The Court held in these cases that seats in both houses of a State legislature must be apportioned solely on a population basis, and that the population each district of the upper house, as well as in the lower house, must be 20 nearly equal as possible. In reaching this conclusion, the Court reasoned that the vote of a citizen in a district with larger population is "debased" inasurab as his vote counts for less and that he is therefore less of a citizen and denies equal protection of the law under the 14th amendment. It further argued be the Federal system of apportioning U.S. Senators by geographical area is not a valid precedent for State legislatures to follow because the Federal system. grew out of unique historical circumstances and was conceived out of promise between the Original Thirteen large and small independent States. The attitude assumed by the Court in its refusal to allow State governmer's the right of composition similar to our Federal legislative system results in a deprivation to such sovereignties of what must be characterized as an ingenious contrived and highly successful legislative process. When the Constitu: Convention conceived the plan that one body of the legislative branch should be composed of an equal number of members from each individual State, the were wisely aware of a fact that the Court seems now to overlook that body should represent the country, in its many diverse geographical, economy. and social interests, and not strictly the population of the country. The custom and practice of State legislatures to pattern their struct after the Federal system is convincing proof of the singular adaptation of thi system to political subdivisions. States pursuing this Federal pattern har 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 representat e government should, in fact, represent the variety of a State and should not be coerced into drawing its membership chiefly from those parts where the pr 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 b constituted on a "population only" basis, underrepresentation could result gross discrimination against such economically important, yet politically i potent areas. When the Court sweepingly disregarded the Federal analogy as irrelera" and an "after-the-fact rationalization," it undertook to achieve what ali " predecessor Courts have declined to consider. Before proceeding to the ar 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 legist ture, some thought must be given to certain observations that challenge the 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 the Sims case in 1964, Mr. Justice Harlan stated in dissent that "since it can I think, be shown beyond doubt that State legislative apportionments, as are wholly free of constitutional limitations, save such as may be imposed r the republican form of government clauses,' the Court's action now bringing them within the purview of the 14th amendment amounts to nothing less 11/1 an exercise of the amending power by this Court." According to Mr. Justice Stewart, dissenting in the Colorado case of the size date, "there is nothing in all the history of this Court's decisions which supporti 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 17-year political history of our Federal Union." As a result of the now celebrated decisions of June 1964, issues have been raised that must be met in the evaluation of the relative merits of these proper amendments. The Court has now found that the equal protection clause of the 14th an ment impliedly inhibits the States from patterning after the Federal Congress 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 farm of government." Art. IV, sec. 4. 2 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 rote. 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. Constitutional 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 tors other than population solely in the division of voting seats in one house State legislative bodies. Sheer survival of a republican form of governme should demand a recognition that significant economic, geographic or area in terests must have the benefit of representation in their State government, L withstanding the question of any population differential. We urge the favorable consideration by the Congress of an amendment a the lines and within the framework of such language as this committee is dr rently considering. STATEMENT OF JOHN A. CLEM, CHAIRMAN, REALTORS' WASHINGTON COMMTMTM NATIONAL ASSOCIATION OF REAL ESTATE BOARDS Mr. Chairman and members of the subcommittee: I appreciate the opportunity to present this statement on behalf of the tional Association of Real Estate Boards in support of Senate Joint Re 2 and similar legislation which would amend the Constitution to make it la for a State to apportion not more than one house of a bicameral legislature a basis of factors other than population. In January of this year, our board of directors adopted unanimously the fo= ing resolution: REAPPORTIONMENT Consideration of geographical, economic, and factors other than popat in the shaping of the U.S. Congress is consistent with the Constitution and he to the republican form of government which the Constitution guarantees to es State; and therefore we urge the enactment of an amendment to the Const***** which will permit each State having a bicameral legislature to apportion more than one house of such legislature in accordance with factors other? population. Our association has been keenly aware of the problems faced by burge urban and suburban areas in States in which the legislatures had failed for eral decades to reapportion their districts, in violation of their own constituti Underrepresentation of urban areas in State legislatures was a fundar cause of the expansion of the Federal Government's role in urban develope With the advent of Baker v. Carr, we hoped that the era of rural domina“ in these bodies was at an end and that cities at last could meet their resp bilities with diminishing Federal assistance. With Reynolds v. Sims, however, we see the Supreme Court going far ber the Baker decision which held that Federal courts have jurisdiction in mala tionment cases in which a State constitution has been violated. The declarat in Sims that both houses of a State legislature must be apportioned on the ba of population as a requirement of the Federal Constitution, in our view, strikes i the very foundation of the republican form of government guaranteed to *** States by the Constitution. 