit Judge, dissenting:

Considering an entire state legislative mechanism in the abstract

without any challenged conduct or legislative act, the majority strikes

down as unconstitutional South Carolina’s legislative delegation sys-

tem. This heavy-handed intrusion into the heart of state government

represents an unwarranted extension of federal judicial power, justi-

fied only by generalities and irrelevant history but certainly not by the

U.S. Constitution.

In South Carolina, state legislators are elected in conformance with

the one-person, one-vote principles announced in Reynolds v. Sims,

377 U.S. 533 (1964), and the parties do not dispute this. Legislators

so elected are assigned by law to membership in county-based legisla-

tive delegations, each of which is composed of the legislators whose

districts lie in whole or in part within that county. Thus, there are 46

legislative delegations, one for each county. Delegation membership

is not a separate political office to which members are elected.

As I show below, under current state law as authoritatively con-

strued by the state supreme court, legislative delegations in South

23

Carolina can exercise no legislative or executive power. They func-

tion only (1) to receive information related to their members’ duties

as legislators in the General Assembly, (2) to make non-binding rec-

ommendations to governmental officials, and (3) to make appoint-

ments to local administrative positions. Even assuming that legislators

making up these delegations represent different sized populations,

none of these functions performed by the legislative delegations is

sufficient to trigger the principles of Reynolds. On the contrary, each

function has been authorized by existing Supreme Court case law to

be performed by a body that does not meet one-person, one-vote scru-

tiny.

Without a rigorous examination of the specific functions of these

legislative delegations, the majority simply sweeps the details under

a broad and inaccurate generalization that a priori makes the delega-

tions unconstitutional, concluding simply that legislative delegations

are “elected bodies that exercise governmental functions,” and there-

fore they must comply with the strictures of Reynolds. Ante, at 22. To

justify its generalization, the majority relies on alleged ultra vires

conduct or on historical functions of legislative delegations, reaching

back into the nineteenth century to apply a gloss totally inconsistent

with how they function today in compliance with state law.

The citizens of South Carolina can be genuinely and legitimately

troubled by this awkward and unnecessary exercise of federal power.

For the reasons discussed below, I dissent.

I

To begin with, the majority has failed, in my view, to identify pre-

cisely what it is that we are called upon to review. While it sets out

to evaluate the legislative delegation system as established by law, it

considers claims of ultra vires conduct to ignore standing state

supreme court case law and uses that conduct to strike down the entire

system. But the plaintiffs in this case do not challenge any particular

act of a legislative delegation, and thus, this is not a case in which we

evaluate whether a governmental body acted within its power or not.

Because the plaintiffs challenge the very existence and structure of

the entire system, we must examine what legislative delegations are.

To do so, we must look at how the delegations are constituted and

24

what powers they are authorized to wield under South Carolina law.

Only after we determine what the nature of these legislative delega-

tions are under state law can we address whether, under federal law,

they violate the Fourteenth Amendment to the U.S. Constitution.

