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\t\t\t\t\t\t\t\t\tFiled: October 6, 1999<\/P>
\tPlaintiffs – Appellants,<\/P>
\t\tversus<\/P>
James H. Hodges, etc., et al,<\/P>
\tDefendants – Appellees.<\/P>
\tOn page 3, section 1, lines 7-8 — “Herbert E. Buhl, III, Columbia, South Carolina,” is added to the counsel listing.<\/P>
\t\t\t\t\t\t\t\tFor the Court – By Direction<\/P>
\t\t\t\t\t\t\t\t\/s\/ Patricia S. Connor <\/P>
PUBLISHED<\/STRONG><\/P> UNITED STATES COURT OF APPEALS<\/STRONG><\/P> FOR THE FOURTH CIRCUIT<\/STRONG><\/P> NEIL A. VANDER LINDEN; FORREST E.<\/P> OTT; ANN Y. HART; PEGGY A.<\/P> DUFEK; VINCENT JOHNSON; ALICE J.<\/P> CICENIA; GWENDOLYN L. GROOMS;<\/P> ROBERT H. WATERS; ANITA L.<\/P> FRANKLIN,<\/P> Plaintiffs-Appellants,<\/U><\/P> and<\/P> BUFORT BLANTON,<\/P> Plaintiff,<\/U><\/P> v.<\/P> JAMES H. HODGES, Governor, in his<\/P> capacity as Governor of South<\/P> Carolina; DAVID H. WILKINS, in his<\/P> \t\t\t\t\t\t\t\tNo. 98-2174<\/P> official capacity as Speaker of the<\/P> South Carolina House of<\/P> Representatives; DORCHESTER<\/P> COUNTY LEGISLATIVE DELEGATION;<\/P> GEORGE H. BAILEY, in his<\/P> representative capacity as a member<\/P> of the State House of<\/P> Representatives; THE SOUTH<\/P> CAROLINA SENATE; DEFENDANT<\/P> CLASS; SOUTH CAROLINA HOUSE OF<\/P> REPRESENTATIVES; JOHN DOE, Chair<\/P> of the Dorchester County<\/P> Legislative Delegation; BILL<\/P> BRANTON, Senator; CONVERSE A.<\/P> CHELLIS, III, Representative; ROBERT<\/P> W. HARRELL, JR., Representative;<\/P> GILDA COBB-HUNTER, Representative;<\/P> ANNETTE YOUNG-BRICKELL,<\/P> Representative,<\/P> Defendants-Appellees,<\/U><\/P> and<\/P> NICK THEODORE, in his official<\/P> capacity as Lieutenant Governor<\/P> and presiding officer of the South<\/P> Carolina Senate; ROBERT J. SHEHEEN,<\/P> \t <\/P> in his official capacity as Speaker<\/P> of the South Carolina House of<\/P> Representatives; JAMES B. ELLISOR,<\/P> in his offical capacity as Executive<\/P> Director of the South Carolina State<\/P> Election Commission; STATE OF<\/P> SOUTH CAROLINA,<\/P> Defendants.<\/U><\/P> UNITED STATES OF AMERICA,<\/P> Amicus Curiae.<\/U><\/P> Appeal from the United States District Court<\/P> for the District of South Carolina, at Charleston.<\/P> Patrick Michael Duffy, District Judge.<\/P> (CA-91-3635-2-11)<\/P> Argued: April 7, 1999<\/P> Decided: September 30, 1999<\/P> Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.<\/P> _________________________________________________________________<\/P> Reversed and remanded by published opinion. Judge Motz wrote the<\/P> majority opinion, in which Judge Michael joined. Judge Niemeyer<\/P> wrote a dissenting opinion.<\/P> 2<\/P> COUNSEL<\/STRONG><\/P> ARGUED:<\/STRONG> Moffatt Laughlin McDonald, AMERICAN CIVIL LIB-<\/P> ERTIES UNION FOUNDATION, INC., Atlanta, Georgia, for Appel-<\/P> lants. David Reece Williams, III, Columbia, South Carolina; James<\/P> Emory Smith, Jr., Columbia, South Carolina; Thomas Stuart White,<\/P> Charleston, South Carolina, for Appellees. ON BRIEF:<\/STRONG> Neil Bradley,<\/P> Maha Zaki, Cristina Correia, AMERICAN CIVIL LIBERTIES<\/P> UNION FOUNDATION, INC., Atlanta, Georgia; Herbert E.<\/P> Buhl, III, Columbia, South Carolina, for Appellants.<\/P> Paula Gail Benson, Columbia, South Carolina, for Appellee Senate;<\/P> Charles Molony Condon, Columbia, South Carolina, for Appellees<\/P> Wilkins and House; Samuel W. Howell, IV, Charleston, South Caro-<\/P> lina, for Appellees Legislative Delegation and Doe; Charles F. Reid,<\/P> Columbia, South Carolina, for Appellee Speaker; Charles E. Carpen-<\/P> ter, Jr., Columbia, South Carolina, for Appellee Beasley.<\/P> _________________________________________________________________<\/P> OPINION<\/STRONG><\/P> DIANA GRIBBON MOTZ, Circuit Judge:<\/P> In this case we consider the legality of South Carolina’s county<\/P> legislative delegation system. The district court upheld this system in<\/P> the face of constitutional and statutory challenges. Because county<\/P> legislative delegations constitute elected governmental bodies to<\/P> which the constitutionally mandated “one person, one vote” require-<\/P> ment applies, we reverse and remand for further proceedings.<\/P> I.<\/P> Except as noted, the district court found or the parties stipulated to<\/P> the following facts.<\/P> Persons residing and voting in various South Carolina counties<\/P> (collectively, the voters) brought this action on behalf of themselves<\/P> and all others similarly situated against the Governor of South Caro-<\/P> lina, the South Carolina legislature, the Speaker of the House, and<\/P> other state officials (collectively, the State). The voters assert that the<\/P> State’s legislative delegation system violates the United States Consti-<\/P> 3<\/P> tution, the Voting Rights Act of 1965, 42 U.S.C.A. \u00a7 1973 (West<\/P> 1994), and the Civil Rights Act of 1957, id.<\/U> \u00a7 1971(a).<\/P> Legislative delegations have played a critical role in the gover-<\/P> nance of South Carolina counties for more than a century. As the dis-<\/P> trict court noted, “for generations legislative delegations of the<\/P> General Assembly controlled virtually every aspect of local govern-<\/P> ment.” Both parties’ experts testified that the legislative delegation<\/P> system took shape at the end of the 19th century, after a constitutional<\/P> amendment in 1890 removed local government from the hands of<\/P> locally elected officials. The experts agreed that the system of locally<\/P> elected county government was rejected partly because it had resulted<\/P> in the election of large numbers of African-American officials.<\/P> The voters’ expert testified that the legislative delegation system,<\/P> which developed in place of locally elected county government, was<\/P> similarly created out of fear of African-American voting power. Even<\/P> the State’s expert conceded that fear of the demands of emancipated<\/P> slaves was one factor that led to the creation of the legislative delega-<\/P> tion system. Moreover, the experts agreed that the legislative delega-<\/P> tion system arose against the backdrop of a white supremacist<\/P> movement, led by Governor Ben Tillman, that sought to diminish<\/P> African-American voting power. This effort, the experts further<\/P> explained, led to the effective disfranchisement of the African-<\/P> American population through the adoption of the South Carolina Con-<\/P> stitution of 1895.<\/P> By 1900, county government had come to be controlled by the<\/P> General Assembly. Under this system, the residents of each county<\/P> elected one senator and, depending on the county’s population, one<\/P> or more representatives to the General Assembly. The legislators thus<\/P> elected from each county constituted the county’s legislative delega-<\/P> tion. In practice, local legislation was formulated by the legislative<\/P> delegation for the relevant county and then enacted by the General<\/P> Assembly at large with no scrutiny. See Duncan v. County of York<\/U>,<\/P> 228 S.E.2d 92, 95 (S.C. 1976). As the district court explained, “in<\/P> addition to being state legislators, members of the Senate and House<\/P> were effectively the county legislature and governing board.”<\/P> The structure of county legislative delegations in South Carolina<\/P> remained unchanged until legislative districts were redrawn following<\/P> 4<\/P> establishment of the one person, one vote rule in 1964. See Reynolds<\/U><\/P> v. Sims<\/U>, 377 U.S. 533 (1964). This redistricting produced legislative<\/P> districts that sometimes crossed county lines. As a result, “the com-<\/P> plexion of the legislative delegation changed,” the district court noted,<\/P> “such that there was no longer a county-oriented legislative delegation<\/P> elected by the voters of an entire county and answerable to the people<\/P> of that county.”<\/P> Instead, redistricting created a situation in which South Carolina<\/P> legislators are elected from districts that contain parts of more than<\/P> one county. Upon election to the General Assembly, each legislator<\/P> automatically becomes a member of the legislative delegation of<\/P> every<\/U> county containing territory that falls within the legislator’s dis-<\/P> trict. Generally, each member of a delegation has one vote in delega-<\/P> tion decisions regardless of the number of constituents that he or she<\/P> has in the county. The voters presented uncontroverted evidence that<\/P> some legislators are members of the legislative delegation of a county<\/P> in which they have relatively few constituents, and that some are even<\/P> members of delegations for counties in which they have no constitu-<\/P> ents at all.<\/P> In 1973, South Carolina amended its Constitution in order to vest<\/P> much of the power over county affairs in locally elected county offi-<\/P> cials. But county legislative delegations still retain statutory authority<\/P> over certain aspects of local government. Indeed, the parties stipu-<\/P> lated that “County Legislative Delegations perform numerous and<\/P> various general county governmental functions prescribed by state<\/STRONG><\/P> law.”1<\/STRONG> They further stipulated that these “numerous” and “general<\/P> county and governmental functions” include:<\/P> \t(a) making and\/or recommending appointments to boards<\/P> \tand commissions;<\/P> _________________________________________________________________<\/P> 1 <\/STRONG>Although Defendants South Carolina House of Representatives and<\/P> House Speaker David H. Wilkins did not stipulate to the phrase “and var-<\/P> ious general county governmental,” they did agree to the accuracy of the<\/P> facts set forth in the stipulations, i.e. that the delegations actually “per-<\/P> form numerous . . . functions prescribed by state law,” including the nine<\/P> specifically described powers set forth above. See<\/U> J.A. 184.<\/P> 5<\/P> \t(b) approving and\/or recommending the expenditure of<\/P> \tmoney allocated by the South Carolina General Assembly<\/P> \tfor highways, parks, recreation, tourism, and other matters;<\/P> \t(c) approving the budgets of local school districts;<\/P> \t(d) initiating referenda regarding the budgetary powers<\/P> \tand the election of governing bodies for a special purpose<\/P> \tin public service districts;<\/P> \t(e) approving the reimbursement of expenses for county<\/P> \tplanning commissioners;<\/P> \t(f) approving county planning commission contracts with<\/P> \tarchitects, engineers, and other consultants;<\/P> \t(g) altering or dividing school districts of counties;<\/P> \t(h) reducing existing special school levies in counties and<\/P> \tschool districts;<\/P> \t(i) submitting grant applications for planning, develop-<\/P> \tment and renovating park and recreation facilities.<\/P> In 1991, the voters filed this action challenging the county legisla-<\/P> tive delegation system. The district court stayed the case to permit the<\/P> General Assembly to fashion an appropriate alternative to the present<\/P> system. When the General Assembly failed to come up with any alter-<\/P> native, the district court reactivated the case.