We will reconvene at 2:15.

(Whereupon, at 11:55 a.m., the subcommittee recessed, to reconvene at 2:15 p.m., the same day.)

AFTERNOON SESSION

Senator BAYH. The committee will please come to order.

We are honored to have as our first witness this afternoon the distinguished Senator from Nevada.

Senator Bible, we are looking forward to having your thoughts.

STATEMENT OF HON. ALAN BIBLE, A U.S. SENATOR FROM THE STATE OF NEVADA

Senator BIBLE. Thank you, very much, Mr. Chairman.

As a cosponsor of Con. Res. 37, I appreciate the opportunity this committee has given me to speak on the question of legislative apportionment. While I have cosponsored Resolution 37, I offer my support to any similar resolution which will give the people of the individual States the right to determine the composition of at least one house of its legislature.

The State of Nevada has a legislature patterned after our Federal Government. I might interpolate and say it has not always been that way. In recent years, it has been patterned after the Federal system. This system is presently under attack by the Supreme Court which in recent decisions has declared that the system denies a majority of the citizens of Nevada equal protection of the laws as guaranteed by the Constitution.

In the landmark case of Baker v. Carr, decided early in 1962, a divided Court, in a plurality of opinions, held that malapportionment of seats in a State legislature, as distinguished from seats in the House of Representatives, is not to be viewed as presenting a political question when the validity of the former is challenged on the basis of the equal protection clause of amendment 14. This decision which paved the way for the succeeding cases on the issue of apportionment, constituted a major departure on the part of the Court from its previously traditional attitude that such issues amounted to "political questions" and were therefore, nonjusticiable. This is to say that until Baker v. Carr, the Court regarded the problem of malapportionment to be strictly of legislative cognizance, and simply not amenable amenable to judicial development.

Perhaps, the reason for this departure may be best explained as judicial restraint being supplanted by obvious and overriding needs of the individual. The political situations which gave rise to Baker v. forr, Reynolds v. Sims, and various other reapportionment cases offered clear-cut examples of a minority exercising political control through the device of malapportionment. One can hardly condone legislative system which has refused to reapportion since 1793 or which allows 5 percent of a population to elect 48 percent of that population's representatives. In this respect, my own State of Neada's record was not good and is not good. The malapportionment there is something that I am certain must be corrected. It may be true that the Court did substantial good in calling public to these injustices. It is also true, it seems to me, that th

of a State's political system is a subject which concerns the people of that State, and is not a logical or legitimate area for Federal judicial intervention.

There is an unquestioned need for reform. However, there also remains the question as to what seat of power shall do the reforming. It is the legislative function to determine the policy, the executive function to implement that policy, and the judicial function to determine the constitutionality of that policy. In the reapportionment decisions the Court has, in effect, if not in fact, attempted to accomplish a political reform by way of amendment to the Constitution. In this regard, my views correspond with those of Mr. Justice Harlan in his various dissenting opinions when he states that—

The vitality of our political system, in which in the last analysis all else depends, is weakened by reliance on the judiciary for political reform

and that

when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amendment process.

Thus, it becomes apparent that the reapportionment decisions represent a two-pronged attack on certain fundamental concepts of American constitutional government as it has been traditionally defined. First, the Court abandons the principle of "checks and balances" by entering an area which, by its own definition, is political and should belong exclusively to the legislative branch.

Second, it abrogates the basic tenets of federalism by patently dis regarding a State's sovereign right to determine its own political system. Perhaps, Mr. Justice Stewart correctly states the result of this recent judicial intrusion when he says in the case of Lucas v. Colorado

it stifles values of local individuality and initiative vital to the character of the Federal Union which it was the genius of our Constitution to create. After taking jurisdiction of State apportionment cases, the Court moved swiftly to the conclusion that the equal protection clause made any legislative scheme unconstitutional which was based on any factor other than population, this being so, even though a majority of people gave their overwhelming support to the contrary as the Colorado case indicates. I am sure you heard on this in depth from Senator Dominick of Colorado, the day before yesterday. As that case indicates, the Court rested its decisions on a single inflexible standard

one man, one vote.

