differently merely because of where they reside. This, they felt, was no me constitutionally permissible than denial of their right to vote altogether. Thus when malapportionment is the result of legislative inaction despite shifts in popo lation, there then arises an affirmative duty to reapportion; 13 and when the mal apportionment is a result of the provisions of the State constitution, the supremacy clause of the Federal Constitution controls.

În declaring the apportionment of the State of New York to be unconstit tional," the Court found that the complicated ratio system, requiring more pop lous counties to obtain an additional full ratio to be given more than three senate seats, was no more than a sophisticated form of discrimination. The Court noced that assemblymen representing 34 percent of the citizenry constituted a majority in the assembly and that those representing 41 percent constituted a majority: the senate. They were also impressed with the fact that there was no adequate remedy to alleviate the malapportionment other than through the State legit lative process."

On the other hand, the Court recognized that the initiative device in Co rado" provided a practical political remedy, but they nevertheless found " significance in the fact that a nonjudicial, political remedy may be available." They discounted the fact that an amendment apportioning the Colorado Legis lature purely on a population basis had been defeated by more than a 2-to-1 margin by noting that such a system would have created multimember district This, they thought, would result in representatives in the more populous counties having no identifiable constituency, a scheme not "in all probability, wholly acceptable to the voters in the more populous counties."" undesirable features, the majority of the voters could not rights of the minority."

79

And even lacking such deny the constitutional

Justice Stewart, with whom Justice Clark concurred, argued that a rational plan drawn in the light of a State's own characteristics and needs should be upheld. He felt that the cases should be decided by the application of those accepted principles under the 14th amendment that the Court recognized in Baker v. Carr-whether the apportionment plan reflect "no policy, but simp arbitrary or capricious action or inaction." Justice Stewart argued that both the New York and Colorado plans were designated in a rational way to insure the minority some voice in legislative affairs while insuring that the will of the majority would prevail.

Justice Stewart felt that the Court had converted a particular political philos ophy-that of equal representation for equal numbers of people-into a estitutional rule. And even if this should be found to be the most desirabl general rule of political theory, the Constitution cannot be said to have froze forever this one political theory into our system of Government. Justice Stewar criticized the majority's decision as interpreting the Constitution not "by wha it says, but by their own notions of wise political theory." 81

Justice Harlan, dissenting, foresaw "a jarring picture of courts threatenin action in an area which they have no business entering" and rendering "politics judgments which they are incompetent to make." " In Justice Harlan's opinion "the Constitution is not a panacea for every blot upon the public welfare" an the Court should have been guided by basic concepts of judicial restraint dealing with questions of such delicate nature.

A possible indication of the Court's refusal to further restrict, at least ten porarily, the power of the States to control suffrage may possibly be inferr

78 Id. at 1392-3. "Decennial reapportionment appears to be a rational approach readjustment of legislative representation in order to take into account population bef and growth. But if reapportionment were accomplished with less frequency, it w assuredly be constitutionally suspect.)

74 WMCA, Inc. v. Lomenzo 84 Sup. Ct. 1418 (1964).

75 Ibid.

78 Lucas v. Forty-Fourth General Assembly of Colorado, 84 Sup. Ct. 1472, 1484 (1964 " Id. at 1486.

78 The system of apportioning South Carolina's House of Representatives contains 1 same "undesirable" feature.

79 Lucas v. Forty-Fourth General Assembly of Colorado, 84 Sup. Ct. 1472. 1486 (196) "An individual's constitutionally protected right to cast an equally weighted vote eaLbe denied even by a vote of a majority of a State's electorate."

So WMCA, Inc. v. Lomenzo, 84 Sup. Ct. 1418, 1441 (1964). Clark dissenting. "In view, if one house is fairly apportioned by population (as is admitted here) then people should have some latitude in providing, on a rational basis, for representation the other house."

Si Id. at 1431, Stewart dissenting.

