AMENDMENT OF FOREIGN ASSISTANCE ACT OF 1961

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• Publication Date: August 18, 1964
• Content Type: OPEN SOURCE

1964
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CONGRESSIONAL RECORD -- SENATE 19361
The mystery of the church is not a mere
object of theological knowledge; it is some-
thing to be lived.
This pas.qage, it seems to me, is pro-
foundly applicable to -all religious expe-
rience.
Near the beginning of the encyclical,
Pope Paul offers to assist as a mediator,
"where an opportunity presents itself," in
international conflicts, so that an hon-
orable peace may be secured; and toward
the conclusion, in writing of the dialog
he proposes, he urges "new fervor, new
themes and speakers."
Mr. President, in the highest traditions
of other great encyclicals, "Ecclesiam
Suam" contains a moving message for all
mankind.
The PRESIDING OFFICER (Mr.
EDMONDSON in the chair) . Is there fur-
ther morning business? If not, mo mg
business is closed.
lenging the apportionment of the Alabama
Legislature. Defendants below (appellants
in No. 23), sued in their representative ca-
pacities, were various state and political
party officials charged with the performance
of certain duties in connection with state
elections., The coMplaint alleged a depriva-
tion of rights under the Alabama Constitu-
tion and under the Equal Protection Clause
of the Fourteenth Amendment, and asserted
that the District Court had jurisdiction un-
der provisions of the Civil Rights Act, 42
U.S.C. ?? 1983, 1988, as well as Wider 28
U.S.C. ?1343(3).
The complaint 'stated that the Alabama
Legislature was composed of a Senate of 35
members and a House of Representatives of
106 members. It set out relevant portions
of the 1901 Alabama Constitution, which
prescribe the number of members of the
two bodies of the State Legislature and the
method of apportioning the seats among the
State's 67 counties, and provide as follows:
,"Art. IV, Sec. 50. The legislature shall con-
sist of not more than thirty-five senators
rid not more than one hundred and five
members of the house of representatives, to
be apportioned among the several districts
and counties, as prescribed in this Constitu-
tion; provided that in addition to the above
number of representatives, each new county
hereafter created shall be entitled to one
representatives.
"Art. IX, Sec. 197. The whole number of
senators shall be not less than one-fourth
or more than one-third of the whole number
of representatives.
"Art IX, Sec. 198. The house of representa-
tives shall consist of not more than one hun-
dred and five members, unless new counties
shall be created, in which event each new
county shall be entitled to one representa-
tive. The members of the house of repre-
sentatives shall be apportioned by the legis-
lature among the several counties of the
state, according to the number of inhabit-
ants in them, respectively, as ascertained by
the decennial census of the United States,
which apportionment, when made, shall not
be subject to alteration until the next ses-
sion of the legislature after the next decen-
nial census of the United States shall have
been taken.
"Art. IX, Sec. 199. It shall be the duty of
the legislature at its first session after the
taking of the decennial census of the United
States in the year nineteen hundred and ten,
and after each subsequent decennial census,
to fix by law the number of representatives
and apportion them among the several coun-
ties of the state, according to the number
of inhabitants in them, respectively; pro-
vided, that each county shall be entitled to
at least one representative.
"Art. IX, Sec. 200. It shall be the duty of
the legislattire at its first session after taking
of the decennial census of the United States
in the year nineteen hundred and ten, and
after each subsequent decennial census, to
fix by law the number of senators, and to
divide the state into as many senatorial dis-
tricts as there are senators, which districts
shall be as nearly equal to each other in the
number of inhabitants as may be, and each
shall be entitled to one senator, and no
more; and such districts, when formed, shall
not be changed until the next apportioning
session of the legislature, after the next
decennial census of the United States shall
have been taken; provided, that counties
created after the next preceding apportioning
AMENDMENT OF FOREIGN SI
ANC ACT OF 1961
The PRESIDING OFFICER. With-
out objection, the Chair lays before the
Senate the unfinished business, which
will be stated by title.
The LEGISLATIVE CLERK: A bill (H.R.
11380) to amend further the Foreign As-
sistance Act of 1961, as amended, and for
other purposes.
The Senate resumed the consideration
of the bill.
Mr. NELSON. Mr. President, I intend
to discuss this morning the case of Rey-
nolds against Sims. The decision was
written by Chief Justice Earl Warren.
In discussing the Supreme Court deci-
sion with a number of people in my State,
and in looking at my Mail, it is perfectly
clear that there is a widespread misun-
derstanding of what the Supreme Court
said in the carsi. of Reynolds 'against Sims.
It seems to me that the RECORD ought
to be clear as to the basis on which the
Supreme Court made its decision. It is
a very compelling argument. It should
be made a part of the RECORD. And I
Intend to read the Supreme Court deci-
sion into the RECORD, making appropriate
comments as I go along.
Mr. Chief Justice Warren delivered the
opinion of the Court in this case in the
- October term, 1963. It reads:
Involved in these eases are an appeal and
two cross-appeals from a decision of the Fed-
eral District Court for the Middle District
of Alabama holding invalid, under the Equal
Protection Clause of the Federal Constitu-
tion, the existing and two legislatively pro-
posed plans for the apportionment of seats
in the two houses of the Alabama Legisla-
ture, and ordering into effect a temporary
reapportionment plan comprised of parts of
the proposed but judicially disapproved
measures?
On August 26, 1961, the original plaintiffs
(appellees in No. 23), residents, taxpayers
,and voters of Jefferson County, Alabama,
filed a complaint in the United States Dis-
trict Court for the Middle District of Ala-
bama, in their own behalf and on behalf of
all similarly situated Alabama voters, chal-
I Sims v. Frink, 208 F. Supp. 431 (D.C.M.D.
Ala. 1962). All decisions of the District
Court in this litigation are reported sub nom.
Sims V. Frink.
2 included among the defendants were the
Secretary of State and the Attorney Gen-
eral of Alabama, the Chairmen and Secre-
taries of the Alabama State Democratic Ex-
ecutive Committee and the State Republican
Executive Committee, and three Judges of
Probate of three counties, as representatives
of all probate judges of Alabama.
session of the legislature may be attached
to senatorial districts. No county shall be
divided between two districts, and no dis-
trict shall be made up of two or more coun-
ties not contiguous to each other.
"Art. XVIII, Sec. 284. ? * Representa-
tion in the legislature shall be based upon
population, and such basis of representation
shall not be changed by constitutional
amendments."
The maximum size of the Alabama House
Was increased from 105 to 106 'with the crea-
tion of a new county in 1903, pursuant to
the constitutional provision which states
'that, in addition to the prescribed 105 House
seats, each county thereafter created shall
be entitled to one representative. Article
IX, sections 202 and 203, of the Alabama
Constitution established precisely the bound-
aries of the State's senatorial and represent-
ative districts until the enactment of a new
reapportionment plan by the legislature.
These 1901 constitutional provisions, spe-
cifically describing the composition of the
senatorial districts and detailing the number
of House seats allocated to each county, were
periodically enacted as statutory measures
by the Alabama Legislature, as modified only
by the creation of an additional county in
1908, and provided the plan of legislative
apportionment existing at the time this liti-
gation was commenced.,
Plaintiffs below alleged that' the last ap-
portionment of the Alabama Legislature was
'based on the 1900 federal census, despite the
requirement of the State Constitution that
the legislature be reapportioned decennially.
They asserted that, since the population.
-growth in the State from 1900 to 1960 had
been uneven, Jefferson and other counties
were now victims of serious discrimination
with respect to the allocation of legislative
representation. As a result of the failure
of the legislature to reapportion itself, plain-
tiffs aasserted, they were denied "equal suf-
frage in free and equal elections ? * * and
the equal protection of the laws" in violation
of the Alabama Constitution and the Four-
teenth Amendment to the Federal Constitu-
tion. The complaint asserted that plaintiffs
had no other adequate remedy, and that
they had exhausted all forms of relief other
than that available through the federal
courts. They alleged that the Alabama
Legislature had established a pattern of pro-
longed inaction from 1911 to the present
which "clearly demonstrates that no reap-
portionment * ? ? shall be effected"; that
representation at any future constitutional
convention would be established by the legis-
lature, making it unlikely that the member-
ship of any such convention would be fairly
representative; and that, while the Alabama
Supreme Court had found that the legisla-
ture had not complied with the State Con-
stitution in failing to reapportion according
to population decenially,4 that court had
nevertheless indicated that it would not
interfere with matters of legislative reap-
portionment.,
Provisions virtually identical to those
contained in Art. IX, secs. 202 and 203, were
enacted into the Alabama Codes of 1907 and
1923, and were most recently reenacted as
statutory provisions in secs. 1 and 2 of title
32 of the 1940 Alabama Code (as recompiled
in 1958) .
See Opinion of the Justices, 263 Ala. 158,
164, 81 So. 2d 881, 887 (1955), and Opinion of
the Justices, 254 Ala. 185, 187, 47 So. 2d 714,
717 (1950), referred to by the District Court
in its preliminary opinion. 205 F. Supp., at
247.
a See Ex parte Rice, 143 So. 2d 248 (Ala.
Sup. Ct. 1962), where the Alabama Supreme
Court, on May 9, 1962, subsequent to the
District Court's preliminary order in the in-
stant litigation as well as our decision in
Baker v. Carr, 369 U.S. 186, refused to review
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19362 CONGRESSIONAL RECORD ? SENATE
Plaintiffs requested taht a three-judge Dis-
trict Court be convened? With respect to
relief, they sought a declaration that the
existing constitutional and statutory pro-
visions, establishing the present apportion-
ment of seats in the Alabama Legislature,
were unconstitutional under the Alabama
and Federal Constitutions, and an injunction
against the holding of future elections for
legislators until the legislature reapportioned
itself in accordance with the State Consti-
tUtion. They further requested the issuance
of a mandatory injunction, effective until
such time , as the legislature properly reap-
portioned, requiring the conducting of the
1962 election for legislators at large over the
entire State, and any other relief which "may
seem just, equitable and proper."
? A three-judge District Court was convened,
and three groups of voters, taxpayers and
residents of Jefferson, Mobile, and Etowah
Counties were permitted to intervene in the
action as intervenor-plaintiffs. Two of the
groups are cross-appellants in Nos. 27 and 41.
With minor exceptions, all of the intervenors
adopted the allegations of -and sought the
same relief as the original plaintiffs.
On March 29, 1962, just three days after
this Court had decided Baker v. Carr, 369
U.S. 186, plaintiffs moved for a preliminary
injunction requiring defendants to conduct
at large the May 1962 Democratic primary
election and the November 1962 general elec-
tion for members of the Alabama Legislature.
The District Court set the motion for hear-
ing in an order stating its tentative views
that an injunction was not required before
the May 1962 primary election to protect
plaintiffs' constitutional rights, and that the
Court should take no action which was not
"absolutely essential" for the protection of
the asserted constitutional rights, before the
Alabama Legislature had had a "further
reasonable but prompt opportunity to comply
with its duty" under the Alabama Constitu-
tion.
On April 14, 1962, the District Court, after
reiterating the views expressed in its earlier
order, reset the case for hearing on July 16,
noting that the importance of the case, to-
gether with the necessity for effective action
within a limited period of time, required an
early announcement of its views. 205 F.
Supp. 245. Relying on our decision in Baker
V. Carr, the Court found jurisdiction, justi-
ciability and standing. It stated that it was
taking judicial notice of the facts that there
had been population changes in Alabama's
counties since 1901, that the present repre-
sentation in the State Legislature was not
on a population basis, and that the legisla-
ture had never reapportioned its member-
ship as required by the Alabama Constitu-
tion? Continuing, the Court stated that if
the legislature complied with the Alabama
constitutional provision requiring legislative
representation to be based on population
a denial of injunctive relief sought against
the conducting of the 1962 primary election
until after reapportionment of the Alabama
Legislature, stating that "this matter is a
legislative function, and * ? * the Court has
no jurisdiction." And in Waid v. Pool, 255
Ala. 441, 51 So. 2d 869 (1951) , the Alabama
Supreme Coourt, in a similar suit, had stated
that the lower court had properly refused to
grant injunctive relief because "appellants
* * * are seeking interference by the ju-
dicial department of the state in respect to
matters committed by the constitution to the
legislative department." 255 Ala. at 442, 51
So. 2d, at 8'70.
6 Under 28 U.S.C. ? ? 2281 and 2284.
During the over 60 years since the last
substantial reapportionment in Alabama, the
State's population increased from 1,828,697 to
3,244,286. Virtually all of the population
gain occurred in urban counties, and many
of the rural counties incurred sizable losses
in population?
_there could be no objection on federal consti-
tutional grounds to such an apportionment.
The Court further indicated that, if the
legislature failed to act, or its actions did not
meet constitutional standards, it would be
under a "clear duty" to take some action on
the matter, prior to the November 1962 gen-
eral election. The District Court stated that
its "present thinking" was to follow an ap-
proach suggested by Mr. Justice Clark in his
concussing opinion in Baker v. Carr 8?award-
ing seats released by the consolidation or re-
vamping of existing districts to counties suf-
fering "the most egregious discrimination,"
thereby releasing the strangle hold on the
legislature sufficiently so as to permit the
newly elected body to enact a constitution-
ally valid and permanent reapportionment
plan, and allowing eventual dismissal of the
case. Subsequently, plaintiffs were permitted
to amend their complaint by adding a fur-
ther prayer for relief, which asked the Dis-
trict Court to reapportion the Alabama Leg-
islature provisionally so that the rural
strangle hold would be relaxed enough to per-
mit it to reapportion itself; ,
On July 12, 1962, an extraordinary session
of the Alabama Legislature adopted two reap-
portionment plans' to take effect for the
1966 elections. One was a proposed Consti-
tutional amendment, referred to as the "67-
Senator Amendment."6 It provided for a
House of Representatives consisting of 106
members, apportioned by giving one seat to
each of Alabama's 67 counties and distribut-
ing the others according to population by the
"equal proportions" method." Using this
formula, the constitutional amendment spe-
cified the number of representatives allotted
to each county until a new apportionment
could be made on the basis of the 1970 cen-
sus. The Senate was to be composed of 67
members, one from each county. The leg-
islation provided that the proposed amend-
ment should be submitted to the voters for
ratification at the November 1962 general
election.
The other reapportionment plan was em-
bodied in a statutory measure adopted by the
legislature and signed into law by the Ala-
bama Governor, and was referred to as the
"Crawford-Webb Act." 11 It was enacted as
standby legislation to take effect in 1966 if
the proposed constitutional amendment
should fail of passage by a majority of the
State's voters, or should the federal courts
refuse to accept the proposed amendment
(though not rejected by the voters) as ef-
fective action in compliance with the re-
quirements of the Fourteenth Amendment.
The act provided for a Senate consisting of
35 members, representing 35 senatorial dis-
tricts established along county lines, and
altered only a few of the former districts.
In apportioning the 106 seats in the Alabama
House of Representatives, the statutory
measure gave each county one seat, and ap-
portioned the remaining 39 on a rough popu-
8 See 369 U.S., at 260 (Clark, J., concur-
ring) .
Proposed Constitutional Amendment No.
1 of 1962, Alabama Senate Bill No. 29, Act
No. 93, Acts of Alabama, Special Session,
1962, p. 124. The text of the proposed
amendment is set out as Appendix B to the
lower court's Opinion. ,208 F. Supp., at 443-
444.
18 For a discussion of this method of ap-
portionment, used in distributing seats in
the Federal House of Representatives among
the States, and other commonly used appor-
tionment methods, see Schmeckebier, The
Method of Equal Proportions, 17 Law and
Contemp. Prob. 302 (1952) .
11 Alabama Reapportionment Act of 1962,
Alabama House Bill No. 59, Act No. 91, Acts
of Alabama, Special Session, 1962, p. 121. The
text of the act is reproduced as Appendix C
to the lower court's opinion. 208 F. Supp.,
at 445-446.
- August 18
lotion basis, under a formula requiring in-
creasingly more population for a county to
be accorded additional seats. The Craw-
ford-Webb Act also provided that it would
be effective "until the legislature is reap-
portioned according to law," but provided no
standards for such a reapportionment. Fu-
ture apportionments would presumably be
based on the existing provisions of the Ala-
bama Constitution which the statute, unlike
the proposed constitutional amendment,
would not affect.