1 Wth the statement in Reynolds v. Sims that "people, not land, trees, or på" tures, vote" Chief Justice Warren employs a phrase which goes to the heart o the matter, and which will undoubtedly be quoted for years to come as the ra cry for the one-man-one-vote principle. This slogan is appalling not only in rejection of the rich vein of political thought that this country has produced this subject but also in its naivete as applied to the simple realities of hurs: nature. "People" devoid of interests simply do not exist. To cut through "> delicate balance of geographic, economic, and political relationships which b society together and hold that all issues before both houses of the legislature a particular State should be decided by a simple headcount of voters is to sh don the affairs of the State to the class and interest which happens to be in t majority. It is, in fact, a determination that an arbitrary majority may rule Surely a farmer, for example, a productive member of an essential activity * the life of his State, is entitled to some protection as a farmer against the nur** ically greater members of urban and suburban areas whose representatives know little about farm problems and who, in any case, would not be politic responsive to them. The proceedings in the Constitutional Convention and the writings of the pa ticipants evidence the apprehension that the Founding Fathers had about gore ment by mere head count, and the legislative history of the 14th amendmer 1 Reynold V. Sims, 377 U.S. 573, 581. clearly shows that it was not meant to give the Court the power to rearrange State legislatures, or to strip groups who are numerically in the minority of the protection afforded them by a republican form of government. Constitutional amendments are not matters which should be lightly undertaken, especially in a question as fundamental as this. It is only because we believe that the Supreme Court clearly overstepped its bounds in substituting its judgment for that of the citizens of the States in a matter clearly intended to be left to those citizens that we support the amendment embodied in Senate Joint Resolution 2. It is not my purpose here to reargue the case, but there is one point in the majority opinion which appears more relevant to the discussion of the general principle of reapportionment than to the constitutional question involved. The Federal analogy is still valid Chief Justice Warren, in the Sims opinion, rejected the Federal analogy which equated counties or other political subdivisions of a State with the States in their relationships to the Federal Government and, hence, entitled to geographic representation. The analogy failed, according to the Chief Justice, because the smaller colonies were sovereign entities surrendering a portion of their sovereignty under the Constitution and receiving, in return, the guarantee of equal representation in the Senate as a protection against their larger neighbors. The relevance of the analogy may be questionable in a case involving an interpretation of the equal protection clause but, in any case, it fails only on the lack of sovereignty of the counties. The underlying need for protection against larger political entities which are capable of engulfing smaller ones exists irrespective of sovereignty. The fact that political subdivisions of a State are not in a position to demand equal representation (because they are creatures of the State) has no bearing on the argument that these subdivisions, or some similar interests or entities within the State, would be overwhelmed by a head count vote and need protection. The delineation of these areas of protection, of course, will vary from State to State, but it would be well to note Chief Justice Warren's own statement made in 1948 quoted in an exclusive interview granted a national publication: "Many California counties are far more important in the life of the State than their population bears to the entire population of the State. It is for this reason that I have never been in favor of restricting the representation in the senate to a strictly population basis." (U.S. News & World Report, June 6, 1964, p. 34.) Equal representation is a practical impossibility The advocates of one man one vote must face up to the inherent difficulties of achieving their goal. I refer not to the practical problem of mathematical certainty, about which the Court is somewhat flexible, but to the fact that an equal ratio of voters to legislators does not automatically assume an equal "weighting" of votes. In a recent address to the Conference of Chief Justices, Professor Robert G. Dixon, of George Washington University, discusses this problem in some detail. He points out that the new system in certain instances can result in a greater inequality of vote "weighting" than presently exists: "Traditionally, American legislators have been elected, not under a statewide party list