82 Reynolds V. Sims, Sup. Ct. 1364, 1412 (1964), Harlan dissenting.

83 Id. at 1414, Harlan dissenting.

from its memorandum affirmance of Boineau v. Thornton." Republican candidates for the State house of representatives from Richland County, S.C., brought an action to enjoin election officials from conducting further elections under a South Carolina statutes requiring a voter to vote for the exact number of candidates to be elected to a particular office or not have his vote counted. The plaintiffs contended that a voter wishing to vote for a Republican candidate there being only 2 running in a race for 10 house seats-must either vote for 8 Democrats or resort to the complicated write-in process. They maintained that this resulted in a dilution of Republican votes and was thus violative of their rights under the 14th amendment.

86

Judge Haynesworth, writing for a special three-judge district court, recognized that the statute "does impose some burden" on the Republican nominees and that such dilution could be minimized only at "the cost of some detriment to them." However, in dismissing the complaint, the court found a legitimate purpose behind the statute, interpreted Reynolds v. Sims as prohibiting only arbitrary dilution of voting power, and held that whether "the legislature might have made it a wiser choice is not a justiciable question." The Supreme Court affirmed."

CONCLUSION

1988

Baker recognized the more traditional concept of the 14th amendmentthat it prohibited any State action that was arbitrary or capricious or reflected an invidious discrimination. The application of this standard would have involved a factual determination in each case of whether the apportionment scheme represented a recognizable and bona fide State policy that was not invidiously discriminatory against any segment of the populace. And, while the fact that an apportionment scheme was based on the Federal analogy or other rational considerations would not have conclusively settled its validity, it would have been persuasive argument.

But Reynolds delineates a more inflexible constitutional standard. It prohibits any apportionment scheme that substantially deviates from the strict "one person, one vote" principle. The application of this standard does have the beauty of laying down more precise guidelines under the 14th amendment. But it precludes the application of those principles which, in the light of political reality, may result in a more stable State government and may even be less arbitrary and capricious than strict population based apportionment.

A possible rationalization of Reynolds in the light of the more traditonal concepts of the 14th amendment runs somewhat as follows: First, it is unreasonable to allow a minority to thwart the will of the majority. And, where a majority of legislators represent somewhat less than 50 percent of the citizenry, it follows that the will of the majority is thwarted and therefore that the apportionment scheme is unreasonable. Second, if the scheme is unreasonable, it runs afoul of the "Thou shalt not be arbitrary and capricious" pronouncement in Baker, and hence, is unconstitutional. And third, given the above, the only constitutionally permissible system of apportionment is one in which both houses are apportioned substantially on a population basis.

Justice Stewart had the unkindness to refer to this type of logic as the "uncritical, simplistic, and heavy-handed application of sixth grade arithmetic." " This type of rationalization rests on two basic suppositions. First, it involves the assumption that the aggregate feeling of the constituency will necessarily be reflected in the vote of their representative; and, second, it assumes a homogeneity of voters within the majority and minority districts. If these suppositions are not contrary to fact with respect to any one particular issues, they Would certainly seem so when extended to the whole range of issues in the legislative spectrum.

235 F. Supp. 175 (1964).

*S.C. Code 23-357 (1962).

One plaintiff also maintained that the statute was violative of her right under the inteenth amendment to cast her vote only for women candidates, but the court disied this contention on the grounds that the statute was "sexless."

A

Boineau v. Thornton, 235 F. Supp. 175, 178 (1964).

Id. at 182.

Boincou v. Thornton, 85 Sup. Ct. 151 (1964).

