either to amend the California constitution or simply to enact legislation, is placed on the ballot by the secretary of state when its backers secure the signatures of 8 percent of the number voting for Governor in the last general election on a petition which sets forth in full the proposed amendment or law. The question is then decided by a majority vote at the next general election or at any special statewide election.

In California, the compulsory constitutional referendum, provides that, following approval by two-thirds of both houses, a legislative act to amend the constitution is submitted to the people and is agreed to if favored by a majority of those voting. The State constitution als provides that

if any provision or provisions of two or more measures, approved by the elector at the same election, conflict, the provision or provisions of the measure receiv ing the highest affirmative vote shall prevail. (Article IV, section 1.)

I believe that this committee, in the interest of uniformity of the way in which the people in each State might best make known their will or apportioning their legislature, and have the potential of expressing their views on the issue should a sufficient number desire it, may wish to consider the possibility of a uniform initiative and referendum pro cedure to apply in each State on this question.

I have talked with my Republican leader about what I had intended today to suggest I hope constructively to this committee.

Thus, language might be added to a joint resolution reported by this committee which would provide:

In any State in which the membership of any portion of its legislature is alle cated pursuant to any plan upon a basis other than population, such plan shall I resubmitted to the qualified electors of that State for approval or disapproval. by a majority of the votes cast upon such plan in a general or special election or in a referendum conducted under the law of that State, either by the legislature of upon the filing with the chief election officer of that State of a petition for such resubmittal which bears the duly certified names of qualified electors of tha State in number at least equal to 5 per centum of the number of all votes cas for all candidates for the office of Governor at the last preceding general elec tion at which a Governor of that State was elected.

Finally, I believe this committee should give careful consideration to the method the States should use in ratifying any proposed amend ment submitted to them by Congress. Certainly, it would not be in the public interest to have a State legislature, malapportioned on rotten-borough basis, itself approve such ratification. One could argue, however, that even if this situation did occur, the implementa tion of such an amendment would be inoperable in the State, until the people of that State themselves, at the ballot box, had passed judg ment on the question.

When the several decisions were rendered last year, I saw fit to make some comments in the Senate because I did believe that the question of American policy is one which the Congress must accept as a burden and I did feel that there was a need for the Congress to adopt a proposa along the lines of my colleague. At that I contacted all the law schools in my State, Mr. Chairman, and asked the deans of the law schools to make recommendations to my office, to try to develop some constructive thinking on the part of my office and of myself.

I have a memorandum which I am going to ask just to insert in the record, which I think all you gentlemen will find interesting, prepared by some of the law school people in my State on the subject.

Senator BAYH. Without objection, that will be placed in the record. (The document referred to follows:)

MEMORANDUM FROM ROBERT M. O'NEIL, ACTING ASSOCIATE PROFESSOR OF LAW AND SEVERAL OTHER PROFESSORS OF LAW AT UNIVERSITY OF CALIFORNIA, BERKELEY, CALIFORNIA

THE REAPPORTIONMENT DECISIONS: PROPOSAL FOR A CONSTITUTIONAL AMENDMENT 1. General considerations and theory of apportionment

Since June 15, 1964, it has been clear that the Federal Constitution requires both houses of every State legislature to be apportioned on the sole basis of equality of population. Any doubts about the application of this principle to particular States, because of peculiar local conditions or history, have since been put to rest. On December 3, for example, a three-judge Federal district court in Los Angeles applied the one-man-one-vote principle to the California Senate, and declined to require reapportionment of the assembly only because that question was not before it.

Lawyers, scholars, and political scientists will no doubt continue to dispute the soundness of the Supreme Court's construction of the equal protection clause. For us, however, that issue seems a fruitless one, at least for the moment. Far more important is the qestion of what might be done to reverse or limit the trend which the Supreme Court has set in motion. Short of open defiance of judicial decree, there seems no viable way of checking that trend other than to amend the Federal Constitution. Problems that may arise in the drafting of such an amendment are the central concerns of this memorandum. We begin with (a) background discussion of the nature and functions of legislative apportionment. A. Objections to population as the sole criterion of apportionment.-It is not the purpose of this memorandum to question the constitutional theory underlying the Supreme Court's decision. Nor is it immediately relevant whether the constitutional requirement set forth in the apportionment cases is a wise one for securing some of the most fundamental ends of a democratic society-i.e., (1) for insuring that all men are equally represented in the legislature; (2) for accommodating competing interests within the States; and (3) for protecting society against the threat of tyranny, whether by the majoriy or minority. The question is whether that requirement is the only permissible means by which those ends may be achieved. In this light the rules of the apportionment cases are most vulnerable.

