« PreviousContinue »
Senator HRUSKA. The 13th or 14th amendment has the very express provision that Congress is authorized to implement these amendments by legislation.
I suggest that I thought your statement was a tremendous statement, Senator Bible. There is one exception to that and that is the reference to the unicameral legislature. I should like to explore that. I am a little disappointed that the statement is made “if it is a unica mera! legislature, it must be based on the principle of equal representation." I ask that the Senator will extend his flexibility of thought on that subject. In S.J. Res. 2, that problem was given some consideration. I do not know if you have the text before you, but the language reads like this, that "Nothing in this Constitution shall prohibit the people
from giving reasonable weight to factors other than popusation in apportioning a unicameral legislature.
Frankly, that language originated as the result of a suggestion made by this Senator and the reason was based on this: In 1962, the people in my State had before them a constitutional amendment to their Constitution. They approved by a popular vote. The amendment would allow 20 percent weight to geography or territory, 80 percent to population. They had that provision in effect. It was vitiated hi a three-judge court when Reynolds v. Sims came down. They are now under court order to disregard that constitutional provision.
By reason of the fact that this amendment would allow reasonable weight to be given to factors other than population by reason of the further fact that there will be judicial review of the application or this constitutional amendment, it was felt that this language should be included. It would not only accommodate the State of Nebraska, but also such other States as in the future might want to turn to the unicameral system.
Have you any thoughts in that regard?
Senator BIBLE. Well, I certainly respect the opinions of the dis tinguished Senator from Nebraska, who is a fine constitutional lawyer and so recognized. I have visited in Nebraska many times. I focs in my conversations with legislators there that they felt the unicaneral system was a very workable system. The system always be bothered me in my studies because I could not quite feel that the neressary checks and balances were present which seemed to me to l.. very important in the legislative system. But I am certainly v going to match my opinion as to the unicameral systems against t. Senator from Nebraska, who is an expert in this field. I considerputting in my prepared statement that the better measure of ti makeup of a legislature would be to say that it should follow a stan, ard of reasonableness, which is a standard that is applied many, many times in our Court decisions. This, I think, is what the Senator fros Nebraska is saying.
I left that out because I always get back to the problem of trgir to define exactly what is reasonable. But I have no fixed convictie. on the unicameral system, and again, I defer to the judgment of pi Senator from Nebraska, because he can rest assured that I have enor. problems in the State of Nevada, with my two legislatures, with wandering over into Nebraska and deciding what they should do tirar
But that was the problem that worried me and I did build a par graph into my earlier statement suggesting a rule of reasonal, le
which has been applied by the Supreme Court hundreds of times in construing the equal protection clause. But again, I found myself with some doubts, so I eliminated it. If I had talked with the Senator before I made my presentation, I probably would have put it back in.
Senator HRUSKA. The Senator from Nevada mentions the lack of checks and balances as bothering him in a unicameral system. Yet, Reynolds v. Sims will disrupt the legislature means of checks and balance.
Senator BIBLE. This I recognize.
Senator HRUSKA. The unicameral legislature of Nebraska has achieved a system of representation where there are built-in checks and balances.
I just wanted to comment on the unicameral system as it has worked for three decades now
Senator BIBLE. I know you are very happy with that system and I was impressed with it when I visited there as an attorney general.
Senator Hruska. But agreeing with that statement which I set out from Justice Harlan's decision on page 6, virtually every one of those factors other than population apply to the unicameral system in Nebraska. We have to contend with a situation where over 25 percent of the population of the metropolitan county of 500 square miles is balanced against 75 percent and 77,000 square miles. Geographical considerations such as this causes a desire to insure effective representation for sparsely settled areas. Certainly that is our situation in the Sand Hill area, for example. Availability of access of citizens to their representatives is a problem out there. Theories of bicameralism do not apply here, because we have the unicameral legislature. We must balance urban and rural power. Each and every one of those factors set forth by Justice Harlan with the exception of bicameralism applies to our situation.
