Thank you, Mr. Chairman.

Senator BAYH. Thank you very much, Mr. Greathouse.

Your statement certainly paints a vivid picture of the circumstances which brought about the Court's decision.

Also, you hit the nail on the head as far as I am concerned with the Federal analogy argument, which is a false argument.

We appreciate you taking your time to express your views and those of the United Automobile Workers.

Thank you.

Before we greet our next witness, I would like to include in the record the statement of our colleague, Senator John Sherman Cooper, and the statement of Congressman Robert Sweeney.

STATEMENT OF SENATOR JOHN SHERMAN COOPER

The Subcommittee on Constitutional Amendments has for its consideration four resolutions to amend the Constitution with respect to State legislative apportionment, viz, Senate Joint Resolution 2, introduced by Senator Dirksen; Senate Joint Resolution 37 and 38, introduced by Senator Church; and Senate Joint Resolution 44, introduced by Senator Javits. As a cosponsor of Senate Joint Resolution 2, I appreciate this opportunity to place my views on record. liscussing and analyzing the constitutional problem that these resolutions are designed to solve, I think it would be helpful to review the legal circumstances that have created a need for such an amendment.

In

In 1962, the Supreme Court in Baker v. Carr held that Federal district courts had jurisdiction of claims that State legislative apportionments are in violation of the 14th amendment, that resident voters have standing as plaintiffs to exert such a claim, and that such claims (which hithertofore had been regarded as political" questions) were "justiciable." It is interesting to note that the Court emanded the case without giving the district court any guidelines as to the form of judicial relief or judicial standards in applying the equal protection lause to the apportionment plan of the Tennessee Legislature. Speaking for he Court, Justice Brennan states:

"Beyond noting that we have no cause at this stage to doubt the district court will be able to fashion relief if violations of constitutional rights are found, it s improper now to consider what remedy would be most appropriate if appelants prevail at the trial."

Furthermore, the opinion does not provide a standard by which the district ourt could gage the constitutionality of a State reapportionment in terms of he 14th amendment. Justice Brennan speaks only in general terms of "arbirary" and "capricious" action:

"Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determination for which judicially manageable standards are acking. Judicial standards under the equal protection clause are well-developed and familiar, and it has been open to courts since the enactment of the 14th mendment to determine, if on the particular facts they must, that a discriminaion reflects no policy, but simply arbitrary and capricious action."

In a concurring opinion, Justice Douglas observes that it would not be constitutionally necessary for the Court to fashion a remedy or develop a specific standard. Justice Douglas implies that once a court has found a reapportionnent plan unconstitutional, such a determination would spur a State legislature nto reapportioning so as to avoid an at-large election. In his view, the Court would not have to concern itself with any other remedy, nor would it be required develop a specific standard. In a second concurring opinion, Justice Clark riticizes the majority view in its refusal to come to grips with the problems of indicial relief and constitutional standards:

"The Court holds that the appellants have alleged a cause of action. Howver, it refuses to award relief here-although the facts are undisputed-and fails to give the district court any guidance whatsoever."

The constitutional standard that he proposes is that of "invidious discriminaion," which discrimination is constitutionally impermissible when two factors are shown: (1) That a "classification" pattern exists, and (2) that the "classification" pattern is based on no rational or reasonable scheme or plan. He then

concludes that the apportionment of the Tennessee Legislature was a "ear quilt without rational basis" and, therefore, a violation of the equal protectio clause of the 14th amendment. In discussing the judicial remedy, Justice Clar rejects the theory that "numerical quality of representation throughout ↑ Š17 is constitutionally required" and goes on to say that he "would not conse intervention by this Court into so delicate a field if there were any other ri available to the people of Tennessee such as, for example, initiative referendum.