They are vulnerable not because one man, one vote is not a desirable method of providing for equitable representation within State governments, but because it is not the only way and perhaps not the best way of providing such representation. And its elevation to constitutional status effectively forecloses the use of other means for securing the same ends. Many States, for example, have developed complex and delicate mechanisms for resolving problems of representation and accommodation, and the sudden imposition of a one-man-one-vote standard may well cause those mechanisms to go awry without providing the degree of protection and effectiveness they offer.

A basic problem with exclusive reliance on the one-man-one-vote principle is that it fails to take into account, and in some cases precludes use of, methods developed through the political process to insure that our democratic institutions remain viable and that all men are adequately represented in the legislative process. The one-man-one-vote principle seems to assume that the most important and effective method of providing equal representation involves a direct relationship between voter and legislator. This assumption is, however, questionable. In terms of effective representation the voter-legislator relationship bs at best tenuous. But, all people may be represented indirectly and effectively through one or more groups, the most important of which are the political parties, whatever the apportionment formula.

Thus, in California, while the northern farmer's vote may be weighted as much as five times that of a southern businessman, the businessman may in fact have superior representation because of his affiliation with the controlling political party or with a manufacturer's association or an urban renewal league or a chamber of commerce or, on some issues, his employees' union, all of which may be highly influential in affecting the political process.

Moreover, both the farmer and the businessman will be represented on a broad spectrum of issues through numerous other affiliations, whether through

formal or informal membership. And each of these groups, in order to insure that this process of indirect representation is effective will have developed a complex network of access to legislation, as well as a highly developed practice for gaining support from and undercutting other groups. Thus society has met the challenge of representation, not through a unitary formula, but through a complex structure developed in light of proven needs. The theory and practice of group representation take into account the important and inseparable prob lems of accommodation of competing interests.

It is also worth noting that the one-man-one-vote theory embodies a purely quantitative approach to representation. It does not take into account the qualitative nature of representation based upon the character and ability of in dividual legislators. Nor is it sufficient to rely that a court cannot weigh such elusive factors, for that is just the point-the political process involved subtl and sophisticated methods of representation, qualitative and quantitative, which are completely ignored by focusing only on the narrow quantitative direct re lationship between voter and legislator.

A related point may be made. There is implicit in the one-man-one-vote theor a fear of a tyranny of the minority if 20 percent of the people can theoretical elect 51 percent of a legislature. But this fear necessarily assumes that th 20 percent are a homogeneous unit-an assumption seldom borne out by the facts For example, with the exception of a relatively narrow spectrum of highly loca issues the small-town businessmen in that 20 percent will have an outlook an voting pattern akin not to that of their farmer-neighbors but rather to thei city business counterparts. And the same will hold true for mothers, salesmer union men and other diverse socioeconomic groups that compose our society. It is also relevant that the one-man-one-vote requirement does not automat cally guarantee that there will be effective and equal representation, or eve that one man's vote will not be weighted more heavily than another's. Conside 2 districts each with a population of 20,000 both having 10,000 eligible voter District No. 1 has 7,000 registered voters and District No. 2 has 5,000. Assun ing all registered voters vote, a vote in District No. 1 has less voting power the one in No. 2. Or, what of the equally plausible situation where 60 percent, 4.20 of the registered voters in District No. 1 and 30 percent, 1,500, in District N 2 vote. The point is that the problems of representation and equal voting now can never be fully solved by the one-man-one-vote formula, and the solution which have been worked out for those problems may well be damaged in th process of trying. It is worth repeating that it is unwise to elevate to the heigh of a constitutional standard a requirement which may or may not be partiall effective in solving a difficult problem.

