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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 distinet 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 eosiderations; a desire to insure effective representation for sparsely settled areas; availability of access of citizens to their representatives; theories of 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 legislative arrangement which substantially guarantees minority representation. By use of the phrase "minority representation," I am not endorsing 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, unreasonable, 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 as you 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 contribution 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 area. 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 too 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 Constitution.
May I ask you, is it your feeling that the Court should continue to be given the opportunity to reriev 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 themselves. I think you are going to be required to have some type of a periodic review so that we do not get into a situation which, very frankly, we 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 malapportionment. I would think that there could be some type of review 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 orer 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 Bays. 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. 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. Howerer, 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
So several years ago, they built into the initiative law a requirement that the signatures of a certain percentage of the voters from at least 13 of the counties are necessary to qualify an initiative petition. This seems to me to be a requirement that overlooks the real purpose of getting to the electorate to determine their desires on a referendum vote. My suggestion as to a uniform law was pointed right to my own State.
Senator Bayh. Senator Bible, I have not had the good fortune to be in your State but I have flown over it and I am fairly familiar with the characteristics important to its senior Senator. Would it be fair to say if one were to exclude factors other than population and were caught in the wide open spaces of Nevada, it might be difficult for a representative to cover the amount of territory that he had to cover in a multicounty district ?
Senator BIBLE. Ours is a large State, the seventh largest in the entire United States, areawise. I do not think that is the real problem. We have fine airplane service and there is no problem, really, of travel and moving around very, very quickly. The problem comes from those people who have grown up with the State and watched it develop, those who come from sparsely populated areas and have great interest, in mining or agriculture. Areas that are more or less rural in character rather than urban. These people, with some justification, think that if reapportionment does lead to where one county, or two counties in the entire State have the complete control of the legislative machinery of the State, then these rural counties that may be unduly or unreasonably taxed. It gets down to lots of revenue problems and this is one of them.
They feel the more populated counties might, just by a mere weight of numbers, overwhelm the smaller counties, even though the smaller counties might supply a great deal of the wealth. This would have been true, and we hope it will still be true in the future, if we have a mining revival.
Senator Bayh. Then you think it is a matter of the adequate representation of all the money interests rather than the geographic interests!
Senator BIBLE. I think that the economic factor is the most important single consideration. Yet, in the strictest sense, we represent people and I think the people should be called upon to decide what factors should ultimately prevail. Then the proper question is, if the question is taken to the people and 52 percent of the people are in one county, that majority will not approve a system that is not based completely on equal representation, or on the one-man, one-vote philosophy. I do not think that is necessarily true, because the larger counties likewise feel a need for some safeguards in the system of checks and balances.
Senator BAYH. As you well know, this is not true in the Colorado case, where it has been pointed out two or three times, that the referendum presented was adopted by all of the counties, including the most populous ones
Senator BIBLE. This is quite right.
Senator HRUSKA. The Senator from Nevada is a very well-known and distinguished scholar of the law. His background and history demonstrates that. He was the attorney general for his State for many years. With that foundation, he has many times spoken on other subjects in a just as fully informed manner as he has today on this subject. For that reason, I personally appreciate his analysis of the problem and the statement he has made here today.
On the basis of your acquaintance with Nevada procedures, Senator Bible, I am wondering about the last paragraph in your statement, you do call for consideration of the possibility of the uniform initiative referendum procedure. You do have such a procedure now in Nevada, do you not?
Senator BIBLE. We do. Possibly I did not make myself clear on that point. I am afraid I did not. My concern is that they have built into the initiative law some rather unreasonable restrictions in obtaining the necessary number of signatures. They have built into it a requirement, not that there be 10 percent of the voters of the entire State endorsing the petition, but there must be at least 10 percent of the voters in each of 13 counties, which seems to me to be an unreasonable restriction. If a majority of the people vote on a question on referendum that majority should prevail.
Senator HRUSKA. My own State of Nebraska, for example, does not require the same percentage of voters to be signing up from each of the counties, but they do require a minimum number of counties.
The question I have asked is as a foundation to this. Many States do have procedures of initiative referendum which are satisfactory. They know how they work, they have been used repeatedly and it is easy for them to get them into motion and they understand them.
Would it be practical, Senator Bible, to provide in the constitutional amendment that Congress would be authorized to implement a uniform initiative referendum procedure? Congress could defiine the minimum that would be required. If these minimums were included in any State reform, they could proceed on their own. If, however, there were no such law, if the law was unduly burdensome or did not comply with the minimum, then the Federal formula would apply. Do you see any possibility in that approach?
Senator Bible. I think the approach you suggest has considerable merit, because I think we both fundamentally feel that this is a State matter and that the Federal Government should not be telling the State how it should work in the field of initiative and referendum. I believe this is the point you are making.
I think if an approach were made along the lines you suggest, it would be a good one. Senator "Hruska. We encounter a principle of constitutional amendment which we encountered when we considered the presidential disability amendment. There are many Members of Congress, many students of the Constitution that dislike to burden the Constitution with too much detail, for very good reason. If the detail in some particular would prove to be unworkable or would produce unforeseen results, then it is difficult to correct. That is why I ask about the possibility of authorizing the Congress, in this constitutional amendment, to implement that plan by appropriate legislation. Senator BIBLE. I think your suggestion has great merit and I think would square with the Constitution in admirable fashion.