While the majority is correct to point out that through much of this

century, legislative delegations from each county were the primary

form of local government in South Carolina,1 this historical fact, with-

out more, is not relevant to their current role. In 1973, the South Caro-

lina Constitution was amended to provide for separately elected

county governments, and in 1975, the South Carolina General Assem-

bly passed the Home Rule Act, S.C. Code § 4-9-10, et seq., which

transferred most of the legislative delegations’ powers to the new

county governments. See S.C. Code § 4-9-30. Even before this

legislatively-created power shift, however, the delegations had been

losing power through a series of judicial constructions of the state

constitution. In 1971, the South Carolina Supreme Court held that leg-

islative delegations could not wield the power to approve or disap-

prove budgets, thus rendering unenforceable any statute that

purported to grant such power. See Gould v. Barton, 181 S.E.2d 662,

674 (S.C. 1971). The next year, the state supreme court went further,

holding that no legislative functions may constitutionally be per-

formed by the delegations. See Gunter v.. Blanton, 192 S.E.2d 473,

475 (S.C. 1972) (delegation members “may exercise legislative power

only as members of the General Assembly”). In 1980, the state

supreme court completed its redefinition of the once-powerful delega-

tions, striking down a delegation’s power to approve or disapprove

tax increases, and holding that legislative delegations can never wield

any executive powers. See Aiken County Bd. of Educ. v. Knotts, 262

S.E.2d 14, 17 (S.C. 1980). Thus, under South Carolina law, legislative

delegations may exercise neither legislative functions nor executive

power, and the South Carolina courts have consistently policed these

prohibitions. See, e.g., Thomas v. Cooper River Park, 471 S.E.2d 170,

171-72 (S.C. 1996); Tucker v. South Carolina Dep’t of Highways, 424

_________________________________________________________________

1 For most of this time, legislative delegations were from districts

entirely within a county. Legislative districts that crossed county lines

were not mandated until the mid-1960s as a result of the Supreme

Court’s decision in Reynolds v. Sims, 377 U.S. 533 (1964), requiring

state legislative districts to have a substantially equal voting population.

25

S.E.2d 468, 469 (S.C. 1992) (“We have long held that legislative del-

egates may exercise legislative power only as members of the General

Assembly enacting legislation [,and] [a]ction by a legislative delega-

tion pursuant to a complete law [is executive] and is therefore consti-

tutionally invalid”).

Rather than accept the state’s highest court’s statement of what

powers the legislative delegations possess and assume that the state

complies with its law, the majority relies selectively on the parties’

competing claims and conflicting characterizations of stipulations

about what the state law is and how it is to be interpreted. Proceeding

with the same lack of foundation in its analysis of state law, the

majority maintains, “we must consider the powers presently exercised

by the delegations without regard to whether those powers have been

or would be ruled unconstitutional by the state supreme court.” Ante,

at 14. The majority then assumes that legislative delegations exercise

power in violation of their own constitution and Supreme Court pre-

cedents because “nothing in the record suggests that the delegations

have limited their activities in this manner.” Ante, at 16. Assuming —

without any record support or district court finding — that legislative

delegations therefore perform functions beyond those authorized by

South Carolina state law as interpreted by the South Carolina

Supreme Court, the majority concludes that what the legislative dele-

gations do amounts to “governmental functions” requiring one-

person, one-vote scrutiny. Apart from the fact that no specific conduct

is before us, whether ultra vires or not, the logic for the majority’s

conclusion is long lost in its posited hypotheticals and unfounded

assumptions.

The majority makes much of a stipulation agreed to by some of the

parties that county legislative delegations “perform numerous and

various general county governmental functions,” maintaining that this

stipulation “would seem to resolve the question of whether the dele-

gations perform governmental functions: the State has conceded that

they do.” Ante, at 12. The majority then concludes that this stipulation

that legislative delegations do in fact perform governmental functions

“presents an unanswerable obstacle to our dissenting colleague’s the-

ory.” Ante, at 18. A closer look at the stipulation, however, reveals

that the majority’s entire analysis is built on a house of cards.

26

First, the South Carolina House of Representatives and the Speaker

of the House, a majority of the defendants in number, refused to stipu-

late to the characterization that the legislative delegations’ powers

were “governmental.” See J.A. 184. Second, the stipulation is nothing

more than a purported characterization of “functions prescribed by

state law.” Not only are these not facts on which to base a constitu-

tional holding, they are not facts at all. They are purported summaries

of state statutes agreed to by some of the parties. The statutes them-

selves, which are attached to the stipulation, best speak for what is

authorized. Finally, even a review of the state statutes themselves can-

not be the end of the analysis because the South Carolina Supreme

Court has ruled that legislative delegations may not perform some of

the functions authorized by these statutes. Thus, for example, while

a review of these statutes would reveal that some legislative delega-

tions can tax and set budgets, the Supreme Court of South Carolina

has ruled that the legislative delegation may not exercise that power.

See Aiken County Bd., 262 S.E.2d at 17.

Thus, it becomes apparent that in relying on a stipulated character-

ization of state statutes, the majority rests on little more than hypothe-

sis and assumption. By engaging in such speculation about how

legislative delegations conduct themselves, the majority rejects the

appellants’ own limitations on the arguments they raise in this case.