<\/P> The voters maintain that because each member of a county legisla-<\/P> tive delegation has one vote regardless of how many of the member’s<\/P> constituents live in the county, the delegation system dilutes the vot-<\/P> ing power of county residents from more populous areas. The system,<\/P> according to the voters, thus violates the one person, one vote require-<\/P> ment that the Supreme Court has held derives from the Equal Protec-<\/P> tion Clause of the Fourteenth Amendment to the United States<\/P> Constitution. See Reynolds<\/U>, 377 U.S. 533; U.S. Const. amend. XIV<\/P> \u00a7 1. The voters also argue that the delegation system discriminates<\/P> 6<\/P> against African-Americans in purpose and effect in contravention of<\/P> the Constitution, the Voting Rights Act of 1965, and the Civil Rights<\/P> Act of 1957.<\/P> After a bench trial, the district court rejected both contentions.<\/P> Because we conclude that the county legislative delegation system<\/P> violates the constitutionally mandated one person, one vote require-<\/P> ment, we must reverse. In view of this holding, we need not reach the<\/P> voters’ alternative claim as to the asserted racially discriminatory pur-<\/P> pose and effect of the delegation system.<\/P> II.<\/P> The Supreme Court has concluded that “the Equal Protection<\/P> Clause requires that a State make an honest and good faith effort to<\/P> construct districts, in both houses of its legislature, as nearly of equal<\/P> population as is practicable.” Reynolds<\/U>, 377 U.S. at 577.2<\/STRONG><\/P> The Court has since extended this one person, one vote require-<\/P> ment to local government, yielding the “general rule” that<\/P> \twhenever a state or local government decides to select per-<\/P> \tsons by popular election to perform governmental functions,<\/P> \tthe Equal Protection Clause of the Fourteenth Amendment<\/P> \trequires that each qualified voter must be given an equal<\/P> \topportunity to participate in that election, and when mem-<\/P> \tbers of an elected body are chosen from separate districts,<\/P> \teach district must be established on a basis that will insure,<\/P> \tas far as is practicable, that equal numbers of voters can vote<\/P> \tfor proportionally equal numbers of officials.<\/P> _________________________________________________________________<\/P> 2 <\/STRONG>The State’s contention that the political question doctrine totally pre-<\/P> cludes judicial consideration of this case cannot prevail in the face of<\/P> Reynolds<\/U>, Baker v. Carr<\/U>, 369 U.S. 186 (1962), and their progeny. In<\/P> those cases, the Supreme Court held that “if discrimination is sufficiently<\/P> shown, the right to relief under the equal protection clause is not dimin-<\/P> ished by the fact that the discrimination relates to political rights.” Baker<\/U>,<\/P> 369 U.S. at 209-10 (internal quotation marks omitted).<\/P> 7<\/P> Hadley v. Junior College Dist. of Metro. Kansas City<\/U>, 397 U.S. 50,<\/P> 56 (1970).<\/P> In support of their one person, one vote claim, the voters here pre-<\/P> sented demographic reports showing that the delegation system devi-<\/P> ates from the standard of equal, population-based representation set<\/P> by the Supreme Court. The reports demonstrated that by one measure,<\/P> 45 of the 46 legislative delegations in South Carolina deviate from the<\/P> equal population standard by amounts that range from 75.15% to<\/P> 330.56%, and that by another measure, 44 of the 46 delegations devi-<\/P> ate from the standard by amounts that range from 34.86% to<\/P> 418.47%. The State proffered no evidence that in any way contra-<\/P> dicted these findings.<\/P> The Supreme Court has held that districts with a maximum devia-<\/P> tion from equal population of 16.5% violate the one person, one vote<\/P> mandate in the absence of a compelling justification for the deviation.<\/P> Connor v. Finch<\/U>, 431 U.S. 407, 416-17 (1977). The State offers no<\/P> such justification–in fact no justification of any kind–for the devia-<\/P> tions caused by the delegation system. Indeed, in light of the fact that<\/P> some members of the county legislative delegations represent literally<\/P> uninhabited territory in the counties they supposedly represent, it<\/P> seems highly unlikely that any adequate justification for the current<\/P> system could be provided.<\/P> Perhaps for this reason, the State does not maintain that the dispari-<\/P> ties between the populations represented by various delegation mem-<\/P> bers are not great enough to violate the one person, one vote principle.<\/P> Rather, it contends, and the district court held, that the one person,<\/P> one vote principle does not apply to the county legislative delega-<\/P> tions. The district court seems to have based this holding on two con-<\/P> clusions: (1) the legislative delegations are not selected “by popular<\/P> election” and (2) the delegations do not “perform governmental func-<\/P> tions.” Hadley<\/U>, 397 U.S. at 56. We consider each of these conclusions<\/P> in turn.<\/P> III.<\/P> In deciding that county legislative delegations are not popularly<\/P> elected, the district court initially found that members of the delega-<\/P> 8<\/P> tions are appointed. The court then analogized this case to Sailors v.<\/U><\/P> Board of Educ.<\/U>, 387 U.S. 105 (1967), in which the Supreme Court<\/P> held that the one person, one vote requirement did not apply to an<\/P> appointed county school board exercising essentially administrative<\/P> functions. Id.<\/U> at 108, 110.<\/P> In this case, however, the undisputed facts surrounding the selec-<\/P> tion of delegation members do not permit the conclusion that they are<\/P> appointed officials. First, no appointment process leads to the desig-<\/P> nation of a legislator as a member of a legislative delegation. Second,<\/P> the concept of an appointment presumes the existence of an appoint-<\/P> ing authority; nothing in the record even suggests that any official or<\/P> body exercises the power to appoint members of the legislative dele-<\/P> gations. Rather, the power to determine the membership of a legisla-<\/P> tive delegation resides in the electorate. It is thus clear, and the State<\/P> essentially concedes on appeal, see<\/U> Brief of Appellees at 10; Tape of<\/P> Oral Argument (Apr. 7, 1999), that the district court’s finding that<\/P> members are appointed to the delegations constitutes error. In fact,<\/P> individuals become delegation members not through appointment but<\/P> rather simply by virtue of their popular election to the legislature.<\/P> Sailors<\/U>, therefore, is inapposite.<\/P> The district court did not, however, rely exclusively on Sailors<\/U>.<\/P> Rather, the court alternatively reasoned that the one person, one vote<\/P> requirement does not apply to the county legislative delegation sys-<\/P> tem because delegation members “are not elected to the delegations<\/P> as that term is generally understood,” in that they become delegation<\/P> members automatically upon their election to the General Assembly.<\/P> Delegation membership, the district court explained, is therefore sim-<\/P> ply “part of the job of being a member of the General Assembly.”<\/P> The Supreme Court’s decision in Board of Estimate v. Morris<\/U>, 489<\/P> U.S. 688 (1989), prohibits adoption of this rationale. In Morris<\/U>, voters<\/P> challenged the structure of the Board of Estimate of New York City.<\/P> The Board’s membership included the city’s five borough presidents,<\/P> each of whom was elected by the residents of his or her respective<\/P> borough. The boroughs varied greatly in population, yet each had<\/P> equal representation on the Board of Estimate. The voters claimed<\/P> that the Board’s structure therefore violated the one person, one vote<\/P> requirement.<\/P> 9<\/P> The district court in Morris<\/U> rejected this claim. Following reason-<\/P> ing similar to that of the district court in the case at hand, it held that<\/P> the Board was not popularly elected because no independent election<\/P> was held to select its members:<\/P> \tThe Board . . . is not an elected body: it consists of a group<\/P> \tof public officials who are already constitutionally elected<\/P> \tto their respective offices as required by law. . . . No provi-<\/P> \tsion is made in the Charter for the election of a board of<\/P> \testimate. Membership and participation in the assigned<\/P> \tactivities of the Board is simply a part of the prescribed<\/P> \tduties of the respective offices to which the designated offi-<\/P> \tcials were already elected.<\/P> Morris v. Board of Estimate<\/U>, 551 F. Supp. 652, 656 (E.D.N.Y. 1982).<\/P> The Supreme Court decisively repudiated this rationale.3<\/STRONG> The<\/P> _________________________________________________________________<\/P> 3 <\/STRONG>In arguing its position, the city urged the Supreme Court to employ<\/P> the Banzhaf Index, a mathematical formula used “to determine an indi-<\/P> vidual voter’s power to affect the outcome of a board vote.” Morris<\/U>, 489<\/P> U.S. at 697. The Court flatly rejected resort to such a device, finding that<\/P> it “did not reflect the way the board actually works,” but rather was a<\/P> “theoretical explanation of each board member’s power to affect the out-<\/P> come of board actions.” Id.<\/U> at 699. The Court concluded that the “popula-<\/P> tion based approach of [its] cases from Reynolds<\/U>[, 377 U.S. at 577,]<\/P> through Abate [v. Mundt<\/U>, 403 U.S. 182, 185 (1971),]” constituted the<\/P> proper approach. Id.<\/U> at 698. The Court explained that although the “equal<\/P> protection approach reflected” in Reynolds <\/U> might not be perfect, “it does<\/P> assure that legislators will be elected by, and represent citizens in, dis-<\/P> tricts of substantially equal size” and “does not attempt to inquire<\/U><\/P> whether, in terms of how the legislature actually works in practice, the<\/U><\/P> districts have equal power to affect a legislative outcome. This would be<\/U><\/P> a difficult and ever-changing task, and its challenge is hardly met by a<\/U><\/P> mathematical calculation that itself stops short of examining the actual<\/U><\/P> day-to-day operations of the legislative body.<\/U>” Morris<\/U>, 489 U.S. at 699<\/P> (emphasis added).<\/P> The State and the district court in this case quote the emphasized lan-<\/P> guage from Morris<\/U> out of context to support their view that application<\/P> of the Reynolds<\/U> one person, one vote approach to the legislative delega-<\/P> 10<\/P> Morris<\/U> Court recognized that members of the Board of Estimate are<\/P> not independently elected to the Board, noting instead that they “be-<\/P> come members as a matter of law upon their various elections” to<\/P> other offices. Morris<\/U>, 489 U.S. at 694. Nonetheless, the Court held<\/P> that the Board itself constituted a popularly elected body to which the<\/P> one person, one vote requirement applied. Indeed, the nearly unani-<\/P> mous Morris<\/U> Court held this result “certain.” Id.<\/U> (“That the members<\/P> of New York City’s Board of Estimate trigger this constitutional safe-<\/P> guard is certain.”).<\/P> Members of South Carolina’s legislative delegations, like members<\/P> of the Board of Estimate in Morris<\/U>, are popularly elected to other<\/P> offices and, in the same way that the officials in Morris<\/U> became<\/P> Board members, become delegation members as a matter of law<\/P> “upon their various elections.” Id.