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MALAPPORTIONMENT PERPETUATED

There is no blinking the fact that much of the drive for these proposed con stitutional amendments come from those elements in the population that are threatened with loss of power because of the Supreme Court decisions. The irony of the present situation is that, if Congress were to approve one of th resolutions and send it to the States for ratification, it would be passed or the legislatures of the States, many of which are still unrepresentative. Tats the determination whether malapportionment is to continue would be made legislatures distorted by malapportionment. Reform would be blocked by the very agencies in need of reform.

Much of the effort to press one of these amendments through at this sess/L of Congress is attributable to the fact that it is regarded as essential to pus it before the State legislatures before they are brought into conformity wa constitutional requirements. To submit an amendment to the Constitution fr ratification by the same legislators who are struggling to survive in the face! imminent loss of power is either cynical or naive. We submit that the prese State legislatures have too direct an interest in the issue to pass on it ob tively.

The validity of this point is established by an examination of the States that have adopted resolutions memorializing Congress to call a convention to an the Constitution along the lines proposed in the pending resolution. All but 2 of the 19 States in which such a resolution has been passed by both houses of the legislatures are presently represented by malapportioned legislatures, which w have to be redistricted to provide equal representation-unless the Consti is so amended. The extent to which each of those 18 State legislatures r depart from the standard of population equality in their districts is demonstrate most graphically by examining (a) the percentage of each State's popular = that can elect a majority to control one house of the legislature, and (beh disparity between the population figures for the most populous and least popal -districts in each State. The figures are as follows:

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The Dirksen, Church, and Javits amendments would introduce into the Is Constitution for the first time, a guarantee of inequality. That would be a complete repudiation of all our Government has stood for since the yes? -its independence. The proposed amendments would approve and place betual challenge any system of representation that singled out some classes of catie. “ as less worthy of a voice in public affairs than others. That, too, would give y lie to our Declaration, almost two centuries ago, that "all men are cre equal."

The exception is Oklahoma, where the legislature was reapportioned before the remai~ n was adopted.

The American Jewish Congress respectfully suggests that the Supreme Court decisions in the apportionment cases were right, that they strengthen our democratic system and that they increase the effectiveness of our Federal form of government. Recourse to constitutional amendment is a grave step to be taken only when the need is clear. No such clear case for the proposed amendment has been made.

Hon. BIRCH BAYH,

HOWARD M. SQUADRON,

Chairman, Commission on Law and Social Action,
American Jewish Congress.

AMERICAN VETERANS COMMITTEE, INC.,
Washington, D.C., May 12, 1965.

Chairman, Subcommittee on Constitutional Amendments, Committee on the Judiciary, U.S. Senate.

DEAR MR. CHAIRMAN: AVC is an organization of veterans of World War I, World War II, and the Korean war. Its program is built around its credo that ex-servicemen are citizens first, veterans second.

We deeply appreciate the opportunity of presenting our views on the apportionment of State legislatures. I am particularly pleased to present these views to you, Senator Bayh, distinguished chairman of the subcommittee, and fellow alumnus of the Indiana University School of Law, because I know of your deep personal commitment to carefully weighing the arguments and statements presented on both sides.

The American Veterans Committee believes that the Congress of the United States should adopt a resolution. This resolution should commend the Federal judiciary for restoring meaning to the phrase "government of the people, by the people, and for the people." Government is neither of nor by the people and is oftentimes not for the people when representation is based on something other than population, which is another way of saying people.

AVC will not repeat the facts showing how some votes count 2, 5, 10, 100, or even 1,000 times that of another vote. This practice is just as corrosive of democracy and representative government as miscounting votes cast, or stuffing ballot boxes.

We believe that certain constitutional rights are so basic to our concept of freedom that they are not subject to the whims and caprices of temporary plurality in a referendum. These include the right of free speech, the right to peaceably assemble and petition your government for a redress of grievances, the right of religious freedom, and the right of the people, not area or political subdivision, but people to elect their officials including their legislative representatives.

Many fine and thoughtful Members of the Senate and the House, as well as others, including members of State legislative bodies, have long expressed alarm at the increasing rate that our people go directly to the Federal Government to solve their problems. Some of this, of course, can be said to be the result of the increasing complexity of the nature of our problems, and the need for seeking national or regional solutions rather than meeting those needs on a State-to-State basis. There are many problems now being brought to Washington that could be handled in Indianapolis, Annapolis, Springfield, Albany, and other capitals. However, city and suburban area officials and residents have learned to turn away from the State house and look to Washington because they have not been fairly represented and dealt with in their own States. Nothing in our history has more hope for the future vitality of State and local government than has Baker v. Carr. and the reapportionment cases that have followed.

We urge your subcommittee, the full committee, the Senate, and the Congress not to doom the future of State governments by permitting any limitation on equal representation or the Court's power to enforce it.

Once again, the American Veterans Committee thanks you for the opportunity of presenting its views.

Sincerely yours,

J. ARNOLD FELDMAN.

OKLAHOMA STATE SENATE, Oklahoma City, Okla., March 4, 1965

Hon. BIRCH BAYH,
Senate Office Building,
Washington, D.C.