The evidence adduced at trial before the
three-judge panel consisted primarily of fig-
ures showing the population of each Ala-
bama county and senatorial district accord-
ing to the 1960 census, and the number of
representatives allocated to each county un-
der each of the three plans at issue in the
litigation?the existing apportionment (un-
der the 1901 constitutional provisions and
the current statutory measures substantial=
ly reenacting the same plan), the proposed
67-Senator constitutional amendment, and
the Crawford-Webb Act.. Under ? all three
plans, each senatorial district would be rep-
resented by only one senator.
On July 21, 1962, the District Court held
that the inequality of the existing represen-
tation in the Alabama Legislature violated
the Equal Protection Clause of the Four-
teenth Amendment, a finding which the
Court noted had been "generally conceded"
by the parties to the litigation, since popula-
tion growth and shifts had converted the
1901 scheme, as perpetuated some 60 years
later, into an invidiously discriminatory plan
completely lacking in rationality. 208 F.
Supp. 431. Under the existing provisions,
' aplying 1960 census figures, only 25.1% of
the State's total population resided in dis-
tricts represented by a majority of the mem-
bers of the Senate, and only 25.7% lived in
counties which could elect a majority of the
members of the House of Representatives.
Population-variance ratios of up to about 41-
to-1 existed in the Senate, and up to about
16-to-1 in the House. Bullock County, with
a population of only 13,462, and Henry
County, with a population of only 15,286,
each were allocated two seats in the Alabama
House, whereas Mobile County, with a popu-
lation of 314,301, was given only three seats,
and Jefferson County, with 634,864 people,
had only seven representatives.12 With re-
spect to senatorial apportionment, since the
pertinent Alabama constitutional provisions
had been consistently construed as prohibit-
ing the giving of more than one SOnate seat
to any one county," Jefferson County, with
" A comprehensive chart showing the rep-
resentation by counties in the Alabama House
of Representatives under the existing appor-
tionment provisions is set out as Appendix
D to the lower court's opinion. 208 F. Supp.,
at 447-449. This chart includes the number
of House seats given to each county, and the
populations of the 67 Alabama counties under
the 1900, 1950, and 1960 censuses.
"8 Although cross-appellants in No. 27 assert
that the Alabama Constitution forbids the
division of a county, in forming senatorial
districts, only when one or both pieces will
be joined with another county to form a
multicounty district, this view appears to be
eontrary to the language Of Art. IX, t 200,
of the Alabama Constitution and the practice
under it. Cross-appellants contend that
counties entitled by population to two or
more senators can be split into the appro-
priate number of districts, and argue that
prior to the adoption of the 1901 provisions
the Alabama Constitution so provided and
there is-no reason to believe that 'the lan-
guage of the present provision was intended
to effect any change. However, the only ap-
portionments under the 1901 Alabama Con-
stitution?the 1901 provisions and the Craw-
ford-Webb Act?gave no more than one seat
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1964
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CONGRESSIONAL RECORD ? SENATE 19363
over 600,000 people, was given only one sen-
ator,- as was Lowndes County, with a 1960
population of only 15,417, and Wilcox County,
with only 18,739 people."
The Court then considered both the pro-
posed constitutional amendment and the
Crawford-Webb Act to ascertain whether the
legislature had taken effective action to
remedy the unconstitutional aspects of the
existing apportionment. In initially sum.;
marizing the result which it had reached,
the Court stated:
"This Court has reached the conclusion
that neither the '67-Senator Amendment' nor
the 'Crawford-Webb Act' meets the neces-
sary constitutional requirements. We find
that each of the legislative acts, when con-
sidered as a whole, is so obviously discrimina-
tory, arbitrary and irrational that it becomes
unnecessary to pursue a detailed develop-
ment of each of the relevant factors of the
[federal constitutional] test." 15
The Court stated that the apportionment
of the senator to each county, under the
proposed constitutional amendment, would
"make the discrimination in the Senate even
more invidious than at present." Under the
67-Senator Amendment, as pointed out by
the court below, "the present control of the
Senate by members representing 25.1 percent
of the people of Alabama would be reduced
to control by members representing 19.4 per-
cent of the people of the State," the 34 small-
est counties, with a total population of less
than that of Jefferson County, would have
a majority of the senatorial seats, and sena-
tors elected by only about 14 percent of the
State's population could prevent the sub-
mission to the electorate of any future pro-,
posals to amend the State Constitution (since
a vote of two-fifths of the members of one
house can defeat a proposal to amend the
Alabama Constitution) .
Mr. PROXMIRE. Mr. President, will
the Senator yield?
Mr. NELSON. I yield.
Mr. PROXMIRE. Mr. President, first
I commend my colleague from Wisconsin
for reading this landmark decision into
the RECORD, because it is such a master-
ful and brilliant work by Chief _Justice
Warren, who wrote the majority opinion.
Second, I should like to ask my colleague,
in view of what he has read from the
Supreme Court's views on what the Ala-
bama Legislature proposed, whether
this is not an excellent answer to
the arguments that have been made, in-
cluding the argument that was made
? earlier today by the Senator from
Nebraska [Mr. Cuaris], that all we need
do is to leave this question to the States
and the States will solve their problems;
that they will provide for a constitutional
reapportionment according to their own
State constitutions. Is it not true in
this particular case that' not only did
Alabama, after 60 years, not take care
of the situation, but that the Alabama
Legislature proposed two acts which
would have made the situation even less
fair?
Mr. NELSON. The Senator is ab-
solutely correct. One thing that is not
to a county even though by population sev-
eral counties would have been entitled to
additional senatorial representation.
" A chart showing the composition, by
counties, of the 35 senatorial districts pro-
vided for under the existing apportionment,
and the_population of each according to the
1900, 1950, and 1960 censuses, is reproduced
as Appendix E to the lower court's opinion.
208 F. Supp., at 450.
'5208 F. Supp., at 437.
understood across the country is that
this landmark decision relates to a case
in which the Alabama constitution itself
provided for a population apportion-,
ment. That was a constitution adopted
by the people of Alabama. But for 60
years, the Alabama Legislature refused
to reapportion itself, until a stage was
reached where 25 percent of the people
were electing more than 50 percent of the
representatives. The legislature simply
refuses to comply with Alabama's own
constitution. This is not a case in which
the Supreme Court of the United States
was upsetting the constitution of a State;
this is a case in which the Supreme Court
in fact upheld the constitution of the -
State of Alabama.
Mr. PROXMIRE. That point is high-
ly important. It is easy for us in con-
sidering these cases to argue that the
Supreme Court is moving in on a State
supreme court or is moving in on a State
legislature, disregarding the Prudent ac-
tion by a State legislature. The facts
that the Senator from Wisconsin has
just given to the Senate by reading the
decision of Chief Justice Warren seem to
me to be absolutely unanswerable. I
do not know how anyone who really be-
lieves in fair representation, even if he
does not accept the principle of one man,
one vote, but feels there should be some
kind of balance, as some like to put it,
could possibly accept as a fair basis for
representation what the Alabama legis-
lature provided as a solution. What
other remedy; was there for Alabama
citizens except the U.S. Supreme Court?
The State supreme court had refused to
act.
The service the Senator from Wiscon-
sin is performing today is most helpful.
I hope that Senators who are at all in-
terested in the subject will take the time
to read the decision which the Senator
from Wisconsin is placing in the,REcom
Without a knowledge of what Chief Jus-
tice Warren is saying in this crucial deci-
sion, it is difficult to evaluate the Dirksen
amendment.
Mr. NELSON. I thank the Senator.
It is interesting to note also that under
the proposed apportionment State sena-
tors representing only 14 percent of the
people of the State of Alabama could pre-
vent any constitutional amendment from
being submitted to the people of that
State. The Supreme Court of the United
States, far from taking rights away, was
implementing the rights of the people
of Alabama. It was the legislature itself,
controlled by a small percentage of mem-
bers, which was effectively denying to
the majority of the people of Alatkama
their rights.
I should think the peonle of this coun-
try would welcome the opportunity that
the Supreme Court gives them in this
case to take control of their own legis-
lative situation. In this particular case
the people were being deprived of their
constitutional rights by the legislature.
Mr. PROXMIRE. The Senator is cor-
rect. We are inclined to overlook the
fact that whereas members of State legis-
latures?and the junior Senator from
Wisconsin served for 10 years in the
legislature of Wisconsin?are, by and
large, fine, thoughtful people, still this
apportionment problem is a subject that
-directly affects their own particular in-
terests. It affects their own careers. It
affects the careers of their friends, and
those with whom they have served in
State legislatures for a long time. So
they are very strongly inclined to resist
a change. Whereas in many other cases
they would be perfectly openminded and
fairminded, acting in the interests of the
whole State, when it comes to reappor-
tionment and a change in which the
makeup of their own legislative body
could be made more representative, the
human element enters. It is a perfectly. -
natural, predictable human element.
Thus it can be seen that what the Ala-
bama Legislature did in this case will be
reflected in the actions at the legislatures
of most other States.
The junior Senator from Wisconsin
knows this well, because he served for 10
years as a State senator and also served
4,years as Governor of Wisconsin, he was
in the middle of the difficult, complicated
problem of the reapportionment of the
Wisconsin legislature. We had every ad-
vantage in Wisconsin, because there was
a tradition of apportionment in our State
to remove the inequity. In spite of that,
the Senator knows how difficult it was to
get action, finally, in Wisconsin. It was
necessary to rely on an outside body hav-
ing some objectivity?our State supreme
court?before we could get a favorable
decision and provide equal representa-
tion in Wisconsin.
Mr. NELSON. That is correct. I fin.-
ther point out?and I think the public
should understand this?that the pro-
posed apportionment was in violation of
the Alabama constitution. Eighty-six
percent of the people of Alabama could
desire an opportunity to be represented
on a population basis under their consti-
tution or could desire a constitutional
amendment; yet Senators representing
14 percent of the people could deny that
opportunity. The only remedy the peo-
ple of Alabama had was to apply to the
U.S. Supreme Court. Otherwise, this sit-
uation could have continued for endless
years in violation of the Alabama con-
stitution.
I continue to read:
Noting that the "only conceivable ration-
alization" of the senatorial apportionment
scheme is that it was based on equal repre-
sentation of political subdivisions within the
State and is thus analogous to the Federal
Senate, the District Court rejected the anal-
ogy on the ground that Alabama counties are
merely involuntary political units of the
State created by statute to aid in the admin-
istration of State government. In finding
the so-called Federal analogy irrelevant, the
District Court stated:
"The analogy cannot survive the most
superficial examination into the history of
the requirement of the Federal Constitution
and the diametrically opposing history of the
requirement of the Alabama constitution
that representation shall be based on popula-
tion. Nor can it survive a comparison of the
different political natures of States and
counties." 18
The Court also noted that the senatorial
apportionment proposal "may not have com-
plied with the State Constitution," since not
only is it explicitly provided that the popu-
lation basis of legislative representation
"shall not be changed by constitutional
"Id., at 438.
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19364 CONGRESSIONAL RECORD ? SENATE
amendments," but the Alabama Supreme
Court had previously indicated that that
requirement could probably be altered only
by constitutiOnal convention." The Court
concluded, however, that the apportionment
of seats in the Alabama House, under the
proposed constitutional amendment, was
"based upon reason, with a rational regard
for known and accepted standards of appor-
tionment." " Under the proposed appor-
tionment of representatives, each of the 67
counties was given one seat and the remain-
ing 39 were allocated on a population basis.
About 43% of the State's total population
would live in counties which could elect a
majority in that body. And, under the pro-
visions of the 67-SenatOr Amendment, while
the maximum population-variance ratio was
increased to about 39-to-1 in the Senate, it
was significantly reduced to about 4.7-to-1
in the House of Representatives. Jefferson
County was given 17 House seats, an addi-
tion of 10, and Mobile County was allotted
eight, an increase of five. The increased rep-
resentation of the urban counties was
achieved primarily by limiting the State's
55 least populous counties to one House seat
each, and the net effect was to take 19 seats
away from rural counties and allocate them
to the more populous counties. Even so,
serious disparities from a population-based
standard remained. Montgomery County,
with 169,210 people, was given only four
seats, while Coosa County, with a population
of only 10,726, and Cleburne County, with
only 10,911, were each allocated one repre-
sentative.
Turning next to the provisions of the Craw-
ford-Webb Act, the District Court found
that its apportionment of the 106 seats in
the Alabama House of Representatives, by
allocating one seat to each county and dis-
tributing the remaining 39 to the more popu-
lous counties in diminishing ratio to their
populations, was "totally unacceptable."20
Under this plan, about? 37% of the State's
total population would reside in counties
electing a majority of the members of the
Alabama House, with a maximum popula-
tion-variance ratio of about 5-to-1. Each
representative from Jefferson and Mobile
= According to the District Court, in the
interval between its preliminary order and
its decision on the merits, the Alabama Leg-
islature, despite adopting this constitutional
amendment proposal, "refused to inquire of
the Supreme Court of the State of,Alabama
whether this provision in the Constitution of
the State of Alabama could be changed by
constitutional amendment as the '67-Senator
Amendment' proposes." 208 F. Supp., at
437.
" At least this is the reading of the Dis-
trict Court of two somewhat conflicting de-
cisions by the Alabama Supreme Court, re-
sulting in a "manifest uncertainty of the
legality of the -proposed constitutional
amendment, as measured by State stand-
ards * ? *." 208 F. Supp., at 438. Compare
Opinion of the Justices, 254 Ala. 183, 184,
47 So. 2d 713, 714 (1950) with Opinion of the
Justices, 263 Ala. 158, 164, 81 So. 26 881, 887
(1955).
1? See the later discussion, infra, at ?, and
note 68, infra, where we reject the lower
court's apparent conclusion that the appor-
tionment of the Alabama House, under the
67-Senator Amendment, comported with the
requirements of the Equal Protection Clause.
20 While no formula for the statute's ap-
portionment of representatives is expressly
stated, one can be extrapolated. Counties
with less than 45,000 people are given one
seat; those with 45,000 to 90,000 receive two
seats; counties with 90,000 to 150,000, three
seats; those with 150,000 to 300,000, four
seats; counties with 300,000 to 600,000, six
seats; and counties With over 600,000 are
given 12 seats.
Counties would represent over 52,000 persons
while representatives from eight ruralicoun-
ties would each represent less than 20,000
people. The Court regarded the senatorial
apportionment provided in the Crawford-
Webb Act as "a step in the right direction,
but an extremely short step," and but a
"slight improvement over the present sys-
tem of representation." 21 The net effect of
combining a few of the less populous coun-
ties into two-county districts and splitting
up-several of the larger districts into smaller
ones would be merely to increase the minor-
ity which would be represented by a majority
of the members of the Senate from 25.1%
to only 27.6% of the State's population."
The Court pointed out that under the Craw-
ford-Webb Act, the vote of a person in the
senatorial district consisting of Bibb and
Perry Counties would be worth 20 times that
of a citizen in Jefferson County, and that
the vote of a citizen in the six smallest dis-
tricts would be worth 15 or more times that
of a Jefferson County voter. The Court con-
cluded that the Crawford-Webb Act was
"totally unacceptable" as a "piece of per-
manent legislation" which, under the Ala-
bama Constitution, would have remained in.
effect without alteration at least until after
the next decennial census.
Under the detailed requirements of the
various constitutional provisions relating to
the apportionment of seats in the Alabama
Senate and House of Representatives, the
Court found, the membership of neither
house can be apportioned solely on a popula-
tion basis, despite the provision in Art.
XVIII, ? 284, which states that "representa-
tion in the legislature shall be based upon
population." In dealing with the conflict-
ing and somewhat paradoxical requirements
(under which the number of seats in the
House is limited to 106 but each of the 67
counties is required to be given at least one
representative, and the size of the Senate
is limited to 35 but it is required to have at
least one-fourth of the members of the
House, although no county can be given
more than one senator), the District court
stated its view that "the controlling or
dominant provision of the Alabama Consti-
tution on the subject of representation in
the Legislature" is the previously referred
to language of ? 284. The Court stated that
the detailed requirements of Art. IX, ?? 197-
200, "make it obvious that in neither the
House nor the Senate can representation
be based strictly and entirely upon popula-
tion. The result may well be that repre-
sentation according to population to some
extent -must be required in both Houses if
invidious discrimination in the legislative
systems as a whole is to be avoided. - In-
deed ? * ? it is the policy and theme of
the Alabama Constitution to require rep-
resentation according to population in both
Houses as nearly as may be, while still com-
plying with more detailed provisions." "
The District Court then directed its con-
cern to the providing of an effective remedy
It indicated that it was adopting and order-
ing into effect for the November.1962 elec-
Appendix F to the lower court's opin-
ion sets out a chart showing the populations
of the 35 senatorial districts provided for
under the Crawford-Webb Act and the com-
position, by counties, of the various districts.