Two years later, in June of 1964, in a series of six decisions commencing w t Reynolds v. Sims, the Supreme Court rejected the test of reasonableness or rational basis of a State apportionment plan and laid down the constituti standard necessary to insure compliance with the 14th amendment by requ that both houses of a State legislature must be apportioned strictly on the e of population. In the Colorado case of Lucas v. 44th General Assemblu Court went one step further and held that as a matter of a voter's constitutia right, the population standard must be applied in any reapportionment r even in those situations where a majority of the people of a State in a referendvoted for a plan including factors other than population. In that case, " proposals were included on the ballot of November 1962, for the voters of Cr rado. One proposal provided that members of the State house of representati be elected on a strict population basis and for the members of the State to be elected on the basis of population with consideration given to geograpė. and economic factors. The second proposal provided for the election of members of both the house and the senate on a strict population basis. first proposal was approved by the voters by a majority slightly less than 2 The second proposal was defeated by a vote greater than 2 to 1. In addition first proposal was approved by a majority in every county in the State. the second proposal was rejected by every county in the State. In addit Colorado, the people of Michigan and California have also gone to the pu statewide elections and have voted against basing both houses of the legisin on population alone, even thought the urban residents in the latter two 8: far outnumber the rural population. Once having written the population ard of one man, one vote into the Constitution, the Colorado case m regarded as a logical extension of that doctrine. But in doing so, the Cor placed in the awkward position of acknowledging that a preponderance of " Colorado voters went to the polls-each person having one vote-to appre plan that would deny to themselves according to the decision the equal pro tion of the law under the 14th amendment. It seems to me appropriate any consideration of a constitutional amendment by this committee should cern itself with correcting the Reynolds v. Sims decision and to affirm the i of the electorate which was denied by the Court in the Colorado decision. me review my reasons.

The one-man, one-vote standard propounded by the Supreme Court ing rates the theory that compliance with the equal protection clause of the 1** amendment requires that each voter's vote be of equal weight with the vote (: other voters in all other areas of the State. This standard has the virt providing a certain mathematical simplicity or symmetry and, as Justice Str remarked, "of eighth-grade arithmetic." To support its decision in Reynold Sims, the majority opinion cites a line of cases involving issues relating to webm rights. In the words of Chief Justice Warren: "The right to vote freely the candidate of one's choice is of the essence of a democratic society and restrictions on that right strike at the heart of representative governmer The Court cites cases for the propositions that all qualified voters have right to have their votes counted, that this right cannot be abridged by "> alteration of their ballots, that gerrymandering on racial boundaries and w primaries deny citizens the right to vote. The Court reaffirms that the “jul focus must be concentrated on ascertaining whether there has been any crimination against certain of the State's citizens" which impairs their to vote. There can be no disagreement with these principles on my part. I have supported during my service in the Congress every legislative enact to secure to voters the right to vote without discrimination.

But in determining the apportionment of any State legislature, we are cerned also with the proposition of representative government itself. The t argues that equal protection is denied unless an arithmetically equal numbe people is represented by a member of the legislature. The foundation of ni”

ative government is that a government represents individuals and also is -erned with differing communities of interest. Representation of these vargroups is necessary to insure that legislatures be responsible to their total =tituencies-including all shades of minority opinion-rather than simply to e numbers which make up the majority. Nonpopulation apportionment is ned to provide such representation especially in terms of geographical Es and economic interests to an extent generally disproportionate to the ap's numerical size. Such a plan promotes legislative responsibility by grantthose segments of the population, which are commonly in the minority, some #ical security against the majority. For as John Stuart Mill pointed out, the itution of democratic government derives its authority from the consent of governed, and government by consent of the governed requires that no segt of a people should feel left out or apart from its governing body. A legislabody should not merely represent a numerical majority-which is constantly nging-but should reflect all the views and all the diverse elements of our ple. In this way, each of us may feel that his particular interest and concern iven some consideration in the formulation of legislative decisions. At the ce level, we elect a Governor as our chief executive, and it is through this -e that numerical majorities on a statewide basis exercise their voice. A slature on the other hand has the obligation of reflecting the qualitative racteristics of many viewpoints rather than the mere number or quantity of se viewpoints.