As the appellants stated in their brief:

Defendants’ argument that plaintiffs are challenging “the

actions of legislative delegations,” or “asking for an inquiry

into `how the legislature actually works in practice'” is fac-

tually incorrect and serves only to obscure the nature of

plaintiffs’ claims. Plaintiffs do not challenge any of the

powers exercised by legislative delegations.

What is before us is the constitutionality of the legislative delegation

system as established under South Carolina law.

A federal court reviewing the constitutionality of the system can-

not, without particularized conduct at issue, reject the South Carolina

courts’ definition of the legislative delegation system. The South Car-

olina constitution, as interpreted by the South Carolina Supreme

Court, allows legislative delegations only three “powers”: (1) delega-

27

tions can be granted the power to receive information relevant to the

members’ legislative duties in the General Assembly, see

Spartanburg County v. Miller, 132 S.E. 673 (S.C. 1924); (2) delega-

tions can be granted the power to make non-binding recommenda-

tions, see Tucker v. South Carolina Dep’t of Highways, 442 S.E.2d

171, 173 (S.C. 1994); Crow v. McAlpine, 285 S.E.2d 355, 357 (S.C.

1981); and (3) delegations can be granted the power to make appoint-

ments to local governmental offices, see Tucker, 442 S.E.2d at 172.

Once we are given the state-established scope of legislative delega-

tions’ powers, it then becomes our duty to determine whether this

state governmental institution, possessing these defined powers, is

subject to the one-person, one-vote requirement of federal law as

elaborated in Reynolds and its progeny. The majority rejects this

method of analysis, claiming that legislative delegations should be

judged on powers that they purportedly exercise rather than on the

powers that they legally possess. It argues that governmental action

that violates a state constitution can also violate the federal constitu-

tion, citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970);

Snowden v. Hughes, 321 U.S. 1, 11 (1944); Home Tel. & Tel. v. City

of Los Angeles, 227 U.S. 278, 287 (1913). While I fully agree with

this principle, it is not applicable to the case before us because the

plaintiffs challenge the entire system in the abstract rather than a par-

ticular, allegedly ultra vires act.

To take the majority’s method a step further, when a court con-

cludes that an ultra vires act of a state or local governmental body is

unconstitutional, it surely cannot use that finding as the basis for strik-

ing down the underlying governmental body. In short, striking down

an ultra vires act does not authorize us to strike down as unconstitu-

tional the existence of the body that performed the act. But since we

have no particular ultra vires acts before us, the majority should have

constrained itself to review legislative delegations as constituted

under South Carolina law.

If we accept the South Carolina Supreme Court’s pronouncements

prohibiting legislative delegations from exercising legislative and

executive powers and authorizing them only to receive information

auxiliary to legislative duties, to make non-binding recommendations,

and to make appointments to local governmental offices, then we

28

must determine whether any of these powers is sufficient to trigger

one-person, one-vote scrutiny. This is the task at hand which the

majority has refused to address.

II

Analyzing the legislative delegations as they are constituted under

state law, I find that the delegations do not wield any power that

would subject them to the federal limitation of one person, one vote.

While the majority cites Hadley v. Junior College District, 397 U.S.

50, 56 (1970), for the proposition that any elected body performing

“governmental functions” is subject to the one-person, one-vote

requirement, Supreme Court precedent constrains us to interpret “gov-

ernmental functions” to include only legislative and executive powers

— the precise powers that the legislative delegations in South Caro-

lina are not allowed to wield. None of the three powers that legislative

delegations are authorized to exercise trigger one-person, one-vote

analysis under Supreme Court precedent.

