REAPPORTIONMENT OF STATE LEGISLATURES

THURSDAY, MAY 20, 1965

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS,
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to recess, at 10 o'clock a.m., in room 2228, New Senate Office Building, Senator Bayh presiding. Present: Senator Bayh (presiding).

Senator BAYH. The committee will please be in order.

The witness this morning is Mr. Theodore Sachs, attorney at law from Detroit, Michigan Bar Association. He comes highly recommended by our distinguished colleague, Senator Hart, who I will now recognize at this time for the purposes of introduction.

Senator HART. Mr. Chairman, as I suspect you have already indicated, I am here for two reasons: To thank you for making it possiblealthough I realize the pressure under which the subcommittee is moving-to permit the addition in this record of the Michigan story and concern; second, to present to you and to the committee an extraordinarily competent and successful lawyer in this field.

He undertook a piece of litigation 6 years ago when, if there had been handbooks on the outcome of lawsuits, the odds would have been extraordinarily high against his success. He was successful.

I think there is no one in the country more familiar with, more competent in the field. And it is for this reason additionally that I appreciate the Chair's willingness to permit us to tell this story.

Mr. Chairman, I present Ted Sachs, a good lawyer, and a good friend of mine.

Senator BAYH. We are honored that you would take the time to come before the committee and personally introduce your colleague

and friend.

Mr. Sachs, please proceed.

STATEMENT OF THEODORE SACHS, OF THE LAW FIRM OF ROTHE, MARSTON, MAZEY, SACHS & O'CONNELL, DETROIT, MICH.

Mr. SACHS. Thank you, Senator.

I, too, want to thank the Senator for his indulgence and permission to have me before the committee today to make this statement on the Michigan experience. I wish to thank the Senator from Michigan on his overgenerous remarks in introducing me.

Senator BAYH. I have not found the Senator from Michigan overgenerous, but very particular, and an ounce of praise from him is worth a pound of praise from many.

Mr. SACHS. In other areas, I am sure the Senator is entirely corre in referring to Senator Hart's judgment.

I am a partner in the law firm of Rothe, Marston, Mazey, Sacs & O'Connell of Detroit, Mich., and I specialize, among other are in the field of constitutional and election law.

I have more than a casual interest in proposals presently under sideration. At a time when the political thicket was considered 1 pregnable, I filed suit (in 1959) challenging Michigan's arbitrar frozen legislative districting of 1952. That suit, on behalf of an o standing civil libertarian, August Scholle, eventually achieved cess before the U.S. Supreme Court.

Later, on behalf of Mr. Scholle and others, in Marshall v. Hue, successfully challenged to the U.S. Supreme Court Michigan's lat apportionment scheme of 1963. Last year, as well, we were li». ful, in Calkins v. Hare, in achieving judicial invalidation of Michiga unequal congressional districts of 1963.

The net result of this litigation is that, for the first time in century, Michigan citizens are represented fairly in the legislative 1. of Lansing and Washington. Our current legislative majorities w elected in both houses by a majority of the people, and no senve house district varies more than a few percentage points from : other.

Equal representation really means people representation, and f the first time the social needs of the people of our State may be t Suddenly vital bills that were bottled up for decades by unsympat rural and minority controlled legislatures, against the wishes of b Democratic and Republican Governors, are springing loose and app destined to some success.

Why, in the light of such progress, spawned by the landmark de sions of Baker v. Carr and Reynolds v. Sims, there should sudderly the present clamor in some quarters to retrogress is almost mystify I say almost because we can only assume that, as historically, thee who talk of representing nonpeople factors really speak of represe ing vested antipeople factors.

For this reason, and for further reasons I shall elaborate, I wish vigorously add my voice to those who deplore the current proposals sack our Constitution's guarantees of equal voting rights in legislat apportioment and, expressly or impliedly, the Court's power

enforce them.

Unless these misguided efforts reach success, this year will be re membered for a great milestone in our Nation's history, the adoption of the pending voting rights bill especially important as it will foler on the heels of last year's Civil Rights Act and the Supreme Court's decisions on legislative apportionment.

In fact, these all speak to the same point-that equality of citize ship, dignity, and opportunity for all Americans is fundamental our Nation's heritage; that it is guaranteed by our fundamental laws and that basic to all else is the right to vote-fully, fairly, withou dilution, and at every level.

It is tragically ironic, therefore, that while Congress anticipate adoption of the Voting Rights Act, Congress should also be consider ing its effective repeal. And I mean just that.

For if these present proposals should pass, we would establish as the American rule that some men are created half equal and that they are entitled to only one-half the equal protection of the laws.

It is the incredible premise of these proposals that gross discrimination on any basis in one house of a bicameral legislature by representation based on trees, fish, or acres, for example-does not really matter as long as a rough kind of equality is provided in the other, or if some people vote away their fellow citizens' franchise.