208 F. Supp., at 451.
" Cross-appellants in No. 27 assert that
the Crawford-Webb Act was a "minimum-
change measure" which merely redrew new
senatorial district lines around the nominees
of the May 1962 Democratic primary so as
to retain the seats of 34 of the 35 nominees,
and resulted, in practical effect, in the shift
of only one Senate seat from an overrep-
resented district to another underpopulated,
newly created district.
208 F. Supp., at 439.
August 18
tion a provisional and temporary reappor-
tionment plan composed of the provisions
relating to the House of -Representatives
contained in the 67-Senator Amendment
and the provisions of the Crawford-Webb
Act relating to the Senate. The Court noted,
however, that "the proposed reapportion-
ment of the Senate in .the 'Crawford-Webb
Act,' unacceptable as a piece of permanent
legislation, may not even break the strangle
hold." Stating that it was retaining juris-
diction and deferring any hearing on plain-
tiffs' motion for a permanent injunction
"until the Legislature, as provisionally re-
apportioned * ? * has an opportunity to
provide for a true reapportionment of both
Houses of the Alabama Legislature," the
Court emphasized that its "moderate" action
was designed to break the strangle hold by
the smaller counties on the Alabama Legis-
lature and would not suffice as a permanent
reapportionment. On July 25, 1962, the
Court entered its decree in accordance with
its previously stated determinations, con-
cluding .that "plaintiffs * ? are denied
* * * equal protection ? ? ? by virtue of
the debasement of their votes since the Leg-
islature of the State of Alabama has failed
and continues to fail to reapportion itself, as
required by law." It enjoined the defendant
state officials from holding any future elec-
tions under any of the apportionment plans
that it had found invalid, and stated that the
1962 election of Alabama legislators could
validly be conducted only under the appor-
tionment scheme specified in the Court's
order.
After the District Court's decision, new
primary elections were held pursuant to leg-
islation enacted in 1962 at the same special
session as the proposed constitutional
amendment and the Crawford-Webb Act,
to be effective in the event the Court itself
ordered a particular reapportionment plan
into immediate effect. The November 1962
general election was likewise conducted on
the basis of the District Court's ordered ap-
portionment of legislative seats, As Mr. Jus-
tice Black refused to stay the District Court's
order. Consequently, the preient Alabama
Legislature is apportioned in accordance 'with
the temporary plan prescribed by the District
Court's decree. All members of 'both houses
of the Alabama Legislature serve four-year
terms, so that the next regularly scheduled
election of legislators will not be held until
1966. The 1963 regular session of the Ala-
bama Legislature produced no legislation re-
lating to legislative apportionment= and the
legislature, which meets biennially, will not
hold another regular session until 1965.
No effective political remedy to obtain relief
against the alleged malapportionment of the
Alabama Legislature appears to have been
available." No initiative procedure exists
under Alabama law. Amendment of the
State Constitution can be achieved Only' after
a proposal is adopted by three-fifths of the
members of both houses of the legislature
= Possibly this resulted from an under-
standable desire on the part of the Alabama
Legislature to await a final determination by
this Court in the instant litigation before
proceeding to enact a permanent apportion-
ment plan.
" However, a proposed constitutional
amendment, which would have made the
Alabama House of Representatives some-
what more representative of population
but the Senate substantially less so, was re-
jected by the 'people in a 1956 referendum,
with the more populous counties accounting
for the defeat.
See the discussion in Lucas V. The Forty-
Fourth General Assembly of the State of
Colorado, ? U.S. ?, decided also
this date, with respect to the lack of federal
constitutional significance of the presence
or absence of an available political remedy.
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, CONGRESSIONAL RECORD ? SENATE
and is approved by a majority of the people,28
or as a result of a constitutional convention
convened after approval by the people of a
convention call initiated by a majority of
both houses of the Alabama Legislature?,
Notices of appeal to this Court from the
District Court's decision were timely filed by
defendants below (appellants in No. 23) and
by two groups of intervenor-plaintiffs (cross-
appellants in Nos. 27 and 41). Appellants in
No. 23 contend that the District Court erred
in holding the existing and the two proposed
plans for the apportionment of seats in the
Alabama Legislature unconstitutional,' and
that a federal court lacks the power to affirm-
atively reapportion seats in a state legisla-
tine. Cross-appellants in No. 27 assert that
the court below erred in failing to compel
reapportionment of the Alabama Senate on a
population basis as allegedly required by the
Alabama Constitution and the Equal Pro-
tection Clause of the Federal Constitution.
Cross-appellants in No. 41 contend that the
District Court should have required and
ordered into effect the apportionment of seats
in both houses of the Alabama Legislature
on a population basis. We noted probable
jurisdiction on June 10, 1963. 374 U.S. 802.
Undeniably the Constitution of the United
States protects the right of all qualified citi-
zens to vote, in State as well as in Federal
elections. A consistent line of decisions by
this Court in cases involving attempts to deny
or restrict the right of suffrage has made this
indelibly clear. It has been repeatedly rec-
ognized that all qualified voters have a con-
stitutionally protected right to vote, Ex parte
Yarbrough, 110 U.S. 651, and to have their
votes counted, United States v. mosely, 238
U.S. 383. In Mosely the Court stated that
it is "as equally unquestionable that the
right to have one's vote counted is as open
to protection ? ? * as the right to put a
ballot in a box." 238 U.S., at 386. The
right to vote can neither be denied outright,
Guinn v. United States, 238 U.S. 347, Lane v.
Wilson, 307 U.S. 268, nor can it be destroyed
by alteration of ballots, see United States v.
Classic, 313 U.S. 299, 315, nor diluted by
ballot-box stuffing, Ex parte Siebokl, 100 U.S.
371, United States v. Saylor, 322 U.S. 385.
As the Court stated in Classic, "Obviously in-
cluded within the right to choose, secured
by the Constitution, is the right of qualified
voters within a State to cast their ballots
and have them counted." 315 U.S. at 315.
Racially based gerrymandering, Gomi/lion V.
Lightfoot, 364 U.S. 339, and the conducting
of white primaries, Nixcm v: Herndon, 273
U.S. 536, Nixon v. Condon, 286 U.S. 73,
Smith v. Allwright, 321 U.S. 649, Terry v.
Adams, 345 U.S. 461, both of which result in
denying to some citizens their right to vote,
have been held to be constitutionally imper-
missible. And history has seen a continu-
ing expansion of the scope of the right of
suffrage in this country. 28 The right to vote
freely for the candidate of one's choice is of
the essence of a democratic society, and any
restrictions on that right strike at the heart
of representative government. And the
right of suffrage can be denied by a debase-
ment or dilution of the weight of a citizen's
vote just as effectively as by wholly prohibit-
ing the free excerise of the franchise.28
2, Ala. Const., Art. XVIII, ? 284.
2, Ala. Const., Art. XVIII, ? 286.
- 28 The 15th, 17th, 19th, 23d, and 24th
amendment S to the Federal Constitution all
Involve expansions of the right of suffrage.
Also relevant, in this regard, is the civil
rights legislation enacted by Congress in
1957 and 1960.
a, As stated by Mr. Justice Douglas in
South v. Peters, 339 U.S. 276, 279:
"There is more to the right to vote than
the right to mark a piece of paper and drop
it in a box or the right to pull a lever in a
Mr. PROXMIRE. Mr. President, will
the Senator yield?
Mr. NELSON. I yield.
Mr. PROXMIRE. I interrupt the Sen-
ator,,although I dislike to do so, because
I believe that what he has just read is
absolutely crucial in answering what I
believe is one of the main challenges to
the one-man, one-vote thesis that has
been advanced by some Senators and by
the Supreme Court.
The Senator from Nebraska made a
strong challenge the other day, and
again today, on this point. People fre-
quently argue that this is not a right
similar to the right of freedom of speech,
the right of worship, the right of assem-
bly, and so forth.
In the two sentences that the Senator
has just read, it seems to me that we get
to the crux only not of the question of the
right to vote, but also the right to have
the vote counted, and counted equally
with the vote of other persons.
If the Senator will permit me, I should
like to read those two sentences again.
They read:
The right to vote freely for the candidate
of one's choice is of the essence of a
democratic society, and any restrictions on
that right strike at the heart of representa-
tive government. And the right of suffrage
can be denied by a debasement or dilution
of the weight of a citizen's vote just as effec-
tively as by wholly prohibiting the free exer-
cise of the franchise.
The junior Senator from Wisconsin is
rendering a great service to the Senate
in reading this decision. It is most im-
portant to stress the crucial point which
Chief Justice Warren makes so clear in
those two sentences. This is a statement
on which we must base our opposition to
the Dirksen proposal. The Dirksen pro-
posal is frankly designed to permit a con-
stitutional referendum which would de-
stroy forever our one-man-one-vote
principle in the State legislatures.
The two sentences that the Senator
has read are a direct and convincing
answer to those who argue that this
right somehow is not one that needs
constitutional protection?the kind of
protection that the Court has given in
this case.
Mr. NELSON. I am glad that the sen-
ior Senator from Wisconsin called spe-
cial attention to these two sentences.
The two pages from this part of the de-
cision, pages 19 and 20, recite a long se-
ries of cases, pointing out that there are
all kinds of ways in which to deny the
right to citizens to have their voice
heard appropriately through the ballot
box. It is pointed out that all of the
ways are unconstitutional. It is uncon-
stitutional to deny some people the right
to vote, as has been done in many places.
It is a denial of their constitutional right
if their vote is not counted, once it is
placed in the ballot box. It is a denial
of their constitutional right if the ballot
voting booth. The right to vote includes
the right to have the ballot counted. It
also includes the right to have the vote
counted at full value without dilution or
discount. That federally piotected right
suffers substantial dilution * * ? [where a]
favored group has full voting strength ? ? ?
[and] the groups not in favor have their
votes discounted." (Douglas, J., dissenting.)
19365
box is stuffed so that there is a dispro-
portionate weight given to the 'ballot
stuff er's box.
It is further pointed out, as the senior
Senator from Wisconsin has emphasized,
that there are all kinds of ways to de-
base the constitutional right of the bal-
lot box. One of the ways is to have one
voter's vote count for more than an-
other voter's vote. That is no different
from stuffing a ballot box or denying
people a right to vote.
If I were to live in a rural area and
ray vote were the equivalent of 50 votes
in a city, that would be an effective de-
nial of the rights of the people who live
in that city area.
Mr. LAUSCHE. Mr. President, will
the Senator yield?
Mr. NELSON. I yield.
Mr. LAUSCHE. I have listened to
the dialog between the Senators from
Wisconsin. Would the Senator go so far
as to say that the rights of Ohio voters
in the deliberative process of law-pass-
ing proceedings in the Congress had
been denied to them? I point out that
Ohio has a population of 10.5 million
and has 2 Senators in the 'U.S. Senate.
Rhode Island, with a population of about
900,000, also has 2 Senators. How
would the Senator from Wisconsin ra-
tionalize that difference in the repre-
sentation ,of 11 million people in Ohio,
having 2 Senators in the Senate, with
the representation of 900,000 people in
Rhode Island, which likewise is entitled
to 2 Senators?
Mr. NELSON. I suppose that the is-
sue raised by the Senator from Ohio has
been rehashed on the floor of the Senate
dozens of times. The other day I heard
a discussion of it.
As the Senator well knows, at the time
the Constitution of the United States
was formed there was 13 sovereign
Colonies. There was no U.S. Govprn-
ment. There was no U.S. Constitution.
Those sovereign nations?Colonies?got
together. Each individual Colony had
all the constitutional powers to govern
within its particular geographic area.
The sovereign Colonies delegated to a
Federal Government certain powers and
reserved certain oowers to themselves.
As a former distinguished Governor,
the Senator from Ohio is well aware of
the fact that States are sovereign States
and have certain sovereign powers. They
reserved to themselves the right to have
the representation of two Senators for
each State to speak for the sovereign
rights of the States in return for their
joining in a Federal union.
That is an entirely different question
from the question of giving to counties,
as Alabama and many other States do, a
representative status. As the Senator
knows, a county is naught but for the au-
thority given to it by the State. A county
is a creature of the State. The Su-
preme Court flatly rejected the argu-
ment. The Court dealt with that exact
question.
Mr. LAUSCHE. Will the Senator di-
rect my attention to the page of the
opinion to which he refers? I know I
read it.
Mr. NELSON. The analogy which the
Senator has raised appears on page 13 of
the opinion. I shall read it:
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19366 CONGRESSIONAL RECORD ? SENATE
The analogy cannot survive the most super-
ficial examination into the history of the
requirement of the Federal Constitution and
the diametrically opposing history of the re-
quirement of the Alabama constitution that
representation shall be based on population.
Nor can it survive a comparison of the dif -
.1 erent political natures of States and coun-
ties.
Of course, as the Senator is well aware,
the Reynolds against Sims case?
Mr. LAUSCHE. I understand that the
Court said that the States are sovereign,
and therefore, we may not draw an
Analogy with the situation of counties,
which are not`sovereign. But my ques-
tion is, how does the Senator explain
away the fact that 900,000 citizens of
Rhode Island have 2 Senators, and 11
million people of Ohio have 2 Senators?
Are not the votes of the citizens of Ohio
diluted? If the Senator's argument is
sound, that every citizen should have one
vote, and that his vote should not be
diluted in any manner, are not the votes
of the 16 million people in California,
which is entitled to only 2 Senators-
1 Senator for 8 million people?diluted
with the votes of the 2 Senators from
Rhode Island, which has 900,000 citi-
zens-1 Senator for 450,000?
Does not the Constitution of the United
States debase the votes of the citizens
of Ohio, California, New York, Illinois,
Texas, Michigan, Pennsylvania, and
other States?
Mr. NELSON. As the Senator is well
aware, when the Colonies met in Con-
stitutional Convention, they enumerated
the powers which they were willing to
delegate to the Federal Government and
reserved all the remainder of the powers
to themselves. That became a provision
of the Federal Constitution.
In Reynolds against Sims, the Alabama
constitution is dealt with. That con-
stitution provides that apportionment in
that State, in both the house of repre-
sentatives and the senate, shall be on
a population basis. For 60 years the
Alabama Legislature has ignored its own
constitution.
What the Supreme Court really did
was to enforce the Alabama constitu-
tion.
Mr. LAUSCHE. But Ohio has been
affected by the decision. For 61 years
each county in Ohio has been entitled
to at least one representative. That
means there are 88 representatives, since
1 is guaranteed for each county. But
under the constitutional provision we are
entitled to 137. So the 88 subtracted
from 137 left 49 that were distributed to
the larger cities. For 61 years Ohio pro-
ceeded on the assumption that it was
acting constitutionally.
The Supreme Court came along and
ruled, "What you have done is invalid.
You have been violating the law, al-
though you wrote into your constitution
that there shall be one representative
for each county."
My inquiry is as follows: Why should
not Ohio, and the other 49 States, if
they so desire, within the next 2 years,
be given the opportunity of amending
the Constitution of the United States so
that there shall be representation geo-
graphically and by population?
Mr. NELSON. As the Senator knows,
the States and the people of this coun-
try are entitled to initiate a constitu-
tional amendment at any time they wish.
That is not what we are doing here.
What we are trying to do here is to take
a decision that has already been rendered
by the U.S. Supreme Court and then, by
legislative fiat, so to speak, enter a kind
of interlocutory decree against the effec-
tive date of the implementation of the
U.S. Supreme Court decision. It seems
to me that that is a dangerous assault
.upon the whole theory and concept of the
separation of powers of this country.
When the resolution was first proposed,
it was absolutely mandatory. As it was
first proposed, it set the U.S. Congress
up as a kind of supreme court handling
appeals from the U.S. Supreme Court.