I do not cite that by way of trying to become argumentative with the Senator from Nevada. I would know better than to try to do that in the first place, but rather to lay the foundation for the consideration of those who will want to discuss the principle of unicameralism.
The people of the State, by what I consider the overwhelming and the dominant principle of government-namely, popular sovereigntysaid, “This is what we want.” Reynolds v. Sims says, “Oh, no, we know better than you what you ought to have."
I am glad to see stressed in your statement, that Resolution 37, no more than Resolution 2, will repeal Reynolds v. Sims ipso facto. It will not do that. All it is an enabling act, is it not? It permits the people of a State to get a chance to decide whether it would apply in 100), or only in part. Is that not about the size of it?
Senator BIBLE. I thoroughly agree with that observation. I do not know what will happen in the State of Nevada if this gets to the State and both the senate and the assembly are forced to apportion on a one-man, one-vote basis. An amazing part of Nevada's political history is that when we came into the sisterhood of States, we came in under a provision in the enabling act that said both houses should be apportioned according to population. Notwithstanding that, over the Fears, for various reasons--and I think this is historically significantthey applied many, many other ingredients to arrive at really a great imbalance. It was not made constitutional in my State until 1952.
At that time, they tried to remedy by a constitutional amendment something which, in fact and in practice, had been going on for almost
Senator HRUSKA. Thank you very much, Senator.
Senator Bays. Thank you very much, Senator Bible; we appreciate your coming
Senator HRUSKA. Senator Bible, the chairman enlightens me on the question I was about to ask.
Senator BAYH. Off the record. (Discussion off the record.)
Senator Bayh. Our next witnesses are three distinguished members of the senate from Pennsylvania, Senator D. Elmer Hawbaker, Senator Marvin Keller, Senator Jack E. McGregor. Gentlemen, we are glad to have you with us.
We understand Senator Keller is going to read the statement you have.
STATEMENTS OF HON. E. ELMER HAWBAKER, HON. MARVIN
KELLER, HON. JACK E. MCGREGOR, STATE SENATORS FROM THE STATE OF PENNSYLVANIA
Senator HRUSKA. Off the record. (Discussion off the record.)
Senator KELLER. I am very happy to be here today and speak to you for just a few moments as chairman of the State Committee on Elections and Reapportionment of Pennsylvania.
Legislative malapportionment may result from failure of a State to reapportion as mandated by its own constitution; or from Federal judicial determination that its apportionment violates the 14th amendment of the U.S. Constitution; or both.
The provisions of Pennsylvania's constitution dealing with legislative apportionment are contained in article II, sections 16, 17, and 15:
“SENATORIAL DISTRICT APPORTIONMENT "Sec. 16. The State shall be divided into 50 senatorial districts of comport and contiguous territory as nearly equal in population as may be, and each die trict shall be entitled to elect one senator. Each county containing one or more ratios of population shall be entitled to one senator for each ratio, and to an additional senator for a surplus of population exceeding three-fifths of a rar o but no county shall form a separate district unless it shall contain four-fishof a 'ratio, except where the adjoining counties are each entitled to one is more senators, when such county may be assigned a senator on less than four fifths and exceeding one-half of a ratio ; and no county shall be divided una entitled to two or more senators. No city or county shall be entitled to separat: representation exceeding one-sixth of the whole number of senators. Vo war borough, or township shall be divided in the formation of a district. The sees torial ratio shall be ascertained by dividing the whole population of the state of the number 50.
"REPRESENTATIVE DISTRICT APPORTIONMENT “Sec. 17. The members of the house of representatives shall be apportione i among the several counties, on a ratio obtained by dividing the population i the State as ascertained by the most recent U.S. census by 200. Every uns containing less than five ratios shall have one representative for erery 10. ratio, and an additional representative when the surplus exceeds half a natio,
but each county shall have at least one representative. Every county containing five ratios or more shall have one representative for every full ratio. Every city containing a population equal to a ratio shall elect separately its proportion of the representatives allotted to the county in which it is located. Every city entitled to more than 4 representatives, and every county having over 100,000 inhabitants shall be divided into districts of compact and contiguous territory, each district to elect its proportion of representatives according to its population, but no district shall elect more than four representatives.
