Third, my amendment leaves intact the court decision as to unicameral legislatures and requires apportionment on the basis of population. The Dirksen amendment, which reads, "The right and power to determine the composition of the legislature of a State and the apportionment of the membership thereof shall remain in the people of that State," virtually restricts the courts from scrutinizing the reasonableness of any formula adopted on reapportionment. I think this is a defect which S.J. Res. 37 would cure.

Third, my amendment leaves intact the court decision as to unicameral legislatures and requires apportionment on the basis of population. The Dirksen and Javits amendment allow these legislatures to weigh factors other than population. This popular majority, and the representatives of a majority of the people would have no way to eto legislation detrimental to their interests.

Mr. Chairman, I ask that the explanatory brief referred to earlier included at this point in the record.

In these three respects, Mr. Chairman, I think that the language of S.J. Res. 37 is better addressed to the solution of the problem than ther proposals that are now before the committee. Therefore, I urge your serious consideration of this proposal.

I should like to ask, Mr. Chairman, that the explanatory brief prepared by the faculty of the University of Idaho Law School be made a part of the record at this point.

Senator BAYH. I am sure-it will be made a part of the record. I am sure that the committee will look at it with a great deal of interest. The document referred to is as follows:)

BACKGROUND

In a series of historic decisions, the Supreme Court on June 15, 1964, mtounced a rule of practical equality in legislative representation. Reynolds v. mms, 4 Sup. Ct. 1362: WMCA, Inc. v. Lomenzo, 84 Sup. Ct. 1418; Maryland Committee for Fair Representation v. Tawes, 84 Sup Ct. 1442; Davis v. Mann, N4 Sep. Ct. 1453; Roman v. Sincock, 84 Sup. Ct. 1462; Lucas v. 44th Gen. Assembly the State of Colorado, 84 Sup Ct. 1472. These decisions elaborated upon and $ded earlier decisions in which the Court had held that a complaint alleging idious discrimination in voting patterns stated a claim for relief, Baker v. Carr. 82 Sup. Ct. 691, and held that the equal protection clause of the 14th Bendment and the concept of "we the people" prohibits preferred voter classes enjoins the use of a one-man-one-vote system in voting for candidates in a satewide election, Gray v. Sanders, 83 Sup. Ct. 801 (1963). In a related case » Court, construing article 1. of section 2 of the U.S. Constitution, and its irement that representatives be chosen by the people has held that a one-one-vote rule is required in congressional elections. Wesberry v. Sanders, ** Smp. Ct. 526 (1964).

The apportionment cases rest their weight upon the equal protection clause the 14th amendment. Though mathematical exactness is not required, the nal-population principle becomes a well nigh exclusive criteria for apportion

Lent:

Nether history alone, nor economic or other sorts of group interests, are persable factors in attempting to justify disparities from population-based repreFentation. Considerations of area alone provide an insufficient justification for tiations from the equal population principle * ** if, even as a result of a arly rational State policy of according some representation to political subprisions, population is submerged as the controlling consideration in the apporment of seats in a particular legislative body, then the right of all of the Mate's citizens *** would be unconstitutionally impaired" (84 Sup. Ct. 1362, 130-1392).

The Court rejected the Federal analogy and disregarded the expressed opinion the people of the State of Colorado who had, by a 2-to-1 margin approved an

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apportionment scheme based on area representation and at the same time rejected a scheme based entirely upon population. Lucas v. 44th Gen. Assembly, State of Colorado, supra. In substance, any deviation from the one-man-onevote pattern will be viewed scrupulously with an apparent presumption against its constitutionality.

EXPLANATION

The words any State introduce departure from the restrictions of the equal protection clause announced in the apportionment cases. These words do not include territories, trust territories, or other areas under the jurisdiction of the Federal Government. The 15th and 19th amendments separate the United States and any State; the 21st amendment, to reach beyond States, uses broadly inclusive language, "State, territory, or possession of the United States"; the 23d amendment was necessary to extend representation in presidential elections to the District of Columbia. Case law supports the conclusion of exclusion. Metropolitan Railroad Co. v. District of Columbia, 10 Sup. Ct. 19 (1889); Mutual Benefit Health & Accident Association v. Dailey, 75 Fed. Supp. 832 (1948). If extension to nonstates is intended, the introductory words should be "any State, territory or possession of the United States."

The limitation to any State having a legislature composed of more than one house is designed to insure that any unicameral legislature will continue to be apportioned according to the one-man, one-vote principle. Constitutional principles announced in those cases and other sections of the Constitution would constitute a necessary limitation upon the power of the States.

The term principle of equal representation is designed to express the rule of one man, one vote with its limited qualifications. The term has been construed to require representation on a basis as near to equality of population as possible. Donovan v. Suffolk County Apportionment Commissioners, 113 N.E. 740 (1916); Raglan v. Anderson, 100 S.W. 865 (1907).

