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that they are not justifiable questions. This is an especially objectionable possibility in view of the record that establishes that State legislatures rarely correct malapportionment abuses without compulsion.
The second point is the question of the risk of discrimination in composition of the legislature under the proposals. Discrimination in the criteria for membership may be opened up by the use of the word "composition” in Senator Dirksen's amendment. This term makes possible standards based on political, racial, religious or economic considerations.
Third is the possibility of discrimination in the actual apportionment. The second sentence of Senator Dirksen's proposed amendment reveals a total absence of standards
for apportionment of one house on a basis other than population. Thus the amendment could invite attempts at districting based upon racial criteria, or criteria having racial or other discriminatory elements. In such a manner it might be used to try to undermine the safeguards of the 15th amendment.
Another question is the possibility of minority rule in the unicameral legislatures under the proposals. By the terms of the proposed amendment population-based apportionment would not even be required in a unicameral legislature.
An additional query is, What the effect of voter approval may under the proposals and once having such approval would it freeze the apportionment? There may be those who are reassured when first disturbed by the unlimited scope of Senator Dirksen’s amendment by the requirement of approval of the proposed non-population-based reapportionment by a majority of those voting on the issue. As suggested above, however, voter approval may be only a recognition that the apportionment proposed is merely an improvement over the existing apportionment, and no proof of satisfaction with the apportionment voted on. The voter may be persuaded to accept the proposal as better than what he has. "However, after the vote has been taken the claim can be made that once the public approved the apportionment judicial review is precluded. Thus it might produce a stalemate in needed apportionment and other matters.
Furthermore, as suggested above, no adequate reason has been presented why the Congress should be a participant in providing
a system whereby even a majority should be allowed to partially disenfranchise some of our citizens. This would be unquestionably a denigration of the entire democratic process.
With regard to review, some might suggest that Senator Church's proposal requires that "review be permitted periodically" but the proposal has no standard for the manner or the frequency of the review that is to be provided.
Finally, it would seem wise for the Senate to take its time about approving any such proposed amendment. A step as serious as amending the Constitution always should require the greatest of care. One which gives any group of citizens the power to legally dilute the vote of other citizens in the democratic process should never be approved until overwhelmingly supported by both reason and necessity. At the very least, action should be postponed until such time as all of the various State legislatures have proceeded with, and completed the correction of the malapportionment which has so generally existed throughout the county. Certainly the Congress should not indirect support by these proposals the efforts of State legislators to prevent their jobs through the means of malapportionment which has bers such a spectacle in a case like New York, California, Hawaii, and was others throughout the country.
In view of the support for the Court's decisions by the people a the country according to some of the polls, and the reasonable tion that with greater understanding there will be an overwhelr". public opinion in favor of one person, one vote, it would seem entire reasonable to postpone action on any proposals so fundamenti . least until such time as you had newly constituted legislatures aleras after valid reapportionments, and had the opportunity to let whether there is any real support for such proposals by others tos those who expected to gain special personal advantage from meer portionment. During such time there would also be the opportart to observe both houses of the legislature apportioned in acconta with population, in action, and determine from experience the me tribution that bicameralism can continue to make in our Fadesystem. The Supreme Court, in Reyonlds v. Sims, suggested that cameralism would still serve to assure “mature and deliberate mo sideration of, and to prevent precipitate action on, proposed legislai: measures.” (377 U.S. 576.) With bicameralism permitting houses different size, legislators in one house could be selected from distry where narrower interests might hold sway than in the larger diary for the other house. There is also the possibility of "floterial" du tricts with multimember composition. Bicamerialism would perti a balance to be achieved from one house with a short term and other with a long term of office. Because the State legislative baisan are relatively small as compared with the U.S. House of Repree. tives, there is leeway for apportionment by population without esse sive size of the legislative bodies.
In conclusion, it would seem to be seriously inadvisable to ado any of these proposed amendments, or to permit a return to the flexibility and unfairness which for so long characterized the animai tionments in many of the States. I also wish to respectfully sugom that it is quite unwise to diminish Federal constitutional guarante under the equal protection clause of the 14th amendment, and it shoul be kept in mind that whenever you introduce exceptions to the por visions of that clause you may be leading eventually to whittling a wa its vital constitutional guarantees.