<\/U> For this reason, we can only con-<\/P> clude that legislative delegation members, like the Board of Estimate<\/P> members in Morris<\/U>, are popularly elected for purposes of the one per-<\/P> son, one vote requirement.<\/P> IV.<\/P> Without expressly acknowledging that Morris<\/U> foreclosed any con-<\/P> tention that the legislative delegations are not popularly elected<\/P> bodies, the district court attempted to distinguish Morris<\/U> on the<\/P> ground that “the body in question in that case exercised broad govern-<\/P> mental powers whereas delegations exercise only limited functions.”<\/P> _________________________________________________________________<\/P> tions would require an inquiry into “how the legislature actually works<\/P> in practice.” In fact, as noted above, the Supreme Court in Morris<\/U><\/P> expressly held that, whatever its faults, the “equal protection approach<\/P> reflected in Reynolds<\/U>” did “not<\/U>” even “attempt” to do this. Id.<\/U> (emphasis<\/P> added). Moreover, the Morris<\/U> Court’s concern about judicial inquiry into<\/P> how the legislature actually works in practice was directed at prohibiting<\/P> courts from deciding vote dilution cases based on whether a particular<\/P> group has the power to affect legislative outcomes. We engage in no<\/P> such outcome-based analysis here; instead we rely entirely upon the<\/P> population-based approach of Reynolds<\/U> that the Morris<\/U> Court expressly<\/P> approved. See id.<\/U><\/P> 11<\/P> Focusing on whether the delegations exercise governmental func-<\/P> tions seems to us entirely appropriate. After all, in Hadley<\/U> the<\/P> Supreme Court held that the one person, one vote rule applies “when-<\/P> ever a state or local government decides to select persons by popular<\/P> election to perform governmental functions<\/U>.” 397 U.S. at 56 (empha-<\/P> sis added). Surely it is fair to infer from this statement that the one<\/P> person, one vote rule does not apply to the election of officials who<\/P> do not<\/U> “perform governmental functions.” Thus the remaining ques-<\/P> tion before us is: do the delegations perform governmental functions?<\/P> As we have noted, supra<\/U> at 5, the parties stipulated<\/U> that county leg-<\/P> islative delegations “perform numerous and various general county<\/P> governmental functions.” In these stipulations they list nine different<\/P> sorts of governmental power exercised by the delegations, including<\/P> numerous fiscal and regulatory powers. These stipulations would<\/P> seem to resolve the question of whether the delegations perform gov-<\/P> ernmental functions: the State has conceded that they do.<\/P> The district court, however, rejected this conclusion. The court<\/P> noted that “[t]he South Carolina Supreme Court has narrowed the<\/P> functions of delegations when [state] constitutional challenges have<\/P> been made concerning separation of power.” The court relied on<\/P> Thomas v. Cooper River Park & Playground Comm’n<\/U>, 471 S.E.2d<\/P> 170, 171 n.1 (S.C. 1996) (statute enabling delegation to approve pub-<\/P> lic service district tax and budget violates separation of powers provi-<\/P> sion in state constitution); Tucker v. South Carolina Dep’t of<\/U><\/P> Highways & Pub. Transp.<\/U>, 424 S.E.2d 468, 469 (S.C. 1992) (statute<\/P> empowering delegation to approve expenditure of certain road con-<\/P> struction funds violates separation of powers provision in state consti-<\/P> tution); Gunter v. Blanton<\/U>, 192 S.E.2d 473, 475 (S.C. 1972) (statute<\/P> empowering delegation to approve increase in school tax levy violates<\/P> separation of powers provision in state constitution); Gould v. Barton<\/U>,<\/P> 181 S.E.2d 662, 673-74 (S.C. 1971) (separation of powers provision<\/P> in state constitution permits legislative delegation to appoint members<\/P> of parks commission, but does not permit delegation to approve com-<\/P> mission’s budget); and Spartanburg County v. Miller<\/U>, 132 S.E. 673,<\/P> 676-77 (S.C. 1924) (delegations may, consistent with separation of<\/P> powers clause of state constitution, be vested with power to collect<\/P> information). The district court seemed to believe that these cases<\/P> required it to consider the delegations’ powers to be limited to the<\/P> 12<\/P> power to make appointments, the power to make nonbinding recom-<\/P> mendations, and the power to receive information. The State suggests<\/P> that these powers do not qualify as governmental functions within the<\/P> meaning of Hadley<\/U>, and contends that if the delegations exercise pow-<\/P> ers beyond these “then the matter is one of state law” that should be<\/P> left to the state courts.<\/P> Even if we were to consider the delegations’ powers to consist only<\/P> of those approved by the South Carolina Supreme Court, however, we<\/P> could not conclude that the delegations fail to exercise governmental<\/P> functions. South Carolina law clearly regards one of these powers, the<\/P> making of appointments, as a governmental function. See Crow v.<\/U><\/P> McAlpine<\/U>, 285 S.E.2d 355, 357 (S.C. 1981) (function of making<\/P> appointments may “be performed by any of the three branches of gov-<\/P> ernment”). Moreover, the United States Constitution and the constitu-<\/P> tion of every state grant appointment powers to various officials and<\/P> bodies.4<\/STRONG> It cannot seriously be contended that the power to appoint<\/P> governmental officials fails to qualify generically as a governmental<\/P> function.<\/P> More fundamentally, though, the validity or invalidity of the dele-<\/P> _________________________________________________________________<\/P> 4<\/STRONG> See e.g.<\/U>, U.S. Const. art. II, \u00a7 2, cl. 2; Ala. Const. art. XV, \u00a7 276;<\/P> Alaska Const. art. III, \u00a7 19; Ariz. Const. art. V, \u00a7 12; Ark. Const. art. 6,<\/P> \u00a7 22; Cal. Const. art. III, \u00a7 8; Col. Const. art. IV, \u00a7 23; Conn. Const. art.<\/P> 4th, \u00a7 27; Del. Const. art. III, \u00a7 9; Fla. Const. art. IV, \u00a7 6; Ga. Const. art.<\/P> IV, \u00a7 2, para. I; Haw. Const. art. V, \u00a7 6; Idaho Const. art. IV, \u00a7 6; Ill.<\/P> Const. art. V, \u00a7 9; Ind. Const. art 5, \u00a7 18; Iowa Const. art. V, \u00a7 16; Kan.<\/P> Const. art. 1, \u00a7 11; Ky. Const. \u00a7 152; La. Const. art. IV, \u00a7 5; Me. Const.<\/P> art. V, part 1, \u00a7 8; Md. Const. art. II, \u00a7 10; Mass. Const. part 2d, ch. II,<\/P> \u00a7 11; Mich. Const. art. V, \u00a7 3; Minn. Const. art. V, \u00a7 3; Miss. Const. art.<\/P> 4, \u00a7 103; Mo. Const. art. IV, \u00a7 22; Mont. Const. art. VI, \u00a7 8; Neb. Const.<\/P> art. IV, \u00a7 1; Nev. Const. art. 4, \u00a7 12; N.H. Const. part 2, art. 46; N.J.<\/P> Const. art. V, \u00a7 1, para. 12; N.M. Const. art. V, \u00a7 5; N.Y. Const. art. V,<\/P> \u00a7 4; N.C. Const. art. 3, \u00a7 5; N.D. Const. art. V, \u00a7 8; Ohio Const. art. IV,<\/P> \u00a7 5; Okla. Const. art. VI, \u00a7 1; Or. Const. art. X, \u00a7 3; Pa. Const. art. IV,<\/P> \u00a7 8; R.I. Const. art. IV, \u00a7 4; S.C. Const. art. XI, \u00a7 1; S.D. Const. art. IV,<\/P> \u00a7 9; Tenn. Const. art. III, \u00a7 17; Tex. Const. art. III, \u00a7 24a; Utah Const.<\/P> art. VII, \u00a7 5; Vt. Const. ch. II, \u00a7 21; Va. Const. art. V, \u00a7 10; Wash. Const.<\/P> art. III, \u00a7 13; W. Va. Const. art. VII, \u00a7 8; Wis. Const. art. VI, \u00a7 4; Wyo.<\/P> Const. art. 4, \u00a7 7.<\/P> 13<\/P> gations’ powers under state law is simply irrelevant; it is well estab-<\/P> lished that equal protection review of a state practice is unaffected by<\/P> the legality of the practice under state law. See Adickes v. S. H. Kress<\/U><\/P> & Co.<\/U>, 398 U.S. 144, 152 (1970) (involvement of state official in<\/P> racially discriminatory conspiracy provides state action necessary to<\/P> show violation of Equal Protection Clause “whether or not the actions<\/P> of the [official] were officially authorized, or lawful”); Snowden v.<\/U><\/P> Hughes<\/U>, 321 U.S. 1, 11 (1944) (legality of action under state law irrel-<\/P> evant to whether it violates federal Equal Protection Clause); see also<\/U><\/P> Home Tel. & Tel. v. City of Los Angeles<\/U>, 227 U.S. 278, 287<\/P> (1913) (inquiry concerning whether state has authorized action of state<\/P> official violating Fourteenth Amendment “is irrelevant”). As the<\/P> Supreme Court has explained, the illegality of a state action under<\/P> state law “can neither add to nor subtract from its [federal] constitu-<\/P> tional validity.” Snowden<\/U>, 321 U.S. at 11. Indeed, in Reynolds<\/U> itself,<\/P> the plaintiffs complained that the Alabama legislature had not been<\/P> reapportioned for over sixty years in contravention of a provision in<\/P> the Alabama Constitution requiring reapportionment every ten years.<\/P> 377 U.S. at 540. The fact that the challenged apportionment scheme<\/P> stood in violation of the state constitution did not prevent the<\/P> Supreme Court from striking it down as violative of the federal Equal<\/P> Protection Clause. See id.<\/U> at 584.<\/P> In evaluating the voters’ equal protection claim, therefore, we must<\/P> consider the powers presently exercised<\/U> by the delegations without<\/P> regard to whether those powers have been or would be ruled unconsti-<\/P> tutional by the state supreme court. As noted above, the parties have<\/P> stipulated that the delegations actually “perform numerous and vari-<\/P> ous general county governmental functions,” including approving or<\/P> recommending expenditures for various activities, approving local<\/P> school district budgets, initiating referenda regarding special-purpose<\/P> governing bodies in public service districts, approving reimbursement<\/P> of expenses for county planning commissioners, approving county<\/P> planning commission contracts, altering or dividing county school<\/P> districts, reducing special school levies, submitting grant applications<\/P> for park and recreation facilities, and making or recommending<\/P> appointments.<\/P> Although the stipulations do not cite the particular statutes that pro-<\/P> vide the sources of the specified powers, examination of the South<\/P> 14<\/P> Carolina Code reveals statutes giving the delegations precisely the<\/P> powers described. Specifically, these statutes grant the delegations (1)<\/P> the power to approve the payment of funds distributed to counties<\/P> containing state forest lands, S.C. Code Ann. \u00a7 48-23-260 (Law. Co-<\/P> op. 1987); (2) the power to approve refunds of state gasoline taxes,<\/P> id.<\/U> \u00a7\u00a7 12-27-390, 12-28-2730 (Law. Co-op. 1998); (3) the power to<\/P> obtain the release of infectious waste contingency funds, id.<\/U> \u00a7 44-93-<\/P> 170; (4) the power to approve the budgets of certain educational com-<\/P> missions, id.<\/U> \u00a7\u00a7 59-53-440, 59-53-550 (Law. Co-op. 1990 & Supp.<\/P> 1998); (5) the power to initiate a referendum to determine the budget-<\/P> ary powers and election of the governing bodies of special purpose<\/P> and public service districts, id.<\/U> \u00a7 4-11-265 (Law. Co-op. 1986); (6)<\/P> the power to approve the alteration or division of school districts, id.<\/U><\/P> \u00a7 59-17-20 (Law. Co-op. 1990); and (7) the power to approve the<\/P> reduction of certain school tax levies, id.<\/U> \u00a7 59-73-110 (Law. Co-op.