Limiting application of effect to one house insures that nonpopulation repre sentation will be permissible in only one of the bodies; therefore permitting. among other plans, the so-called Federal analogy rejected by the Court in its decisions. At the present time this would permit the existence of one house in the legislature of all but one of our States, Nebraska, based upon nonpopulation factors. The intent is to limit the exception contained in this amendment to a single house.

Adoption of another reasonable system is designed to enunciate clearly a permissible departure from the system of equal population representation and at the same time insure that legislative action will follow nonarbitrary grounds and avoid the possibility of nonrational allocation of representation. The use of the word "reasonable" leaves to the courts the problem of determining legitimacy of State action within the range of this amendment and does not impose in flexible, blind rules upon determination of standards. The word, if this amend ment were adopted, would have light shed upon it by the dissenting opinions of Justices Stewart and Clark in the apportionment cases. WMCA, Inc. v. Lomenzo, 84 Sup. Ct. 1418, 1429-1442. In this opinion, these Justices take the position that the Court should have followed the traditional rule in equal protection cases, which relied upon a reasonable basis or classification to establish legitimacy. IL a clear enunciation of this doctrine, Justice Stewart states:

"Moving from the general to the specific, I think that the equal protection clause demands but two basic attributes of any plan of State legislative apportionment. First, it demands that, in the light of the State's own characteristics and needs, the plan must be a rational one. Secondly, it demands that the plan must be such as not to permit the systematic frustration of the will of a majority of the electorate of the State. I think it is apparent that any plan of legislative apportionment which could be shown to reflect no policy, but simply arbitrary and capricious action or inaction, and that any plan which could be shown systematically to prevent ultimate effective majority rule, would be invalid under accepted equal protection clause standards. But, beyond this, I think there is nothing in the Federal Constitution to prevent a State from choosing any elec toral legislative structure, it thinks best suited to the interests, temper, and customs of its people" (84 Sup. Ct. 1418, 1434).

Though this amendment would limit reasoning embellishing the word "reason able" to one house, the fact that majority wishes are respected by the last two clauses of the amendment and the word "reasonable" as used here should lead a court to this opinion for aid in construction of the word "reasonable."

It is intended to require that deviation be permitted only in the event it occurs as a result of a majority of the electors of the State voting in its favor. This is achieved by making departure dependent upon action by submitting the proposal to the electorate for majority approval. Electorate is defined as:

"The whole body of persons entitled to vote in an election, or any distinct class or division of them." Webster's New International Dictionary (1960) 825. "The whole body of electors." The Oxford Universal Dictionary (1955)

591.

The term "majority" means more than half. This is designed to insure that before any departure from the principle of one man, one vote is permitted, majority vote of the people affected by the apportionment occurs.

The provision is designed to insure that an easy method of reapproval of the system be provided.

Senator BAYH. I was interested to note that the Senator raised one question which has been probed by both the Senator from Nebraska and myself; namely, the necessity of continued judicial review. I think it is very helpful to have this.

I have no questions to ask the Senator. I appreciate your interest. I have discussed it with you personally, and I know of your long concern in this matter.

Senator CHURCH. I thank the Chairman very much.

Senator HRUSKA. There is one statement, Senator, in your testimony in which you indicate that the Javits resolution is a one-shot determination. As I understand it, the Javits proposal would provide for a decennial review.

Senator CHURCH. If that is so, I am mistaken. The point I want to make is not to take issue with any given proposal but with the proposition that there ought not to be a one-shot referendum that settles the question for all time to come.

Senator HRUSKA. I thank the Senator very much for pointing this

out.

Now, your objection that S.J. Res. 2 removes from judicial review if it became a part of the Constitution is based on the first sentence in the proposal, is that true?

Senator CHURCH. Yes, that is correct.

Senator HRUSKA. If that sentence were deleted, then that objection would be obviated, would it not?

Senator CHURCH. I would think-my conclusion is based upon the first sentence, and it seems to me important that the court continue to exercise jurisdiction.

Senator HRUSKA. The record does show that Senator Dirksen, in Testifying yesterday, said that that is not its intent. However, several Senators are bothered by it and I am hopeful that that sentence may be either modified or clarified or stricken so that there will not be the lingering misgiving, that judicial review would not be present under the proposed bill.

I think the statement of the Senator from Idaho is excellent. I agree with it. But he talked about 14 lines too long, because he included the unicameral observations in a way that do not comport. with those views of the Senator from Nebraska.

Senator CHURCH. I thought I might be treading on thin ice when I saw the Senator from Nebraska sitting there.

Senator HRUSKA. I do want to call the attention of the Senator from Idaho to the fact that the basis for apportioning unicameral legislatures is different in the Dirksen amendment than it is for a

bicameral legislature. There is a reference in the Dirksen resolution for reasonable weight to factors other than population being applied to a unicameral legislature. It will interest the Senator from Idah to know or to be reminded that in 1962, the people of Nebraska, by a popular vote, decided they would like to have their unicameral leg islature apportioned to give 20 percent weight area and 80 percent to population.

