STATEMENT DR. HARLAN HAHN, RESEARCH ASSOCIATE, SCHOOL OF PUBLIC HEALTH, UNIVERSITY OF MICHIGAN My name is Harlan Hahn. I currently hold a joint appointment at the University of Michigan as an assistant professor in the department of political science and a research associate in the school of public health. During the past few years. I have devoted considerable attention and research to the subject of reapportionment, and I am submitting this statement in response to an appeal by the National Committee on Fair Representation. However, my views are purely personal and do not necessarily represent the opinions of the National Committee on Fair Representation or the University of Michigan. The proposals which are currently before this subcommittee to permit the apportionment of at least one house of a State legislature on some basis other than population are highly relevant to the discipline of political science. The constitutional amendments, if adopted, would substantially influence the pattern of State politics for many years to come. While the legal and constitutional aspects of legislative apportionment are worthy of several pages of discussion, I would like to confine my attention in this statement to the political implications of reapportionment. One of the central concerns in the matter of apportioning State legislatures is the issue of representation. If it could be assumed that legislators would serve as the spokemen and embodiment of groups other than the people who elected them, the question of apportionment might involve little controversy or difficulty. Under such a system, the constituency which a legislator officially represented would be largely irrelevant to the determination of what interests and viewpoints would be expressed in a legislative assembly. Undoubtedly, many representatives from the days of Edmund Burke to the modern era have adopted this concept of representation. However, the literature of political science is replete with studies which indicate that there is a close association between the characteristics and interests of constituencies and the voting behavior and attitudes of their representatives. Such legislators often are longtime residents of the areas which elect them, it is difficult to assume that public officials will acquire characteristics and opinions predominant in other areas when they enter a legislative body. Furthermore, the American tradition of representation always has stressed the importance of the direct representation of a constituency by its elected legislator. Considerable discussion also might be devoted to the wisdom of basing legislative positions on the will of constituents rather than on conscience or other considerations. But the important fact is that, in the tradition of representation in America, the primary emphasis has been placed on the will of the people who elected the legislator. Since ultimate authority in America also has been vested in the people rather than geographic areas, it would seem that population is the most appropriate basis for State legislative apportionment. Opposing this position is the argument that the so-called Federal analogy of the Senate and the House of Representatives indicates the need for a similar legislative arrangement at the State level. The weakness of an analogy, however, lies in the assumption that what is appropriate to one situation is equally desirable in another setting. During the 19th century, many cities in the United States adopted a bicameral legislative system which was closely modeled on the structure of Congress outlined in the Constitution; but this system was quickly abandoned when it was no longer an appropriate means of governing our urban areas. The method of apportionment which has worked so well at the national level would not function as effectively for State legislatures. Counties or other geographic areas do not occupy the same position in the American political system as States. They do not possess lawmaking powers or administrative responsibilities commensurate with the authority of the States. Furthermore, most counties or geographic subdivisions within a State have not acquired the separate political cultures or interests of the States in the Federal Union. If any groups within a State require special representation, it might be the cities which are legally regarded as creatures of the State and which often receive differential legislative treatment in proportion to their populations. The controversy over reapportionment frequently is said to consist of a battle between urban and rural forces or between farmers and the residents of large cities. This account of the debate is based on a common assumption that farmers would be the principal beneficiaries of a system of apportionment which would not base representation in both houses of a State legislature equally on population. Conversely, it is assumed that city dwellers would enjoy the grea increases in representation through a method of equal apportionment based population. Yet, studies have demonstrated that in most States the res of suburban areas would gain the greatest representation through equal a tiomnent. Research which I conducted in the State of Iowa also indicates constituencies which have the most to gain from a method of apportione based on factors other than population do not necessarily favor such a -In 1963 the Iowa legislature passed a constitutional amendment, the scalShaff plan, which would have allocated representation in the lower hoe v the legislature in terms of area rather than population. An analysis of ATL data clearly revealed that small towns, rather than farm areas, would --. majority representation in the State legislature under the Shaff plan. Howe* in the State referendum which defeated the plan, voters in small towns fr to support the proposal. Consequently, there may be substantial doubts