system, or a proportional representation system, but from geographic districts either single member or multimember. And yet our real concerns, our partisanship, and our interests, are not spread evenly through these geographic districts. Nor are they grouped in balanced fashion in competing sets of districts. Herein lies the crux of the apportionment-districting problem-the true challenge to constitutionmaking. Casually drawn districts, or carefully drawn districts, whether of equal population or not, may seriously underrepresent or seriously overrepresent identifiable interests, such as political parties, organized labor, farmers, etc. But the majority opinions in the reapportionment cases show little perception of this complexity. * * * "An [an] example we can assume a populous urban-suburban area into which we are to put 10 single-member districts. If the larger political party had a -45 percent edge over the smaller party, and party strength were fairly evenly spread, it would be a simple matter to draw mathematically equal districts under which the party with 45 percent support would never elect a single man. The inequities in these examples are caused by what can be designated as the 'wild card' factor of party member location, plus some gerrymandering." In order for the Court's constitutional standard of equal protection to apply literally, it would appear necessary to require that the ratio of majority to minority party legislators in each house precisely reflects the ratios of the voter in each party in the State. Only then, we see it, could a voter be assured tha his vote has “equal weight" with all others. The proposition of government by "headcount," however, goes against the grain of the republican form of government. Surely the citizens of the State should have the right under any definition of "republic" to fashion an house on a basis other than headcount. Whether or not this is a right 2 the Constitution has, for the present, been decided, but certainly the groc for making this a right, or at least making the power to choose a right, use i the Federal Constitution, are unmistakably clear. We urge the subcommittee and the Congress to grant this right of choice ki the people of the States by approving the constitutional amendment embode in Senate Joint Resolution 2. NATIONAL COTTON COUNCIL OF AMERICA. Washington, D.C., March 4, 1965 Hon. BIRCH BAYH, Chairman, Judiciary Subcommittee on Constitutional Amendments, DEAR SENATOR BAYH: This letter is with reference to Senate Joint Resolutat 2 now being considered by the Senate Judiciary Subcommittee on Constituti Amendments. The National Cotton Council supports this resolution. Our organization represents the seven segments of the raw cotton industrynamely, cotton producers, cotton ginners, cotton warehouseman, cotton merchar ́s cotton cooperatives, cottonseed crushers, and cotton spinners—in the 19 coffe producing States from California to Virginia. Our 287 voting delegates a selected in a democratic manner by their own interests in the States where the do business. At the council's annual meeting in Houston, Tex., January 2-3 these delegates voted unanimously in support of the following resolution: STATE LEGISLATIVE REAPPORTION MENT That the council favor an amendment to the Constitution of the United St which would reserve to each State having a bicameral legislature the exclus power to apportion and reapportion the membership of one house of its leg lature on the basis of such factors as each State may determine. The cotton industry historically has opposed infringement on the constitutiona authorities of the States and considers the decision of the Supreme Court in '* case of Reynolds v. Sims, in ordering apportionment of both houses of Sta legislatures on the basis of population alone, a grave threat to these prerogative The very concept of the separation of powers defined in our Constitution will abridged if action is not taken to countermand the effect of this decision. The uniquely American system of checks and balances has served the Nat well for more than 175 years. It is essential to the preservation of the America: form of government and protection of individual rights. From the earliest da of our Republic, the functions of the legislative, executive, and judici branches of the Government as expressly defined in the Constitution have bee carried out with full recognition of the rights of the individual States to estabi their own legislative framework. The bicameral system with representation " one House based on criteria other that population-in but few exceptions—been followed in all the States. This was the concept of the Congress as pr vided in the Constitution. It has worked to give strength to majority vies but at the same time has protected geographical interests and less popula States as well. Our country has grown and prospered under this concept, ! only because it has worked in the Congress, but also because it has worse in the States. Senate Joint Resolution 2 makes clear the power of each State to determine composition of its legislatures and if in bicameral form insures its right to tablish one branch using factors other than population. It also provides for 1 referendum in each State to make such a determination. Adoption of Senate Joint Resolution 2 by the Congress and ratification three-fourths of the States will end the confusion resulting from the decis of the Supreme Court, clarify the rights of the States in this field, and by doing remove the threat of the courts to pass on such questions in the future It is the view of the American cotton industry that the resolution sbor be passed by the Congress without change and submitted to the States for rat |