<\/P> 1990). The delegations are also vested with the power to directly<\/P> appoint numerous governmental officials, including state board of<\/P> education members, S.C. Const. art. XI, \u00a7 1; transportation committee<\/P> members, S.C. Code Ann. \u00a7 12-28-2740 (Law. Co-op. Supp. 1998);<\/P> and trustees of public hospitals, id.<\/U> \u00a7 44-7-670 (Law. Co-op. 1985).5<\/STRONG><\/P> _________________________________________________________________<\/P> 5 <\/STRONG>South Carolina law also provides the delegations with numerous fiscal<\/P> and regulatory powers not referenced in the stipulations. These include:<\/P> (1) the power to direct the levy of taxes for the benefit of county hospi-<\/P> tals, id.<\/U> \u00a7 44-7-1100 (Law. Co-op. Supp. 1985); (2) the power to approve<\/P> the issuance of general obligation bonds by the governing authority of<\/P> regional airport districts, id.<\/U> \u00a7 55-17-20 (Law. Co-op. 1992); (3) the<\/P> power to waive penalties for a taxpayer’s failure to make the required<\/P> annual statement listing real and personal property, id.<\/U> \u00a7 12-37-900<\/P> (Law. Co-op. 1977); (4) the power to approve the borrowing of funds by<\/P> a regional higher education commission, id.<\/U> \u00a7 59-57-40; (5) the power to<\/P> approve the acquisition of real property through the Heritage Trust Pro-<\/P> gram, id.<\/U> \u00a7 51-17-140 (Law. Co-op. Supp. 1998); (6) the power to create<\/P> county and regional housing authorities, id.<\/U> \u00a7\u00a7 31-3-720, 31-3-910 (Law.<\/P> Co-op. 1991); (7) the power to permit abolition of special police districts,<\/P> id.<\/U> \u00a7 23-27-110 (Law. Co-op. 1989); (8) the power to approve the condi-<\/P> tions for public use of lakes and ponds, id.<\/U> \u00a7 50-13-2020 (Law. Co-op.<\/P> Supp. 1998), to approve the licensing of new hunting preserves, id.<\/U> \u00a7 50-<\/P> 11-1210, to regulate the use of certain animal traps, id.<\/U> \u00a7 50-11-2410,<\/P> and to direct a closed season on fish for sixty days, id.<\/U> \u00a7 50-13-60; (9)<\/P> the power to approve certain new or amended fishing regulations, id.<\/U><\/P> 15<\/P> In considering the delegations’ powers to be confined within the<\/P> state constitutional boundaries delineated by the state supreme court,<\/P> the district court ignored both the express stipulations of the parties<\/P> and the numerous statutes cited above. Moreover, the court did not<\/U><\/P> find that the legislative delegations have in practice observed the lim-<\/P> its set by the state supreme court. And indeed, nothing in the record<\/P> suggests that the delegations have limited their activities in this man-<\/P> ner. Rather, the undisputed record evidence shows that legislative del-<\/P> egations “perform<\/U> numerous and various general county<\/P> governmental functions,” including some that may well be beyond<\/P> their authority under the state constitution. For example, the delega-<\/P> tions regularly approve particular local agency budgets pursuant to<\/P> statute, despite South Carolina Supreme Court rulings striking down<\/P> two statutes that gave similar budget-approval powers to certain dele-<\/P> gations. See Thomas<\/U>, 471 S.E.2d at 171 n.1; Gould<\/U>, 181 S.E.2d at<\/P> 674. Thus, for purposes of equal protection review we must regard the<\/P> undisputed record evidence (including most notably the parties’ stipu-<\/P> lations) and the state statutes currently on the books, rather than court<\/P> rulings invalidating a handful of other statutes, to be determinative of<\/P> the powers exercised by the legislative delegations.<\/P> Given the array of state statutes empowering the delegations to per-<\/P> form fiscal, regulatory, and appointive functions and the parties’ stip-<\/P> ulation that the delegations do “perform” such functions, we have<\/P> little difficulty concluding that the legislative delegations exercise<\/P> “governmental functions” and so fall within the scope of the one per-<\/P> son, one vote mandate.<\/P> _________________________________________________________________<\/P> \u00a7\u00a7 50-19-2230, 50-19-2520, 50-19-2630; (10) the power to authorize a<\/P> county to abandon its free or rental textbook system, id.<\/U> \u00a7 59-31-270<\/P> (Law. Co-op. 1990); and (11) the power to approve the use of vote<\/P> recorders, id.<\/U> \u00a7 7-13-1310 (Law. Co-op. 1977), and polling places for<\/P> voting precincts, id.<\/U> \u00a7\u00a7 7-7-30, 7-7-40, 7-7-55, 7-7-80, 7-7-100, 7-7-110,<\/P> 7-7-120, 7-7-170, 7-7-210, 7-7-250, 7-7-270, 7-7-340, 7-7-390, 7-7-410,<\/P> 7-7-450, 7-7-480, 7-7-501, 7-7-520, 7-7-530 (Law. Co-op. Supp. 1998).<\/P> While the record is silent as to whether delegations actually exercise any<\/P> of these additional powers, we note that the list of powers in the stipula-<\/P> tions of the parties does not purport to be exhaustive.<\/P> 16<\/P> Finally, we note that, contrary to the district court’s suggestion, the<\/P> relative modesty of the delegations’ powers in comparison to those of<\/P> some other elected bodies does not render the delegations so unimpor-<\/P> tant that the one person, one vote rule should not be applied to them.<\/P> The Supreme Court has specifically addressed, and rejected, such a<\/P> contention:<\/P> \tIf the purpose of a particular election were to be the deter-<\/P> \tmining factor in deciding whether voters are entitled to<\/P> \tequal voting power, courts would be faced with the difficult<\/P> \tjob of distinguishing between various elections. We cannot<\/P> \treadily perceive judicially manageable standards to aid in<\/P> \tsuch a task. It might be suggested that equal apportionment<\/P> \tis required only in “important” elections, but good judgment<\/P> \tand common sense tell us that what might be a vital election<\/P> \tto one voter might well be routine to another. In some<\/P> \tinstances the election of a local sheriff may be far more<\/P> \timportant than the election of a United States Senator. If<\/P> \tthere is any way of determining the importance of choosing<\/P> \ta particular governmental official, we think the decision of<\/P> \tthe State to select that official by popular vote is a strong<\/P> \tenough indication that the choice is an important one.<\/P> Hadley<\/U>, 397 U.S. at 55.<\/P> Thus the fact that the powers of the delegations are less extensive<\/P> than, say, the enormous powers of the New York Board of Estimate<\/P> is beside the point. See Morris v. Board of Estimate<\/U>, 831 F.2d 384,<\/P> 385 (2d Cir. 1987), aff’d<\/U>, 489 U.S. 688 (1989). In view of the wide<\/P> range of fiscal, regulatory, and appointive powers that the delegations<\/P> exercise, the conclusion that the delegations are covered by the one<\/P> person, one vote rule is inescapable.<\/P> V.<\/P> Our good colleague in dissent acknowledges that members of legis-<\/P> lative delegations are popularly “elected rather than appointed,” post<\/U><\/P> at 31, and does not dispute that the state defendants have stipulated<\/P> that the legislative delegations perform nine different sorts of govern-<\/P> mental powers. See<\/U> J.A. 184-85, 431. Furthermore, the dissent appar-<\/P> 17<\/P> ently recognizes that the one person, one vote principle applies to<\/P> popularly elected officials who exercise governmental functions. Yet<\/P> our dissenting colleague would conclude that delegation members do<\/P> not perform governmental functions and so “vigorously disagree[s]”<\/P> with our holding that the one person, one vote principle applies to<\/P> them. Post<\/U> at 36. The tone of that disagreement requires a brief<\/P> response.<\/P> South Carolina’s express stipulation that the delegations do in fact<\/P> perform a wide variety of budgetary, appointive, and other functions<\/P> presents an unanswerable obstacle to our dissenting colleague’s the-<\/P> ory. The dissent does not attempt to surmount that obstacle by claim-<\/P> ing that the detailed powers, which the state defendants have<\/P> stipulated that the delegations perform, do not constitute governmen-<\/P> tal functions. Nor does the dissent maintain that the Governor, Senate,<\/P> and House of Representatives of South Carolina were without author-<\/P> ity to so stipulate, or that these state officers did not freely enter into<\/P> the stipulations. Rather, the dissent attempts to avoid the impact of the<\/P> stipulations by mischaracterizing them. Only by doing so can the dis-<\/P> sent contend that our reliance on facts<\/U> stipulated to by the State itself<\/P> constitutes reliance on “hypotheticals” and “assumptions.” Post<\/U> at 26.<\/P> Our dissenting colleague maintains that the stipulations do not state<\/P> the facts agreed to by the parties (“they are not facts at all”), but only<\/P> “purported summaries of state statutes agreed to by some of the par-<\/P> ties.” Post<\/U> at 27. Our colleague misreads the stipulations. At the out-<\/P> set of the stipulations, all<\/U> of the parties, by counsel, state that they:<\/P> \tstipulate to the accuracy of the following facts<\/U> and that they<\/P> \tmay be used in connection with plaintiffs’ motion for class<\/P> \tcertification, motion for summary judgment, and for any<\/P> \tother purpose in this litigation . . . .<\/P> J.A. 182 (emphasis added). Although defendants South Carolina<\/P> House of Representatives and Speaker Wilkins did not stipulate that<\/P> the delegations’ powers constitute “various general county govern-<\/P> mental” powers, J.A. 184 n.1, all defendants agreed that the legisla-<\/P> tive delegations actually “perform numerous . . . functions prescribed<\/P> by state law.” J.A. 184. Most importantly, all defendants stipulated<\/P> that the functions presently performed by the legislative delegations<\/P> 18<\/P> include “approving . . . the expenditures of money . . .; approving the<\/P> budgets of local school districts; . . . approving the reimbursement of<\/P> expenses . . .;” and “reducing existing special school levies . . . .” Id.<\/U><\/P> The stipulations are not and do not purport to be”summaries of state<\/P> statutes.” Post<\/U> at 27. Rather, the stipulations set forth the parties’<\/P> agreement as to the powers actually exercised by members of the leg-<\/P> islative delegations.<\/P> By stipulation, the parties in this case thus unmistakably agreed<\/P> that the delegations perform a variety of functions beyond those<\/P> authorized by the state’s highest court–including approving the bud-<\/P> gets, expenditures, contracts, and reimbursements of certain govern-<\/P> mental agencies. The State did not attempt to disprove these<\/P> stipulated facts. Indeed, the district court expressly recognized that<\/P> “[t]he parties herein have stipulated” that “[v]arious [c]ounty<\/P> [l]egislative [d]elegations perform numerous . . . functions prescribed<\/P> by state law.” See<\/U> J.A. 429-32. Moreover, not even on appeal has the<\/P> State argued that the stipulations do not establish the facts so stipulated.6<\/STRONG><\/P> Nevertheless, the dissent simply refuses to acknowledge the force of<\/P> the stipulations. Instead it maintains that, despite the stipulations, we<\/P> “[a]ssum[e]–without any record support or district court finding–<\/P> that legislative delegations . . . perform functions beyond<\/U> those autho-<\/P> rized by South Carolina state law as interpreted by the South Carolina<\/P> Supreme Court.” Post<\/U> at 26.