As first proposed, without that tiny,
little escape clause, it would mean that
we could postpone the effective date of
any decision the Supreme Court makes
at any time. I think this is a dangerous
business to become involved in. That is
why I am opposed to it. I am not op-
posed to any State amending its own
constitution as the people wish to have
It amended. I am for giving the people
of the States that opportunity, but I am
not for using the power of Congress to
suspend the effective date of the imple-
mentation of decisions of the Supreme
Court. Let the Constitution be amended
so as to take that power away if that is
what the people of the country want.
Mr. LAUSCHE. Mr. President, will
the Senator yield further?
Mr. NELSON. I yield.
Mr. LAUSCHE. In Ohio there is a
provision that every 20 years there must
be gubmitted to the people the issue of
whether they shall have a constitutional
convention. This question has been sub-
mitted to the people of Ohio since 1903?
when the constitution so provided?three
times, and each time the people have
said, "We want no change in the consti-
tution." Suddenly, in 1964, they are
told that what they have been doing is
wrong; that they have been violating the
Constitution. Why should not the peo-
ple of Ohio have enough time to proceed,
before the Supreme Court decision goes
into effect, to determine whether they
want to follow what the Supreme Court
says is the Constitution or whether they
want to change it?
Mr. NELSON. My answer to that
question is that we have created under
our Constitution a method for amending
the Constitution, and the Supreme Court
of the United States has said what the
la*. is. The Supreme Court has ruled
that these malapportionments are a vio-
lation of the Federal Constitution, and
that they deny the people the equal pro-
tection of the law. Now what it is at-
tempted to have Congress do is to have
the implementation of the decision of
the Supreme Court delayed. We must
have some arbiter, some interpreter, of
the Constitution, as the Senator from
Ohio well knows. The Supreme Court is
such an agency. When the Supreme
Court interprets the Constitution on an
issue brought before it, that interpreta-
tion then becomes the law of the land.
There is a procedure for amending the
August 18
Constitution. The procedure is not the
kind of interlocutory decree overruling
the Supreme Court or postponing the ef-
fective date of the decision as this reso-
lution purports to do.
Mr. LAUSCHE. I would subscribe to
that statement if it were not for the fact
that the pronouncement of the Supreme
Court caught State after State by com-
plete surprise. There was no expecta-
tion that the pronouncement would be
made that the States were acting in vio-
lation of the law. Since the States have
been caught' by surprise, since they have
been unexpectedly told that what they
have been doing is wrong, the States
ought to have an opportunity to remedy
the unexpected assertion made by the
Court of what the Constitution meant.
Mr. NELSON. I may say to the dis-
tinguished Senator from Ohio that it
ought not to have surprised Alabama.
Alabama had been violating its own
constitution for 60 years. How much
notice" does Alabama want? This is
true of other States. Therefore, some
people in Alabama, who felt they were
being deprived of their constitutional
rights, brought suit. Everyone knew
the constitution was being violated.
,The legislature knew it. How much
time should be given the State to con-
tinue to deny the people their rights?
Mr. LAUSCHE. There are many
States that do hot, fall into the category
of the Southern States that have been
mentioned. I do not think it is sound to
lump them together, because a bit of
coloring enters into the question by
making it appear that only Alabama is
involved. Ohio also is involved. Many
other States have for years had one
branch of their legislature chosen on the
basis of geographical representation and
the other on the basis of population.
Mr. NELSON. The reason I men-
tioned Alabama is that I am discussing
the case of Reynolds against Sims, which
is the Alabama case. However, the Sena-
tor is absolutely correct. A large num-
ber of States in the East, West and the
North have been violating their consti-
tutions. My own State of Wisconsin
did not comply strictly with our cbnsti-
tution for many years, although we were
not as malapportioned as were many
other States. We are apportioned now
as well as can be on a population basis.
Mr. LAUSCHE. Does the Senator
have in mind which judges on the Su-
preme Court dissented from that
opinion?
Mr. NELSON. I think the Justice who
dissented in this opinion was Justice
Harlan.
Mr. LAUSCHE. I know that Justice
Harlan dissented. He wrote the dissent-
ing opinion.
In the Ohio case, which also went to
the Supreme Court, three judges of the
Circuit Court of Appeals in Cincinnati
held that what Ohio was doing was valid
and in conformity with its constitution
and in conformity with the Constitution
of the United States.
I ask the question because when one
begins adding individuals, if there were
three dissents in the Supreme Court, if
there were three minds on the Supreme
Court who said what had been done was
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1964 CONGRESSIONAL RECORD ? SENATE
valid, and three minds on the Circuit
Court of Appeals in Cincinnati who also
said so, that would leave the score at
six against six, showing how close the
question is.
I thank the Senator for yielding.
Mr. NELSON. Nobody would suggest
that in any of these highly involved and
emotional and controversial questions
there is not a division of opinion. There
is a division of opinion on this question.
What I am saying to the Senator is that,
as a distinguished lawyer and as a for-
mer Governor, he is Well aware of what
the role and function '-of the Supreme
Court is. I say it is a serious business
for Congress to put itself in the position
of trying to force a postponement of the
effective date of a Supreme Court's deci-
sion. We ought to follow the proper
procedures to amend the Constitution,
if that is what we want to do.
I continue reading from Reynolds
against Sims:
In Baker v. Carr, 369 U.S. 186, we held that
a claim asserted under the Equal Protection
Clause challenging the constitutionality of a
State's apportionment of seats in its legisla-
ture, on the ground that the right to vote of
certain citizens was effectively impaired since
debased and diluted in effect, presented a
justiciable controversy subject to adjudica-
tion by federal courts. The spate of similar
cases filed and decided by lower courts since
our decision in Baker amply shows that the
problem of state legislative malapportion-
ment is one that is perceived to exist in a
large number of the States.3? In Baker, a suit
Involving an attack on the apportionment of
seats in the Tennessee Legislature, we re-
manded to the District Court, which had
dismissed the action, for consideration on
.the merits. We intimated no view as to the
proper constitutional standards for evaluat-
ing the validity of a state legislative appor-
tionment scheme. Nor did we give any con-
sideration to the question of appropriate
remedies. Rather, we simply stated:
"Beyond noting that we have no cause at
this stage to doubt the District Court will be
. able to fashion relief if violations of consti-
tutional rights are found, it is improper now
to consider what remedy would be most ap-
propriate if appellants prevail at trial." 31
We indicated in Baker, however, that the
Equal Protection Clause provides discoverable
and manageable standards for use by lower
courts in determining the constitutionality
of a state legislative apportionment scheme,
and we stated:
"Nor need the appellants, in order to suc-
ceed in this action, ask the Court to enter
upon policy determinations for which judi-
cially manageable 'standards are lacking.
Judicial standards under the Equal Protec-
tion Clause are well developed and familiar,
and it has been open to courts since the
enactment of the Fourteenth Amendment to
determine, if on the particular facts they
? 3? Litigation challenging the constitutional
ity of state legislative apportionment schemes
had been instituted in at least 34 States prior
to end of 1962?within nine months of our
decision in Baker v. Carr. See McKay, Politi-
cal Thickets and Crazy Quilts: Reapportion-
ment and Equal Protection, 61 Mich. L. Rev.
645, 706,710 (1963) , which contains an ap-
pendix summarizing reapportionment litiga-
tion through the end of 1962. See also David
and Eisenberg, Devaluation of the Urban and
Suburban Vote (1961); Goldberg, The Statis-
tics of Malapportionment, 72 Yale L. J. 90
(1962) .
31 369 U.S., at 198.
No. 162 3
must, that a discrimination reflectsmo policy,
but simply arbitrary and capricious action." 32
Subsequent to Baker, we remanded several
cases to the courts below for reconsideration
in light of that decision.33
In Gray v. Sanders, 372 U.S. 368, we held
that the Georgia county unit system, appli-
cable in statewide primary elections, was un-
constitutional since it resulted in a dilution
of the weight of the votes of certain Georgia
voters merely because Of where they resided.
After indicating that the Fifteenth and Nine-
teenth Amendments prohibit a State from
overweighting or diluting votes on the basis
of race or sex, we stated:
"How then can one person be given twice
or ten times the voting power of another
person in a statewide election merely because
he lives in a rural area or because he lives
in the smallest rural county? Once the geo-
graphical unit for which a representative is
to be chosen is designated, all who partici-
pate in the election are to have an equal
vote?whatever their race, whatever their
sex, whatever their occupation, whatever
their income, and wherever their home may
be in that geographical unit. This is re-
quired by the Equal Protection Clause of the
Fourteenth Amendment. The concept of 'we
the people' under the Constitution visualizes
no preferred class of voters but equality
among those who meet the basic qualifica-
tions. The idea that every voter is equal to
every other voter in his State, when he casts
his ballot in favor of one of several competing
candidates, underlies many of our deci-
sions." 3?
Continuing, we stated that "there is no
indication in the Constitution that home-
site or occupation affords a permissible basis
for distinguishing between qualified voters
within the State." And, finally, we con-
cluded: "The conception of political equality
from the Declaration of Independence, to
Lincoln's Gettysburg Address, to the Fif-
teenth, Seventeenth and Nineteenth Amend-
ments can mean only one thing?one per-
son, one vote." 3?
We stated in Gray, however, that that case,
"unlike Baker v. Carr * * does not involve
a question of the degree to which the Equal
Protection Clause of the Fourteenth Amend-
rhent lithlts the authority of a State legisla-
ture in designing the geographical districts
from which representatives are chosen either
for the State Legislature or for the ,Federal
House of Representatives. Nor does it pre-
sent the question, inherent in the bicameral
form of our Federal Government, whether a
State may have one house chosen without
regard to.population."3,
Of course, in these cases we are faced
with the problem not presented in Gray?
_ that of determining the basic standards and
stating the applicable guidelines for imple-
menting our decision in Baker v. carr.
In Wesberry v. Sanders, 376 U.S. 1, decided
earlier this Term, we held that attacks on
the constitutionality of congressional dis-
tricting plans enacted by state legislatures
do not present nonjusticiable questions and
should not be dismissed generally for "want
of equity." We determined that the con-
33 Id., at 226.
33 SC40//e v. Hare, 369 U.S. 429 (Michigan);
WMCA, Inc., v. Simon, 370 U.S. 190 (New
York).
34372 U.S., at 379-380.
3? Id., at 381.
3, Id., at 376. Later in the opinion we again
? stated:
"Nor does the question here have anything
to do with the composition of the state or
'federal legislature. And we intimate no opin-
ion on the constitutional phases of that
problem beyond what we said in Baker v.
Carr." Id., at 378?
19367
stitutional test for the validity of congres-
sional districting schemes was gne of sub-
stantial equality of population among the
various districts established by a state legis-
lature for the election of members of the
Federal House of Representatives.
In that case we decided that an apportion-
ment of congressional seats which "contracts
the value of some votes and expands that of
others" is unconstitutional, since "the Fed-
eral Constitution intends that when qualified
voters elect members of Congress each vote
be given as much weight as any other vote."
We concluded that the constitutional pre-
scription for election of members of the
House of Representatives "by the People,"
construed in its historical context, "means
that as nearly as is practicable one man's
vote in a congressional election is to be worth
as much as another's." We further stated:
"It would defeat the principle solemnly
embodied in the Great Compromise?equal
representation in the House for equal num-
bers of people?for us to hold that, within
the States, legislatures may draw the lines of
congressional districts in such a way as to
give some voters a greater voice in choosing
a congressman than others." 37
We found further, in Wesberry, that "our
Constitution's plain objective" was that "of
making equal representation for equal num-
bers of people the fundamental goal." We
concluded by stating,:
"No right is more precious in a free coun-
try than that of having a voice in the elec-
tion of those who make the laws under which,
as good citizens, we must live. Other rights,
even the most basic, ere illusory if the right
to vote is undermined. Our Constitution
leaves no room for classification of people
in a way that unnecessarily abridges this
right." 3,
Gray and Wesberry are of course not dis-
positive of or directly controlling on our de-
cision in these cases involving State legisla-
tive apportionment controversies. Admit-
tedly, those decisions, in which we held that,
In statewide and in congressional elections,
one person's vote must be counted equally
with those of all other voters in a State, were
based on different constitutional considera-
tions and were addressed to rather distinct
problems. But neither are they wholly in-
apposite. Gray, though not determinative
here since involving the weighing of votes
in statewide elections, established the basic
principle of equality among voters within a
State, and held that voters,cannot be classi-
fied, constitutionally, on the basis of where
they live, at least with respect to voting in
statewide elections. And our decision in
Wesberry was of course grounded on that
language of the Constitution which pre-
scribes that members of the Federal House of
Representatives are to be chosen "by the
People," while attacks on state legislative
apportionment schemes, such as that in-
volved in the instant cases, are principally
based on the Equal Protection Clause of the
Fourteenth Amendment. Nevertheless, Wes-
berry clearly established that the funda-
mental principle of representative govern-
ment in this country is one of equal repre-
sentation for equal numbers of people, with-
out regard to race, sex, economic status, or
place of residence within a State. Our prob-
lem, then, is to ascertain, in the instant cases,
whether there are any constitutionally cog-
nizable principles which Would justify de-
partures from the basic standard of equality
among voters in the apportionment of seats
in State legislatures.
fix
A predominant consideration indetermin-
ing whether a State's legislative apportion.:
37376 U.S., at 14.
33 Id., at 17-18.
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19368 - CONGRESSIONAL RECORD ? SENATE
ment scheme constitutes an invidious dis-
crimination violative of rights asserted under
the Equal Protection Clause is that the rights
allegedly 'impaired are individual and per-
sonal in nature. As stated by the Court in
United States v. Bathgate, 246 U.S. 220, 227,
"the right to vote is personal." n While the
result of a court decision in a state legisla-
tive apportionment controversy may be to
require the restructuring of the geographical
distribution of seats in a state legislature,
the judicial focus must be concentrated upon
ascertaining whether there has been any dis-
crimination against certain of the State's
citizens which constitutes an impermissible
impairment of their constitutionally pro-
tected right to vote. Like Skinner v. Okla-
homa, 316 U.S. 535, such a case "touches a
sensitive and important area of human
rights," and "involves one of the basic civil
rights of man," presenting questions of al-
leged "invidious discriminations * * *
against groups or types of individuals in
violation of the constitutional guaranty of
just and equal laws." 316 U.S., at 536, 541.
Undoubtedly, the right of suffrage is a fun-
damental matter in a free and democratic
society. Especially since the right to exer-
cise the franchise in a free and unimpaired
manner is preservative of other basic civil
and political rights, any alleged infringement
of the right of citizens to vote must be care-
fully and meticulously scrutinized. Almost
a century ago, in Yick Wo v. Hopkins, 118
U.S. 356, the Court referred_to "the political
franchise of voting" as "a fundamental po-
litical right, because preservative of all
rights." 118 U.S., at 370.
Legislators represent people, not trees or
acres. Legislators are elected by voters, not
farms or cities or economic interests. As
long as ours is a representative form of gov-
ernment, and our legislatures are those in-
struments of government elected directly by
and directly representative of the people,
the right to elect legislators in a free and un-
impaired fashion is -a bedrock of our political
system. It could hardly be gainsaid that a
constitutional claim had been asserted by
an allegation that certain otherwise qualified
voters had been entirely prohibited from
voting for members of their State legislature.
And, if a State should provide that the votes
of citizens in one part of the State should
be given 2 times, or 5 times, or 10 times the
weight of votes of citizens in another part
of the State, it could hardly be contended
that the right to vote of those residing in
the disfavored areas had not been effectively
diluted. It would appear extraordinary to
suggest that a State could be constitutionally
permitted to enact a law providing that cer-
tain of the State's voters could vote 2, 5, or
10 times for their legislative representatives,
while voters living elsewhere could vote only
once. And it is inconceivable that a State
law to the effect that, in counting votes for
legislators, the votes of citizens in one part
of the State would be multiplied by 2, 5, or 10,
while the votes of persons in another area
would be counted only at face value, could
be constitutionally sustainable. Of course,
the effect of State legislative districting
schemes which give the same number of
representatives to unequal numbers of con-
stituents is identical.,o Overweighing and
,14 As stated by Mr. Justice Douglas, the
rights sought to be vindicated in a suit chal-
lenging an apportionment scheme are "per-
sonal and individual," South v. Peters, 339
U.S., at 280, and are "important political
rights. of the people," MacDougall v. Green,
335 U.S. 281, 288. (Douglas, J., dissenting.)
40As stated by Mr. Justice Black in Cole-
grove v. Green, 328 U.S. 549, 569-571:
"No one would deny that the equal pro-
tection clause would * * * prohibit a law
that wodld expressly give certain citizens a
half-vote and others a full vote. [T]he con-
overvaluation of the votes of those living
here has the certain effect of dilution and
undervaluation of the votes of those living
there. The resulting discrimination against
those individual voters living in disfavored
areas is easily demonstrable mathematically.
