I concur that the suit should be dismissed.
The opinion of 'Chief Judge Biggs would dismiss this suit as premature on the grounds that plaintiffs failed to exhaust their state remedies and that the 1951 Pennsylvania General Assembly may pass a new apportionment act. I agree. But there are additional reasons warranting dismissal that -should be stated at this time so that plaintiffs are not misled into- believing -they can return to this Court and obtain relief at some future date.
The Civil Rights Acts, upon which this suit is based, provide redress for violations of federal rights. The crucial question is what federal right is violated 'by the Pennsylvania legislature’s failure to reapportion the state legislative districts every ten years in accordance with the state constitution.
The free and untrammeled right or privilege of suffrage is not given by any Articles of or Amendments to the Federal Constitution. The Constitution guarantees a republican form of government only to the extent that the citizens of the various states are to select their own form of government, as they did in the original thirteen states, and to the extent that the states are duty bound to provide a government “by the people”. This, however, is the full limit of national control of state affairs, and the state assumes absolute control thereafter. U.S.Const. Art. IV, § 4; Minor v. Happersett, 21 Wall. 162, 170-176, 22 L.Ed. 627; Keogh v. Neely, 7 Cir., 50 F.2d 685.
The Fourteenth Amendment did not add any right to vote; it only guaranteed additional protection to the rights and privileges a citizen already had. Minor v. Happersett, supra.
Appropriate here are the words of Mr. Justice Peckham in Pope v. Williams, 193 U.S. 621, at page 632, 24 S.Ct. 573, 575, 48 L.Ed. 817: “The privilege to vote in any state is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627. It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state *712may direct, and upon such terms as to it' may seem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution.” (Emphasis added.)
What types of discrimination in state elections are forbidden by federal law? Section 1 of the Fifteenth Amendment and Section 31 of Title 8, U.S.C.A. prohibit discrimination on the ground of race, color or previous condition of servitude. The Nineteenth Amendment bans discrimination on account of sex 1. To interpolate into these provisions the right that an individual’s vote in an election for state offices should not be diluted by unequal apportionment but should be equal in weight to each other vote cast in the state would be legislative action by judicial pronouncement.
Accordingly, I cannot find the necessary violation of a federal right, and would dismiss this action for this reason.
Plaintiffs have great merit in their cause. It is all too true that the state legislators sworn to uphold the 'Constitution have been flagrant in their violation of the Pennsylvania Constitutional mandate to re-apportion the state every ten years, and that the present apportionment system is a gross example of gerrymandering at its worst. The legislative history of recent decades and the protracted and dilatory tactics of the current legislative session indicate that the state legislators will probably continue to be inexcusably derelict in this important matter. But plaintiffs’ remedy lies in the state courts because a state right, not a federal right, is being violated.
. Section 2 of the Fourteenth Amendment reduces proportionately a state’s representation in Congress if the right of male inhabitants to vote for members of the state legislature is denied or abridged in any way. But, as was pointed out in Chief Judge Biggs’ opinion, this has been determined by the United States Supreme Court in recent opinions to be a “political question” and not a “justieible issue”. In addition to the cases cited in Chief Judge Biggs’ opinion, see also Saunders v. Wilkins, 4 Cir., 152 F.2d 235.