WHCA, Inc. v. Lomenzo, 84 Sup. Ct. 1418, 1432-3 (1964). Apparently Justice Stewfas more impressed with the arithmetical prowess displayed in the briefs of counsel 20 with that of the majority opinion. In an oral argument he credited them with the astery of "eight-grade arithmetic." 32 U.S.L. Week 3189 (1964).

he homogeneity of districts necessary to validate this assumption cdoted only by drawing district lines so as to segregate the popula ger interest groupings. This is precisely the technique prohibite! V. Lightfoot."

g similar logic and given a bare majority in each legislative district.* more than 25 percent of the electorate will elect a majority of a e apportioned strictly on a population basis. It would be absurd to cod that this 25 percent will control the legislature and equally absurd tain that they will thwart the will of the remaining 75 percent. Simi the assertion that the consideration of historic economic, or geographic cors in legislative apportionment is per se “arbitrary" or "capricious" has more merit than the argument that apportionment purely on a population psis does no more than to place a premium on fertility.

There may be no perfect answer to the apportionment dilemma. But one thing is painfully clear: it is much too complex a problem to be solved by any such pronouncement as “legislators represent people, not trees or acres."

J. KENDALL FEW.

A CONCURRENT RESOLUTION

[Introduced by Judiciary Committee]

MEMORIALIZING CONGRESS TO CALL A CONVENTION FOR THE PURPOSE OF PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

Be it resolved by the House of Representatives, the Senate concurring, That this Legislature respectfully petitions the Congress of the United States to call a convention for the purpose of proposing the following article as a amendment to the Constitution of the United States.

"ARTICLE —

"SECTION 1. Nothing in this Constitution shall prohibit any State which shall have a bicameral legislature from apportioning the membership of c house of such legislature on factors other than population, provided that the plan of such apportionment shall have been submitted to and approved by a vote of the electorate of that State.

'SEC. 2. Nothing in this Constitution shall restrict or limit a State in t determination of how membership of governing bodies of its subordinate unl shall be apportioned.

"SEC. 3. This article shall be inoperative unless it shall have been ratif as an amendment to the Constitution by the legislatures of three-fourths the Several States within 7 years from the date of its submission to the State by the Congress."

Be it further resolved, That if Congress shall have proposed an amendment t the Constitution identical with that contained in this resolution prior to Ju 1, 1965, this application for a convention shall no longer be of any force effect.

Be it further resolved, That a duly attested copy of this Resolution be im mediately transmitted to the Secretary of the Senate of the United States, th Clerk of the House of Representatives of the United States and to each membe of the Congress from this State.

State of South Carolina, in the House of Representatives, Columbia, SC February 18, 1965.

I hereby certify that the foregoing is a true and correct copy of a Resolut.o adopted by the South Carolina House of Representatives and concurred in b the Senate.

[SEAL]

364 U.S. 339 (1960).

INEZ WATSON, Clerk of the Hou

92 The court did not prohibit the use of legislative districts. To the contrary Justice Warren regarded the lack of legislative districts and identifiable constitue as one of the most undesirable features of one of Colorado's apportionment sche" Lucas V. Forty-Fourth General Assembly of Colorado, 84 Sup. Ct. 1472, 1483 (1961 Reynolds v. Sims, 84 Sup. Ct. 1362, 1382 (1964), Chief Justice Warren writing ≫ majority.

Senator BAYH. I thank the Senator for taking his time to let us have his views. I have no questions.

Senator HRUSKA. I just have one question, Senator Thurmond.

On page 3 of your statement you say that S.J. Res. 2 would overrule and thereby vacate the decision of the Supreme Court handed down on June 15. Wouldn't it be more accurate to say that the making of this resolution a part of the Constitution would enable the States to vote on the proposition of whether they wanted to abide by that Supreme Court decision or whether they wanted to depart from it? Senator THURMOND. I think the able and distinguished Senator's statement along that line is correct.

Senator HRUSKA. It enables that result to be achieved.

Senator THURMOND. That would be the practical effect of it.

Senator HRUSKA. That was the point made by Senator Dirksen the other day, and I just wanted to know if we understood each other on that point.

Senator THURMOND. Yes, sir, I think that is the practical effect of it. Senator HRUSKA. Thank you very much.

Senator BAYH. Thank you very much, Senator Thurmond, for letting us have your views.

I notice the distinguished Senator from Idaho has joined us. I would like to ask him if he would give us his views now. I would ask the distinguished Congressman Dole if he would be patient long enough for us to hear from the Senator from Idaho.