Their right to vote is simply not the same
right to vote as that of those living in a
favored part of the State. Two, five, or ten
of them must vote before the effect of their
voting is equivalent to that of their favored
neighbor. Weighing the votes of citizens
differently, by any method or means, merely
because of where they happen to reside,
hardly seems justifiable. One must be ever
aware that the Constitution forbids "sophis-
ticated as well as simple-minded modes of
discrimination." Lane v. Wilson, 307 U.S.
268, 275, Gomillion V. Lightfoot, 364 U.S.
339, 342. As we stated in Wesberry v. San-
ders, supra:
"We do not believe that the Framers of the
Constitution intended to permit the same
vote-diluting discrimination to be accom-
plished through the device of districts con-
taining widely varied numbers of inhabit-
ants. To say that a vote is worth more in
one district than in another would * * *
run counter to our fundamental ideas of
democratic government." 41
State legislatures are, historically, the
fountainhead of representative government"
in this country. A number of them' have
their roots in colonial times, and substan-
tially antedate the creation of our Nation
and our Federal Government. In fact, the
first formal stirrings of American political
stitutionally guaranteed right to vote and
the right, to have one's vote counted clearly
imply the policy that State election systems,
no matter what their form, should be de-
signed to give approximately equal weight to
each vote cast. [A] State legislature cannot
deny eligible voters the right to vote for
Congressmen and the right to have their
vote counted. It can no more destroy the
effectiveness of their vote in part and no
more accomplish this in the name of 'appor-
tionment' than under any other name."
(Black, J., dissenting.)
41 376 U.S., at 8. See also id., at 17, quoting
from James Wilson, a delegate to the Consti-
tutional Convention and later an Associate
Justice of this Court, who stated:
"[A]ll elections ought to be equal. Elec-
tions are equal, when a given number of citi-
zens, in one part of the state, choose as many
representatives, as are chosen by the same
number of citizens, in any other part of the
state. In this manner, the proportion of the
representatives and of the constituents will
remain invariably the same." 2 The Works
of James Wilson (Andrews ed. 1896) 15.
And, as stated by Mr. Justice Douglas in
MacDougall v. Green, 355 U.S., at 288, 290:
"[Al regulation * * [which] discrimi-
nates against the residents of the populous
counties of the state in favor of rural sec-
tions * * * lacks the equality to which the
exercise of political rights is entitled under
the Fourteenth Amendment.
"Free and honest elections are the very
foundation of our republican form of gov-
ernment. Discrimination against any group
or class of citizens in the exercise of these
constitutionally protected rights of citizen-
ship deprives the electoral process of integ-
rity.
"None would deny that a state law giving
,some citizens twice the vote of other citizens
in either the primary or general election
would lack that equality which the Four-
teenth Amendment guarantees. * ? * The
theme of the Constitution is equality among
citizens in the exercise of their political
rights. The notion that one group can be
granted greater voting strength than another
is hostile to our standards for popular rep-
resentative government." (Douglas, J. dis-
senting.)
- August 18
independence are to be found, in large part,
in the views and actions of several of the
colonial legislative bodies. With the birth
of our National Government, and the adop-
tion and ratification of the Federal Consti-
tution, State legislatures retained a most
important place in our Nation's govern-
mental structure. But representative gov-
ernment is in essence self-government
through the medium of elecad representa-
tives of the people, and each and every citi-
zen has an inalienable right to full and
effective participatiOn in the political proc-
esses of his State's legislative bodies. Most
citizens can achieve this participation only
as qualified voters through the electiOn of
legislators to represent them. Full and?
effective participation by all citizens in State
government requires, therefore, that each
citizen has an equally effective voice in the
election of members -of his State legislature.
Modern and viable State government needs,
and the Constitution demands, no less.
Logically, in a society ostensibly grounded
on representative government, it would seem
reasonable that a majority of the people of
a State could elect a majority of that State's
legislators.
Mr. LAUSCHE. Mr. President, will
the Senator from Wisconsin yield for a
question?
The PRESIDING OFFICER (Mr. SAL-
INGER in the chair). Does the Senator
from Wisconsin yield to the Senator from
Ohio?
Mr. NELSON. I am glad to yield for
a question.
Mr. LAUSCHE. I invite the attention
of the Senator to page 29 of the decision,
I wish to paraphrase what is in the sec-
ond footnote and ask the Senator's opin-
ion about the philosophic soundness of
what was said.
My paraphrasing is that all elections
ought to be equal. Elections are equal
when a given number of citizens in one
part of the country choose as many Sen-
ators as are chosen by the same number
of citizens in any other part of the coun-
try. In this manner, the proportion of
the representatives and of the constitu-
ents will remain invariably the same.
The Senator of Wisconsin will 'notice
that instead of the word "State" I have
inserted the word "country."
If it is philosophically sound that a
citizen in one part of the State ought to
have the same voting power as a citizen
in another part of the State?forgetting
the Constitution as it is now written?
would that same principle of necessity-be
sound when applied to the country as a
whole?
Mr. NELSON. In the first place, there
is no comparison between the two.
There is no rationale to the proposition
that one location within a State should
increase the power of one's vote and
another location decrease it. Upon what
rationale would the Senator do that?
Mr. LAUSCHE. I am forgetting that.
I am speaking of the philosophy of one
human being having one vote and that
there be no debasing of anyone's vote.
Does it follow that if we follow this phil-
osophy of the Supreme Court we are, in
effect, saying, "Repeal the provision of
the Constitution which gives Rhode Is-
land 2 Senators and some Western States
with a population of 300,000, 2 Senators,
and let Senators be chosen on the basis
of population throughout the whole
country so as not to debase the vote of
any citizen."
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1964 CONGRESSIONAL RECORD ? SENATE
Mr. NELSON. That proposition may
be argued on either side rationally, but
each State has two Senators because of
the fundamental proposition that when
the Constitution was formulated it was
intended by the framers thereof that the
sovereign rights of the Colonies being
formed into a Federal Union must be
protected, and that the sovereign rights
of the States must also be protected. It
is not comparable to say that within a
State we may rationally deprive people
of the equality of their vote. I do not
see that they are in any way comparable.
To put the question back to the Sena-
tor, what principle is promoted within
a State to make one person's vote equal
to the votes of 500 people? There have
been cases like that. On what ground
does the Senator defend the proposition?
Mr. LAUSCHE. I do not defend it,
but I do state that when the Constitu-
tion of the United States was adopted, it
provided that each State should have two
Senators, which was a representation of
geographical areas, and the fact that
Members of the House shall be chosen on
the basis of population had other reasons
than the sovereignty of States.
Madison's papers clearly show In the
discussions that there was fear that the
? populous States would overpower the less
populous States, and hence there should
be equal representation in the Senate for
each State. It was definitely intended
that we should not create a legislative
body in which the big States would dom-
inate the situation. That was the Phi-
losophy which was followed at that time.
Mr. NELSON. The debate at the time
shows that powerful persuasive argu-
ments were made against the proposi-
tion that each State should have two
Senators, and that those of that per-
suasion lost the cause. I emphasize to
the Senator from Ohio that the intent
and purpose of having two Senators from
each State, regardless of size, was for
the specific purpose of protecting the
sovereignty and the sovereign rights of
those colonies which had joined the
Union. That is the rational purpose.
It is the one which we Might debate,
but it is the rational purpose; whereas,
there is no rational purpose within a
State, in my judgment, to allow these
great disparities. They are quite fright-
ening when some cities with 4 million
population?I will stand corrected if I
am wrong?but I believe that Los An-
geles, a city of some several million peo-
ple, has one Senator; yet another County,
with only 200,000 population, also has
one Senator. There is no rational way
to defend that system and still claim that
people's rights under the Constitution
are being protected.
Mr. PROXMIRE. Mr. President, will
the Senator yield?
Mr. NELSON. I yield.
Mr. PROXMIRE. Mr. President, the
, Senator from Ohio [Mr. LArrscml was a
great Governor of the State of Ohio for
many years. As a Senator, he has been
It seems to me that two Senators for
each State was not only something that
Constitutional Convention, but it was
also a very good, sound, solid, reasonable,
and practical device, to provide to States
a definite and specific power. They must
be enabled to assume powers that are
quite substantial, truly comparable with
what the Federal Government has.
States must have authority to resiit Fed-
eral encroachment to a considerable ex-
tent. Our Federal Government has a
massive power. It has almost a monop-
oly on military power within our Nation.
It has enormous taxing power, of which
the Senator from Ohio is well aware.
With these two powers, if there were no
clear constitutional reservation of pow-
ers to the States, the Federal Govern-
ment's imposition of its authority on an
individual citizen would be much greater.
I believe our Federal system, in giving
recognition to our States, giving them
two Senators, and so forth, is right.
There is no legitimate analogy. The
State' does not have this monopoly, of
power. The Federal Government has it.
I believe it is not at all unreasonable to
say that there are some citizens within
a State who possess 20, 50, 100, or, in some
cases documented by the 'senior Senator
from Illinois [Mr. DOUGLAS), 1,000 times
as much influence in choosing a State
representative as other citizens. On a
historic basis, it is not sound. It is not
sound on a practical basis. There is
good reason for giving the States author-
ity, dignity, and recognition of certain
power. The right to have two Senators
is one of the elements of their authority.
They should be in a position to resist
Federal encroachment.
Mr. LAUSCHE. I am not trying to
defend the inequitable allocation of
power. My position is that there should
exist within the States an ability to pre-
vent big cities, on the -one hand, and
farm areas on the other, from absolutely
dominating the situation.
A system should be set up which would
give the farm areas a voice that cannot
lightly be overpowered by the city peo-
ple. And the city people should be given,
a voice that cannot be overpowered by
the rural people.
I believe that a bicameral system could
be devised within 2 years' time, within
which neither the city nor the rui;a1
citizens would have domination. That
is my object.
The Supreme Court proclaimed that
"The voters represent the people, not
trees or acres." Do Senators represent
trees and acres?
Mr. PROXMIRE. We represent
States. And, in a sense, we are regarded
as ambassadors from our States. At any
rate, we represent our States. And our
representation is quite different than
that of a representative in a State legis-,
lature.
I served in the Wisconsin State Legis-
lature. And I represented the people of
a particular district. That district could
be changed or modified. -Philosophically,
we as Senat
a great champion of the Federal system ors represent our States as
distinct sov
of federalism, and of States assuming

'reign entities.
Mr. LAU
more responsibility. SCHE. The Supreme Court
also proclaimed that "Legislators are
elect by voters, not by farms, or cities,
or economic
was a compromise at the time of the interests." What about Sen-
ators? Are we elected by mountains and
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19369
rivers? Or, are we elected by people, each
one having an equal voice in the selec-
tion of a Senator?
Mr. PROXMIRE. There undoubtedly
is an element of inequity in the Federal
Constitution. I think everyone recog-
nizes that there is inequity. It gives an
advantage to people who live in the
smaller States. That is true. This situ-
ation arose as a result of compromise.
In order, to have a Federal system, there
had to be a compromise. This system
permits the States to have real author-
ity. It permits the States to resist Fed-
eral encroachment. It permits the
States to have certain power, which is
one of the big elements in the protection
of liberties. Such protection is not based
alone on' the first 10 amendments to the
Constitution; but also on the fact that
a State government can, to a limited ex-
tent, interpose itself and resist the power
of the concentrated Federal Govern-
ment, with its vast power, in its attempt
to impose that power on an individual.
This is important. I believe it is perfect-
ly legitimate. It is worthwhile. We had
to make a compromise. We must give up
something when we make a compromise.
So far as domination by the city is
concerned, I feel that the Senator from
Ohio does not have anything to fear.
We had the same problem in Wisconsin
that was experienced in Ohio and many
other States. -
Years ago we were a predominantly
rural State. We now haste 10 or 12 per-
cent of our people who engage in farm-
ing in one aspect or another. We ex-
perienced this trend tiway from the
farms. Both bodies of our State legisla-
ture reflected that. There is no, ques-
tion in my mind?and I believe in the
minds of others who have studied the
Wisconsin government?that the farm-
ers have not become weak in their rep-
resentation. We have for example a
strong State department of agriculture.
Wisconsin farmers are well represented
in both the State senate and the assem-
bly. Their interests are considered.
There is no domination by the big cities
in our State. On the basis of apportion-
ment, there is always accommodation
afforded by the city people to the farm
'people. There is a much more whole-
some accommodation. It is much better
than if there were one house, considered
the impregnable stronghold of rural areas
and one represented the cities. In a Pop-
ulation-apportioned situation, as in Wis-
consin, there is not the tendency toward ,
the bloc vote, the Rind of situation that
exists in a number of cities. In Wiscon-
sin we can pass tax programs and educa-
tional programs for our cities and rural
areas.
I believe that the system has worked
well in our State. I believe it can work
elsewhere.
Mr. LAUSCHE. I want to set the
record straight. In my judgment, the
Federal system is sound. I do not want
any change. The Senate should repre-
sent States. The House is constituted
on the basis of population. But I be-
lieve that the same principle that has,
been applied to Congress should be ap-
plied with respect to the States. I was
_mayor of Cleveland. If the city bosses
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19370 CONGRESSIONAL
were to get control of the legislature, I
would fear it greatly.
While I was Governor, if I had been
confronted with that type of situation,
my problem would have been far greater
than it was. We need the influence of the
rural man, the man who works in the
soil. He is down to earth. Of course,
we also need the influence of the city
man. But the combination of the two
is the blending of good government.
Some city leaders would spend the
government into bankruptcy so quickly
that we would not realize that it was
happening.
I point out that the Supreme Court,
when -it approached this subject philo-
sophically, got into trouble when it said
that legislators do not represent trees
nor farms; they represent people.
Senators represent States. It was so
intended. The result is that Rhode Is-
land, with 900,000 people, has two Sen-
ators?about which I do not complain?
and Ohio, with 11 million people has two
Senators. I would strive with all my
might in my State to develop a consti-
tutional provision that would have rep-
resentatives chosen on the basis of geo-
graphical representation, and Senators
on the basis of population.
As a result of that check and balance
system neither the State's farmers nor
the city's union leaders would dominate
the government.
Mr. NELSON. I wonder if the Senator
from Ohio will respond to a question. In
Alabama, the last proposal showed that
19 percent of the people in that State
would control more than 50 percent of
the representatives. Is that what the
Senator believes would be a fair appor-
tionment? What kind of percentage
would the Senator propose?
Mr. LAUSCHE. No; I do not subscribe
to that. Ohio has suffered from dis-
proportionate representation. In a
measure, I believe there is improper
representation in one ? house. But three
times the issue was submitted to the
people of Ohio. The people were asked
If they desired to change it. They re-
fused to do so. Improper apportionment
can be demonstrated by figures, but three
times the people were asked, "Shall we
have a constitutional convention?" The
people voted , overwhelmingly not to
change the constitution.
The Supreme Court then came along
and changed it?perhaps properly. I am
not complaining about the analysis of
the Constitution by the Supreme Court.
I can see how the Supreme Court
could come to the conclusion at which
it arrived. But I likewise say that we
ought to give the States adequate time
to look into the question and determine
up which avenue they wish to go. That
is why I am supporting the amendment.
Mr. NELSON. Before I continue, I
should like to make an observation about
what I understood the Senator to say a
few moments ago. I understood the
Senator to say that he would not like to
see the cities dominate the legislature in
Ohio because the State would be spent
into trouble very quickly.
Mr. LAUSCHE. I think we need both.
We need the brakes to be applied by the
farmers and we need the proclivity of
RECORD ? SENATE - August 18
the city dweller to go ahead in leaps and
bounds. Out of the two we get a Proper
blend of good government. It would be
wrong to take away the influence of the
cities; likewise, it would be wrong to take
away the farmer's influence.
Mr. NELSON. If we apportion, giving
representation based upon some geo-
graphical theory, we would take away
the influence of people who live in urban
areas. I understood the Senator from
Ohio to be concerned about the argu?
ment that if the urban areas dominated
frightful spending programs would re-
sult, which would get a State into finan-
cial trouble.