What the Supreme Court has done in these decisions is to write into the Constion its own theory of representative government. In this theory, members = State legislature represent alone a mathematical majority. This is but one many theories of representative government. Justice Stewart's penetrating lysis of this problem is worth noting:

My own understanding of the various theories of representative government hat no one theory has ever commanded unanimous assent among political ntists, historians, or others who have considered the problem. But, even if were thought that the rule announced today by the Court is, as a matter of itical theory, the most desirable general rule which can be devised as a basis the makeup of the representative assembly of a typical State, I could not n in the fabrication of a constitutional mandate which imports and forever ezes one theory of political thought into our Constitution, and forever denies every State any opportunity for enlightened and progressive innovation in e design of its democratic institutions, so as to accommodate within a system representative government the interests and aspirations of diverse groups of ple, without subjecting any group or class to absolute domination by a geoaphically concentrated or highly organized majority.

Representative government is a process of accommodating group interests rough democratic institutional arrangements. Its function is to channel the merous opinions, interests, and abilities of the people of a State into the makg of the State's public policy. Appropriate legislative apportionment, therefore, ould ideally be designed to insure effective representation in the various groups d interests making up the electorate. In practice, of course, this ideal is proximated in the particular apportionment system of any State by a realistic commodation of the diverse and often conflicting political forces operating thin the State." Carried to its logical conclusion, the most efficient method of applying the e-man, one-vote standard would be for members of both houses of a State gislature to run at large. In this way, each person's vote would have an absote mathematical weight equal to the weight of the vote of a person in any other art of the State. This would be numerical representation in its purest form. ut would it be representative government? I think not. Such a plan would mply provide for a rule by the majority with the result that local, sectional, minority interests would have no effective voice or representation in the legisature. The Court does not go this far, but in recognizing the importance of gislative geographical districts, the Court itself is introducing qualitative actors other than population statistics.

In the Colorado case, Justice Stewart in his dissenting opinion sets forth the onstitutional standard he would apply to apportionment cases in the application f the equal protection clause. He states:

"Moving from the general to the specific, I think that the equal protection clause emands 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 be such as not to permit the systematic frustration of the will of the majority of the cer torate of the State. I think it is apparent that any plan of legislative apportive ment which could be shown to reflect no policy, but simply arbitrary and pricious action or inaction, and that any plan which could be shown systematically to prevent ultimate effective majority rule, would be invalid under accepted equ protection clause standards. But, beyond this, I think there is nothing in I Federal Constitution to prevent a State from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its peopie. A constitutional amendment that would provide that one house of a legislatur be apportioned on factors other than population and also would provide for the approval of such a plan by a majority of the electorate would remedy the prewi situation. The important point to remember is that the ultimate control a decision should reside in the electorate of each State whether the electorate sho. 4 decide to apportion both houses on a strictly population basis or to apport, one house on other factors. I would like to turn for a moment to the way that y State solved this problem.

Section 33 of the Kentucky constitution provides certain criteria which Kentucky General Assembly is required to follow when considering any leg -a tion fixing the boundaries of State legislative districts. The provisions of sec 33 of the Kentucky constitution remain the same today as when that constitut: was adopted in 1891. The number of senatorial (38) and representative districts has remained fixed by the constitution over this period. In drafting a redistricting statute, the general assembly is required to give due considerat 1 to the population of a district, for the constitution provides that every lezisa.re district be as "nearly equal in population as may be." The political integrit the counties is preserved by the provision that a county may not be dieed except to include more than one district in that county. The general asset'i is limited as to the number of counties that may be included in a house of re sentative district in that "not more than two counties shall be joined togeth* to form a representative district." Where there is a disparity in populat ↑ between any two districts, recognition is given to the factor of size of the ang The constitution states that "if, in making said districts, inequality of populat 9 should be unavoidable, any advantage resulting therefrom shall be given to cz tricts having the largest territory." Thus, in any redistricting plan, the facter f population is of primary importance but due consideration must be gives " geographical area.

