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ties'-rule has been advanced for not effectuating" the equal-population principle. Id, at 66-67.
The only other justification that is commonly advanced as a basis for rejet ing majority rule in favor of interest-group representation depends on a miso ceived reliance on history. The argument is that population has customarily been subordinated in one house of most State legislatures, on the model of ( gress, and that the principle must accordingly be justifiable. That view of history is not sound, and in any event the conclusion does not follow.
The notion of interest-group representation is entirely foreign to the American system of legislative representation, with the single exception that separate representation has sometimes been given to the political subdivisions of a State But certainly the States have not adopted systems of representation based in economic status, ethnic groupings, or historical considerations. Indeed, to have done so would have been to defy American tradition. But all these would be possible under the proposed amendments. They are in fact advocated with more candor than good sense by some of the proponents of the various amendments.
A word should be said about representation based on political subdivisie allegedly on the congressional model. The first thing to be said is that ('ongina is not an apt model. The formula for representation in the U.S. Senate is spesified in the Constitution as the result of a compromise that recognized the sovereier identity of the several States. The local political subdivisions of the States, of the other hand, the counties, towns, cities, and villages, are not sovereign but are creatures of the State legislatures, subject to enlargement, contraction, or elimination; and they have no guaranteed residual authority as have the State Moreover, the State districting and apportionment processes are subject to the equal protection clause of the 14th amendment which does seem to ordain equality.
Since the 14th amendment was added to the Constitution only in 1868, it is relevant to observe practice before that date. The story revealed by that investigation is very interesting. Although several of the Original Thirtepi States adopted apportionment formulas which today produce substantial in. equality among election districts, it is clear that they did not act on the model of Congress. In fact, the original State constitutions predated the Federal Constitution, which in turn was not copied from their example. Moreover, the popula. tion at the time these formulas were approved was much more erenly spread among the counties that were given equal representation (as in Delaware and New Jersey) and among the towns that were given equal representation (as tu Connecticut and Rhode Island) than today when the situation has been vastly altered by the shift of population to the great urban centers.
Even more significant is the fact that between 1790, when Vermont was admitted, and 1889, when Montana was admitted almost 100 years later, prery State admitted to the Union entered with a constitution providing for representstion based principally on population in both houses of the legislature. Indeed. the original constitutions in 36 of the 50 States provided for representation largely in accordance with population in both houses of the legislature. Adrivers Commission on Intergovernmental Relations. Report on Apportionment of State Legislatures, 10–11, 35, 69 (1962). It was not until late in the 19th century that the States began the movement away from representation in accordance with population, sometimes by a change in formula and sometimes simply by failing to live up to their own constitutional requirements. By the time Baker v. Cart, 369 U.S. 186, was decided in 1962, the movement was virtually complete. Mala! portionment was king nearly everywhere. But even by that date no more than 10 States had formulas even roughly comparable to the alleged congressional model, and even those differed somewhat from Congress and from each other. In short, as the Court noted in rejecting the so-called Federal analogy, reliance on it was an “after-the-fact rationalization offered in defense of maladjusted State apportionment arrangements.” Reynolds v. Sims, 377 U.S. 533, 573 (194). The proposed amendments also present difficulties of timing. Cnquestionably
, implementation of the reapportionment cases requires substantial adjustment of apportionment formulas in many States. But the Supreme Court made it clear in the original decisions that there is considerable room for variation of formula depending, for example, on the governmental role played by local political suhdivisions in the various States. Clearly, mathematical precision is not required. The recent decision in Fortson v. Dorsey (85 Sup. Ct. 498 (1965)), reinforces that conclusion, for there the Court upheld the Georgia formula calling for multimember election districts in the populous areas and single-member districts elsewhere.
Reaction of the general public to the decisions has been favorable (3 to 2 in upport, according to an August 1964 Gallup poll), as well it should be. After ill, the complaint to which Reynolds was addressed was that of the underreprelented voters, who constituted the majority of all voters in every State whose
was presented to the Supreme Court. Perhaps spurred by this majority #ntiment the State legislatures have shown an almost surprising willingness to ret on with the job, most often in apparently good faith compliance with the onstitutional requirement. It is especially significant to note that individual States have found in the rule the flexibility that the Court said was there. Thus, in both Oklahoma and Wisconsin the reapportionment has been accomished without crossing county lines, while other States have replaced their ild schemes altogether with new formulas designed to achieve more effective representation. The point here is simply that it is too soon to call a halt to a boble experiment in application of majority rule, an experiment which I believe snow in the process of being proved eminently workable.