The legislative delegations’ first power is the power to receive

information relevant to the members’ duties as legislators in the Gen-

eral Assembly. Because this authority can take the form of the power

to conduct an audit of a county government, see Miller, 132 S.E. at

677, something that a private party would not be allowed to do, it

could, in the broadest sense, be considered to be “governmental.” The

power to receive information incidental to a legislative function, how-

ever, is not a “governmental power” as that term is used in the context

of the constitutional limitation of Reynolds. The Supreme Court has

long recognized that the power to receive information, including the

power to issue subpoenas and hold noncompliers in contempt, “is an

essential and appropriate auxiliary to the legislative function,” and so

may be wielded outside the normal constitutional structure. McGrain

v. Daugherty, 273 U.S. 135, 174 (1927) (emphasis added). The Court

held that such auxiliary power may be constitutionally exercised by

a single house of Congress. See id.; see also Morrison v. Olson, 487

U.S. 654, 694 (1988). This is so, even though Congress may exercise

legislative power only through the constitutionally prescribed manner

of passage by both houses and presentment to the President, see

Clinton v. City of New York, 524 U.S. 417 (1998), and even though

Congress may never exercise executive power, see INS v. Chadha,

29

462 U.S. 919 (1983). Accordingly, the power to receive information

incidental to a legislative function is not, in itself, legislative or exec-

utive, and it can be wielded in ways that “governmental powers” can-

not. For example, it can be and often is wielded by a committee of

Congress or of a state legislature, even though such committees do

not contain representatives of all of the people in the jurisdiction. Just

as a committee of a legislature can hold hearings and receive informa-

tion without triggering one-person, one-vote scrutiny, a legislative

delegation in South Carolina can receive information that is incidental

to the members’ legislative roles in the General Assembly without

triggering such scrutiny.

The legislative delegations’ second power under South Carolina

law is the power to make non-binding recommendations. This power,

like the power to receive information, is one that the Supreme Court

has allowed to be vested in a subset of the legislature — or even in

specific members. See Morrison, 487 U.S. at 694 (upholding the stat-

utory power of certain Members of Congress to request that the Attor-

ney General apply for the appointment of an independent counsel).

Indeed, the power to make non-binding recommendations to govern-

mental officials is a power that all Americans — those in and out of

government — have as a constitutional right. See U.S. Const. amend.

I (protecting “the right of the people . . . to petition the Government

for a redress of grievances”). Because this power is held by every

individual, corporation, and public or private entity in this country, it

cannot be considered a “governmental function” subject to one-

person, one-vote scrutiny.

The final power that the legislative delegations may be granted is

the power to make appointments to local administrative bodies, such

as to positions on boards of education or transportation committees.

This is the most substantive power of the legislative delegations, but

substantive does not necessarily mean “governmental” in this context.

The Supreme Court has specifically approved a body’s exercise of

this power without complying with one-person, one-vote principles.

In Sailors v. Board of Education, 387 U.S. 105 (1967), a unanimous

Supreme Court upheld Michigan’s school board system whereby resi-

dents of various school districts elected local school boards, and those

local school boards, through delegates, in turn appointed the county

school boards. The challenge arose because each local school board,

30

regardless of the population it represented, was given an equal vote

in appointing the county school board. The plaintiffs’ theory was that

the residents’ equal protection rights were being violated because they

had unequal power in the selection of county school boards. The

Supreme Court rejected this challenge, holding that the county school

boards were appointed, rather than elected, and as such, one-person,

one-vote principles did not apply to them. The structure approved in

Sailors is identical to that before us in that legislative delegations rep-

resenting unequal populations in the counties select or appoint county

officials.

The majority fails to appreciate Sailors‘ applicability in this con-

text. The majority reasons that because members of the South Caro-

lina legislative delegations are elected rather than appointed, Sailors

does not apply. But that misses entirely the pertinence of Sailors. The

South Carolina legislative delegations are not analogous to the

appointed county school boards in Sailors; they are analogous to the

elected local school boards in Sailors. Just as the elected local school

boards appointed the county school boards in Sailors, the South Caro-

lina legislative delegations appoint various governmental officials in

South Carolina counties. In both cases, the appointing officials —

members of the local school board appointing authority in Michigan

and of the legislative delegations in South Carolina– were elected

by districts of unequal populations. Nevertheless the Supreme Court

held that one-person, one-vote principles have “no relevancy” to this

scheme. Sailors, 387 U.S. at 111. The distinction between Sailors and

Board of Estimate v. Morris, 489 U.S. 688 (1989), on which the

majority so heavily relies, is that in Sailors, elected officials only

appointed other public officials to carry out administrative and non-

legislative functions, whereas in Board of Estimate, elected officials

themselves served as a body constituted to exercise governmental

functions. The holding of Board of Estimate is simply not apposite on

the issue of whether appointment powers are governmental functions

restricted by one-person, one-vote principles.