I should like to make the observation
that I did not know that city workers
or city people were big spenders and
farmers little ones, and that that is the
way they are born. But, under the Sena-
tor's theory, think of what trouble a
State would be in if there should come
about a change in the character of the
farmer and he should become a big
spender and the city dweller became a
small spender, and yet the rural people
had so much influence that they could
do all the spending they desired. It is
a rather novel theory to classify people,
saying, "I want my State protected
against the big spenders in the city.
Therefore it is necessary to give over-
representation to someone who lives in
the country," or vice versa. To me that
is a completely irrational argument.
Mr. LAUSCHE. That is my theory,
and it is amply supported, word after
word, in Madison's papers on the Con-
stitutional Convention of the United
States which was held back in 1787.
Throughout that debate a desire was
shown for a balance in the Congress,
with Senators representing the States
and Members of the House of Represent-
atives representing the population.
In my file I have countless quotations
showing that much of the debate was
centered around that item: How shall
we procure stability so that we will not
have the wildness, the leaping and
bounding and jumping of the irrespon-
sible, and the retarding influence of
those who do not wish to move forward?
I repeat that both elements must have
their influence. Out of the two comes
the blend that leads to good govern-
ment.
Mr. PROXMIRE. Mr. President, will
the Senator yield briefly?
Mr. NELSON. I am glad to yield.
Mr. PROXMIRE. Is it not true that
the increase in population has really not
been in the central cities? The cities
have lost; the figures show that very
large cities have lost population. The in-
crease has been in the suburbs. No one
can tell me that, by and' large, suburban
people are radical or are interested in
spending a great deal of money on wel-
fare programs and that sort of thing.
My experience has been that the subur-
ban people move to the suburbs because
they can afford to do so.
Their incomes are good, and they fall
Into the economic and political category
of being, by and large, conservative. In
Wisconsin, where there has been good
apportionment, Republicans will gain, as
I understand. The conservative forces
will tend to gain from it. That does not
make it right or wrong, but that is. the
fact. That will be the result. Those
People are inclined to do somewhat bet-
ter in business. They are better edu-
cated. Yet those are the people who are
being deprived of the opportunity to cast
an equal vote because the States have
not apportioned as they should have ap-
portioned. Is that notcorrect?
Mr. NELSON. I believe that states
the case correctly.
Mr. PROXMIRE. I thank the Sen-
ator.
Mr. LAUSCHE. I thank the Senator
for yielding.
Mr. NELSON. I thank the Senator
from Ohio.
I continue to read from the opinion in
the case of Reynolds against Sims:
To conclude differently, and to sanction
minority control of State' legislative bodieS,
would appear to deny majority rights in a
way that far surpasses any possible denial
or minority rights that might otherwise be
thought to result. Since legislatures are
responsible for enacting laws by which all
citizens are to be governed, they should be
bodies which are collectively responsive to "
the pOpular will. And the concept of equal
protection has been traditionally viewed as
requiring the uniform treatment of persons
standing in the same relation to the gov-
ernmental action questioned or challenged.
With respect to the allocation of legislative
representation, all voters, as citizens of a
State, stand in the same relation regardless
of where they live. Any suggested criteria
for the differentiation of citizens are in-
sufficient to justify any discrimination, as _
to the weight of their votes, unless relevant
to the permissible purposes of legislative ap-
portionment. Since the achieving of fair
and effective representation for all citizens is
concededly the basic aim of legislative ap-
portionment, we conclude that the Equal
Protection- Clause guarantees the opportu-
nity for equal participation by all voters in
the election of State legislators. Diluting
the weight of votes because of place of resi-
dence impairs basic constitutional rights un-
der the Fourteenth Amendment just as much
as invidious discriminations based upon fac-
tors such as race, Brown v. Board of Edu-
cation, 347 'U.S. 483, or economic status, Grif-
fin v. Illinois, 351 U.S. 12, Douglas v.' Cali-
fornia, 372 U.S. 353. Our constitutional sys-
tem amply provides for the picitection of mi-
norities by means other than giving them
majority control of State legislatures. And
the democratic ideals of equality and major-
ity rule, which have served this Nation so
well in the past, are hardly of any less signifi-
cance for the present and the future.
We are told that the matter of apportion-
ing representation in a state legislature is a
complex and many-faceted one. We are ad-
vised that States can rationally consider
factors other than population in apportion-
ing legislative representation. We are ad-
monished not to restrict the power of the
States to impose differing views as to politi-
cal philosophy on their citizens. We are
cautioned about the dangers of entering into
political thickets and mathematical quag-
mires. Our answer is this: a denial of con-
stitutionally protected rights demands judi-
cial protection; our oath and our office re-
quire no less of us. As stated in Gomillion
v. Lightfoot, supra:
"When a State exercises power wholly
within the domain of state interest, it is in-
sulated from federal judicial review. But
such insulation is not carried over when
state power is used as an instrument for cir-
cumventing a federally protected right." 42
42 U.S., at 347.
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1964 -
CONGRESSIONAL RECORD ? SENATE
To the extent that a citizen's right to vote
is debased, he is that much less a citizen.
The fact that an individual lives here or
there is not a legitimate reason for over-
weighting or diluting the efficacy of his vote.
The complexions of societies and civilizations
change, often with amazing rapidity. A na-
tion once primarily rural in character be-
comes predominantly urban." Representa-
tion schemes once fair and equitable become
archaic and outdated. But the basic princi-
ple of representative government remains,
and must remain, unchanged?the weight of
a citizen's vote cannot be made to dePencL
on where he lives. Population is, of neces-
sity, the starting point for consideration and
the controlling criterion for judgment in leg-
islative apportionment controversies."
I invite the attention of the senior Sen-
ator from Wisconsin, who raised the
point about suburban areas, to the foot-
note on page 32, which discusses the
exact point raised by the distinguished
senior Senator from Wisconsin, and
points out that there is considerable evi-
dence that it is the fast growing subur-
ban areas that are being deprived of their
representation in the legislatures.
Mr. PROXMIRE. Mr. President, will
the Senator yield?
Mr. NELSON. I yield.
Mr. PROXMIRE. This is a point we
should make with much greater force.
There is a tendency on the part of many
who support the Dirksen amendment to
argue that this is a farm versus city situ-
ation. The Senator from Wisconsin [Mr.
NELSON], who has been a very strong
supporter of farmers and who has re-
ceived a great deal of support from them
In our State, knows that this is no such
situation. It is a matter of seeing that
the farmer, the city dweller, and all the
people in our society and in our States
have an equal vote. The notion that per-
haps the cities will gain from this proce-
dure is not only irrelevant, but, as the
Senator indicates, and as indicated in
the footnote in the decision of this par-
ticular case, the assertion is inaccurate
and untrue.
Mr. NELSON. . I think I shall read
into the RECORD that footnote, because
it points out that, as time went on, many
of the cities in the East had substantial
control of the legislatures and resisted
the dilution of their strength by the
growth of the inland parts of the States.
? Mr. PROXMIRE. Before the Senator
reads that footnote into the RECORD, let
me ask if the Senator can conceive of
, any logic that would justify depriving
a man of his proportionate representa-
tion in the State legislature if he finds
that the economic situation in a certain
part of his State is such that he can no
longer do very well at his occupation;
if, for example, he finds that farming no
longer pays, that farm income is too low,
so he decides to leave one part of the
State and goes to the city and gets a
job.
This has happened often. People also
leave the cities because they want a
more attractive place to live, and they
move to the suburban areas.
Can we possibly justify saying that the
vote should not follow that man if he
moves from a rural area into a city or
from a city into the suburbs? This is
really what reapportionment is about.
Can we justify saying that he should
not have equal representation if he de-
cides to exercise the American right to
live where he wants to live, to move his
family where he wants to move, to
change his job? If he wants to do that
must he sacrifice some of his representa-
tion in the State legislature? That is
the price we are requiring some people
to pay when they move.
Mr. NELSON. The Senator is cor-
rect. He uses i very good example. If
a farmer decides to retire and he has
lived in a rural area where his vote was
worth 50 times what a city voter's
vote was worth, he moves into the city
and suddenly finds that his power has
depreciated by 49 votes. The' city dwell-
er moves to the country and suddenly he
becomes more responsible about affairs
of government to the extent that he is
given 50 times the voti6g power he had
while he was in the city. There is no
rationality in that situation whatsoever.
The footnote?No. 43?I referred to
relates to the point the senior 'Senator
from Wisconsin.,raised earlier, and I read
it into the RECORD at this time:
. Although legislative apportionment con-
troversies are generally viewed as involving
urban-rural conflicts, much evidence indi-
cates that presently it is the fast-growing
suburban areas which are probably the most
seriously underrepresented in many of our
state legislatures. And, while currently the
thrust of state legislative malapportionment
results, in most States, in underrepresenta-
tion of urban and suburban areas, in earlier
times cities were in fact overrepresented in
a number of States. In the early 19th cen-
tury, certain of the seaboard cities in some
of the Eastern and Southern States possessed
and struggled to retain legislative representa-
tion disproportionate to population, and bit-
terly opposed according additional represen-
tation to the growing inland areas. Con-
ceivably, in some future time, urban areas
might again be in a situation of attempting
to acquire or retain legislative representation
in excess of that to which, on a population
basis, they are entitled. Malapportionment
can, and has historically, run in various
directions. However and whenever it does,
it is constitutionally impermissible under the
Equal Protection Clause.
I read the next footnote, No. 44:
The British experience in eradicating
"rotten boroughs" is interesting and en-
lightening. Parliamentary representation is
now based on districts of sustantially equal
population, and periodic reapportionment is
accomplishment through independent Boun-
dary Commissions. For a discussion of the
experience and difficulties in Great Britain
in achieving fair legislative representation,
, see Edwards, Theoretical and Comparative
Aspects of Reapportionment and Redistrict-
ing: With Reference to Baker v. Carr, 15
Vand. L. Rev. 1265, 1275 (1962). See also
the discussion in Baker v. Carr, 369 U.S., at
302-307. (Frankfurter, J., dissenting.)
Now I continue with the body of the
opinion:
A citizen, a qualified voter, is no more nor
no less so because he lives in the city or on
the farm. This is the clear and strong com-
mand of our Constitution's Equal Protection
Clause. This is an essential part of the
concept of a government of laws and not
men. This is at the heart of Lincoln's vision
of "government of the people, by the peo-
ple, [and] for the people." The Equal Pro-
tection Clause demands no less than sub-
stantially equal state legislative representa-
tion for all citizens, of all places as well as
all races.
19371
Iv
We hold that, as a basic constitutional
standard, the Equal Protection Clause re-
quires that the seats in both houses of a
bicameral state legislature must be appor-
tioned on a population basis. Simply stated,
an individual's right to vote for state legis-
lators is unconstitutionally impaired when
its weight is in a substantial fashion diluted
when compared with votes of citizens living
in other parts of the State. Since, under
neither the existing apportionment pro-
visions nor under either of the proposed
plans was either of the houses of the Ala-
bama Legislature apportioned on a popula-
tion basis, the District Court correctly held
that all three of these schemes were consti-
tutionally invalid. Furthermore, the exist-
ing apportionment, and also to a lesser ex-
tent the apportionment under the Crawford-
Webb Act, presented little more than crazy
quilts, completely lacking in rationality, and
could be found invalid on that basis alone.45
'Although the District Court presumably
found the apportionment of the Alabama ,
House of Representatives under the 67-Sen-
ator Amendment to be acceptable, we con-
clude that the deviations from a strict popu-
lation basis are too egregious to permit us
to find that that body, under this proposed
plan, was apportioned sufficiently on a pop-
ulation basis so as to pertnit the arrange-
ment to be constitutionally sustained. Al-
though about 43 percent of the State's total
population would be required to comprise
districts which could elect a majority in that
body, only 39 of the 106 House seats were
actually to be distributed on a population
basis, as each of Alabama's 67 counties was
given at least one representative, and pop-
ulation-variance ratios of close to 5-to-1
would have existed. While mathematical
nicety is not a constitutional requisite, one
could hardly conclude that the Alabama
House, under the proposed constitutional
amendment, had been apportioned suffi-
ciently on a population basis to be sustain-
able under the requirements of the Equal
Protection Clause. And none of the other
apportionments of seats in either of the
bodies of the Alabama Legislature, under the
three plans considered by the District Court,
came nearly as close to approaching the re-
quired constitutional standard as did that of
the House of Representatives under the 67-
Senator Amendment.
Legislative apportionment in Alabama is
signally illustrative and symptomatic of the
seriousness of this problem in a number of
the States. At the time this litigation was
commenced, there had been no reapportion-
ment of seats in the Alabama Legislature for
over 60 years." Legislative inaction, cou-
pled with the unavailability of any. political
or judicial remedy," had resulted, with the
" Under the existing scheme, Marshall
County, with a 1960 population of 48,018,
Baldwin County, with 49,088, and Houston
County, with 50,713, are each giVen only one
seat in the Alabama House, while Bullock
County, with only 13.462, Henry County, with
15,286, and Lowndes County, with 15,417, are
allotted two representatives each. And in the
Alabama Senate, tinder the existing appor-
tionment, a district comprising Lauderdale
and Limestone Counties had a 1960 popula-
tion of 98,135, and another composed of Lee
and Russell Counties had 96,105. Conversely,
Lowndes County, with only 15,417, and Wil-
cox County, with 18,739, are nevertheless
single-county senatorial districts given one
Senate seat each.
46 An interesting pre-Baker discussion of
the problem of legislative malapportionment
in Alabama is provided in Comment, Ala-
bama's Unrepresentative Legislature, 14 Ala.
L. Rev. 403 (1962).
47 See the cases cited and discussed in notes
5-6, supra, where the Alabama Supreme Court
refused even to consider the granting of relief
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19372 _ CONGRESSIONAL RECORD ? SENATE August 18
passage of years, in the perpetuated scheme
becoming little more than an irrational
anachronism. Consistent failure by the Ala-
bama Legislature to comply with State con-
stitutional requirements as to the frequency
of reapportionment and the bases of legis-
lative repretentation resulted in a-, minority
stranglehold on the' State legislature. In-
equality of representation in one house
added to the inequality in the other. With
the crazy-quilt existing apportionment virtu-
ally conceded to be invalid, the Alabama
Legislature offeredtwo proposed plans for
consideration by the District Court, neither
of which was to be effective until 1966 and
neither of which provided for the apportion-
ment of even one of the two houses on a
population basis. We find that the court
below did not err in holding that neither
of these proposed reapportionment schemes,
considered as a whole, "meets the necessary
constitutional requirements." And we con-
clude that the District Court acted properly
in considering these two proposed plans, al-
though neither was to become effective until
the 1966 election and the proposed consti-
tutional amendment was scheduled to be
submitted to the State's voters in November
1962.48
Consideration by the court below of the
two proposed plans was clearly necessary in
determining whether the Alabama Legisla
ture had acted effectively to correct the ad-
mittedly existing malapportionment, and in
ascertaining what sort of judicial relief, if
any, should be afforded.
Since- neither of the houses of the Alabama
Legislature, under any of three plans con-
sidered by the District Court, was appor-
tioned on a population basis, we would be
justified in proceeding no further. However,
one of the proposed plans, that contained in
the so-called 67-Senator Amendment, at least
superficially resembles the scheme of legis-
lative representation followed in the Federal
Congress. Under this plan, each of Ala-
bama's 67 counties is allotted one Senator,
and no counties are given more than one
Senate seat. Arguably, this is analogous to
the allocation of two Senate seats, in the
Federal Congress, to each of the 50 States,
regardless of population. Seats in the Ala-
bama House, under the proposed constitu-
tional amendment, are distributed by giving
- each of the 67 counties at least one, with the
remaining 39 seats being allotted among the
more populous counties on a population
basis. This scheme, at least at first glance,
appears to resemble that prescribed for the
Federal House of Representatives, where the
435 seats _are distributed among the States
on a population basis, although each State,
regardless of its populatibn, is given at least
one Congressman.
Thus, although there are substantial differ-
ences in underlying rationale and result,"
in suits challenging the validity of the ap
portionment of seats in the Alabama Legis-
lature, although it stated that the legislature
had failed to comply with the requirements
of the State Constitution with respect to
legislative reapportionment.
