Baker v. Carr – Oral Argument – April 19, 1961

Media for Baker v. Carr

Audio Transcription for Oral Reargument – October 09, 1961 (Part 1) in Baker v. Carr
Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Earl Warren:

Number 103, Charles W. Baker et al., Appellants versus Joe C. Carr et al.

Mr. Rhyne.

Charles S. Rhyne:

Mr. Chief Justice, may it please the Court.

This is an individual voting rights case brought by 11 qualified voters in the State of Tennessee.

In their complaint, they alleged in substance that by an affirmative purposeful and systematic plan embodied in a 1901 Act of the Legislature, their voting rights have been diluted and the base to the point of nullification.

A United States — the District Court, three-judge court, dismissed their complaint on the ground that it had no power to protect their voting rights under the Fourteenth Amendment.

Our position is that that decision was error, that there exist no judicial, no man’s land in connection with constitutional rights of individual on the Fourteenth Amendment.

Now, the facts alleged in the complaint were of course admitted by the motion to dismiss and they are in substance, this, Tennessee’s Constitution which was adopted in 1870, provided that in 1871 and in each 10-year — every 10 years thereafter, there should be an enumeration of qualified voters and then the House of Representatives and Senate should be reapportioned according to the number of qualified voters in each county or district.

There are — under the Constitution, 99 seats in the House of Representatives.

And so — and if you reapportion the House according to the number of enumerated qualified voters under the constitutional formula in Tennessee, you divide 99 into the number of qualified voters, which in 18 and — or in 1900 was about 487,000.

There are around two million today.

The House has one peculiar provision that doesn’t apply to the Senate and that is provided that in reapportioning the House, every county that has the required — two-thirds of the required ratio is entitled to a Representative, they’re 95 counties.

And in reapportioning the Senate in a fraction of representation that is lost in the House, shall be made up as near as maybe practicable.

So it’s quite obvious that this is a — a mathematical formula designed to ensure majority control in — in Tennessee and to — right into the fundamental law, this requirement of equality of representation.

William O. Douglas:

This is not a — inequality based on racial distinction, is it?

Charles S. Rhyne:

No, no, Your Honor.

It — it’s not.

It’s — it’s based upon a discrimination —

William O. Douglas:

Unlike — yes, unlike the Tuskegee case and it’s this —

Charles S. Rhyne:

Well —

William O. Douglas:

— straight across the Boards.

Charles S. Rhyne:

It’s — it’s straight across the Boards, but even in Tuskegee, you had the discrimination based on race, in which we think exist here.

But this is not a racial case, Mr. Justice Douglas.

Potter Stewart:

No Fifteenth Amendment claim here at all.

Charles S. Rhyne:

No, this is a Fourteenth Amendment, Mr. Justice —

Potter Stewart:

And you’re not — just so I’ll understand.

You’re not attacking are you, this peculiar provision of the Tennessee Constitution which gives one representative to each county if it has as much as two-thirds of its — of its voters.

Charles S. Rhyne:

No, we — we’re relying on that because — Mr. Justice Stewart —

Potter Stewart:

Although, that itself embodies some inequality, does it not?

Charles S. Rhyne:

Well, it involves a — a slight amount, but then you see the — the very unusual provision of making it up —

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Potter Stewart:

(Voice Overlap) it’s not going to make it up —

Charles S. Rhyne:

— in the Senate and then this periodic reexaminations every 10 years, which rights into the fundamental law of Tennessee, this requirement of equal representation in the Legislature.

But that is not all that’s in the — the Tennessee Constitution, on this subject of equality, of voting rights, because the Constitution specifically provides this and I quote, “Election shall be free and equal.”

And that the right of suffrage shall never be denied to any person entitled thereto.

And in the Constitution of Tennessee, it’s provided that every person, 21 years or over, who resides in the State of one year or in a county for three months, is entitled to vote.

Now, as against this mandatory constitutional provision, the Tennessee Legislature has not reapportioned itself for 60 years.

Its last reapportionment was in 1901 and when in 1901, they reapportioned, they did not do it according to an enumeration of qualified voters so some counties immediately had more representation they were entitled to and 11 had less.

So we find that even the last time they tried it in 1901, they didn’t do it properly under the constitutional formula.

And of course since that time, they haven’t done anything but vote down every bill that has proposed the reapportionment of the State.

Felix Frankfurter:

Mr. Rhyne, what’s the bearing of these provisions in the — in the Tennessee Constitution, the federal question which is (Voice Overlap) —

Charles S. Rhyne:

Well, the — the right to vote Mr. Justice Frankfurter is created by the State and this defines the — the right to vote.

It’s a vote given in inequality, insofar as representation —

Felix Frankfurter:

Voted for a statute, would it make any difference?

Voted for statute in the — instead of the Constitution?

Charles S. Rhyne:

Well, I think that it — if it was a statute conferring the right to vote inequality and then there were some state action that came along and wiped it out.

See, what we have there is a constitutional provision —

Felix Frankfurter:

Well, I know that.

That’s my —

Charles S. Rhyne:

And then we have a —

Felix Frankfurter:

— that’s my question.

What difference does it make whether it’s in the Constitution or in any other expression or action by the State?

Charles S. Rhyne:

I think it makes a lot of difference Mr. Justice Frankfurter, because the Legislature comes along by this 1901 statute and takes away what the Constitution gave to the people of Tennessee.