DEAR SENATOR BAYH: I have read the report which appeared in the Dir Oklahoman, quoting Senator Dirksen's comments with respect to the Oklah resolution. I should like to advise you that this resolution was adopted dur the first week of the session with a margin of only one vote. It was brought t the floor of the senate without notice, prior to the adoption of rules. With the rules, those of us who opposed it were unable to obtain a public hearing * the opportunity to prepare for its consideration.

The same resolution would be rejected by the Oklahoma Senate today, in my opinion.

Today one-third of the population of Oklahoma resides in the two metropolitiz areas, Tulsa and Oklahoma City. These two counties elect one-third of the bership of both houses of the legislature, under our recent Federal court orders reapportionment. However, within 10 years these two counties may well in one-half of the population of this State, if present population trends contit Certainly this will be true by the 1980 census. Confronted with this reality : is understandable that the nonmetropolitan legislators would seek to ass" | themselves a disproportionate quantity of legislative memberships prior to f fillment of this population trend.

I urge you and your committee to reject efforts to alter the present right 4 every citizen to an equal voice in the election of his State legislature. Sincerely,

BRYCE BAGGETI

UNIVERSITY OF CALIFORNIA, SANTA BARBARA.
Santa Barbara, Calif., May 12, 19%7

Hon. BIRCH BAYH,
Chairman, Subcommittee on Constitutional Amendments, Committee on
Judiciary, Senate Office Building, U.S. Senate, Washington, D.C.
DEAR SENATOR BAYH: Yesterday I received your letter of May 7 advising
of the opportunity of filing with your subcommittee a statement of my views os
cerning proposed constitutional amendments on State legislative apportionment
In view of the pressure of other commitments and the fact that any reply is
desired by May 14, I shall confine myself to a brief and general statement.

In the interests of brevity I shall not revisit the one-man one-vote principie This has been adequately covered in other critiques readily available to the subcommittee, e.g., the Twentieth Century Fund's pamphlet. "One Man Ote Vote", the Supreme Court opinions of last June, a growing literature in legi and other journals. The judicial involvement has likewise been extensive T covered (especially note C. Herman Pritchett's "Equal Protection and the Trist Majority" in the American Political Science Review for December of 1964).

In any case, there are several procedural problems posed by the various amend ments which would allow States to base one house on factors other than pop s tion, provided a statewide referendum is obtained for such a move. To me o of the most serious objections to the proposals is the danger of their freezing systems which would then be difficult to change. Suppose, for example, the a State in 1970 approves a dilution of the population principle in one house by a narrow margin in a referendum. Suppose further, that the population patterns in that State change markedly by 1990, creating a widespread desire to chat the house based on other considerations. Unless the State has a workable at: feasible system of constitutional initiative-which most do not-such an insting tional framework would be difficult to change, since the legislature would be the source of State constitutional amendments and would be reluctant to change is status quo. In other words, it could easily reproduce the kind of situation which brought about the original controversies over malapportionment prior to th intervention of the courts. There are other objections, such as the vagnenes of other factors, the amount of inequality which could be allowed to thwart majority responsibility, etc. I might add that the experience of States which have based one house on a geographic basis has not been encouraging, especialy where the distortions from equal representation have been severe.

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While I hope that the Senate will not approve any constitutional change, I would make one suggestion for any amendment that may be proposed. It should certainly provide for ratification by conventions called for that purpose in the several States rather than by their legislatures, which would be parties judging their own case. The convention method would allow the equivalent of a referenlum on such a constitutional amendment, since delegations could be elected at large on a pro versus con basis as was done in the case of the 21st amendment. I appreciate the interest you have shown in my views. The problem is a complex one which requires sober and time-consuming consideration of all its ramifications. An amendment to the U.S. Constitution may seem a simple remedy to some, but it would introduce new rigidities and inequities which deserve careful scrutiny.

Sincerely yours,

GORDON E. BAKER, Associate Professor of Political Science.

BIPARTISAN LEAGUE TO RETAIN EQUAL REPRESENTATION,
Portland, Oreg., March 4, 1965.

Hon. BIRCH BAYH,
Chairman, Subcommittee on Constitutional Amendments, Committee on Judiciary,
U.S. Senate, Washington, D.C.

MY DEAR SENATOR BAYH: Would you be good enough to include the following remarks in the record of hearings on Senate Joint Resolutions 2, 38, 44, to be held in Washington March 3-5 and 9-11.

The Bipartisan League to Retain Equal Representation is a citizens group which was originally established to oppose measure 9 on the Oregon ballot in the November 1962 general election.

Measure 9 was a proposed amendment to the Oregon constitution which would have changed the method of apportioning our legislative assembly by allocating some seats on factors other than population. It would have guaranteed counties, irrespective of population, a certain minimum representation in the Oregon House of Representatives. It was emphatically rejected by a vote of the people of Oregon, 325,182 to 197,322.