B. Apportionment of the bicameral legislature.—These arguments suppo the suggestion that at least one house of a bicameral State legislature might apportioned on some rational nonpopulation basis, if the people so desire. B they do not necessarily justify the departure from the one-man-one-vote pri ciple in both houses. On the one hand most of those special representation interests to which we have referred that militate against exclusively populatio apportionment, could be adequately served through departure from populatio equality in one house. On the other hand, there are very strong argumen favoring equal population as the basis for districting in the other house. Not th least of these is the traditional effectiveness of the Federal model, not alo in the U.S. Government but in the many States that have based their own legisl tures on the Federal plan. Moreover, a prime function of a bicameral body is provide diversity of representation in the lawmaking process. Such diversi seems best assured when the two houses are apportioned on different criteri While we have not developed these arguments at any length, we strong favor a requirement that at least one house of a bicameral legislature be a portioned on the basis of districts of equal population.

One further consideration may prove to be relevant: Traditionally it has be the smaller, upper house that is "malapportioned”—and usually because the honse represents districts defined along geographic or governmental unit line while the larger, lower house typically attempts to reflect population. Thus California it is the senate districts which essentially represent counties, and is the senate where the greater population inequalities occur because of th wide disparity in population between the large and small counties. A convineir argument can be made, however, that if departure from population is to 1 permitted in either house, it should be in the larger rather than the smal chamber. A given degree of departure from the one-man-one-vote princip in the larger house will permit more effective representation of areas, local i

terests, and governmental units than will the same degree of departure in the smaller house. For example, if the membership of the California Senate were increased to 120, it would be possible to give each county at least one senator (which is not now the case) and still increase the number of senators allotted to the larger counties so as substantially to reduce the present 450 to 1 imbalance between largest and smallest senate districts. While this principle may have no direct bearing on the process of constitutional amendment, it is still worth considering in relation to the future of the bicameral legislature.

We have given no attention to the special problems of the unicameral legislature. In part this is because only one State has rejected the bicameral format. Also, and more important, one of the main purposes of launching a constitutional amendment of the kind we are considering is to preserve the vitality of the bicameral legislature. If reapportionment must be carried out in conformity with the Supreme Court's mandate, then other States might look with greater favor upon the Nebraska model, because the imposition of the one-man-onevote standard upon both houses would remove an important reason for having two houses. Thus, we felt it would be premature to give special consideration to the reapportionment of the unicameral legislature.

II. Proposed draft amendment: a working model

Joint Resolution

To amend the Constitution of the United States to permit any State to apportion one house of its legislature on factors other than population with the approval of a majority of voters in a special referendum.

Resolved, etc. *** three-fourths of the several States:

Section 1: No State legislative apportionment shall be held to deny the equal protection of the laws or a republican form of government to any citizen of the State by virtue of the fact that the apportionment does not provide for substantially equal representation on the basis of population in one house of a bicameral legislature where

(1) the apportionment has been approved by January 1, 1968, or, with respect to claims made as to years beginning after December 31, 1972, the apportionment has been approved within 3 years of the publication of the most recent complete U.S. census;

(2) the apportionment has been approved by a majority of those voting in an initiative or referendum in which not less than 60 percent of the civilian population of the State of voting age, as determined on the basis of the most recent census of the United States, have cast ballots;

(3) the apportionment does not make theoretically possible the election of a majority of either house of the legislature by fewer than 30 percent of the State's civilian population of voting age;

(4) the apportionment is the result of an initiative or referendum which has included as an alternative an apportionment based on substantially equal representation on the basis of population in both houses of a bicameral legislature.

III. Drafting considerations

A. Introduction.-The proposed amendment obviously contains various provisions not found in amendments heretofore introduced. Each of these is the result of careful consideration and rejection of alternatives. There are other matters that have been considered and dealt with by omission, on the theory that express provision for these might make the amendment unwieldy. The principal purpose of this memorandum is to go behind the draft to explore the various alternatives that seemed to be available for dealing with each of the relevant issues of draftsmanship, and to give some consideration to the particular choice that has been made. We deal with these questions under a number of separate headings.