In short, under Sailors, the appointment of local government offi-

cials is not a governmental function that can only be exercised by per-

sons selected under one-person, one-vote principles. This is true even

when, as in Sailors, the appointing body is directly or indirectly

elected. As Justice Douglas wrote for the unanimous Supreme Court:

31

Viable local governments may need many innovations,

numerous combinations of old and new devices, great flexi-

bility in municipal arrangements to meet changing urban

conditions. We see nothing in the Constitution to prevent

experimentation. At least as respects nonlegislative officers,

a State can appoint local officials or elect them or combine

the elective and appointive systems as was done here.

Sailors, 387 U.S. at 110-11.

In summary, the power to receive information related to members’

legislative duties is one that has long been delegated to legislative

subsets that are not themselves imbued with legislative power and that

are not equally representative of all voters. The Supreme Court has

upheld this practice, necessitating the conclusion that the power to

receive information may be placed in a subset of legislators even

where that subset does not follow one-person, one-vote principles.

Similarly, the power to make non-binding recommendations is not in

any way a “governmental function,” and thus it does not trigger one-

person, one-vote scrutiny. Finally, the Supreme Court has explicitly

upheld the placement of the appointment power in the hands of a

body that, while elected, was not elected based upon one-person, one-

vote principles. Because South Carolina’s legislative delegations do

not themselves exercise governmental functions as recognized by the

Supreme Court, they need not meet the one-person, one-vote require-

ment, and therefore we have no authority to strike them down.

III

In addition to their contention that the legislative delegations vio-

late one-person, one-vote principles, the plaintiffs also claim that the

legislative delegation system is racially discriminatory in violation of

the Fifteenth Amendment, the Fourteenth Amendment, § 2 of the Vot-

ing Rights Act, and the Civil Rights Act. The majority’s disposition

of this case makes it unnecessary for it to reach these issues. But find-

ing, as I do, that the legislative delegations are not subject to one-

person, one-vote scrutiny, I would reach the plaintiffs’ claims of

racial discrimination.

I would first observe that the experts in this case do not agree, as

the majority implies, that the legislative delegations were created in

32

an effort to disenfranchise blacks. Professor William Moore of the

College of Charleston stated that the emergence of the legislative del-

egations was principally the result of a design to put more power in

the hands of the legislature as a check on the executive branch.

Reducing the political power of blacks, according to Professor Moore,

was essentially a non-issue in this development, although that perni-

cious goal had been the motivating force behind several earlier consti-

tutional provisions, including a literacy test for voting and a

requirement to pay poll taxes. Professor Orville Burton of the Univer-

sity of Illinois at Urbana-Champaign, on the other hand, offered a

contrary conclusion. He opined that the legislative delegations were

“in part established to disenfranchise and dilute the vote of African

Americans.” He stated that many historians, “understanding how

complex and tangled underlying causes and specific effects become,

nevertheless have linked the establishment of the county legislative

delegation system with disfranchisement” of blacks.

Whichever of the experts is correct, however, is irrelevant to the

delegations’ current legal validity. The relevant facts for this inquiry

are whether the system is maintained for a discriminatory purpose or

whether it has a discriminatory effect. An elective or appointive gov-

ernmental system cannot violate the Fifteenth Amendment unless (at

the very least) the system has been maintained for a discriminatory

purpose.2 See Irby v. Virginia State Bd. of Elections, 889 F.2d 1352,

1356 (4th Cir. 1989). A system does not violate the Fourteenth

Amendment unless it is true both that the system is maintained for a

discriminatory purpose and that it has a discriminatory effect. See id.

at 1355. A system does not violate § 2 of the Voting Rights Act

unless it has a discriminatory effect. See id. at 1357. In short, if the

court finds that the system is neither maintained for a discriminatory

purpose nor that the system has a discriminatory effect, the plaintiffs

cannot prevail under any of these theories.

The district court found, as a matter of fact, after a trial, that “[i]t

simply cannot be said today that the legislative delegations are main-

tained for racially discriminatory purposes.” With regard to the pres-

_________________________________________________________________

2 It is not even clear that the Fifteenth Amendment applies in this con-

text. See Holder v. Hall, 512 U.S. 874, 920 (1994) (Thomas, J., concur-

ring).