a the wisdom of adopting an apportionment system which does not benent gr that it is supposed to favor and which fails to attract the support of groups that would be advantaged by it. In addition, the creation of a constitutional standard which would [ apportionment on a basis other than population might only serve to in-tionalize certain inequalities which would promote a stalemate or de es between the two houses of a State legislature. Representative assembles doubtedly acquire many of their distinctive characteristics both from the ns of their membership and from the structure of their leadership. Although S-legislatures are characterized by an unusually high rate of turnover, leaders... within the legislative bodies often is held by experienced members who a thoroughly familiar with State law and legislative processes. Prior resand also has demonstrated that State legslative elections are less susceptive shifts in the prevailing sentiments of the voters than the election of Govers * or Congressmen. The apportionment of at least one house of a State legislat by area rather than population might perpetuate a leadership system wtz would be unresponsive to changes in public opinion. An example, which I have prepared for the June 1965, issue of the Im! Business Digest, might illustrate the point. In the 1963 session of the lo Legislature, there was widespread demand for property tax relief. As a r an omnibus tax bill was prepared, and over half of the members referred to %* tion as the most important issue before the legislature. Yet many days of sideration failed to yield agreement between the house and the senate different versions of the bill, and the session adjourned when the deafs between the two houses could not be resolved. An analysis of legislative voti on many amendments as well as final passage of the bill revealed that ur. rural disagreement on tax issues was one of the major sources of con within both chambers. Since both the senate and house of the Iowa Legislarım were malapportioned at the time, it might be argued that this incident ** irrelevant to the question of apportionment. However, the deadlock was " duced by the opposing positions of leaders in the two houses, respectively. one house had been primarily urban as the result of an apportionment basert i population and the other house had been predominantly rural because of 1* apportionment based on area, the stalemate might have been even more sete? Therefore, the adoption of a constitutional amendment to allow the apporti t ment of one house based on area might simply institutionalize and perpetrat opposing leadership systems which would encourage irreconcilable divisi E between the two houses. The concept of representation in America has long emphasized the dime relation between a legislator and his constituency. Many studies have demit strated the association between the characteristics and attitudes of constituerevs and the legislative positions of their elected representatives. Since the ultim basis of authority in America is assumed to reside in the voters, legisla* * should represent people rather than geographic areas. Furthermore, it woe appear that a method of apportionment based on factors other than populair does not benefit the group it is supposed to favor and is opposed by a group whi would receive advantages from it. Finally, it seems likely that such a p would promote opposing leadership structures within the separate he of a State legislature and stalemate the decisionmaking processes of St " government. Consequently, I would urge the rejection of any proposals to otst turn the principle of apportionment based on one man, one vote enunciated by the Supreme Court and honored by the American tradiation of representat f MULTNOMAH COUNTY DEMOCRATIC CENTRAL COMMITTEE, PORTLAND, Oreg., Whereas the Supreme Court of the United States has ruled that both houses of State legislatures must be apportioned on the basis of population; and Whereas the Oregon Legislature is more fairly apportioned than any other in the Nation, and Oregon thereby is looked to with envy and respect, and holds a position of leadership that demands responsible action; and Whereas our belief in fair apportionment based solely on population was overwhelmingly reaffirmed in November 1962, when the people of Oregon by a 62 percent vote rejected an area-based apportionment scheme for one house of the Oregon Legislature; and Whereas the Multnomah County Democratic Central Committee and prominent Democratic leaders in Oregon have a history of concern and involvement in this crucial matter, as follows: (1) The central committee actively participated in the November 1962 campaign to defeat the area-based apportionment scheme-measure 9 on that ballot, (2) The county and State platforms in 1964 reaffirmed our belief in the oneman, one-vote principle, that representation shall be based upon population. (3) The central committee went on record April 9, 1963, expressing sympathy for the people in States less fairly apportioned than Oregon and concern that means be available for them to secure equal representation, (4) Oregon's U.S. Senators-Wayne Morse and Maurine Neuberger-were in the forefront in the effort to defeat Senator Dirksen's proposals in the last session of Congress to impede legislative reapportionment on the basis of population as required by the recent decisions of the Supreme Court; and Whereas we recognize apportioning “on factors other than population" permits apportionment not only on the basis of area, but also on the basis of social status, income, ownership of property, profession or occupation, all of which would result in invidious discrimination against large segments of the population-particularly those living in the metropolitan centers of this Nation: Now, therefore, be it Resolved, That the Multnomah County Democratic Central Committee