"TIME OF APPORTIONMENT "SEC. 18. The general assembly at its first session after the adoption of this constitution, and immediately after each U.S. decennial census, shall apportion the State into senatorial and representative districts agreeably to the provisions of the two next preceding sections."
Pennsylvania, while not without fault in the past, in January 1964 met its obligation under its constitution by apportioning the seats in both houses of its legislature.
These 1964 Apportionment Acts were tested both in the Federal and State courts. See Drew et. al. v. Scranton, civil actions Nos. 8293 and 8338, U.S. District Court for the Middle District of Pennsylvania, (April 9, 1964) and Butcher v. Bloomi, 415 Pa. 438 (September 29, 1964).
In both courts, Pennsylvania's legislative apportionment was found invalid solely because of compliance with constitutional requirements which have governed reapportionment in Pennsylvania for 90 years.
The constitution of 1776 provided for representation by cities and counties and from 1790 factors other than population have been mandated.
The constitutional requirements contained in the Pennsylvania constitution were approved by a referendum of all the people. It is significant that five times since 1891 the matter of calling a convention to revise the constitution has been submitted to the people and five times they have rejected it, indicating satisfaction with present provisions or at least no urgency for change; the last such rejection was in 1963.
It is submitted that the reasons which prompted the utilization of factors other than population throughout the whole existence of Pennsylvania as a State, are valid today. As Mr. Chief Justice Bell observed in Butcher v. Bloom, a rule
which completely disregards and discards history, tradition, geography, local interests, and local problems, differences in dialects and language, in cusfits, in ideas and ideals in each State and also in many parts of each State; which will almost inevitably deprive minority groups of a fair and effective representation in legislative halls of their principles, customs, traditions, their particular problems and desired solutions, and the preservation of their cherished way of life; which will insure that their interests will not only be diluted, but will be in practical effect, frequently ignored; which is so far removed and so ifferent from what the people in each State of the United States have believed in and cherished and on which they have for a century or more based their porernment and their way of life; ought not to be allowed to stand.
A plan which is acceptable for representation in the Congress as ardequate to preserve free government should not be less so when applied to a State legislature.
Under the form and kind of government established by our constitution, Pennsylvania has grown prosperous and great, and our people, with rare exceptions, have been satisfied, happy, and proud to have such a republican form of government.
In view of the recent crucial and controlling decisions announced by the Supreme Court of the United States on June 15, 1964 (Reynolds v. Sims, etc.), the only avenue of relief open is to amend the Constitution of the United States to provide, as a minimum that any State which has a bicameral legislature may utilize factors other than population in apportioning one house of its legislature, when such plan is approved by a vote of the people; and that any State may determine how gorerning bodies of its subordinate units shall be apportioned, as set forth in the attached resolution.
The Congress is urged to take such affirmative action.
We have two other senators here from Pennsylvania, Senator Hawbaker and Senator Jack McGregor, who will go into what we have done in the past since 1964 and what our feeling is toward the future.
Senator HAWBAKER. I am Senator Hawbaker. I represent Frank lin and Adams Counties in the Senate of Pennsylvania. I have with me some maps I think may be of interest to the committee and perhaps others in attendance, and before I begin, I will distribute these maps among you.
Senator Bayu. Could we have those maps to be included in the record ?
Senator HAWBAKER. Yes.
Senator Bayi. I notice that the second and third maps are in color which I do not believe the record can pick up. I suggest that the county groupings be listed here, if that proves to be the case so that persons following the record will have a way of knowing these groupings.
(The maps referred to follow :)