<\/P> _________________________________________________________________<\/P> 6 <\/STRONG>The dissent argues that reliance on the stipulations as to the powers<\/P> presently exercised by the legislative delegations somehow constitutes<\/P> “engaging in . . . speculation about how legislative delegations conduct<\/P> themselves.” Post<\/U> at 27. Tellingly, however, the defendants do not even<\/P> suggest such a contention. Neither the State defendants nor the voters<\/P> have ever disagreed over the powers the delegations presently exercise,<\/P> suggested that the stipulations do not accurately set forth these powers,<\/P> or challenged the stipulations. Thus, as the dissent notes, post<\/U> at 27, the<\/P> voters in their reply brief state that they do “not challenge any of the<\/P> powers exercised by legislative delegations . . . .” As the voters explained<\/P> in text omitted by the dissent, they do not challenge the delegations’<\/P> powers “any more than the plaintiffs in Reynolds v. Sims<\/U> challenged the<\/P> powers of the Alabama legislature. What plaintiffs do challenge is the<\/P> method by which county delegations are elected<\/U>.” Reply Br. at 7-8.<\/P> 19<\/P> Our dissenting colleague apparently believes that something more<\/P> than a stipulation is required to prove the underlying stipulated facts.7<\/STRONG><\/P> But a stipulation, by definition, constitutes “[a]n express waiver made<\/P> . . . preparatory to trial by the party or his attorney conceding for the<\/P> purposes of trial the truth of some alleged fact . .. the fact is thereaf-<\/U><\/P> ter to be taken for granted; so that the one party need offer no evi-<\/U><\/P> dence to prove it and the other is not allowed to disprove it<\/U> . . . . It<\/P> is, in truth, a substitute for evidence, in that it does away with the<\/P> need for evidence.” 9 Wigmore, Evidence \u00a7 2588, at 821 (Chadburn<\/P> 1981) (emphasis added). See<\/U> 2 McCormack on Evidence \u00a7 254 (West<\/P> 1992) (stipulations “have the effect of withdrawing a fact from issue<\/P> and dispensing wholly with the need for proof of the fact”).<\/P> This court has had no difficulty in relying upon stipulations that a<\/P> party engaged in a certain kind of activity, without requiring any addi-<\/P> tional “proof” as to the particulars of the underlying activity. See, e.g.<\/U>,<\/P> United States v. Clark<\/U>, 993 F.2d 402, 405-06 (4th Cir. 1993) (Nie-<\/P> meyer, J.). And more than a century ago, the Supreme Court estab-<\/P> lished that “[t]he power of the court to act in the disposition of a trial<\/P> upon facts conceded by counsel is as plain as its power to act upon<\/P> the evidence produced.” Oscanyan v. Arms Co.<\/U>, 103 U.S. 261, 263<\/P> (1880) (“any fact, bearing upon the issues involved, admitted by<\/P> counsel, may be the ground of the court’s procedure equally as if<\/P> established by the clearest proof”). The dissent’s theory, requiring<\/P> something more than a stipulation, would appear to render not only<\/P> our decision, but also that of the Supreme Court in Oscanyan<\/U>,<\/P> improper. Judicial authority does not, however, flow in that direction.<\/P> Moreover, even the dissent’s determined disregard of the stipulated<\/P> facts as to the numerous governmental functions exercised by the del-<\/P> egations cannot explain away the delegations’ exercise of appointive<\/P> powers, which even the state supreme court has held to be within the<\/P> delegations’ prerogative under state law. The dissent argues that the<\/P> exercise of such powers does not constitute a governmental function.<\/P> _________________________________________________________________<\/P> 7 <\/STRONG>Even if something more than a stipulation were necessary to prove<\/P> that the delegations exercised governmental functions, the voters have<\/P> produced such evidence. They offered uncontroverted testimony that, as<\/P> noted within, supra<\/U> at 16, the delegations regularly approve certain gov-<\/P> ernmental budgets. See<\/U> J.A. 264-65; 269-71.<\/P> 20<\/P> This is an extraordinarily odd contention. Consider, for example, a<\/P> popularly elected state official, whose sole function was that of<\/P> appointing all of the judges in the state. Surely even the dissent would<\/P> concede that the one person, one vote principle would govern the<\/P> election of this official.<\/P> Yet the dissent, purportedly relying on the Supreme Court’s opin-<\/P> ion in Sailors<\/U>, insists that the exercise of appointive powers does not<\/P> constitute a governmental function. Sailors<\/U> does not so hold.8<\/STRONG> In<\/P> Sailors<\/U>, the Supreme Court did hold the one person, one vote princi-<\/P> ple inapplicable to the selection of appointed county school board<\/P> members. But, this holding did not rest on whether county school<\/P> board members or those who appointed them exercised governmental<\/P> powers; rather, Sailors<\/U> turned on the fact that the challenged officials<\/P> were not<\/U> popularly elected. As the Sailors<\/U> Court explained:<\/P> \tIf we assume arguendo<\/U> that where a State provides for an<\/P> \telection of a local official or agency — whether administra-<\/P> \ttive, legislative, or judicial — the requirements of Gray v.<\/U><\/P> \tSanders<\/U> and Reynolds v. Sims<\/U> must be met, no question of<\/P> \tthat character is presented. For while there was an election<\/P> \there for the local school board, no constitutional complaint<\/P> \tis raised respecting that election. Since the choice of mem-<\/P> \tbers of the county school board did not involve an election<\/P> \tand since none was required for these nonlegislative offices,<\/P> \tthe principle of “one man, one vote” has no relevancy.<\/P> Sailors<\/U>, 287 U.S. at 111.<\/P> _________________________________________________________________<\/P> 8 <\/STRONG>The dissent’s misuse of Sailors<\/U> rests on a false analogy. In Sailors<\/U>,<\/P> voters challenged the selection of county school board members who had<\/P> been appointed by delegates chosen from popularly elected local school<\/P> boards. In the case at hand, the voters challenge the selection of members<\/P> of the legislative delegations, who, the dissent concedes, are popularly<\/P> “elected rather than appointed.” Post<\/U> at 31. Rather than analogizing the<\/P> popularly elected legislative delegation members to the popularly elected<\/P> local school board members in Sailors<\/U>, the dissent attempts to analogize<\/P> them to the delegates<\/U> who had been selected by the local school boards<\/P> to appoint the county board. Indisputably, these delegates were not<\/U> popu-<\/P> larly elected.<\/P> 21<\/P> The Supreme Court in Sailors<\/U> thus expressly disavowed any reli-<\/P> ance on the powers (“administrative, legislative, or judicial”) of the<\/P> challenged officials in holding that the one person, one vote principle<\/P> did not apply. Indeed the Court assumed<\/U> that whatever the challenged<\/P> officials’ powers, Reynolds<\/U> would govern if<\/U> the officials were popu-<\/P> larly elected. Accordingly, Sailors<\/U> provides no support for the dis-<\/P> sent’s theory that the one person, one vote requirement does not<\/P> govern popularly elected<\/U> officials exercising appointive powers.<\/P> Finally, we note that our holding does not, as the dissent posits,<\/P> post<\/U> at 28, “strike down as unconstitutional the existence” of the legis-<\/P> lative delegations. We do not “strike down” the delegations any more<\/P> than the Supreme Court struck down the Alabama state legislature in<\/P> Reynolds v. Sims<\/U>. The delegations continue to exist, and can lawfully<\/P> exercise two-thirds of the powers that the dissent acknowledges to be<\/P> theirs: the power to receive information and the power to make non-<\/P> binding recommendations. Moreover, the delegations can continue to<\/P> exercise all of the numerous powers they presently exercise, if they<\/P> comply with the one person, one vote principle. That task is far from<\/P> impossible; it certainly does not “leave[ ] South Carolina without any<\/P> practical alternative.” Post<\/U> at 34. Though they would no longer be<\/P> county-defined, the legislative delegations could be reorganized such<\/P> that each delegation represented a cluster of legislative districts. Or<\/P> the delegations could keep their current territorial configurations and<\/P> adopt a system of weighted voting. Our holding thus does nothing to<\/P> prohibit South Carolina, if it chooses, from continuing to utilize “sub-<\/P> set[s] of the legislature” to perform a “structured buffer role.” Id.<\/U> at<\/P> 35.<\/P> VI.<\/P> In sum, we conclude that the legislative delegations are elected<\/P> bodies that exercise governmental functions, and that therefore the<\/P> one person, one vote requirement applies to them. Because there is no<\/P> serious dispute that the delegation system fails to satisfy this require-<\/P> ment, we hold it to be unconstitutional.<\/P> We do not, however, dictate any remedy.. As the Supreme Court<\/P> noted in Reynolds<\/U>, “legislative reapportionment is primarily a matter<\/P> for legislative consideration and determination, and. . . judicial relief<\/P> 22<\/P> becomes appropriate only when a legislature fails to reapportion<\/P> according to federal constitutional requisites in a timely fashion after<\/P> having had an adequate opportunity to do so.” 377 U.S. at 586. We<\/P> recognize that the district court held this case in abeyance for some<\/P> time to permit the South Carolina legislature to reform the present<\/P> structure of the county legislative delegation system, which the legis-<\/P> lature unfortunately failed to do. In light of our decision here, how-<\/P> ever, the legislature may well be able to turn to the task with fresh<\/P> resolve and should, as the parties agree, be given the opportunity to<\/P> do so.. We therefore remand the case to permit the South Carolina leg-<\/P> islature to correct, subject to the approval of the district court, the<\/P> constitutional defect in the delegation system that we have identified<\/P> today.<\/P> The judgment of the district court is reversed and the case is<\/P> remanded for further proceedings.<\/P> REVERSED AND REMANDED<\/U><\/P> NIEMEYER, Circuit Judge, dissenting:<\/P> Considering an entire state legislative mechanism in the abstract<\/P> without any challenged conduct or legislative act, the majority strikes<\/P> down as unconstitutional South Carolina’s legislative delegation sys-<\/P> tem. This heavy-handed intrusion into the heart of state government<\/P> represents an unwarranted extension of federal judicial power, justi-<\/P> fied only by generalities and irrelevant history but certainly not by the<\/P> U.S. Constitution.<\/P> In South Carolina, state legislators are elected in conformance with<\/P> the one-person, one-vote principles announced in Reynolds v. Sims<\/U>,<\/P> 377 U.S. 533 (1964), and the parties do not dispute this. Legislators<\/P> so elected are assigned by law to membership in county-based legisla-<\/P> tive delegations, each of which is composed of the legislators whose<\/P> districts lie in whole or in part within that county. Thus, there are 46<\/P> legislative delegations, one for each county. Delegation membership<\/P> is not a separate political office to which members are elected.