1 F THE surnistr COURT OF THE UNITED STATES Nos. 318, 323 np 409.—Ocronsr Terat, 1965. John A. Burns, Governor of the} State of Hawaii, Appellant 318 v William S. Richardson et al. | Elmer F. Cravalho et al. |On Appeals From the Appellants, | United States District 323 y | Court for the District William $. Richardson et al. | of Hawaii, Kazuhisa Abe et al Appellants, 409 v. William 8, Richardson et: al. [April —, 1966.] Mr. Justice Brennan delivered the opinion of the Court. This reapportionment ease was brought in the District Court of Hawaii by residents and qualified voters of the city and county of Honolulu, appellees in each of the three appeals consolidated here. They alleged that Hawaii’s legislative apportionment was unconstitutional under our decisions in Reynolds v. Sims, 377 U. S. and eompanion cases. William S. Richardson, Lieu- tenant Governor of Hawaii, also an appellee in all three appeals, was named defendant in his capacity as the state officer responsible for supervising state elections. John “WMCA, Ine, v. Lomenzo, 377 WU. 8. 638; Maryland Committee v. Tawe 8. 650; Davis v. Mann, 377 U. 8. 678; Roman v Sineoek 8. 695;'and Lucas v. Colorado General Astembly,318, 323 & 409—OPINION BURNS v. RICHARDSON. 17 senting problems no different from apportionments using a total population measure, Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to inelude aliens, transien short-term or temporary residents or others not entitled to participate in their political processes, but counted by the census, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured, ‘The decision to include or exclude any such group in- volves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere." Unless the exclusion is one the Constitution forbids, ef. Carrington v. Rash, 380 U. S. 89, or an invidious design or effect can be shown, ef Fortson v. Dorsey, supra; Buckley v. Hoff, 243 F. Supp. 873, the resulting apportionment base offends no consti- "Thus, one State may stross that the role of a representative fs to serve the entire community from which he eomes, whether or not all its members are or ever will be eligible to participate in the electoral process, It may assume that those who axe ineligible to vote will find “represe ough those who are eligible, as children do through their parents, and will find other ways to participate in the politieal process or share the burdens of government, Another may consider that a representative is more likely to respond to the needs of those who are or may be eligible to vote for him than to the needs of ineligibles, Voters residing in ion” in the voting booth areas of the State where there are unusual percentages of inel might appear from this perspeetive to have enhaneed voting power if a total population distribution were tised. For example, at one point during World War IT, the military population of Oahu eonsti- tuted about one-half the population of the Territory. If total population were used in such a situation, the permanent residents living im districts including military bases might have substantially greater voting power than the electors of districts not ineluding stich bases. Indeed, in view of this possiblity, appellant Burns concedes that a “nontransient” figure as well as total population might be used for apportionment purposes.318, 323 & 409—OPINION 18 BURNS v. RICHARDSON. tutional bar, and compliance with the rule established in Reynolds v. Sims, supra, is to be measured in its light. ‘A “registered voter” or “actual voter” basis, such as is now used in Hawaii and at least seven other States," presents an additional problem. Such a basis depends not only upon eligibility to participate in the election process, but also upon the extent of political activity of those eligible to register and vote. Each is thus sus- ceptible to improper influences by which those in political power might be able to perpetuate under-representation of groups constitutionally entitled to participate in the electoral process.” Moreover, ‘fluctuations in the num- ber of registered voters in a given election may be sudden and substantial, eaused by such fortuitous factors as a particularly controversial election, a particularly popular election, oF even weather conditions.” Ellis v. Mayor & City Council of Baltimore, — F. 2d —, aid 234 F Supp. 945." Such effects must be particularly a matter of concern where, as in the ease of Hawaii apportionment, the registration figures derived from a single election are made controlling for as long as 10 years. In view of these considerations, we hold that the present apportion ment satisfies the Equal Protection Clause only because on this record it is not shown to have produced a dis- tribution of legislators substantially different from that Ariz. Const, Art. IV, §1; Hawaii Const., Art. IIL, §4; Idaho Const., Art. TIT, §4; Mass. Const., §§ 37, 47; R. I, Const., Amend. XIX; Tenn. Const., Art. II, §§5, 6; Texas Const,, Art. IIL, §§ 25, 26; Vt. Acts Nos. 97, 98 (1965). Compare Buekley v. Hoff, 243 F. Supp. 873, with WMCA, Inc. v. Lomenzo, 238 F. Supp. 916, 925, aff'd 382 U. 8. 4, and Klahr v. Goddard, Civ. No, 5112—Phx, (D. C. D. Ariz, Feb. 2, 1966) * Bllis disapproved a registered voters basis for appointing the governing couneil of Baltimore, Maryland. ‘The Court of Appeals hheld that this basis was permissible only if it yielded results sub- stantially approximating those obtained by a gro 7 population