The timing is also bad in another, more cynical way. The only reason readily preceivable for great haste in securing constitutional amendment is to seek ratiitation in some cases by legislative bodies not yet reapportioned, and thus by pgislators who have at stake a personal self-interest that is on this issue likely o he inconsistent with the interest of their constituents.
The short of the American Civil Liberties l'nion position is that the reapporonment cases have made it possible for State legislatures to return to their ightfully proud position in which they can voice a confident consensus of State opinion that will represent again, as once before, the wishes of the majority.
Senator Bayh. Our last witness is Mr. William G. Colman, execuive director of the Advisory Commission on Intergovernmental Relations.
Mr. Colman, we are extremely grateful to you, not only for taking the time to let us have your thoughts, but also for your patience in waiting so long
I understand that accompanying you is Mr. Stuart Urbach, an nalyst on the staff of the Commission. We appreciate you gentlemen being present.
STATEMENT OF WILLIAM G. COLMAN, EXECUTIVE DIRECTOR, ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS; ACCOMPANIED BY STUART URBACH, SENIOR ANALYST
Mr. COLMAX. Mr. Chairman and Senator Hruska, our purpose in appearing before your subcommittee is not to be an advocate or an pponent of the proposed constitutional amendments that are before Vol. Rather, our purpose is to present to your committee some factual, technical and procedural aspects of this apportionment problem.
Our remarks stem from a comprehensive research project on this -ubject which the Commission undertook in 1962, and upon which cur report, Apportionment of State Legislatures, is based. This report has been used as a sort of fact book throughout the country by both plaintiff and defense attorneys in reapportionment cases and by Federal and State judges in rendering decisions thereon. Copies of the report have already been made available to the members of this committee and its staff.
Senator Bay. We are extremely grateful for this fact. I think the fact that both plaintiff and defense attorneys in this area have ped it is pretty good evidence of the comprehensive nature of the leport.
Mr. COLMAN. I shall try to summarize our statements, Mr. Chairman.
But before getting into the substantive aspects, perhaps I shonld say a few words about the Advisory Commission.
It is a bipartisan body created by Congress in 1959, charged with examining and making recommendations with regard to problems of Federal-State-local relations and to strengthening our overall Federal system of Government under the Constitution. We have been in actual operation a little more than 5 years, and we have gotten into a number of specific issues of intergovernmental relations.
The Commission consists of 26 members, coming from all levels of government. Three come from the general public. Of the remaining 23, 14 come from State and local government and only from the national government; of these 9, 6 come from the Congress and 3 from the executive branch.
In a practical sense, the Commission is a national body that is responsive and responsible to the various levels of government. It is not under the thumb of any one level of government.
The members of the Commission, at the time of the adoption of our Report on Apportionment, appear on page 3 of the statement.
In view of the widely varying backgrounds, it might seem surprising that all but one of our recommendations dealing with apportionment met with unanimous adoption on the part of the Commission. Before getting into the pros and cons of one-man, one-vote, let us summarize the major recommendations of the Commission with regard to the apportionment procedure.
First, apportionment of seats in State legislative bodies is a basie factor of representative government and provisions relating thereta should be clearly specified in State constitutions.
Second, the apportionment formula for each body of the State legislature should be spelled out in clear and sufficient detail so that there can be no question as to the meaning of the formula.
Third, the State constitution should specify the frequency of State reapportionment.
Fourth, the State constitution should specify the body or officer haring a responsibility for apportioning seats in the State legislature.
Fifth, the Commission recommended that State courts be constitutionally provided with approprate jurisdiction and remedies to insure that State officials comply with their apportionment responsibilities.
Finally, the actual apportionment of a State legislature, including, as it must, many elements of negotiation and accommodation that do not lend themselves to adversary proceedings, should be accomplished by the legislative or other specified nonjudicial body or officer
In other words, Mr. Chairman, the Commission was saying that it did not believe that State and Federal courts should be in the business of drawing district lines; rather, the Commission expressed the view that the judicial role here should be one of ruling upon the constitutionality or lack of constitutionality of plans that were drawn up by the legislative body or other body charged with apportionment.
In one of the preceding recommendations that I have just read. we pointed out that there was much to be said for placing responsibilits for apportionment with the legislature in the first instance, but providing in the constitution that if a legislature failed to act, then a nonlegislative body would step in and would actually make the apportionment.