The proposition that "anything goes" in one house if population equality prevails in the second is frequently rationalized by highsounding explanations. But there is not a knowledgeable Senatorfriend of foe of these proposals-who does not appreciate that such arguments are smokescreens for maintaining the common status quo of minority-controlled, malapportioned State legislatures; or that the common denominator of "nonpeople" representation is not positive justification, but negative repression of the popular will.

I will not take the time to explore the sometimes asserted so-called Federal analogy-that is, that there may somehow exist a valid parallel between State legislatures and our Federal Congress.

The U.S. Supreme Court has eloquently ruled otherwise, explaining that the sovereign States joined initially in the Great Compromise to form the Federal Union, representing people in one house, sovereign States (and, incidentally, not area) in the other. No sovereign counties have ever done as much.

Nor will I take the time to explain the equally obvious fact that it is not necessary to require inequality of representation in one house in order to represent diverse interests in both, or to achieve checks and balances. Any district plan in a bicameral legislature of differentsized houses will automatically do so, because of overlapping districts, different personalities, the customarily different terms of office, and the mere necessity that measures must successfully pass two houses to become law.

The last, of course, is the key to one fallacy of the current proposal; namely, the notion that fair representation in only one house will suffice. Fair representation-that is, majority control-in one house will not pass a bill. An entrenched minority in the other house can kill

it.

No bill in the history of this Nation, in any bicameral legislature, ever became law unless it first passed one house and then passed the other. And it does not do the majority any good whatsoever to be able to pass a bill in one house unless it can translate its will and get that bill to the Governor's desk for signature by passage in the second. And as long as there is an entrenched minority in the second house which can exercise its veto authority, which it frequently does, the popular will can never be translated into law.

One further thing that I do not think has been sufficiently emphasized in these hearings. It is customarily that house which fails to represent population which has the life or death control over gubernatorial appointments. Those appointments are either bottled up or blocked or vetoed, or thoroughly frustrated.

Where is the semblance of equality here, the semblance of balance which is otherwise said to exist on a two-house different basis?

If the committee please, I think I know too well from the experience of my own State of what I speak.

48-124-65- -58

Michigan, in its 1908 constitution, had, generally speaking, relatively fair provisions for legislative apportionment and for decentiai reapportionment. The basic problem was that these provisions were judicially unenforceable.

As the metropolitan areas of Michigan grew tremendously in the post-World War I years, and the State changed from agrarian to industrial (with farmers moving to the cities), the legislators charged with the duty of decennial reapportionment simply refused to act for fear of voting themselves out of office. Under our then 1908 cons:tution, our senate was last reapportioned in 1925, and even then only roughly in accord with the 1920 census.

The reapportionments constitutionally required in 1930, 1940, and 1950 were flagrantly denied by a rural-minority-controlled legislature fearful of Democratic urban strength. The loss was not only Denorracy's-with a big D-but, more important, democracy's-with a small And the loss was to the people of the burgeoning cities, wi social needs simply went more and more unmet.

one.

In 1952 a petition drive for correction failed-for reasons I wil discuss momentarily.

Instead, a counterproposal freezing the 1920 districts carried and even its proponents a dozen years later conceded the tragic errors involved.

What the day before everybody considered to be illegal, improper. arbitrary, capricious, and a denial of the public will was infused with rationale and validity the following day.

In the ensuing decade one house, the Michigan Senate, controlled by a destructive minority-elected group, which came to be known a the veto bloc, regularly killed legislation proposed by the popularmajority-elected "one man, one vote" Governor. And the second charber, the house, was powerless-even if so disposed-to break the stale mate. Governmental paralysis resulted.

The committee may know of the payless paydays we experienced This was not the problem of any legislature run wild with spending It was not a Democratic legislature. The problem was legislative paralysis, because the popular will could not be translated by the Governor, who was elected at large on a one-man, one-vote basis, into law

In 1963 Michigan adopted a new constitution. And the irony of that adoption was that most of those who had advocated the frozen districting plan of 1952 began to concede the error of their ways 1! years earlier, and they now advanced a new plan. And this new pla was indeed incredible, unprecedented in the Nation's history, totally unique, and again, like the first, which was given a cute slogan called the balanced legislature plan, this one had a fancy slogan called the 80-20 plan.

And this-so help me, and I speak literally, Senator-this plan provided that 19 acres of dirt was literally equal to one human being This was the Michigan plan.

The 1963 Michigan plan represented the very apotheosis or reductio ad absurdum-of "area" representation. Theretofore, "area" representation had been rhetoric: in Michigan it became reality. Where before the "area" reference had served as a figurative, conceptual catchall for plans of representation other than population, here it became literal in design and application.