B. The constitutional target.—Most, if not all, amendments heretofore introduced to reverse the reapportionment decisions begin their operative clauses with the phrase "Nothing in this Constitution shall prohibit * ***” or similar words. The adoption of such language would obviously insulate from judicial review not only those apportionments that depart from population equality on geographical and governmental unit grounds, but also any malapportionment which baldly discriminates on grounds of race, religion, or national origin, economic or occupa48-124-65-3

tional group, or which completely denies representation to important regions or interests within the State. There seems little question that such historically (and heretofore constitutionally) illegitimate criteria would be protected by such proposed amendments as "factors other than population" immune to attack under any other constitutional clause. What the draftsmen seem to have overlooked, to paraphrase John Marshall, is that it is a constitution—and not a statute-we are amending.

If the only objective were to overrule or qualify the June 1964 decisions of the Supreme Court, it might be enough to say simply "No legislative apportionment shall be held to deny the equal protection of the laws because ***." But such language seems not to go quite far enough. Some additional reference should be made to the provision of article IV, section 4 that "The United States shall guarantee to every State in this Union a Republican Form of Government." The reason for including reference to the guarantee clause is that, although the Supreme Court (as recently as Baker v. Carr) has consistently dismissed this clause "nonjusticiable" it might well be made justiciable in the future and the same result be reached under that clause as the Court reached on the equal protection clause in June 1964. Thus we advise express reference to both the equal protection and guarantee clauses. In any case, to prevent the many other forms of malapportionment that would be invited by so sweeping an introduction as "Nothing in this Constitution," we strongly suggest a much narrower opening phrase than has traditionally been used.

C. Legislative bodies affected. Our proposed draft is clearly concerned only with the apportionment of the State legislature. But the apportionment of at least two other bodies has also been affected by recent Supreme Court decisions, and some consideration should be given to those effects. First, there is the problem of equal-population apportionment of the U.S. House of Representatives required by Wesberry v. Sanders, 376 U.S. 1 (1964). This decision does not seem, however, to have evoked great dissatisfaction. Although it may create hardship for some States; e.g., Colorado, in the reshaping of congressional districts, the question whether it ought to be overruled by amendment seems entirely separate from the question now before us.

Less easily separable is the question of how the Supreme Court decisions affect apportionment of State subdivisions such as counties. There have already been several State court decisions in California dealing with county supervisorial districts; e.g., Griffin v. Supervisors of Monterey County, 36 Cal. Rptr. 616 (1964); Kingston v. Board of Supervisors of El Dorado County, 41 Cal. Rptr. 23 (1964). There have been similar decisions in other States, and undoubtedly a number of unreported trial court decisions and voluntary local actions under threat of litigation. Despite the seriousness of this problem for California and other States (see Stoffers, Reapportionment in California Counties, 4 Santa Clara Lawyer 201 (1964)), we have concluded that the problems are so diverse in different States that it would be rash to propose an amendment of general application without undertaking a much more extensive study of the problem than we have the resources to do. But we would be remiss in surveying the problem if we failed at least to advert to the sub-State level. Moreover, several of the amendments proposed during the 88th Congress did make specific reference thereto.

D. One house or two?-We, have already suggested that a departure from oneman-one-vote should be permitted in no more than one house. There is no need to repeat what has already been said in that connection. We raise the question again at this point because it has drafting implications. There seem to be two distinct ways of limiting the effect of the amendment to one house: either (a) to provide that one house may be apportioned on a nonpopulation basis, or that an apportionment shall not violate the applicable constitutionai provisions where that is done; or (b) to provide that one house must be apportioned on a basis roughly proportional to population-or that the apportionment will otherwise be invalid.

The differences between these two approaches are several. For one, there is the problem of the unicameral legislature. If the amendment permits nonpopulation apportionment of one house, the effect in a unicameral State will obviously be different from the consequence of requiring the one-man-one-rote principle in one house. But there is a third alternative which may avoid having to hang the unicameral body on either horn of this dilemma: to make specific rovision for the unicameral State. (See, e.g., S.J. Res. 185, 88th Cong. 2d Sess: there is only one house of the legislature then upon such combination