I thank you for the opportunity of appearing before you concert this matter and may I call to your attention the gravity to freepy everywhere of making it possible, as these proposals do, to take ni from any citizen his guarantee of equal treatment as it is protected hi our Constitution.
Senator Tydings. Thank you very much, Mr. Rankin. According to my recollection, you were Solicitor General of the United States when the decision was made in Baker v. l'arr in the Supreme Court, is that correct?
Mr. RANKIN. That is correct.
If some version of the proposed Senate joint resolution should pa in the Senate, would you feel that the provision of the proposed conse
itional amendment which applied to ratification by States—do you el that it would be stronger if, rather than having the amendment itified by the State legislatures, as presently malapportioned in some istances if the constitutional amendment should be ratified by State onvention elected on a fairly apportioned basis? Do you think that rould be an improvement if such an amendment were passed? Mr. RANKIN. I think it would be a material improvement.
I would like to address myself to questions I heard Senator Hruska sk, if I may--and with my great respect and confidence in him-I ppreciate ho is trying to evaluate this matter fairly and justly, and ecide what is the right thing, not only for him to do personally, but or the Senate of the United States to do, and I am satisfied that in is only approach to it.
I return to the question he asked about what is wrong about allowng the people to vote on this kind of a question. To me it is wrong or a deliberative body, like the Senate, with its great reputation and tanding, both with our people and throughout the world, to submit his kind of a question to the people for determination, because it rives them an opportunity to decide to discriminate within the State gainst one group of people and in favor of others.
Now, I think that in this area of amending the Constitution the Senate is in the position of our Founding Fathers, in which they were rying to decide —do we have a good Constitution, is it a provision hat we should desire the way it is, and should we open it up to the letermination by the people that by amendment they grant to some portion of the citizenry less rights than they now have.
I would be very gravely disturbed in my great confidence in the Senate of the United States, my respect for its Members through long xperience in working with them, and in the Federal Government if, for instance, they would ever submit an amendment to the people to modify or change the first amendment. I do not think the Senate of the United States would do it. I have confidence that the people of the United States would vote to adhere to and retain the first amendment.
But I think it would look as though the Senate of the United States thought there was something wrong with the present Constitution and that amendment, if it would ever submit it for such consideration.
Now, the problem is much deeper in this area, because the people here have demonstrated, through the legislatures, at least, a disposition to discriminate against some of the people within their States. And I cannot see anything desirable or proper or wise about allowing the people of my home State, and Senator Hruska's home State, of Nebraska, the opportunity to decide-we shall now, today, or next month, or indefinitely in the future discriminate against the city of Omaha, as our State has done, history shows it, in the apportionment of legislators to our legislature. I do not think that is right. And I think the people of Omaha, those I know, at least, are just as good voters and citizens as any in Lincoln, where I used to live, or other places in the State that we both know so well.
I do not know the problem so well about Oregon and why the State of Oregon would discriminate, as it has, against Portland.
I just think it is wrong that they should be given an opportunity, if they have such a disposition, to do it.
When it gets down to the question of whether a group of peopi are going to try to retain for themselves the special advantage o: malapportionment, so they have more political influence on the phen tion of legislators, as much as I have great confidence in the people
. I do not like to have them have that choice, with the approval of t> U.S. Senate, especially when the record is as bad as it is about Liapportionment over the years.
Now, I don't think it is fair, I want to add, to charge the people of the United States with that whole record, because I don't think this have had a proper opportunity to pass upon all these questions vi malapportionment in a way that they could make a decision. It.. in many cases the people have had provision in their Constitut z which would require reapportionment and have been completely diregarded, they have had statutes that have required it, and that his been disregarded. But the people have not acted. And I am hoper. that even if there was such an amendment passed by the Senate
, s people, in their wisdom, which they have so often demonstrated, we not discriminate against each other and see that we had an adheren. to one vote, one person.
But I see no reason why this great body should ever put up that is when we have that fine a provision in the Constitution.