I think it is worthwhile to pause and briefly comment on the Colo rado case, since that case represents the extreme application of the oneman, one-vote standard. In 1962 the State of Colorado reapportioned and generally reconstituted its legislature. Accordingly, on house was based strictly on the theory of equal representation and clearly comported with the concept of one man, one vote. However, what principle of representation was to prevail in the other house wa referred to the people, and they adopted a form which considered factors other than representation; but in no way could frustrate the will of the majority of the electorate. The Supreme Court, nonetheless, struck this down as a device denying equal protection of the laws. This result, though a logical extension of the standard set by the

Court earlier, is a bit incongruous. It is especially incongruous when one learns that the Court placed heavy emphasis on the phrase "We the people ***" in arriving at the standard of one man, one vote. Is the Court a better interpreter of what the will of the people is than the people themselves, who, through the use of their franchise, express that will?

This standard simply does not "square" with the realities of representative government. Mr. Justice Stewart, it seems to me, correctly summarized this fact when he dissented in the Colorado case, saying: What the Court has done is to convert a particular political philosophy into a constitutional rule, binding upon each of the 50 States * ** without regard and without respect for the many individualized and differentiated characteristics of each State, characteristics stemming from each State's distinct history, *** geography, *** distribution of population, and, political heritage ***. Even if it were thought that the rule announced by the Court is. as a matter of political theory, the most desirable general rule which can be devised as a basis for the make up of the representative assembly of a typical State, I could not join in the fabrication of a constitutional mandate which imports and forever freezes one theory of political thought into our Constitution, and forever denies to every State any opportunity for enlightened and progressive innovation in the design of its democratic institutions, so as to accommodate within a system of representative government the interests and aspirations of diverse groups of people, without subjecting any group or class to absolute domination by a geographically concentrated or highly organized majority.

Resolution 37 is a sound response to the challenge of federalism made by the Supreme Court as well as an effective proposal to combat the apparent inequities being perpetuated in the various States. through malapportioned State legislatures. I emphasize the fact that this resolution is a reaction to judicial intrusion into that area where State sovereignty is determinative, as well as a resolution of positive merit.

It places the right to determine the composition of State legislatures where I believe it properly resides-with the people of the given State. Yet, it makes it mandatory that one house of a State legislature be based on the principle of equal representation, and thereby insures the existence of a properly constituted majority in at least one house.

The determination of what theory of representation will be used to form the other house-provided there is another house; if it is a unicameral legislature it must be based on the principle of equal representation. I know the State so ably represented by the Senator from Nebraska has a unicameral legislature. I believe in our complete system, there are only two or three other unicameral legislaturesnot within the State, but it seems to me that Samoa has a unicameral legislature and I think another territory has a unicameral legislature. Of course, in those unicameral situations, it must be based on the principle of equal representation. Other than that, it seems to me that final determination rests with the electorate.

It leaves open for consideration the traditional factors which have been recognized as proper considerations when establishing a representative political entity. Mr. Justice Harlan lists some of these factors in his dissent in Reynolds v. Sims

history; economic or other sorts of group interests; area; geographical considerations; a desire to insure effective representation for sparsely settled areas; availability of access of citizens to their representatives; theori

bicameralism; occupation; an attempt to balance urban and rural power; the preference of a majority of voters in the State.

It is strange that this Court which has placed such high regard on minority rights has chosen to deny the constitutionality of any legisla tive arrangement which substantially guarantees minority representation. By use of the phrase "minority representation," I am not en dorsing any of the oppressive or unreasonable results which have arisen due to malapportioned State legislatures. I am merely saying that the reverse of the coin is not entirely desirable either. While a tyranny of the minority may result in the denial of equal protection of the law under the 14th amendment, there is certainly no assurance that a tyranny of a majority will not have the same effect.

The Court's ruling in the form of one man, one vote, notwithstanding State choice clearly to the contrary, constitutes an unwarranted, un reasonable, and dangerous encroachment on State sovereignty, and creates an obvious and immediate need for reform. I have read most of the testimony that has been presented before you and I share the views of others who have appeared that you may wish to consider the possibility of a uniform initiative referendum procedure to apply in each State on this question.