48 However, since the District Court found
the proposed constitutional amendment pro-
spectively invalid, it was never in fact voted
upon by the State's electorate.
"Resemblances between the system of rep-
resentation in the Federal Congress and the
apportionment scheme embodied in the 67-
Senator Amendment appear to be more super-
ficial than actual. Representation in the
Federal House of Representatives is appor-
tioned by the Constitution among the States
in conformity with population. While each
State is guaranteed at least one seat in the
House, as a feature of Our unique Federal
system, only four States have less than 1/435
of the country's total population, under the
the 67-Senator Amendment, as proposed by
the Alabama Legislature, at least arguably
presents for consideration a scheme anal-
ogous to that used for apportioning seats
in Congress.
Much has been written since our decision
in Baker v. Carr about the applicability of
the so-called Federal analogy to State legis-
lative apportionment arrangements." After
considering the matter, the court below con-
cluded that no conceivable analogy could be
drawn between the Federal scheme and the
apportionment of seats in the Alabama Leg-
islature under the proposed constitutional
amendment." We agree with the District
Court, and find the Federal analogy inappo-
site and irrelevant to State legislative dis-
tricting schemes. Attempted'reliance on the
Federal analogy appears often to be little
more than an after-the-fact rationalization
offered in defense of maladjusted State ap-
portionment arrangements. The original
eonstitutions of 36 of our States provided
that representation in both houses of the
State legislatures would be based completely,
or predominantly, on population.." And the
Founding Fathers clearly had no intention
of establishing a pattern or model for the
apportionment of seats in State legislatures
when the system of representation in the
Federal Congress was adopted." Demon-
1960 census. Thus, only four seats in the
Federal House are distributed on a basis other
than strict population. In Alabama, on the
other hand, 40 of the 67 counties have less
than 1/106 of the State's total population.
Thus, under the proposed amendment, over
ya of the total number of seats in the Ala-
bama House would be distributed on a basis
other than strict population. States with
almost 50 percent of the Nation's total popu-
lation are required in order to elect a ma-
jority of the members of the Federal House,
though unfair districting within some of
the States presently reduces to about 42 per-
cent the percentage of the country's popu-
lation Which reside in districts electing in-
dividuals comprising a majority in the Fed-
eral House. Cf. Wesberry V. Sanders, supra,
holding such congressional distribting un-
constitutional. Only about 43 percent of
the population of Alabama would live in
districts which could elect a majority in
the Alabama House, under the proposed con-
stitutional amendment. Thus, it could
hardly be argued that the proposed appor-
tionment of the Alabama House was based
on population in a way comparable to the
apportionment of seats in the Federal House
among the States.
88 For a thorough statement of the argu-
ments against holding the so-called Federal
analogy applicable to State legislative appor-
tionment matters, see, e.g., McKay, Reappor-
tionment and the Federal Analogy (National
Municipal League pamphlet 1962); McKay,
The Federal Analogy and State Apportion-
ment Standards, 38 Notre Dame Law. 487
(1963). See also Merrill, Blazes for a Trail
Through the Thicket of Reapportionment,
16 Okla. L. Rev. 59, 67-70 (1963) .
81 208 F. Supp., at 438. See the discussion
of the District Court's holding as to the ap-
plicability of the Federal analogy earlier in
this opinion, ante, at ?.
88 Report of Advisory Commission on In-
tergovernmental Relations, Apportionment of
State Legislatures 10-11, 35, 69 (1962).
88 Thomas Jefferson repeatedly denounced
the inequality of representation provided for
under the 1776 Virginia Constitution and
frequently proposed changing the State Con=
stitution to provide that both houses be ap-
portioned on the basis of population. In
1816 he wrote that "a government is repub-
lican in proportion as every member compos-
ing it has his equal voice in the direction
of its concerns * * * by representatives
chosen by himself." Letter to Samuel Ket-
cheval, 10 Writings of Thomas Jefferson
strative of this is the fact that the North-
west Ordinance, adopted in the same year,
1787, as the Federal Constitution, provided
for the apportionment of seats in territorial
legislatures -solely on the basis of popula-
tion.84
The system of representation in the two
Houses of the Federal Congress is one in-
grained in our Constitution, as part of the
law of the land. It is one conceived out of
compromise and concession indispensable to
the establishment of our Federal Republic."
Arising from unique historical circumstances;
it is based on the consideration that in estab-
lishing our type of federalism a group of
formerly independent States bound them-
selves together under one National Govern-
ment. Admittedly, the original 13 States
surrendered some of their sovereignty in
agreeing to join together "to form a more
perfect Union." But at the heart of our con-
stitutional system remains the concept of
separate and distinct governmental entities
which have delegated some, but not all, of
their formerly held powers to the single na-
tional government. The fact that almost
three-fourths of our present States were
never in fact independently sovereign does
not detract from our view that the so-called
federal analogy is inapplicable as a sustain-
ing precedent for State legislative apportion-
ments. The developing history and growth
of our republic cannot cloud the fact that,
at the time of the inception of the system
of representation in the Federal Congress,
a compromise between the larger and smaller
States on this matter averted a deadlock in
the constitutional convention which had-
threatened to abort the birth of our Na-
tion. In rejecting an asserted analogy to
the Federal electoral college in Gray v. Sand-
ers, supra, we stated:
"We think the analogies to the electoral
college, to districting and redistricting, and
to other phases of the problems of represen-
tation in State or Federal Legislatures or
conventions are inapposite. The inclusion
of the electoral college in the Constitution,
as the result of specific historical concerns,
validated the collegiate principle despite its
inherent numerical inequality, but implied
nothing about the use of an analogous system
by a State in a statewide election. No such
specific accommodation of the latter was ever
undertaken, and therefore no validation of ,
its numerical inequality ensued." 5?
Political subdivisions of States?counties,
cities, or whatever?never were and never
have been considered as sovereign entities.
Rather, they have been traditionally regarded
as subordinate governmental instrumentali-
ties created by the,,,State to assist in the
carrying out of State governmental functions.
As stated by the Court in Hunter v. City of
Pittsburgh, 207 U.S. 161, 178, these govern-
mental units are "created as convenient
agencies for exercising such of the govern-
mental -powers of the State as may be en-
trusted to them," and the "number, nature,
and duration of the powers conferred upon
[them] * * ? and the territory over which
they shall be exercised rests in the absolute
discretion of the State." The relationship
(Ford ed. 1899) 38. And a few years later,
in 1819, he stated: "Equal representation is
so fundamental a principle in a true repub-
lic that no prejudice can justify its viola-
tion because the prejudices themselves can-
not be justified." Letter to William King,
Jefferson Papers, Library of Congress, Vol.
216, p. 38616.
84 Article II, ? 14, of the Northwest Ordi-
nance of 1787 stated quite specifically: "The
inhabitants of the said territory shall al-
ways be entitled to the benefits * * * of a
proportional representation of the people in
the Legislature."
88 See the discussion in Wesberry V. Sand-
ers, 376 U.S., at 9-14.
" 372 U.S.,- at 878.
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1964 CONGRESSIONAL RECORD ? SENATE
of the States to the Federal Government
could hardly be less analogous.
Thus, we conclude that the :Man contained
in the 6'7-Senator Amendment for apportion-
ing seats in the Alabama Legislature cannot
be sustained by recourse to the so-called fed-
eral analogy. Nor can any other inequitable
state legislative apportionment scheme 136'
justified on such an asserted basis. This
does not necessarily mean that such a plan
is irrational or involves something other than
a "republican form of government." We
conclude simply that such a plan is imper-
missible for the States under the Equal Pro-
tection Clause, since perforce resulting, in
virtually every case, in submergence of the
equal-population principle in at least one
house of a State legislature. .
Since we find the so-called Federal analogy
Inapposite to a consideration of the consti-
tutional validity of State legislative appor-
tionment schemes, we necessarily hold that
the Equal Protection Clause requires both
houses of a State legislature to be appor-
tioned on a population basis. The right of
a citizen to equal representation and to have
his vote weighted equally with those of all
other citizens in the election of members of
one house of a bicameral State legislature
would amount to little if States could effec-
tively submerge the equal-population prin-
ciple in the apportionment of seats in the
other house. If such a scheme were permis-
sible, an individual citizen's ability to exer-
cise an effective voice in the only instrument
of state government directly representative
of the people might be almost as effectively
thwarted as if neither house were appor-
tioned on a population basis. Deadlock be-
tween the two bodies might result in com-
promise and concession on some issues. But
in all too many cases the more probable re-
sult would be frustration of the majority will
through minority veto in the house not ap-
portioned on a population basis, stemming
directly from the failure to accord adequate
overall legislative representation to all of the
State's citizens on a nondiscriminatory basis.
In summary, we can perceive no constitution-
al difference, with respect to the geographical
distribution of state legislative representa-
tion, between the two houses of a bicameral
State legislature.
We do not believe that the concept of
bicameralism is rendered anachronistic and
meaningless when the predominant basis of
representation in two State legislative bodies
is required to be the same?population. A
prime reason for bicameralism, modernly
considered, is to insure mature and delib-
erate consideration of, and to prevent
precipitate action on, proposed legislative
measures. Simply because the controlling
criterion for apportioning representation is
required to be the same in both houses does
not mean that there will be no differences
in the composition and complexion of the
two bodies. Different'-constituencies can be
represented in the two houses. One body
could be composed of single-member dis-
tricts while the other could have at least
some multimember districts. The length of
terms of the legislators in the separate bod-
ies ,could differ. The numerical size of the
two bodies could be made to differ, even sig-
nificantly, and the geographical size of dis-
tricts from which legislators are elected
could also be made to differ. And appor-
tionment in one house could be arranged so
as to balance off minor inequities in the
/ representation of certain areas in the other
house. In summary, these and other factors
could be, and are presently in many States,
utilized to engender differing complexions
and collective attitudes in the two bodies of
a State legislature, although both are ap-
portioned substantially on a population
basis.
VI
By holding that as a Federal constitutional
requisite both houses of a state legislature
must be apportioned on a population basis,
we mean that the Equal Protection Clause
requires that a State make an honest and
good faith effort to construct districts; in
both houses of its legislature, as nearly of
equal population as is practicable. We real-
ize that it is a practical impossibility to
arrange legislative districts so that each one
has an identical number of residents, or citi-
zens,- or voters. Mathematical exactness or
precision is hardly a workable constitutional
requirement."
In Wesberry v. Sanders, supra, the Court
stated that congressional representation
must be based on population as nearly as is
practicable. In implementing the basic con-
stitutional principle of representative gov-
ernment as enunciated by the Court in Wes-
berry?equality of population among dis-
tricts?some distinctions may well be made
between congressional and State legislative
representation. Since, almost invariably,
there is a significantly larger number of seats
In state legislative bodies to be distributed
within a State than congressional seats, it
may be feasible to use political subdivision
lines to a greater extent in establishing state
legislative districts than in congressional dis-
tricting while still affording adequate repre-
sentation to all parts of the State. To do so
would be constitutionally valid, so long as
the resulting apportionment was one based
substantially on population and the equal-
population principle was not diluted in any
significant way. Somewhat more flexibility
may therefore be constitutionally permissible
with respect to state legislative apportion-
ment than in congressional districting.
Lower courts can and assuredly will work out
more concrete and specific standards for eval-
uating state legislative apportionment
schemes in the context of actual litigation.
For the present; we deem it expedient not to
attempt to spell out any precise constitu-
tional tests. What is marginally permissible
in one State may be unsatisfactory in an-
other, depending on the particular circum-
stances of the case. Developing a body of
doctrine on a case-by-case basis appears to
us to provide the most satisfactory means of
arriving at detailed constitutional require-
ments in the area of state legislative appor-
tionment. Cf. Slaughter-House Cases, 16
Wall. 36, 78-79. Thus, we proceed to state
here only a few rather general considerations
which appear to us to be relevant.
A State may legitimately desire to main-
tain the integrity of various political sub-
divisions, insofar as possible, and provide for
compact districts of contiguous territory in
designing a legislative apportionment scheme.
Valid considerations may underlie such aims.
Indiscriminate districting, without any re-
gard for political subdivision or natural or
historical boundary lines, may be little more
than an open invitation to partisan gerry-
mandering. Single-member districts may be
the rule in one State, while another State
might desire to achieve some flexibility by
creating multimember " or fioterial dis-
tricts." Whatever the means of accomplish-
ment, the overriding objective must be sub-
stantial equality of population among the
various districts, so that the vote of any
citizen is approximately equal in weight to
that of any other citizen in the State.
57 As stated by the Court in Bain Peanut Co.
v. Pinson, 282 U.S. 499, 501, "We must remem-
ber that the machinery of government would
not work if it were not allowed a little play
in its joints."
" But cf. the discussion of some of the
practical problems inherent in the use of
multimember districts in Lucas v. The Forty-
Fourth General Assembly of the State of
Colorado, ? U.S., at ?, decided also this
date.
" See the discussion of the concept of flo-
terial districts in Davis v. 'Mann, ? U.S.
, n. 2, decided also this date.
19373
History indicates, however, that many
States have deviated, to a greater or lesser
degree, from the equal-population principle
in the apportionment of seats in at least one
house of their legislatures." So long as the
divergences from a strict population stand-
ard are based on legitimate considerations
Incident to the effectuation of a rational
state policy, some deviations from the equal -
population principle are constitutionally per-
missible with respect to the. apportionment
of seats in either or both of the two houses
of a bicameral state legislature. But neither
history alone,'" nor economic or other sorts
of group interests, are permissible factors
in attempting to justify disparities from pop-
ulation-based representation. Citizens, not
history or economic interests, cast, votes.
Considerations of area alone provide an in-
sufficient justification for deviations from
the equal-population principle. Again, peo-
ple, not land or trees or pastures, vote. Mod-
ern developments and improvements in trans-
portation and communications make rather
hollow, in the mid-1960's, most claims that
deviations from population-based repre-
sentation can validly be based solely on geo-
graphical considerations. Arguments for al-
lowing such deviations in order.to insure ef-
fective representation for sparsely settled
areas and to prevent legislative districts from
becoming so large that the availability of ac-
cess of citizens to their representatives is
impaired are today, for the most part, un-
convincing.
A consideration that appears to be of more
substance in justifying some deviations from
population-based representation in state
legislatures is that of insuring some voice to
political subdivisions, as political subdivi-
sions. Several factors make more than in.
substantial claims that a State can ration-
ally consider according political subdivisions
some independent representation in at least
one body of the state legislature, as long as
the basic standard of equality of population
among districts is maintained. Local gov-
ernmental entities are frequently charged
with various responsibilities incident to the
operation of state government. In many
States much of the legislature's activity in-
volves the enactment of so-called local leg-
islation directed only to the concerns of
particular political subdivisions. And a
State may legitimately desire to construct
districts along political subdivision lines to
deter the possibilities of gerrymandering.
However, permitting deviations from popu-
lation-based representation does not mean
that each local governmental unit or politi-
cal subdivision can be given separate repre-
sentation, regardless of population. Carried
too far, a scheme of giving at least one seat
in one house to each political subdivision
(for example, to each county) could easily
65 For a discussion of the formal apportion-
ment formulae prescribed for the allocation
of seats in state legislatures, see Dixon, Ap-
portionment Standards and Judicial Power,
38 Notre Dame Law. 367, 398-400 (1963)
See also The Council of State Governments,
The Book of the States 1962-1963, 58-62
(1962) .
61 In rejecting a suggestion that the repre-
sentation of the newer Western States in
Congress should be limited so that it would
never exceed that of the original States, the
Constitutional Convention plainly indicated
Its view that history alone provided an un-
satisfactory basis for differentiations relating
to legislative representation. See Wesberry
v.' Sanders, 376 U.S., at 14. Instead, the
Northwest Ordinance of 1787, in explicitly
providing for population-based representa-
tion of those living in the Northwest Terri-
tory in their territorial legislatures, clearly
implied that, as early as the year of the birth
of our federal system, the proper basis of
legislative representation was regarded as
being population.
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19374 CONGRESSIONAL RECORD ? SENATE
result, in many States, in a total subversion
of the equal-population principle in that
legislative body. 62 This would be especially
true in a State where the number of coun-
tied is large and many of them are sparsely
populated, and the number of seats in the
legislative body being apportioned does not
significantly exceed the number of counties.