Senator HRUSKA. Mr. Chairman, I am going to have to leave short. I should like to address myself to the point that the distinguished fc: mer Solicitor General raises.
He asks in his statement
Is there anything right or desirable about giving that majority the power and the Constitution to make the vote of each resident of Omaha equal to only a sua. portion of that of the voters living outside of the city of Omaha ?
I say there is a good, substantial, and totally meritorious regar That issue was referred to the voters of the States. Without the per cast in Omaha in favor of that proposal it would not have carried,
I am one of those fellows who believes in the first three words of tho Constitution, which begins “We, the people.” The proposal was simp: direct, everybody could understand it. It gave 20 percent weight geography and 80 percent to population. Everybody understood : We are a State of about a million and a half.
That is the kind of apportionment they wanted. In my book it's the people who are not only the governed, but they are the governor
What is wrong with that? Are we to say that we want to sit bers. either in the Senate or in the Supreme Court, both of which are in tutions created and made possible by the constant support and acqu escence of the people, and say "No, we won't let the people speake this issue" thereby raising hob with another article of the Constitution. namely article V, which says that when you follow these steps, you ca amend the Constitution.
In the judgment of the witness, in the judgment of many others, it: unwise to change Reynolds against Sims. We have not gone into the in this hearing, and I think entirely legitimately, because the Reynosi against Sims interpretation is now the law of the land.
Mr. Chairman, somehow I cannot erase from my mind that ws" the 14th amendment was proposed, pursuant to article V of our stitution, and the Senate was debating it, it was represented and watu ranted that it would not apply to the State legislatures. They games very good reason. They said it was tried in the House, and the House ruled it out. The second reason they gave was that if they applied it to the States, the legislatures never would approve it.
We have had a nonlegislative body disregard that history and say that it does apply to the State legislatures.
Certainly, unless we are going to say that the Senate should stand in the way of the people of each individual State applying their composite wisdom on this very simple issue—not every legislative proposal, not every proposal—this particular issue, we are certainly neutralizing article V of our Constitution. We would be denying the rule of one man and one vote, because the people of the several States of this Union will never have a chance to cast a vote on this issue.
I am going to apply for a trademark or copyrights on the idea of modifying this one-man-one-vote rule, and add these words to it-oneman-one-vote, and a chance to use that vote. That is all we seek to do in this S.J. Res. 2.
I will grant that the resolution might have to be changed somewhat. That is why we have these hearings. I have already indicated my disposition toward sentence No. 1. If I had my way it would go out. I think, Mr. Rankin, you have outlined some good reasons why it should go out. There might be the need for a periodic referral of the issue to the people of the State that had deviated from Reynolds against Sims automatically and without reference to what the State legislature would say. That would eliminate another factor which is used as an objection to this resolution.
I do feel that unless we want to step down from the ranks of a selfgoverned nation, particularly a Federal Republic, where the States will have a voice in how they are going to be governed by their own legislatures—unless we want to do that, we better adopt this resolution and adopt it now.
Mr. Chairman, I have no questions. I think the statement of Mr. Rankin is a very studied one, and a splendid one. He never turns out work other than the highest quality. He has proved that many times. Again on the record, I want to restate my pride in his being a fellow Nebraskan, and thank him for being here.
Mr. RANKIN. Thank you.
One of the problems which has come up is the degree of flexibility in the Reynolds v. Sims and Baker v. Carr.
I would appreciate it if you would address yourself to the problem of whether or not there is sufficient flexibility in the decisions, particularly Reynolds v. Sims, to permit taking into consideration extraordinary geographical problems in a given State-a mountain range or something like that which might be unusual and which might require some small deviation from an absolute mathematical one-manone-vote rule.
I would appreciate whether or not you feel that Reynolds v. Sims does provide a degree of flexibility which would not work extreme hardship in the case of an extraordinary geographical situation.
Mr. Rankin. Oh, I think there is flexibility in Reynolds against Sims--although in my own meaning, to stay very close to one person one vote-in that that gives the individual citizen as complete a vote as possible. And it seems to me, in reading Reynolds against Sims,