I think that is worthy of underscoring. I think there is some merit in the additional suggestion that was made by Senator Church, in his Resolution 38, where he suggests the advisibility of your committee in your deliberations considering incorporating into the resolution some type of provision for a periodic review. I think this is a worthy suggestion and one which I hope your committee will bear in mind ayou continue forward on these many resolutions that I know you have before you on the subject.

Thank you, Mr. Chairman.

Senator BAYH. I wish to thank you, Senator Bible, for your con tribution to our study. I note with a great deal of interest the part of your statement which points out that it was the absolute refusal on he part of some State legislatures which led the Court into this are Indeed, I must say our State of Indiana has not been completely with clean hands in this area. The question is now has the Court gone to far as far as the Congress is concerned in establishing a new policy which of course, the Court did when it interpreted part of our Cor stitution.

May I ask you, is it your feeling that the Court should continue to be given the opportunity to review and interpret whatever change we might desire to present in the way of a constitutional amendment

Senator BIBLE. I would think that review would more properlyshould more properly be left with the State legislatures themselve I think you are going to be required to have some type of a periodi review so that we do not get into a situation which, very frankly, w have had in my State and which I think is bad. To that extent. I think the Supreme Court decision is going to correct a very bad ma apportionment. I would think that there could be some type of revie that would come back, if not to the State itself, at least to the people of that State. I think political philosophies change. I believe you could give different weights to different factors in the second house I also think those factors may change over the years.

I am a great believer in the value of strong checks and balances in our legislative system and I think, on balance, as we look at our own workings in Congress, though it has deficiencies and inadequacies over the years, the checks and balances that our Founding Fathers built into our Federal system have served the Nation very well.

Senator BAYH. May I present a hypothetical example and ask your thoughts on it, please? I note with interest your referring to Justice Harlan, who talked about the unfortunate step the decision was taking. I think to quote your statement, "The reliance on the judiciary for political reform." Let us take a hypothetical example. Let us suppose that Resolution 37 or S.J. Res. 2 is passed by the Congress and becomes law, where upon it is not mandatory for Nebraska or any other State to utilize this and suppose it does choose to apportion one house on factors other than population. Then suppose 5, 10, 20 years from that time, we find that the other house, which, according to our constitutional amendment, still falls under the dictates of the Supreme Court decision, one man, one vote, still has not been apportioned that way, do you think the Court should have the right to review this other house, the house which would be

Senator BIBLE. This is simply curbstone and off the top of my head. Regarding the second house that you are alluding to-the house that is supposed to be based on population-I would certainly think the Supreme Court, even under the straight wording of Resolution 37, for example, would take a look at that and see whether it was in fact, being apportioned equally on population.

Senator BAYH. This is my interpretation also, but there has been some question by some members of the subcommittee and some of the witnesses that some wording could have been used which, if we are not careful, would withdraw all judicial review from this area. I think some Members of the House and maybe some Members of the Senate would like to accomplish that. I would like to have the Senator's views.

Senator BIBLE. I feel very keenly they should have review as to at least one house, and this should be written right into the Constitution, if this were to be adopted.

Senator BAYH. I notice and appreciate your statement about the periodic review. Could you tell us, does Nevada have referendum or initiative?

Senator BIBLE. It has initiative and referendum. I allude to this uniform law on initiative and referendum purposely. We have what I consider to be a very, very fine initiative and referendum law. However, over the years, the legislature has seen fit to draw up statutory law placing additional condition precedents for obtaining initiative petitions that make it almost impossible in many instances to secure the necessary signatures. I think this flaunts the very purpose of an initiative and referendum. I have told my own legislators that.

For example, we are a State of 17 counties. Eighty-five percent of our people are in two counties. The remaining 15 percent of our people are in 15 counties. The senate, the State senate, being comprised of a single senator from each county, is heavily balanced in favor of the small counties. This follows somewhat of a national pattern. The assembly itself is not correctly apportioned on popula