<\/P> As I show below, under current state law as authoritatively con-<\/P> strued by the state supreme court, legislative delegations in South<\/P> 23<\/P> Carolina can exercise no legislative or executive power. They func-<\/P> tion only (1) to receive information related to their members’ duties<\/P> as legislators in the General Assembly, (2) to make non-binding rec-<\/P> ommendations to governmental officials, and (3) to make appoint-<\/P> ments to local administrative positions. Even assuming that legislators<\/P> making up these delegations represent different sized populations,<\/P> none of these functions performed by the legislative delegations is<\/P> sufficient to trigger the principles of Reynolds<\/U>. On the contrary, each<\/P> function has been authorized by existing Supreme Court case law to<\/P> be performed by a body that does not meet one-person, one-vote scru-<\/P> tiny.<\/P> Without a rigorous examination of the specific functions of these<\/P> legislative delegations, the majority simply sweeps the details under<\/P> a broad and inaccurate generalization that a priori<\/U> makes the delega-<\/P> tions unconstitutional, concluding simply that legislative delegations<\/P> are “elected bodies that exercise governmental functions,” and there-<\/P> fore they must comply with the strictures of Reynolds<\/U>. Ante<\/U>, at 22. To<\/P> justify its generalization, the majority relies on alleged ultra vires<\/U><\/P> conduct or on historical functions of legislative delegations, reaching<\/P> back into the nineteenth century to apply a gloss totally inconsistent<\/P> with how they function today in compliance with state law.<\/P> The citizens of South Carolina can be genuinely and legitimately<\/P> troubled by this awkward and unnecessary exercise of federal power.<\/P> For the reasons discussed below, I dissent.<\/P> I<\/P> To begin with, the majority has failed, in my view, to identify pre-<\/P> cisely what it is that we are called upon to review. While it sets out<\/P> to evaluate the legislative delegation system as established by law, it<\/P> considers claims of ultra vires<\/U> conduct to ignore standing state<\/P> supreme court case law and uses that conduct to strike down the entire<\/P> system. But the plaintiffs in this case do not challenge any particular<\/P> act of a legislative delegation, and thus, this is not a case in which we<\/P> evaluate whether a governmental body acted within its power or not.<\/P> Because the plaintiffs challenge the very existence and structure of<\/P> the entire system, we must examine what legislative delegations are.<\/P> To do so, we must look at how the delegations are constituted and<\/P> 24<\/P> what powers they are authorized to wield under South Carolina law<\/U>.<\/P> Only after we determine what the nature of these legislative delega-<\/P> tions are under state law can we address whether, under federal law,<\/P> they violate the Fourteenth Amendment to the U.S. Constitution.<\/P> While the majority is correct to point out that through much of this<\/P> century, legislative delegations from each county were the primary<\/P> form of local government in South Carolina,1<\/STRONG> this historical fact, with-<\/P> out more, is not relevant to their current role. In 1973, the South Caro-<\/P> lina Constitution was amended to provide for separately elected<\/P> county governments, and in 1975, the South Carolina General Assem-<\/P> bly passed the Home Rule Act, S.C. Code \u00a7 4-9-10, et seq<\/U>., which<\/P> transferred most of the legislative delegations’ powers to the new<\/P> county governments. See<\/U> S.C. Code \u00a7 4-9-30. Even before this<\/P> legislatively-created power shift, however, the delegations had been<\/P> losing power through a series of judicial constructions of the state<\/P> constitution. In 1971, the South Carolina Supreme Court held that leg-<\/P> islative delegations could not wield the power to approve or disap-<\/P> prove budgets, thus rendering unenforceable any statute that<\/P> purported to grant such power. See Gould v. Barton<\/U>, 181 S.E.2d 662,<\/P> 674 (S.C. 1971). The next year, the state supreme court went further,<\/P> holding that no legislative functions<\/U> may constitutionally be per-<\/P> formed by the delegations. See Gunter v.. Blanton<\/U>, 192 S.E.2d 473,<\/P> 475 (S.C. 1972) (delegation members “may exercise legislative power<\/P> only as members of the General Assembly”). In 1980, the state<\/P> supreme court completed its redefinition of the once-powerful delega-<\/P> tions, striking down a delegation’s power to approve or disapprove<\/P> tax increases, and holding that legislative delegations can never wield<\/P> any executive powers<\/U>. See Aiken County Bd. of Educ. v. Knotts<\/U>, 262<\/P> S.E.2d 14, 17 (S.C. 1980). Thus, under South Carolina law, legislative<\/P> delegations may exercise neither legislative functions nor executive<\/P> power, and the South Carolina courts have consistently policed these<\/P> prohibitions. See<\/U>, e.g.<\/U>, Thomas v. Cooper River Park<\/U>, 471 S.E.2d 170,<\/P> 171-72 (S.C. 1996); Tucker v. South Carolina Dep’t of Highways<\/U>, 424<\/P> _________________________________________________________________<\/P> 1 <\/STRONG>For most of this time, legislative delegations were from districts<\/P> entirely within a county. Legislative districts that crossed county lines<\/P> were not mandated until the mid-1960s as a result of the Supreme<\/P> Court’s decision in Reynolds v. Sims<\/U>, 377 U.S. 533 (1964), requiring<\/P> state legislative districts to have a substantially equal voting population.<\/P> 25<\/P> S.E.2d 468, 469 (S.C. 1992) (“We have long held that legislative del-<\/P> egates may exercise legislative power only as members of the General<\/P> Assembly enacting legislation [,and] [a]ction by a legislative delega-<\/P> tion pursuant to a complete law [is executive] and is therefore consti-<\/P> tutionally invalid”).<\/P> Rather than accept the state’s highest court’s statement of what<\/P> powers the legislative delegations possess and assume that the state<\/P> complies with its law, the majority relies selectively on the parties’<\/P> competing claims and conflicting characterizations of stipulations<\/P> about what the state law is and how it is to be interpreted. Proceeding<\/P> with the same lack of foundation in its analysis of state law, the<\/P> majority maintains, “we must consider the powers presently exercised<\/U><\/P> by the delegations without regard to whether those powers have been<\/P> or would be ruled unconstitutional by the state supreme court.” Ante<\/U>,<\/P> at 14. The majority then assumes that legislative delegations exercise<\/P> power in violation of their own constitution and Supreme Court pre-<\/P> cedents because “nothing in the record suggests that the delegations<\/P> have limited their activities in this manner.” Ante<\/U>, at 16. Assuming —<\/P> without any record support or district court finding — that legislative<\/P> delegations therefore perform functions beyond<\/U> those authorized by<\/P> South Carolina state law as interpreted by the South Carolina<\/P> Supreme Court, the majority concludes that what the legislative dele-<\/P> gations do amounts to “governmental functions” requiring one-<\/P> person, one-vote scrutiny. Apart from the fact that no specific conduct<\/P> is before us, whether ultra vires<\/U> or not, the logic for the majority’s<\/P> conclusion is long lost in its posited hypotheticals and unfounded<\/P> assumptions.<\/P> The majority makes much of a stipulation agreed to by some of the<\/P> parties that county legislative delegations “perform numerous and<\/P> various general county governmental functions,” maintaining that this<\/P> stipulation “would seem to resolve the question of whether the dele-<\/P> gations perform governmental functions: the State has conceded that<\/P> they do.” Ante<\/U>, at 12. The majority then concludes that this stipulation<\/P> that legislative delegations do in fact perform governmental functions<\/P> “presents an unanswerable obstacle to our dissenting colleague’s the-<\/P> ory.” Ante<\/U>, at 18. A closer look at the stipulation, however, reveals<\/P> that the majority’s entire analysis is built on a house of cards.<\/P> 26<\/P> First, the South Carolina House of Representatives and the Speaker<\/P> of the House, a majority of the defendants in number, refused to stipu-<\/P> late to the characterization that the legislative delegations’ powers<\/P> were “governmental.” See<\/U> J.A. 184. Second, the stipulation is nothing<\/P> more than a purported characterization of “functions prescribed by<\/P> state law.” Not only are these not facts on which to base a constitu-<\/P> tional holding, they are not facts at all. They are purported summaries<\/P> of state statutes agreed to by some of the parties. The statutes them-<\/P> selves, which are attached to the stipulation, best speak for what is<\/P> authorized. Finally, even a review of the state statutes themselves can-<\/P> not be the end of the analysis because the South Carolina Supreme<\/P> Court has ruled that legislative delegations may not perform some of<\/P> the functions authorized by these statutes. Thus, for example, while<\/P> a review of these statutes would reveal that some legislative delega-<\/P> tions can tax and set budgets, the Supreme Court of South Carolina<\/P> has ruled that the legislative delegation may not exercise that power.<\/P> See Aiken County Bd.<\/U>, 262 S.E.2d at 17.<\/P> Thus, it becomes apparent that in relying on a stipulated character-<\/P> ization of state statutes, the majority rests on little more than hypothe-<\/P> sis and assumption. By engaging in such speculation about how<\/P> legislative delegations conduct themselves, the majority rejects the<\/P> appellants’ own limitations on the arguments they raise in this case.<\/P> As the appellants stated in their brief:<\/P> \tDefendants’ argument that plaintiffs are challenging “the<\/P> \tactions of legislative delegations,” or “asking for an inquiry<\/P> \tinto `how the legislature actually works in practice'” is fac-<\/P> \ttually incorrect and serves only to obscure the nature of<\/P> \tplaintiffs’ claims. Plaintiffs do not challenge any of the<\/P> \tpowers exercised by legislative delegations.<\/P> What is before us is the constitutionality of the legislative delegation<\/P> system as established under South Carolina law.<\/P> A federal court reviewing the constitutionality of the system can-<\/P> not, without particularized conduct at issue, reject the South Carolina<\/P> courts’ definition of the legislative delegation system. The South Car-<\/P> olina constitution, as interpreted by the South Carolina Supreme<\/P> Court, allows legislative delegations only three “powers”: (1) delega-<\/P> 27<\/P> tions can be granted the power to receive information relevant to the<\/P> members’ legislative duties in the General Assembly, see<\/U><\/P> Spartanburg County v. Miller<\/U>, 132 S.E. 673 (S.C. 1924); (2) delega-<\/P> tions can be granted the power to make non-binding recommenda-<\/P> tions, see Tucker v. South Carolina Dep’t of Highways<\/U>, 442 S.E.2d<\/P> 171, 173 (S.C. 1994); Crow v. McAlpine<\/U>, 285 S.E.2d 355, 357 (S.C.<\/P> 1981); and (3) delegations can be granted the power to make appoint-<\/P> ments to local governmental offices, see Tucker<\/U>, 442 S.E.2d at 172.