A reapportionment plan was enacted by the general assembly in February 1963. As a result of this legislation, urban and suburban representation in h the senate and the house of representatives were increased. For example, Jee son County, which includes the Louisville area, received 17 representative and 7 senate seats-an increase of 6 in the house of representatives and : 1 the senate. Fayette County, which includes Lexington, is the next most pere county in the State, and received four seats in the house of representative an increase of two-and two senate seats-an increase of one. In the be representatives, representation in rural districts was decreased by enlar the districts by incorporating additional counties. This is true in some li re sentative districts where, prior to the 1963 plan, each district included tw counties, and after, three or four counties. This reapportionment plan went ** effect for the first time in the 1963 election. Needless to say, there was : unanimous agreement on the plan. The urban areas felt that they should rec more seats in both houses, and residents of the rural areas were disappo2:4 that some of their districts were combined to form larger districts. No T of course, could satisfy everyone, but it is generally though that the final;" as adopted by the general assembly represented a reasonable balancing of th various interests. The important fact that I wish to emphasize is that the pe of Kentucky came to grips with this problem and made their own decision In conclusion, I wish to affirm my support for Senate Joint Resolution 2 whit would permit a State to apportion one house of its legislature on a basis than population provided that the apportionment plan shall have been sportTM. by a majority of the voters. My one reservation about this resolution concerns the first sentence, which could be construed to restrict the jurisdiction Federal courts to review apportionment cases. This subcommittee may wa consider whether the overall purpose of the proposed amendment might been be served by deleting this limitation from the resolution.

STATEMENT OF CONGRESSMAN ROBERT E. SWEENEY

Mr. Chairman, I am grateful for the opportunity of appearing before your subcommittee and being afforded the opportunity of commenting on the proposed amendments to the U.S. Constitution dealing with the apportionment of our State legislatures.

Mr. Chairman, I represent the people of the State of Ohio in the House of Representatives who, on May 4, 1965, by an overwhelming majority, rejected a proposal that was on the Ohio ballot, the effect of which would have been to apportion our State legislature on a basis other than population. This amendment, in my opinion, would have negated the Supreme Court's ruling and thereby nullified the Court's one-man, one-vote decision.

I am proud that the people of the State of Ohio disapproved issue No. 3 on the State ballot on May 4, and I regard their decision to reject that proposition as a mandate to me to reject the proposition incorporated in the Dirksen amendment.

Mr. Chairman, the people of my State have great faith and confidence in our ability to develop a representative assembly based upon population, which would give proper attention to the problems of our citizens residing in the rural

areas.

Our great Nation is undergoing change, and there is today a mass exodus from rural America into the metropolitan areas. Our cities and their surrounding suburbs now are the sites of the majority of our population. Yet, in spite of this trend, it would seem that the urban representatives to our State and National assemblies have given thorough and sympathetic attention to the plight and problems of those remaining in the rural areas.

I sense that our farm area people have nothing to fear if political power is hence shifted to those areas where our country has migrated. Thus, I believe that reapportioned legislatures can attend to the interest of rural minorities, and I cite the case of the great State of Wisconsin, which State's assembly has been reapportioned on the basis of population since the midfifties. Wisconsin has proven beyond doubt that amendments in legislative compositions can be made without prejudice to any area's interest.

Mr. Chairman, the Dirksen amendment, dictating as it does, a method to circumvent the order of the Supreme Court, is hardly in the public interest and would, if ever placed before the voters of the State of Ohio, suffer the same fate as the recent reapportionment issue which was overwhelmingly rejected. Accordingly, I urge the defeat of the Dirksen amendment now being considered by this subcommittee.

The next witness is Dr. Jefferson B. Fordham, of the Law School of the University of Pennsylvania.

Dean, we are honored that you would grace us with your presence. I understand you are operating on a rather tight time schedule. I will ask your permission to incorporate just prior to your presentation a biographical sketch of your many accomplishments.

STATEMENT OF JEFFERSON B. FORDHAM, DEAN, LAW SCHOOL, UNIVERSITY OF PENNSYLVANIA

Mr. FORDHAM. Thank you, Mr. Chairman. I should like to hand this little memorandum to a member of the staff and not burden you with it, if I might.

Senator BAYH. Most of us are very acquainted with your expertise, but for those who may not be, I am very glad to have it in the record. (The memorandum referred to is as follows:)

JEFFERSON B. FORDHAM

Dean and professor of law, University of Pennsylvania Law School since 1972; teacher and writer in the fields of legislation and local government law for many years; member Pennsylvania Commission on Constitutional Revisions, 1958-59; author of law school course book on local government law; coauthor