Now, getting down to the issue of one-man, one-vote, the research onducted by the Commission on this general subject tended to dispel uite a bit of folklore on both sides of the reapportionment argument. Ve might emphasize five points in this regard. First, population as the sole basis of representation in both houses f State legislatures is not a new or revolutionary doctrine. To the contrary, in the earlier days of our Republic, this tended to e the rule with other bases constituting the exception. At one time ranother, 36 of our 50 States have provided in their constitutions that opulation would be the primary basis for representation of both ouses in the legislature. Of these States 27 provided that it should e the sole basis.
We might observe that the basic structure of our Republic has been Itered by the Supreme Court decision. This historic fact has been an extremely uncomfortable fact for those ho contend that the very foundations of the Republic were swept way by the Supreme Court decisions of 1964.
Second, neither historically nor intrinsically does bicameralism ecessitate a different base of apportionment in each house. Of the 36 States mentioned above, only 3 provided for unicameral gislatures. Today, of course, only Nebraska now operates under a nicameral system. Those other States operated under bicameral gislatures and they found it possible and it is possible today to utilize ne basic advantages of bicameralism and still apportion on the basis f population. For example, members of the smaller body can repreint a more diversified constituency than can members of the larger ody. Or you can have variation in terms of office as between the two ouses, and so forth. Moving to the other side of the fence, our research indicated that ne argument that rural dominated legislatures cannot and will not ive proper attention to urban problems, does not stand up under nalysis. We found that, in looking at legislative rollcalls and actions f State legislatures on so-called urban problems, quite often, the failre to act on an urban problem in a State legislature was not due to ntagonism on the part of rural representatives, but rather, to squabling between the representatives of central cities and suburban areas. In our statement, we quote what one researcher pointed out with gard to Cook County, Ill. Fourth, the residents in urban areas, we found, are not always derous for equal representation in the State legislature. As has been ointed out many times, I am sure, to this subcommittee, several States ave, in statewide elections, voted against basing the legislative aportionment on population. Finally, in no State is it likely or even possible for legislative aportionment based on population to result in control of a majority of le votes in the legislature by the political machine of a single city. his has been an argument that has been advanced against apportionlent on the basis of population. This was a realistic argument in irlier days, and no doubt was the reason for the action in many States I the late 1800's in departing from the population principle in both ouses. However, in recent years and today, the population increase hat we are having is occurring in the suburbs and not in the central
In terms of political control and votes in the States legislature, the 1960 census data show that in only two States, Arizona and New York, would residents of the central cities of the standard metropolitan statistical areas in those States be able to elect a majority of representatives to the legislature.
In the case of Arizona, it would require an alliance between domi nant political organizations of the same party in both Tucson and Phoenix to do this, and in the case of New York, it would require the alliance of the political leadership of two upstate cities with that of New York City in order to accomplish this. As we know, Sen York City and the upstate cities do not get along particularly well.
On the other hand, in 36 States, the combined populations of each State's three largest cities constituted less than 30 percent of the total population of the State in 1960. Undoubtedly, with continued popu lation growth in the suburbs, future censuses will render the concept of single-city political domination over the State legislature much more fictional than today.
The role of the people in being able to modify a population re quirement was the major point of difference among members of the Advisory Commission when the Commission voted on the key question of whether or not apportionment of both houses should be based population. The majority of the Commission expressed themselve as follows:
"Equal protection of the laws” would seem to presume, and consideration political equity demand, that the apportionment of both houses in the Stat legislature, be based strictly on population.
In other words, the majority of the Commission took the sam position in 1962 that the majority U.S. Supreme Court took in it apportionment decisions of 1964.
In the subsequent cases, however, a sizable minority of the Com mission, including Governor Smylie, Governor Anderson, Superviso Donnenwirth, Governor Hollings, Mr. Hummel, and Senator Newell stated a different position.
We would have preferred that the Commission adopt the following stat ment of principle: "Equal protection of the laws" would seem to presume, an considerations of political equity demand, that the apportionment of bot houses in the State legislature be based strictly on population, unless the peopl directly determine otherwise.
Four members of the Commission (Senators Ervin, Mundt, an Muskie, and Congressman Fountain) expressed individual views an these are contained on pages 74-76 of the Commission's report.
Most of the recommendations and guidelines contained in the Com mission's report were concerned with procedures for apportionin seats in a State legislature. Consistent with these, a draft Stat constitutional amendment has been developed, and widely distribute to State and local officials, designed to establish a procedure for insut ing that State legislatures are periodically reapportioned in accor with formulas meeting both State and Federal constitutional stand ards. State legislative committees and organizations of municip and county officials have been making considerable use of the drai amendment.