STATEMENT OF HON. FRANK CHURCH, U.S. SENATOR FROM THE STATE OF IDAHO

Mr. CHURCH. Mr. Chairman, gentlemen of the committee, I want to thank you first of all for your courtesy in hearing me.

Mr. Chairman, as we all know, the Supreme Court decided six historic cases last year which together set out the proposition that representation in both houses of State legislatures must be based on population. Five of those decisions apply this ruling to particular cases in which the State legislatures have themselves chosen the disputed system. I have no objection to these decisions; the mere recitation of the phrase one-man-one-vote smacks of an elementary fairness that cannot be denied. My objection, and the reason I am here today, goes to the sixth decision, Lucas v. Colorado, in which the Court decided that, even though the people of Colorado, by a 2 to 1 majority, had approved an apportionment system in which members in one house were chosen on factors other than population alone, the same rule applied, and the majority could not abrogate a constitutional right.

The Lucas v. Colorado decision seems to me to challenge the most. fundamental principle upon which our system of government rests, the principle of popular sovereignty. The American political system is composed of a wondrous, pragmatic amalgam of institutions. But the foundation upon which it is built is not these institutions, not even the Constitution itself, but the ultimate will of the people. Sovereignty resides in the people as citizens of the Union, and as citizers of their respective States. Surely, the people of the States

should retain the sovereign right to pass upon the composition of their own legislatures. The referendum is the instrument of popular sovereignty; when its results are in, the people have spoken and their voice should be respected.

Indeed, I believe that unless the people continue to exercise their sovereignty, the concept withers from disuse, apathy sets in, and government of the people can become a phrase in a civics textbook. not a common feeling of responsibility which resides in the hearts of men.

The sense of popular sovereignty is evoked by the need for it. This is the reason, I suggest, that through the years the Supreme Court has been so reluctant to consider such matters as this justiciable, and subject to its decision.

I have submitted two Senate joint resolutions, Nos. 37 and 38. The first of these was, for the most part, drafted by the law faculty of the University of Idaho along lines I suggested. The second was prepared and passed by the Idaho State legislature. It is substantially the same as that presented by Senator Dirksen, so I will not repeat the case for it, at this time. Instead, I will address myself to the differences between the Dirksen amendment, or the Javits amendment, and S.J. Res. 37.

All three amendments provide that one house may be apportioned on factors other than population if approved by popular referendum. The most notable difference is in the phrase in my resolution, “provided review be permitted periodically." The Dirksen and Javits amendments are one-shot approaches. Once aproval is given by popular referendum, the system adopted could be frozen in place, free from judicial review or from the continuing scrutiny of the people themselves, no matter how the population of the State may later change. As population shifts, so may voter opinion.

Second, the wording of my amendment implies a continuing role for the Federal courts, and therefore greater protection against a rigged referendum. As I view S.J. Res. 37, the Supreme Court would continue to exercise its review of apportionment systems under the equal protection clause and would refrain from interfering only where another reasonable system has been approved by a majority of the electorate. What is a reasonable system? In its explanatory brief. the Idaho law faculty stated that the dissenting opinions of Justice Stewart and Clark in WMCA, Inc., v. Lomenzo, 84 Sup. Ct. 1415. 1729-1442-and other citations are also to be found there, Mr. Chairman. These throw considerable light on the definition and help set guidelines which would, like any reasonable man standard, be neessarily vague but ultimately workable. At the end of my testimony I will submit the explanatory material. It has been prepared by the faculty of the law school and pertinent parts of the Court's opinions are there cited.

As I read it, the first sentence of the Dirksen amendment which reads, "The right and power to determine the composition of the leg islature of a State and the apportionment of the membership there! shall remain in the people of that State." virtually restricts the courtfrom scrutinizing the reasonableness of any formula adopted on reapportionment. I think this is a defect which S.J. Res. 37 would

cure.