<\/P> Once we are given the state-established scope of legislative delega-<\/P> tions’ powers, it then becomes our duty to determine whether this<\/P> state governmental institution, possessing these defined powers, is<\/P> subject to the one-person, one-vote requirement of federal law as<\/P> elaborated in Reynolds<\/U> and its progeny. The majority rejects this<\/P> method of analysis, claiming that legislative delegations should be<\/P> judged on powers that they purportedly exercise<\/U> rather than on the<\/P> powers that they legally possess<\/U>. It argues that governmental action<\/P> that violates a state constitution can also violate the federal constitu-<\/P> tion, citing Adickes v. S.H. Kress & Co.<\/U>, 398 U.S. 144, 152 (1970);<\/P> Snowden v. Hughes<\/U>, 321 U.S. 1, 11 (1944); Home Tel. & Tel. v. City<\/U><\/P> of Los Angeles<\/U>, 227 U.S. 278, 287 (1913). While I fully agree with<\/P> this principle, it is not applicable to the case before us because the<\/P> plaintiffs challenge the entire system in the abstract rather than a par-<\/P> ticular, allegedly ultra vires<\/U> act.<\/P> To take the majority’s method a step further, when a court con-<\/P> cludes that an ultra vires<\/U> act of a state or local governmental body is<\/P> unconstitutional, it surely cannot use that finding as the basis for strik-<\/P> ing down the underlying governmental body. In short, striking down<\/P> an ultra vires<\/U> act does not authorize us to strike down as unconstitu-<\/P> tional the existence of the body that performed the act. But since we<\/P> have no particular ultra vires<\/U> acts before us, the majority should have<\/P> constrained itself to review legislative delegations as constituted<\/P> under South Carolina law.<\/P> If we accept the South Carolina Supreme Court’s pronouncements<\/P> prohibiting legislative delegations from exercising legislative and<\/P> executive powers and authorizing them only to receive information<\/P> auxiliary to legislative duties, to make non-binding recommendations,<\/P> and to make appointments to local governmental offices, then we<\/P> 28<\/P> must determine whether any of these powers is sufficient to trigger<\/P> one-person, one-vote scrutiny. This is the task at hand which the<\/P> majority has refused to address.<\/P> II<\/P> Analyzing the legislative delegations as they are constituted under<\/P> state law, I find that the delegations do not wield any power that<\/P> would subject them to the federal limitation of one person, one vote.<\/P> While the majority cites Hadley v. Junior College District<\/U>, 397 U.S.<\/P> 50, 56 (1970), for the proposition that any elected body performing<\/P> “governmental functions” is subject to the one-person, one-vote<\/P> requirement, Supreme Court precedent constrains us to interpret “gov-<\/P> ernmental functions” to include only legislative and executive powers<\/P> — the precise powers that the legislative delegations in South Caro-<\/P> lina are not allowed to wield. None of the three powers that legislative<\/P> delegations are authorized to exercise trigger one-person, one-vote<\/P> analysis under Supreme Court precedent.<\/P> The legislative delegations’ first power is the power to receive<\/P> information relevant to the members’ duties as legislators in the Gen-<\/P> eral Assembly. Because this authority can take the form of the power<\/P> to conduct an audit of a county government, see Miller<\/U>, 132 S.E. at<\/P> 677, something that a private party would not be allowed to do, it<\/P> could, in the broadest sense, be considered to be “governmental.” The<\/P> power to receive information incidental to a legislative function, how-<\/P> ever, is not a “governmental power” as that term is used in the context<\/P> of the constitutional limitation of Reynolds<\/U>. The Supreme Court has<\/P> long recognized that the power to receive information, including the<\/P> power to issue subpoenas and hold noncompliers in contempt, “is an<\/P> essential and appropriate auxiliary<\/U> to the legislative function,” and so<\/P> may be wielded outside the normal constitutional structure. McGrain<\/U><\/P> v. Daugherty<\/U>, 273 U.S. 135, 174 (1927) (emphasis added). The Court<\/P> held that such auxiliary power may be constitutionally exercised by<\/P> a single house of Congress. See id<\/U>.; see also Morrison v. Olson<\/U>, 487<\/P> U.S. 654, 694 (1988). This is so, even though Congress may exercise<\/P> legislative power only through the constitutionally prescribed manner<\/P> of passage by both houses and presentment to the President, see<\/U><\/P> Clinton v. City of New York<\/U>, 524 U.S. 417 (1998), and even though<\/P> Congress may never exercise executive power, see INS v. Chadha<\/U>,<\/P> 29<\/P> 462 U.S. 919 (1983). Accordingly, the power to receive information<\/P> incidental to a legislative function is not, in itself, legislative or exec-<\/P> utive, and it can be wielded in ways that “governmental powers” can-<\/P> not. For example, it can be and often is wielded by a committee of<\/P> Congress or of a state legislature, even though such committees do<\/P> not contain representatives of all of the people in the jurisdiction. Just<\/P> as a committee of a legislature can hold hearings and receive informa-<\/P> tion without triggering one-person, one-vote scrutiny, a legislative<\/P> delegation in South Carolina can receive information that is incidental<\/P> to the members’ legislative roles in the General Assembly without<\/P> triggering such scrutiny.<\/P> The legislative delegations’ second power under South Carolina<\/P> law is the power to make non-binding recommendations. This power,<\/P> like the power to receive information, is one that the Supreme Court<\/P> has allowed to be vested in a subset of the legislature — or even in<\/P> specific members. See Morrison<\/U>, 487 U.S. at 694 (upholding the stat-<\/P> utory power of certain Members of Congress to request that the Attor-<\/P> ney General apply for the appointment of an independent counsel).<\/P> Indeed, the power to make non-binding recommendations to govern-<\/P> mental officials is a power that all Americans — those in and out of<\/P> government — have as a constitutional right. See<\/U> U.S. Const. amend.<\/P> I (protecting “the right of the people . . . to petition the Government<\/P> for a redress of grievances”). Because this power is held by every<\/P> individual, corporation, and public or private entity in this country, it<\/P> cannot be considered a “governmental function” subject to one-<\/P> person, one-vote scrutiny.<\/P> The final power that the legislative delegations may be granted is<\/P> the power to make appointments to local administrative bodies, such<\/P> as to positions on boards of education or transportation committees.<\/P> This is the most substantive power of the legislative delegations, but<\/P> substantive does not necessarily mean “governmental” in this context.<\/P> The Supreme Court has specifically approved a body’s exercise of<\/P> this power without complying with one-person, one-vote principles.<\/P> In Sailors v. Board of Education<\/U>, 387 U.S. 105 (1967), a unanimous<\/P> Supreme Court upheld Michigan’s school board system whereby resi-<\/P> dents of various school districts elected<\/U> local school boards, and those<\/P> local school boards, through delegates, in turn appointed<\/U> the county<\/P> school boards. The challenge arose because each local school board,<\/P> 30<\/P> regardless of the population it represented<\/U>, was given an equal vote<\/P> in appointing the county school board. The plaintiffs’ theory was that<\/P> the residents’ equal protection rights were being violated because they<\/P> had unequal power in the selection of county school boards. The<\/P> Supreme Court rejected this challenge, holding that the county school<\/P> boards were appointed, rather than elected, and as such, one-person,<\/P> one-vote principles did not apply to them. The structure approved in<\/P> Sailors<\/U> is identical to that before us in that legislative delegations rep-<\/P> resenting unequal populations in the counties select or appoint county<\/P> officials.<\/P> The majority fails to appreciate Sailors<\/U>‘ applicability in this con-<\/P> text. The majority reasons that because members of the South Caro-<\/P> lina legislative delegations are elected rather than appointed, Sailors<\/U><\/P> does not apply. But that misses entirely the pertinence of Sailors<\/U>. The<\/P> South Carolina legislative delegations are not analogous to the<\/P> appointed county<\/U> school boards in Sailors<\/U>; they are analogous to the<\/P> elected<\/U> local school boards in Sailors<\/U>. Just as the elected local school<\/P> boards appointed the county school boards in Sailors<\/U>, the South Caro-<\/P> lina legislative delegations appoint various governmental officials in<\/P> South Carolina counties. In both cases, the appointing officials —<\/P> members of the local school board appointing authority in Michigan<\/P> and of the legislative delegations in South Carolina– were elected<\/P> by districts of unequal populations. Nevertheless the Supreme Court<\/P> held that one-person, one-vote principles have “no relevancy” to this<\/P> scheme. Sailors<\/U>, 387 U.S. at 111. The distinction between Sailors<\/U> and<\/P> Board of Estimate v. Morris<\/U>, 489 U.S. 688 (1989), on which the<\/P> majority so heavily relies, is that in Sailors<\/U>, elected officials only<\/P> appointed other public officials to carry out administrative and non-<\/P> legislative functions, whereas in Board of Estimate<\/U>, elected officials<\/P> themselves served as a body constituted to exercise governmental<\/P> functions. The holding of Board of Estimate<\/U> is simply not apposite on<\/P> the issue of whether appointment powers are governmental functions<\/P> restricted by one-person, one-vote principles.<\/P> In short, under Sailors<\/U>, the appointment of local government offi-<\/P> cials is not a governmental function that can only be exercised by per-<\/P> sons selected under one-person, one-vote principles. This is true even<\/P> when, as in Sailors<\/U>, the appointing body is directly or indirectly<\/P> elected. As Justice Douglas wrote for the unanimous Supreme Court:<\/P> 31<\/P> \tViable local governments may need many innovations,<\/P> \tnumerous combinations of old and new devices, great flexi-<\/P> \tbility in municipal arrangements to meet changing urban<\/P> \tconditions. We see nothing in the Constitution to prevent<\/P> \texperimentation. At least as respects nonlegislative officers,<\/P> \ta State can appoint local officials or elect them or combine<\/P> \tthe elective and appointive systems as was done here.<\/P> Sailors<\/U>, 387 U.S. at 110-11.<\/P> In summary, the power to receive information related to members’<\/P> legislative duties is one that has long been delegated to legislative<\/P> subsets that are not themselves imbued with legislative power and that<\/P> are not equally representative of all voters. The Supreme Court has<\/P> upheld this practice, necessitating the conclusion that the power to<\/P> receive information may be placed in a subset of legislators even<\/P> where that subset does not follow one-person, one-vote principles.