33

ent effect of the legislative delegations, the court found “no present

racially discriminatory effect in the legislative delegation system.” On

the contrary, the empirical data in the record suggests that the legisla-

tive delegation system actually enhances the relative power of black

office-holders. As Professor Moore noted:

If one examines electoral success of African-Americans in

South Carolina, the highest percentage of seats held of any

elected office by African-Americans is legislative seats.

African-Americans also have a higher percentage of repre-

sentation on legislative delegations than their White coun-

terparts. For example, in the state house, African-American

membership on legislative delegations averaged 1..54 dele-

gations in 1995, compared to 1.49 for White legislators. In

the Senate, African-Americans on the average served on 3.3

legislative delegations compared to 2 for White senators.

Thus, the legislative delegation system today actually

enhances African-American representation on these bodies.

J.A. 241-42. Because we cannot conclude that the district court’s

findings that the legislative delegation system is not maintained for a

discriminatory purpose and does not have a discriminatory effect are

clearly erroneous, the system cannot be invalidated under the Four-

teenth Amendment, the Fifteenth Amendment, or the Voting Rights

Act.

Finally, the plaintiffs’ claim under the Civil Rights Act lacks sup-

port in both fact and law. The Civil Rights Act guarantees, in relevant

part, that “[a]ll citizens of the United States who are otherwise quali-

fied by law to vote . . . shall be entitled and allowed to vote at all . . .

elections, without distinction of race, color, or previous condition of

servitude; any constitution, law, custom, usage, or regulation . . . to

the contrary notwithstanding.” 42 U.S.C. § 1971(a)(1). This law pre-

vents persons from being denied the right to vote in any election on

specified grounds. As this case has nothing to do with persons being

denied the right to participate in the voting process, the Civil Rights

Act is inapposite.

IV

What is particularly troubling about the majority’s opinion is that

it leaves South Carolina without any practical alternative. South Caro-

34

lina has sought to link its state and local governments by giving the

state legislators a role, albeit a limited one, in local government and

by giving local governments a specific access to the state legislature.

This specialized relationship, providing almost a structured buffer

role for the delegations, could not exist without the delegations

because neither the General Assembly in its entirety nor the Governor

could perform that role. They are the object of the relationship not the

buffer. Vesting these limited powers in a subset of the legislature has

a rational purpose in providing a link between the state legislature and

local governments, and we are not in any position to second guess this

judgment made by South Carolina unless it is unconstitutional.

It is, of course, impossible for South Carolina to draw its legislative

districts such that none cross county lines. That impossibility is the

legacy of Reynolds, which found that the very Senate that gives equal

voice to unequally populated states, such as New York and Vermont,

nonetheless passed a constitutional amendment that forbids South

Carolina from giving equal voice, in one of two legislative chambers,

to Fairfield County and Greenville County. See Reynolds, 377 U.S. at

571-77 (discussing the similarities between the United States system,

granting equal vote to each state in the Senate and apportioning seats

in the House of Representatives to states based upon population, and

the Alabama system, which granted equal vote to each county in the

upper house of the legislature and apportioned seats in the lower

house of the legislature to counties based upon population, but never-

theless striking down the system of apportionment for both Alabama

houses). But the requirements of Reynolds do not require us now to

take further steps, and today’s decision oversteps even the line set by

the Supreme Court in Sailors.

Because Reynolds makes it impossible for a state to draw its legis-

lative districts without crossing county lines, the only way in which

South Carolina can preserve the legislative delegations against a one-

person, one-vote challenge would be to assign the delegations only

such powers as would not trigger one-person, one-vote scrutiny. Yet,

the majority has failed to elucidate any law or principle that would

allow the South Carolina General Assembly to determine that role

because it classifies every non-private activity as a prohibited “gov-

ernmental function” and fails to respect the limits the South Carolina

Supreme Court has already placed on the delegations. Thus, while the

35

majority encourages the General Assembly to “turn to the task with

fresh resolve” of implementing the majority’s vision of good govern-

ment, it leaves no way for the General Assembly to preserve the legis-

lative delegation system. Although it is unwilling to say so, the

majority has handed down a death sentence for legislative delegations

in South Carolina, a sentence with which I vigorously disagree.

36