This is not the only time in recent years that the voters of Oregon have manifested their unwavering commitment to the principle of equal representation. In 1950 an apportionment based on area was also rejected, 215,302 to 190,992. And in 1952 a constitutional amendment was initiated containing procedures to guarantee fair apportionment of the Oregon Legislature on the basis of people after every Federal census. This amendment was overwhelming adopted, 357,550 Totes to 194,292.

The people of Oregon thus have had an unusual opportunity to study this issue and to decide upon it. It seems clear from these three votes that they would be unalterably opposed to the resolutions you have under consideration. They have shown no willingness to participate in their own disfranchisement, and we believe it unlikely they would want you to contribute to the erosion of popular representation in any State legislature in this Nation. Further we believe that this consistent attitude would be demonstrated elsewhere, were the issue clearly presented and thoroughly understood.

For popular representation is fundamental to our democratic system. Employing factors other than population is totally undemocratic. A committee of the Oregon Senate heard testimony last month that whiteface cattle, timber, mining, and dairying need extra representation in Oregon. Presumably in other States other specious claims are advanced. But apportionment on the basis of area gives representation not to cattle or trees or mineral deposits, but rather extra representation to those who possess them. Geographic factors imply that particular lands in a State harbor better people. Social and political factors imply class distinctions.

Such ideas as unworthy in American democracy. They represent a giant step backward and are philosophically medieval. Simple justice in a democracy demands that every man enjoy a fundamental political equality. Specifically, justice is served only if one man's vote is as nearly equal to every other man's Tote as possible.

Very truly yours,

JANET MCLENNAN, Executive Secretary.

STATEMENT OF RICHARD C. CAHN, ESQ.

It is an honor to be asked by the committee to submit my views upon the ous proposed amendments to the U.S. Constitution which seek to nullify greater or lesser extent, the decision of the U.S. Supreme Court in Bakery t and related cases. As one of the attorneys for the successful plain Bianchi v. Griffing in which a three-judge Federal court declared unconstitu) (...) the system of representation upon the Suffolk County, N.Y., Board of Supsors, I have formed certain opinions which may be of value to the eve Although the Bianchi case dealt with representation at the county leve. problems faced by Suffolk County, N.Y., are similar to those which the s legislatures of many States must deal with. Indeed, at the time of the .* Federal census Suffolk County's population of 666,784 was larger than the " lations of eight States: New Hampshire, Vermont, North Dakota, Delaware ming, Nevada, Alaska, and Hawaii. Suffolk County's 922 square miles is parable to Rhode Island's 1,058 square miles. The fact that so many je, reside in so little territory probably intensifies the problems.

As is typical of most areas in the United States, Suffolk County's popa density is irregular. It has experienced extremely rapid population grow: its five western townships and comparatively little growth in its tive eas townships which are farthest away from New York City. As of 1960, 90 pɛ: -of the county population resided in the five townships closest to New York's complex and slightly less than 10 percent of the county population resided five easternmost towns. The western towns experienced-and continue to ex » ence-crowded highways, schools, and increasing crime, transportation and lic health and welfare problems. The five eastern towns retain for the most their rural characteristics. Even today most of the land in the eastern tow probably devoted to the farming and fishing industries.

Each of the county's 10 townships elects a supervisor who acts as the executive officer of the township, as well as the town's legislative represent upon the county board of supervisors, which governs the county. Each visor on the board casts one vote regardless of the population of his town=" The result, of course, is that the five eastern townships with less than 10 per of the population and with, fortunately for themselves, very little awar of the problems of the densely populated west end, have cast 50 percent of votes on the board of supervisors. In other words, a little less than 10 per * of the county population can block legislation considered desirable by 91. cent of the population. If joined by the supervisor of the least populous we town, Smithtown, the eastern supervisors cast a majority of votes on the bu of supervisors and in such manner approximately 17 percent of the co population is enabled affirmatively to enact legislation not favored by 83 per of said population.

The practical result has been that the chairman of practically every com tee of the board of supervisors was an east end supervisor. A multimi dollar court and county center complex was constructed in Riverhead, so** miles from the westernmost towns of Huntington and Babylon. One of two county dredges was almost invariably to be seen servicing the harbor waterways of the east end. Much progressive legislation supported by ' west end supervisors was defeated by the east end supervisors.

As an attorney I was particularly aware of the inconvenience in having major court facilities 45 miles from the west end. If 90 percent of the por tion resided in the west end towns, presumably 90 percent of the attor 90 percent of the litigants, 90 percent of the witnesses, and 90 percent of '> jurors also came from the west end. Yet all are required to travel to facilities which are situated for the convenience of the east end towns rather than for the convenience of the bulk of the population.

Attempts to provide courthouse facilities in the west end, led by the ad istrative judge of the supreme court in the county were for the most completely unsuccessful because of the opposition of the east end towns) " This one example could be multiplied many times. The lesson to be lear it seems to me, is that powers given to the minority to protect itself are eas abused to thwart the just and proper objectives of the majority. For this res I would oppose any constitutional amendment which would permit upon 6′′** the State, city, or county level of government exercise of a veto power b small minority of the population. There are other devices which protect ' rights of the minority, of which unlimited debate in the U.S. Senate is on the most successful.

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