<\/P> Similarly, the power to make non-binding recommendations is not in<\/P> any way a “governmental function,” and thus it does not trigger one-<\/P> person, one-vote scrutiny. Finally, the Supreme Court has explicitly<\/P> upheld the placement of the appointment power in the hands of a<\/P> body that, while elected, was not elected based upon one-person, one-<\/P> vote principles. Because South Carolina’s legislative delegations do<\/P> not themselves exercise governmental functions as recognized by the<\/P> Supreme Court, they need not meet the one-person, one-vote require-<\/P> ment, and therefore we have no authority to strike them down.<\/P> III<\/P> In addition to their contention that the legislative delegations vio-<\/P> late one-person, one-vote principles, the plaintiffs also claim that the<\/P> legislative delegation system is racially discriminatory in violation of<\/P> the Fifteenth Amendment, the Fourteenth Amendment, \u00a7 2 of the Vot-<\/P> ing Rights Act, and the Civil Rights Act. The majority’s disposition<\/P> of this case makes it unnecessary for it to reach these issues. But find-<\/P> ing, as I do, that the legislative delegations are not subject to one-<\/P> person, one-vote scrutiny, I would reach the plaintiffs’ claims of<\/P> racial discrimination.<\/P> I would first observe that the experts in this case do not agree, as<\/P> the majority implies, that the legislative delegations were created in<\/P> 32<\/P> an effort to disenfranchise blacks. Professor William Moore of the<\/P> College of Charleston stated that the emergence of the legislative del-<\/P> egations was principally the result of a design to put more power in<\/P> the hands of the legislature as a check on the executive branch.<\/P> Reducing the political power of blacks, according to Professor Moore,<\/P> was essentially a non-issue in this development, although that perni-<\/P> cious goal had been the motivating force behind several earlier consti-<\/P> tutional provisions, including a literacy test for voting and a<\/P> requirement to pay poll taxes. Professor Orville Burton of the Univer-<\/P> sity of Illinois at Urbana-Champaign, on the other hand, offered a<\/P> contrary conclusion. He opined that the legislative delegations were<\/P> “in part established to disenfranchise and dilute the vote of African<\/P> Americans.” He stated that many historians, “understanding how<\/P> complex and tangled underlying causes and specific effects become,<\/P> nevertheless have linked the establishment of the county legislative<\/P> delegation system with disfranchisement” of blacks.<\/P> Whichever of the experts is correct, however, is irrelevant to the<\/P> delegations’ current legal validity. The relevant facts for this inquiry<\/P> are whether the system is maintained<\/U> for a discriminatory purpose or<\/P> whether it has a discriminatory effect<\/U>. An elective or appointive gov-<\/P> ernmental system cannot violate the Fifteenth Amendment unless (at<\/P> the very least) the system has been maintained for a discriminatory<\/STRONG><\/P> purpose.2<\/STRONG> See Irby v. Virginia State Bd. of Elections<\/U>, 889 F.2d 1352,<\/P> 1356 (4th Cir. 1989). A system does not violate the Fourteenth<\/P> Amendment unless it is true both<\/U> that the system is maintained for a<\/P> discriminatory purpose and that it has a discriminatory effect. See id.<\/U><\/P> at 1355. A system does not violate \u00a7 2 of the Voting Rights Act<\/P> unless it has a discriminatory effect. See id.<\/U> at 1357. In short, if the<\/P> court finds that the system is neither maintained for a discriminatory<\/P> purpose nor that the system has a discriminatory effect, the plaintiffs<\/P> cannot prevail under any of these theories.<\/P> The district court found, as a matter of fact, after a trial, that “[i]t<\/P> simply cannot be said today that the legislative delegations are main-<\/P> tained for racially discriminatory purposes.” With regard to the pres-<\/P> _________________________________________________________________<\/P> 2 <\/STRONG>It is not even clear that the Fifteenth Amendment applies in this con-<\/P> text. See Holder v. Hall<\/U>, 512 U.S. 874, 920 (1994) (Thomas, J., concur-<\/P> ring).<\/P> 33<\/P> ent effect of the legislative delegations, the court found “no present<\/P> racially discriminatory effect in the legislative delegation system.” On<\/P> the contrary, the empirical data in the record suggests that the legisla-<\/P> tive delegation system actually enhances the relative power of black<\/P> office-holders. As Professor Moore noted:<\/P> \tIf one examines electoral success of African-Americans in<\/P> \tSouth Carolina, the highest percentage of seats held of any<\/P> \telected office by African-Americans is legislative seats.<\/P> \tAfrican-Americans also have a higher percentage of repre-<\/P> \tsentation on legislative delegations than their White coun-<\/P> \tterparts. For example, in the state house, African-American<\/P> \tmembership on legislative delegations averaged 1..54 dele-<\/P> \tgations in 1995, compared to 1.49 for White legislators. In<\/P> \tthe Senate, African-Americans on the average served on 3.3<\/P> \tlegislative delegations compared to 2 for White senators.<\/P> \tThus, the legislative delegation system today actually<\/P> \tenhances African-American representation on these bodies.<\/P> J.A. 241-42. Because we cannot conclude that the district court’s<\/P> findings that the legislative delegation system is not maintained for a<\/P> discriminatory purpose and does not have a discriminatory effect are<\/P> clearly erroneous, the system cannot be invalidated under the Four-<\/P> teenth Amendment, the Fifteenth Amendment, or the Voting Rights<\/P> Act.<\/P> Finally, the plaintiffs’ claim under the Civil Rights Act lacks sup-<\/P> port in both fact and law. The Civil Rights Act guarantees, in relevant<\/P> part, that “[a]ll citizens of the United States who are otherwise quali-<\/P> fied by law to vote . . . shall be entitled and allowed to vote at all . . .<\/P> elections, without distinction of race, color, or previous condition of<\/P> servitude; any constitution, law, custom, usage, or regulation . . . to<\/P> the contrary notwithstanding.” 42 U.S.C. \u00a7 1971(a)(1). This law pre-<\/P> vents persons from being denied the right to vote in any election on<\/P> specified grounds. As this case has nothing to do with persons being<\/P> denied the right to participate in the voting process, the Civil Rights<\/P> Act is inapposite.<\/P> IV<\/P> What is particularly troubling about the majority’s opinion is that<\/P> it leaves South Carolina without any practical alternative. South Caro-<\/P> 34<\/P> lina has sought to link its state and local governments by giving the<\/P> state legislators a role, albeit a limited one, in local government and<\/P> by giving local governments a specific access to the state legislature.<\/P> This specialized relationship, providing almost a structured buffer<\/P> role for the delegations, could not exist without the delegations<\/P> because neither the General Assembly in its entirety nor the Governor<\/P> could perform that role. They are the object of the relationship not the<\/P> buffer. Vesting these limited powers in a subset of the legislature has<\/P> a rational purpose in providing a link between the state legislature and<\/P> local governments, and we are not in any position to second guess this<\/P> judgment made by South Carolina unless it is unconstitutional.<\/P> It is, of course, impossible for South Carolina to draw its legislative<\/P> districts such that none cross county lines. That impossibility is the<\/P> legacy of Reynolds<\/U>, which found that the very Senate that gives equal<\/P> voice to unequally populated states, such as New York and Vermont,<\/P> nonetheless passed a constitutional amendment that forbids South<\/P> Carolina from giving equal voice, in one of two legislative chambers,<\/P> to Fairfield County and Greenville County. See Reynolds<\/U>, 377 U.S. at<\/P> 571-77 (discussing the similarities between the United States system,<\/P> granting equal vote to each state in the Senate and apportioning seats<\/P> in the House of Representatives to states based upon population, and<\/P> the Alabama system, which granted equal vote to each county in the<\/P> upper house of the legislature and apportioned seats in the lower<\/P> house of the legislature to counties based upon population, but never-<\/P> theless striking down the system of apportionment for both<\/U> Alabama<\/P> houses). But the requirements of Reynolds<\/U> do not require us now to<\/P> take further steps, and today’s decision oversteps even the line set by<\/P> the Supreme Court in Sailors<\/U>.<\/P> Because Reynolds<\/U> makes it impossible for a state to draw its legis-<\/P> lative districts without crossing county lines, the only way in which<\/P> South Carolina can preserve the legislative delegations against a one-<\/P> person, one-vote challenge would be to assign the delegations only<\/P> such powers as would not trigger one-person, one-vote scrutiny. Yet,<\/P> the majority has failed to elucidate any law or principle that would<\/P> allow the South Carolina General Assembly to determine that role<\/P> because it classifies every non-private activity as a prohibited “gov-<\/P> ernmental function” and fails to respect the limits the South Carolina<\/P> Supreme Court has already placed on the delegations. Thus, while the<\/P> 35<\/P> majority encourages the General Assembly to “turn to the task with<\/P> fresh resolve” of implementing the majority’s vision of good govern-<\/P> ment, it leaves no way for the General Assembly to preserve the legis-<\/P> lative delegation system. Although it is unwilling to say so, the<\/P> majority has handed down a death sentence for legislative delegations<\/P> in South Carolina, a sentence with which I vigorously disagree.<\/P> 36<\/P> <\/P><\/p>\n","protected":false},"excerpt":{"rendered":" United States Court of Appealsfor the Fourth CircuitCase: Vander Linden v. Hodges(9\/30\/1999, No. 98-2174) Filed: October 6, 1999 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-2174 (CA-91-3635-2-11) Neil A. Vander Linden,...<\/p>\n","protected":false},"author":1,"featured_media":6240,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[6,67],"tags":[104,117],"class_list":["post-1039","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-government","category-judicial-decisions","tag-government","tag-judiciary"],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p89tuq-gL","jetpack_featured_media_url":"https:\/\/multiracial.com\/wp-content\/uploads\/2017\/02\/4th-Circuit-Court.png","_links":{"self":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/1039","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/comments?post=1039"}],"version-history":[{"count":1,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/1039\/revisions"}],"predecessor-version":[{"id":2329,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/1039\/revisions\/2329"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/media\/6240"}],"wp:attachment":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/media?parent=1039"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/categories?post=1039"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/tags?post=1039"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}