opposes Senate Joint Resolution 1 of the 53d session of the Oregon Legislature or any similar legislation which would condone or encourage the apportionment of State legislatures or any part thereof on any basis other than population-that is to say, an enumeration of all the people. STATEMENT OF THE NATIONAL ASSOCIATION OF MANUFACTURERS This statement is presented on behalf of the National Association of Manufacturers, a membership corporation organized under the membership corporation laws of the State of New York and functioning as a nonprofit, multipurpose business organization whose active members are engaged in manufacturing throughout the United States. We welcome this opportunity to present to the subcommittee a statement of the views and position of the NAM in support of proposed amendments which provide that the right and power to determine the composition of the legislature of a State and the apportionment of its membership shall remain in the people of the State. Our support is extended likewise to the provision of these proposals that nothing in the Constitution shall prohibit the people of a State from apportioning one house of a bicameral legislature on the basis of factors other than population, or from giving reasonable weight to factors other than population in apportioning a unicameral legislature, if in either case, the apportionment has been submitted to a vote of the people in the State in accordance with law and the Constitution and has been approved by a majority of those voting on that issue. The interest of the NAM in this vital constitutional issue is collectively that of all its members, who have a continuing awareness and concern in all matters affecting the body politic at each level of government. The necessity for the consideration of such proposed constitutional amendments was precipitated when the Supreme Court, on June 15, 1964, ruled in the ease of Reynolds v. Sims, 377 U.S. 533, and five other companion cases that the equal protection clause of the 14th amendment requires both houses of a State legislature to be apportioned on the basis of population. In these decisions, the majority of the Court found constitutional justification in its expanded construction of the words “No State shall * * * deny to any person within its jurisdiction the equal protection of the laws." (art. XIV, sec. 1.) The Court held in these cases that seats in both houses of a State legisla: „79 must be apportioned solely on a population basis, and that the population a each district of the upper house, as well as in the lower house, must be an nearly equal as possible. In reaching this conclusion, the Court reasoned thr the vote of a citizen in a district with larger population is "debased" inasturt as his vote counts for less and that he is therefore less of a citizen and dete equal protection of the law under the 14th amendment. It further argued t the Federal system of apportioning U.S. Senators by geographical area is t a valid precedent for State legislatures to follow because the Federal syst grew out of unique historical circumstances and was conceived out of promise between the Original Thirteen large and small independent State The attitude assumed by the Court in its refusal to allow State government the right of composition similar to our Federal legislative system results 1 a deprivation to such sovereignties of what must be characterized as an ingenio? contrived and highly successful legislative process. When the Constitut Convention conceived the plan that one body of the legislative branch should composed of an equal number of members from each individual State. were wisely aware of a fact that the Court seems now to overlook that body should represent the country, in its many diverse geographical, eccton and social interests, and not strictly the population of the country. The custom and practice of State legislatures to pattern their stru after the Federal system is convincing proof of the singular adaptation of 2= system to political subdivisions. States pursuing this Federal pattern bar recognized the fact, which the Court has chosen to ignore, that one branch a government should represent regions of the States and the political into which they have been divided. One body, therefore, in true represents! * government should, in fact, represent the variety of a State and should row coerced into drawing its membership chiefly from those parts where the pers lation is most dense. Manifestly, it is an unsound assumption that weaker more sparsely populated parts of a State have less of an economic stake in general policy and development. If State legislatures are compelled to constituted on a "population only" basis, underrepresentation could resn't gross discrimination against such economically important, yet politically potent areas. When the Court sweepingly disregarded the Federal analogy as irrelev and an "after-the-fact rationalization," it undertook to achieve what all " predecessor Courts have declined to consider. Before proceeding to the are ments as to why a constitutional amendment should be adopted to insure the people of each State the power to determine the composition of its legs ture, some thought must be given to certain observations that challenge th majority opinion of the Court on this issue. Previous Courts have held that the apportionment of State legislatures a political question reserved for the States, and the Supreme Court has jurisdiction in such cases. When the Court applied a different rule in t Sims case in 1964, Mr. Justice Harlan stated in dissent that "since it car i think, be shown beyond doubt that State legislative apportionments, as so are wholly free of constitutional limitations, save such as may be imposed the republican form of government clauses,' the Court's action now bringing them within the purview of the 14th amendment amounts to