Such a result, we conclude, would be con-
stitutionally impermissible. And careful
judicial scrutiny must of course be given, in
evaluating state apportionment schemes, to
the character as well as the degree of de-
viations from a strict population basis. But
if, even as a result of a clearly rational state
policy of according some legislative repre-
sentation to political subdivisions, popula-
tion is submerged as the controlling consid-
eration in the apportionment of seats in the
particular legislative body, then the right of
all of the State's citizens to cast an effective
and adequately weighted vote would be un-
constitutionally, impaired.
Mr. PROXMIRE. Mr. President, will
the Senator yield?
Mr. NELSON. I yield.
Mr. PROXMIRE. Mr. President, it
seems to me that this particular section
of the Reynolds against Sims decision is
devastating to the argument just made
?by the senior Senator from Ohio LMr.
LAIISCKE] about the necessity for pro-
viding greater representation to rural
areas in order to have a more conserva-
tive or more prudent representation and
prudent 'policy on the part of the State
government.
Can the Senator imagine what would
happen if instead of having some kind of
area apportionment, we decided to make
it as rational as possible, and say, "What
we should do is to provide an intelligence
test for each voter. Those who classify
in the genius category shall have five
votes. Those who are of normal or aver-
age intelligence shall have one vote.
Morons will receive one-fifth of a vote."
Or, suppose we should say, "A bank ac-
count is an indication of prudence, cau-
tion; conservatism, and resistance to
spending. Therefore, we should give
votes on the basis of a man's wealth. A
rich man will get 10 times the vote of a
man with average income, and a very
poor man will get almost no vote at all."
When we consider the argument that
some people ought to have more respon-
sibilities than others in view of the dis-
tinctions that we have discussed, I believe
we can see how invidious and false any
such proposal would be. We could see
how every Senator would recognize that
it would be unthinkable, completely
wrong, immoral, and unacceptable. And
they would say so.
From that viewpoint, it seems to me
that it would be much easier to say what
qualities we want. We could then re-
ward citizens who had such attributes.
We would thereby have a rational, more
intelligent, and more enlightened legis-
62 See McKay, Political Thickets and Crazy
Quilts: Reapportionment and Equal Protec-
tion, 61 Mich. L. Rev. 645, 698-699 (1963) .
' 62Determining the size of its legislative
bodies is of course a matter within the dis-
cretion of each individual State. Nothing in
this opinion should be read as indicating
that there are any federal constitutional
maximums or minimums on the size of State
legislative bodies.
lature. We would give the vote to people
who have these attributes in greater
proportion.
Mr. NELSON. I believe the Senator is
entirely correct. In the example men-
tioned by the Senator, some rational
argument might be made to support it.
The Senator from Wisconsin would not
make it. But at least there is some ra-
tionality to it, whereas in the other sys-
tem there is none whatsoever.
Mr. PROXMIRE. Does the Senator
not recognize that there are some farm-
ers who are very thoughtful, wonderful
people? It has nothing to do -with edu-
cation necessarily. It results from many
things experienced by the people?the
kind of family they have grown up in,
the attitudes of their fathers and
mothers toward them, and so on. There
are other farmers who are not responsi-
ble at all. The same thing could be said
of people in the cities and the suburbs.
The argument that we shall get more
rational suburbanites, more rational city
dwellers, or more rational farm dwellers
is so inconsistent to that position that
we could not find a scientist or any kind
of an expert who would justify it. It is
almost laughable.
Does it make any sense at all that we
should try to construct a legislature
based upon saying that because there are
.fewer people living in a certain area,
those people should have more repre-
sentation? Is there any logic in that
kind of argument?
Mr. NELSON. I see no logic whatso-
ever in the argument. The Senator has
called attention to a good Point. As he
well knows, the State of Wisconsin has a
population apportionment. I believe it
is perhaps the most perfect apportion-
ment of any State in the Union today.
It is almost as perfect as it can be done
mathematically. The Senator well
knows that every single year representa-
tives of the city areas of the State of
Wisconsin vote to appropriate large sums
of money to contribute to school aid in
order to assist the low tax base areas of
the State, which are mainly rural, many
of them being small towns. The school
systems throughout the State of Wiscon-
sin in areas where the tax base is low are
subsidized. Our large cities, such as Mil-
waukee and Madison?cities with good
tax bases?willingly pay taxes that are
used for that purpose. The legislature is
supporting the subsidy in recognition of
the necessity of providing an equal op-
portunity for education, no matter where
a child might be raised.
On the other hand, there has been a
rapid growth in metropolitan areas?
not merely an extension of city bound-
aries?so that now there are vast metro-
politan areas that cover many square
miles. The eastern coast is almost one
continuous metropolitan area. In many
States of the Union the cities have been
unable to meet their rapidly growing
problems because of the veto power of a
small minority of the citizens over pro-
posed legislation which it is necessary?
in fact crucial?to pass if we are to pre-
serve, protect, and permit orderly
growth in the metropolitan areas of
America. If that should continue, we
- August -18
shall run into catastrophic circum-
stances in many parts of the Nation.
Metropolitan areas will merely collapse
of their own weight and their own in-
ability to obtain authorization from leg-
islatures to meet their problems.
I continue to read from the opinion
In the case of Reynolds against Sims:
VII
One of the arguments frequently offered as
a basis for upholding a State's legislative
apportionment arrangement, despite sub-
stantial disparities from a population basis
in either or both houses, is grounded on
congressional , approval, incident to admit-
ting States into the Union, of state appor-
tionment plans containing deviations from
the equal-population principle. Proponents
of this argument contend that congressional
approval of such schemes, despite their dis-
parities from population-based representa-
tion, indicate that such arrangements are
plainly sufficient as establishing a "republi-
can form of government." As we stated in
Baker v. Carr, some questions raised under
the Guaranty Clause are nonjusticiable where
"political" in nature and where there is a
clear absence go judicially manageable
standards.62 Nevertheless, it is not incon-
sistent with this view to hold that, despite
congressional approval of state legislative
apportionment plans at the time of admis-
sion into the Union, even though deviating
from the equal-population principle here
enunciated, the Equal Protection Clause can
and does require more. And an apportion-
ment scheme in which both houses are based
on population can hardly be considered as
failing to satisfy the Guaranty Clause re-
quirement. Congress presumably does not as-
sume, in admitting States into the Union,
to pass on all constitutional questions relat-
ing to the character of state governmental
organization. In any event, congressional
approval, however well-considered, could
hardly validate an unconstitutional state
legislative apportionment. Congress simply
lacks the constitutional power to insulate
States from attack with respect to alleged
deprivations of individual constitutional
rights.
vu!
That the Equal Protection Clause requires
that both houses of a state leislature be
apportioned on a population basis does not
mean that States cannot adopt some reason-
able plan for periodic revision of their ap-
portionment schemes. Decennial reappor?
tianment appears to be a rational approach
t6 readjustment of legislative representation
in order to take into account population
shifts and growth. Reallocation of legisla-
tive seats every 10 years coincides with the
prescribed pracice in 41 of the States,6, often
honored more in the breach than the observ-
ance, however. Illustratively, the Alabama
Constitution requires decennial reapportion-
ment, yet the last reapportionment of the
Alabama Legislature, when this suit was
brought, was in 1901.
Mr. PROXMIRE. Mr. President, will
the Senator yield?
Mr. NELSON. I yield to the senior
Senator from Wisconsin.
?4 See 369 U.S., at 217-232, discussing the
nonjusticiability of malapportionrnent claims
asserted under the Guaranty Clause.
6, Report of Advisory Commission on Inter-
governmental Relations, Apportionment of
State Legislatures 56 (1962). Additionally,
the constitutions of seven other States either
require or permit reapportionment of legisla-
tive reprensentation more frequently than
every 10 years. See also The Council of State
Governments, The Book of the States 1962-
1963, 58-62 (1962). -
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CONGRESSIONAL RECORD ? SENATE
Mr. PROXMIRE. The Senator has
been very patient in yielding.
The last two sentences which the
senator has read, it seems to me, are
most significant. They suggest that the
Dirksen amendment may well be futile
now. Let me repeat those words:
In any event, congressional approval, how-
ever well considered, could hardly validate
an unconstitutional State legislative appor-
tionment. Congress _simply lacks the con-
stitutional power to insulate States from
attack with respect to alleged deprivations
of individual constitutional rights.
If that language means anything, it
seems tome it means Congress cannot
provide that a stay must be honored by
the court?a stay of at least a year, and
in many cases of 3 or 4 or 5 years. Such
a stay, according to a majority of the
,court?and this is a majority opinion?
would not be constitutional.
The Supreme Court says so. It says so
very clearly in the language which the
Senator has just read.
Mr. NELSON. What the senior Sen-
ator from Wisconsin has said is entirely
correct.
I continue to read from the opinion:
Limitations on the frequency of reappor-
tionment are justified by the need for stabil-
ity and continuity in the organization of the
legislative system, although undoubtedly re-
apportioning no more frequently than every
10 years leads to some imbalance in the pop-
ulation of districts toward the end of the
decennial period and also to the development
of resistance to change on the part of some
incumbent legislators. In substance, we do
not regard the Equal Protection Clause as re-
quiring, daily, monthly, annual or biennial
reapportionment, so long as a State has a
reasonbably conceived plan for periodic read-
justment of legislative representation. While
we do not intend to indicate that decennial
reapportionment is a constitutional requisite,
compliance with such an approach would
clearly meet the minimal requirements for
maintaining a reasonably current scheme of
legislative representation. And we- do not
mean to intimate that more frequent reap-
portionment would not be constitutionally
permissible or practicably desirable. But if
reapportionment were accomplished with less
frequency, it would assuredly be constitu-
tionally suspect.
Ix
. Although general provisions of the Ala-
bama Constitution provide that the appor-
tionment of seats in both houses of the Ala-
bama Legislature should be on a population
basis, other more detailed provisions clearly
make compliance with both sets of require-
ments impossible. With respect to the op-
eration of the Equal Protection Clause, it
makes no difference whether a State's appor-
tionment scheme is embodied in its consti-
tution or in statutory provisions. In those
States where the alleged malapportionment
has resulted from noncompliance with state
constitutional provisions which, if complied
with, would result in an apportionment valid
under the Equal Protection Clause, the judi-
cial task of providing effective relief would
appear to be rather simple. We agree with
the view of the District Court that State con-
stitutional provisions should be deemed vio-
lative of the Federal Constitution only when
validly asserted constitutional rights could
not otherwise be protected ,and effectuated
Clearly, courts should attempt to accommo-
date the relief ordered to the apportionment
provisions of state constitutions insofar as is
possible. But it is also quite clear that a
state legislative apportionment scheme is no
No. 162-4
less violative of the Federal Constitution
when it is based on State constitutional pro-
visions which have been consistently com-
plied with than when resulting from a non-
compliance with state constitutional require-
ments. When there is an unavoidable conflict
between the Federal and a State Constitu-
tion, the Supremacy Clatise of course con-
trols.
We do not consider here the difficult ques-
tion of the proper remedial devices which
Federal courts should utilize in State legis-
lative apportionment cases.66 Remedial tech-
nique in this new and developing area of the
law will probably often differ with the cir-
cumstances of the challenged apportionment
and a variety of local conditions. It is
enough to say now that, once a State's legis-
lative apportionment scheme has been found
to be unconstitutional, it would be the un-
usual case in which a court would be justi-
fied in not taking appropriate action to in-
sure that no further elections are conducted
under the invalid plan. However, under
certain circumstances, such as where an im-
pending election is imminent and a State's
election machinery is already in progress,
equitable considerations might justify a
court in withholding the granting of im-
mediately effective relief in a legislative ap-
portionment case, even though the existing
apportionment scheme was found invalid.
In awarding or withholding immediate relief,
a court is entitled to and should consider
the proximity of a forthcoming election and
the mechanics and complexities of State elec-
tion laws, and should act and rely upon
general equitable principles. With respect
to the timing of relief, a court can reasonably
endeavor to avoid a disruption of the elec-
tion process which might result from requir-
ing precipitate changes that could make un-
reasonable or embarrassing demands on a
State in adjusting to the requirements of
the Court's decree. As stated by Mr. Justice
Douglas, in concurring in Baker v. Carr, "any
relief accorded can be fashioned in the light
of well-known principles of equity." 07
We feel that the District Court in this
case acted in a most proper and commend-
able manner. It initially acted wisely in de-
clining to stay the impending primary elec-
tion in Alabama, and properly refrained from
acting further until the Alabama Legislature
had been given an opportunity to remedy
the admitted discrepancies in the State's
legislative apportionment scheme, while
initially stating some of its views to provide
guidelines for legislative action. And it cor-
rectly recognized that legislative reapportion-
ment is primarily a matter for legislative con-
sideration and determination, and that ju-
dicial relief becomes appropriate only when
a legislature fails to reapportion according to
federal constitutional requisites in a timely
fashion after having had an adequate
opportunity to do so. Additionally, the court
below acted with proper judicial restraint,
after the Alabama Legislature had failed to
act effectively in remedying the constitu-
tional deficiencies in the State's legislative
apportionment scheme, in ordering its own
temporary reapportionment plan into effect.
at a time sufficiently early to permit the hold-
ing of elections pursuant to that plan with-
out great difficulty, and in prescribing a
plan admittedly provisional in purpose so as
not to usurp the primary responsibility for
reapportionment which rests with the legis-
lature.
We find, therefore, that the action taken
by the District Court in this case, in order-
04 Cf. Baker v. Carr, 369 U.S. 186, 198. See
also 369 U.S., at 250-251 (Douglas, J., con-
curring), and passages from Baker quoted in
this opinion, ante, at ?, and infra, at ?.
el 369 U.S., at-250.
19375
ing into effect a reapportionment of both
houses of the Alabama Legislature for pur-
poses of the 1962 primary and general elec-
tions, by using the best parts of the two
proposed plans which it had found, as a
whole; to be invalid,68 was an appropriate and
well-considered exercise of judicial power.
Admittedly, the lower court's ordered- plan
was intended only as a temporary and pro-
visional measure and the District Court cor-
rectly indicated that th plan was invalid as
a permanent apportionment. In retaining
jurisdiction While deferring a hearing on the
issuance of a final injunction in order to give
the provisionally reapportioned legislature an
opportunity to act effectively, the court be-
low proceeded in a proper fashion. Since
the District Court evinced its realization
that its ordered reapportionment could not
be sustained as the basis for conducting the
1966 election of Alabama legislators, and
avowedly intends to take some further ac-
tion should the reapportioned Alabama Leg-
islature fail to enact a constitutionally valid,
permanent apportionment scheme in the in-
terim, we affirm the judgment below and
remand the cases for further proceedings
consistent with the views stated in this
Opinion.
It is so ordered.
That concludes the majority opinion
by Mr. Chief Justice Warren, which
states, I think cogently and persuasive-
ly, the constitutional grounds for the
decision that was rendered by the Court.
Although in a controversial matter
there will be differences of Opinion about
the wisdom of decisions, this decision
certainly is well reasoned, well written,
and well supported in the law. The rea-
son why I read the decision is that it
ought to be included in the CONGRESSION-
AL RECORD so that there may be a wider
opportunity for the people of the coun-
try at least to read first-hand the rea-
soning of the decision which was made
by the Supreme Court, and that the peo-
ple may come to their own conclusion
and their own judgment as to whether
they agree or disagree with it, based
upon a thorough and careful study of
what the Court had to say about the
issue.
MESSAGE FROM THE HOUSE OF
REPRESENTATIVES
A message from the House of Repre-
sentatives, by Mr. Bartlett, one of its
reading clerks, announced that the
House had passed the following bills of
the Senate, severally with an amend-
ment, in which it requested the ,concur-
rence of the Senate:
S. 26. An act to authorize the Secretary of
the Interior to construct, operate, and main-
tain the Dixie project, Utah, and for other
purposes;
S. 400. An act to establish penalties for
misuse of feed made available for relieving
distress-or preservation and maintenance of
foundation herds;
88 Although the District Court indicated
that the apportionment of the Alabama
House under the 67-Senator Amendment was
valid and acceptable, we of course reject that
determination, which we regard as merely
precatory and advisory since the court be-
low found the overall plan, under the pro-
posed constitutional amendment, to be un-
constitutional. See 208 F. Supp., at 440-441.
See the discussion earlier in this opinion,
ante at?.
Declassified and Approved For Release 2014/05/20: CIA-RDP66B00403R000300080038-1