If anybody wanted to allege that under the circumstances prevailing in Nebraska, that the apportionment is not reasonable, the cour are always open for that purpose. I would think that the Suprene Court would approve that as reasonable if this S.J. Res. 2 were a part of the Constitution. It is certainly, under the circumstances which prevail, very reasonable and can be justified.

In fact, accessibility of the representatives to the people repre sented is one of the factors which is named by Justice Harlan in p dissent. So without asking the Senator from Idaho to change hi mind and to revise his statement, I hope he devotes some serious study to it so that he will not condemn the treatment that we have accorded a unicameral legislature in S.J. Res. 2.

Senator CHURCH. Let me say to the Senator that there is no seriors disagreement between us on this score. My statement is predicated upon the assumption that under the Dirksen amendment, owing the language of the first sentence, there would not be continuing judicial review.

Senator HRUSKA. I see.

Senator CHURCH. Now, if the language of the amendment is med fied in such a way as to assure continuing judicial review, then reasonable formula for a unicameral legislature, subject to judi review, would be perfectly acceptable to the Senator from Idaho

Senator HRUSKA. Thank you very much. I join the chairman thanking you for your very constructive statement.

Senator CHURCH. I thank the committee very much for having Lat here.

Senator BAYII. I thank the Senator from Idaho once again.

Our next witness is the distinguished Congressman, Robert D from Kansas.

I want to thank Congressman Dole in advance for the patience a'.. tolerance which he has shown while he has been waiting.

STATEMENT OF HON. ROBERT DOLE, A REPRESENTATIVE IN CO GRESS FROM THE FIRST CONGRESSIONAL DISTRICT OF KANSAS

Mr. D. 15. I have learned a lot, Mr. Chairman, so I have been happ to wait.

First of all, I wish to commend the ela pa and the weerber rls committee for their 1 terest in what I feel is probably the mos important domestic "ssue before the 89th, Congress, I do say in a Sincerity that I trust the eara gs being coaltæted ere will be mo fruitful than the hearings we have had on the Horse side in the Hop. Judiciary Committee,

I know of no more a portant issue than the issue of legislat rapportionment. I am sene t'i næribers of this committee krov That a great → y Member ets on our side of the Capitol feel the san

way-many Democrats, many Republicans, and many differing political philosophies.

This is not-and should not be a partisan issue-but one of the highest priority, recognized and treated as such immediately.

A Steering Committee on Reapportionment, composed of Congressmen John F. Baldwin (California), Harold Johnson (California), Carleton King (New York), Richard Ichord (Missouri), Wright Patman (Texas), Don Fuqua (Florida), and myself, is working diligently in support of the measure introduced by Congressman Patman. The Patman bill, identical to H.R. Res. 46, which I introduced the opening day of this Congress, provides—

The Patman bill is identical to one I introduced and identical to many other measures on the House side, but no one has any pride of authorship in this particular issue. I am sure the members of this committee are aware of the basic provisions of the Patman bill, which is similar to the Dirksen bill. It simply provides that nothing in the Constitution of the United States shall prohibit a State, having a beateral legislature, from apportioning the membership of one house of its legislature on factors other than population.

I would point out in response to an earlier question of the chairman to Congressman Hansen that we are not requiring anything. We are aying simply that nothing shall prohibit a State from having one of the houses apportioned on factors other than population. If some ober State wishes to apportion both houses on a population basis, they are certainly free to do so under this amendment.

Senator BAY. I might just clarify my question. I could do so afterwards, but I anticipate numerous questions.

My question to Congressman Hansen was in response to his remarks bout the impropriety of the Federal judiciary becoming involved in this matter, and I merely pointed out that if S.J. Res. 2-I am not fandliar with H. Res. 46, but if they are similar, if both of them or one of them is inaccurate, then insofar as this constitutional amendent does not overrule a previous Supreme Court decision, what reains of that law or decision would still be in effect. And inasmuch as the Dirksen amendment deals only with one house having leeway to consider factors other than population, then it would follow that one supporting it would still say that the Supreme Court should have the right and it should be one requirement-at least the requirement that one house should conform to one man, one vote. That was my only point.

Mr. DOLE. I might point out that the steering committee in addition to the text I have referred to in the Patman bill providing for submison of any apportionment plan to the electorate of the State involved. This, in our opinion, should allay the fears of everyone as it provides "the people." not a legislature dominated by rural, urban, or partisan interests, will be the final arbiters. Can anyone seriously argue with this! Who, better than the qualified voters of each State should be entrested with this decision? Should the U.S. Supreme Court, the only body not politically responsible within the American system, take unto itself alteration of essential elements in our Nation's basic covenant? I think not-and at this point will undertake a discussion of some of the significant reasons.