nothing less th an exercise of the amending power by this Court." According to Mr. Justice Stewart, dissenting in the Colorado case of the sa date, "there is nothing in all the history of this Court's decisions which support this constitutional rule. The Court's draconian pronouncement, which makes constitutional the legislatures of most of the 50 States, finds no support in the words of the Constitution, in any prior decision of this Court, or in the 175-yes" political history of our Federal Union." As a result of the now celebrated decisions of June 1964, issues have been rais that must be met in the evaluation of the relative merits of these proposen amendments. The Court has now found that the equal protection clause of the 14th amer ment impliedly inhibits the States from patterning after the Federal Congres The Court also, in effect, decided that our representative form of government does 1 "The United States shall guarantee to every State in this Union a republican form f government." Art. IV, sec. 4. Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). not allow a State to arrange the composition of its governing bodies to reflect the diverse interests of that State in order to insure representation of such interests. The magnitude of this problem, as well as the far-reaching effect of the Court's decision, has been forcefully pointed up by Representative William M. McCulloch, of the House Judiciary Committee in the following language: "People have ever-changing problems that sometimes fail to yield to computer logic. Some may be lumbermen, miners, fishermen, or farmers. Some may be of one religion or national origin peculiar in need or consideration. Some may direet their needs toward secondary roads or superhighways, while others are more concerned about the rapid-transit system. Certainly the majority must have effective rule, but the minority, too, is entitled to effective representation, lest important segments of our people be completely subject to the tyranny of a temporary majority." Thus, the only practicable course open for resolution of this issue is by constitutional means to provide for self-determination by the electorate as to the manner in which the lawfully enfranchised citizens of a soverign State may see fit to discharge the political responsibilities incumbent upon their State. Mr. Justice Stewart has defined representative government as "a process of accommodating group interests through democratic institutional arrangements, and appropriate legislative apportionment, therefore, should ideally be designed to insure effective representation in the State's legislature of the various groups and interest making up the electorate." The Court, reversing long-established doctrine, has now held that the equal protection clause denies a State the power to assure a proper diffusion of effective political representation as between the thinly populated areas and those having concentrated masses. Thus, the only remaining recourse is for the people to exercise their fundamental right to seek a remedy through the extraordinary means of a constitutional amendment. Nowhere in the Constitution nor in ruling precedents, up to now, has there been any indication that to order apportionment of a State legislative body is a function of the Court. The power for adjustment toward a more equitable framework of representation, if found necessary, should be within the State itself and the people thereof whose knowledge of their own unique domestic processes should normally be more astute than that of an outside forum. Setting aside constitutional considerations, the States now find themselves, as a result of the recent decision, in the extremely perplexing position of attempting to reapportion their legislative houses in order to comply with the rigid standards designed by the courts. Many statehouses have already undergone one or more redistricting changes which were the product of hasty and perhaps nondeliberative studies during the unreasonable and unrealistic periods of time allowed them in order to avoid the threat of judicial interference. Moreover, the courts now find themselves in the enforced position of performing the strange role of arbiter in matters political which heretofore their judicial responsibilities had not encompassed. As a practical matter, in any suggested plan for reapportionment, there will always be some aggrieved party with a justiciable issue to bring before the Court. Consequently, the time has arrived when the Congress must provide the avenue of relief for what will become a seriously overburdened judiciary overseeing the intricate reconstituting of our State governments compelled to adopt a representation formula of one-man, one vote. The proposed amendments now before the Congress would authorize the people to employ a mixed representation system in one house of their legislature if they so desire. We submit that the proposals under current consideration offer by way of constitutional amendment, a solution to the dilemma now thrust upon the various State governments. The people of a State should have the right and power to apportion one house of the State legislature by population and the second house by a mixture of population and nonpopulation considerations if expressed through a statewide referendum. Despite the interpretations or application of the 14th amendment, there must be, within the very spirit of representative government as provided by the Constitution, a validity to the view that when a majority of the voters of any State wishes to apportion one house of its legislature on a basis other than mere population, then the State should possess the constitutional authority to do so. stitutional history indicates that it has been custom and practice for the several States in accord with the design and structure of the Congress to consider fac 48-124-65- -63 Con |