Felix Frankfurter:

Well, suppose they see it, if it doesn’t offend the Federal Constitution, it doesn’t make no difference that offends the State Constitution.

Charles S. Rhyne:

Well —

Felix Frankfurter:

I’m not denying that it doesn’t.

All I’m saying is you stressed the fact that is incorporated in the State Constitution.

Charles S. Rhyne:

Well, I think if Your Honor please, that it does offend the equal protection of the laws clause of the Fourteenth Amendment, I’m —

Felix Frankfurter:

That’s what we’re arguing —

Charles S. Rhyne:

Yes.

Felix Frankfurter:

— but just — I just —

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Charles S. Rhyne:

And I think it’s quite important that’s in the — the Constitution of Tennessee and that we have a statute that takes away what the people gave to themselves in Tennessee.

Now, since 1901 when this last reapportionment took place, the State of Tennessee population has grown tremendously and it’s grown unevenly and there have been shifts of populations so that the — the city, so the large cities have grown and grown and grown and the 1901 Act which is still the one that reapportioned the Legislature, brings about these rather growth test results.

In the County of — of Davidson, of — that’s Nashville where Mayor Ben West, one of the plaintiff’s lives.

The — the qualified voting population is grown from 33,000 to 242,000.

Under the 1901 Act, Davidson County has six Representatives in the House of Representatives, but under the constitutional formula is entitled to 10.

They have two Senators, they’re entitled to three.

In Shelby County where the appellant Baker lives, the voting population has grown from 48,000 to 359,000.

They have seven Representatives under the 1901 Act and under the constitutional formula entitled to 15.

They have three Senators and are entitled to five.

And so it goes in — in Knox County, the growth is from 19,000 to 151,000 that’s where Knoxville is — is located.

They have three Representatives and they’re entitled to seven.

Now, I could go on and on, giving illustrations, showing how this has worsened with the increase in population in cities and how still the legislators have perpetrated themselves in office and maintained their control through this 1901 Act.

Just to illustrate, just how gross this situation is, the complaint has attached to it a number of the charts and one of them shows that — it’s on page 231 of the record, Exhibit 4.

That there are 23 counties that have 25 Representatives, whereas under the constitutional formula, they’re entitled two.

Now, what does this mean in — in voting strength?

This — and insofar as this equality requirement is concerned.

In Shelby County which I referred, it takes 20 votes to equal the weight of a voter in Moore County and that comes about in this way with the — the 359,000 qualified voters.

In — in Shelby County, they are entitled to elect 15 Representatives and now, elect seven.

Moore County only has 200 — 2340 qualified voters, but they elect one.

So it’s about 20 to 1.

The overall average of the dilution of the strength of — of the vote of appellants is about one-tenth.

They have about one-tenth the vote of the people who live in these favored counties in Tennessee.

Or to put it in another way, 37% of the people of the State elect and control 20 of the 33 Senators, 40% of the voters of Tennessee elect in control 63 of the 99 legislators.

So you have in effect, one-third of the people controlling two-thirds of the Legislature.

Potter Stewart:

Mr. Rhyne, I gather as the — in chart page 231 that each county now under the 19 — 1901 Act, these counties have at least one Representative, is that it, because each — this apparently —

Charles S. Rhyne:

Yes.

Potter Stewart:

(Voice Overlap) the smaller counties —

Charles S. Rhyne:

Yes.

Actual numbers of Representatives in the last columns, Mr. Justice Stewart.

Potter Stewart:

Each county in the State —

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Charles S. Rhyne:

Yes.

Potter Stewart:

— has at least one?

Charles S. Rhyne:

No.

No, you’ll find some charts Mr. Justice Stewart that showed the — the actual representation as exhibits to the — the complaint.

Each county doesn’t have.

Potter Stewart:

Does not —

Charles S. Rhyne:

Some of them are put together in — in districts because you see, there — there are 95 counties and there are 99 counties.

Potter Stewart:

Or 95 counties that was going to be (Inaudible) —

Charles S. Rhyne:

And — and some of the counties has — have more than one.

Potter Stewart:

I’d — I’d assume that the least or perhaps the smaller counties, that each of these have at least one.

Charles S. Rhyne:

Well, they are as you — you’re right.

If they are the smallest counties, but — but of course —

Potter Stewart:

But there some counties that don’t have — that are not a district in —

Charles S. Rhyne:

Well, I put together to — two are put together and they — they make a — a voting district.

Potter Stewart:

Fine, thank you.

Charles S. Rhyne:

Now, because a county only gets a — a full representative, Mr. Justice Stewart when they have two-thirds of the ratio, but dividing 99 into the (Voice Overlap) —

Potter Stewart:

Under the Constitution, I know that’s true, but I’m talking about the facts under —

Charles S. Rhyne:

Well —

Potter Stewart:

— 1901 legislation.

Charles S. Rhyne:

That’s right.

Charles E. Whittaker:

I — I understand that there never could be a split of a county — you take a whole county into a district or none of it, is that right?

Charles S. Rhyne:

The Constitution so provide and that is the — the reason, I take it that they provide for the making up of any representation that might be lost in the House and the Senate.

Charles E. Whittaker:

Well, you don’t content I would suppose then that there has to be exact equality.

Charles S. Rhyne:

Oh, no.

No, no, the Constitution has said — itself says as near as maybe practical.

So no, no.

We don’t content that you have to have the exact mathematical equality at all, but as near as maybe practical and certainly the — the picture that is presented there now, Mr. Justice Whittaker isn’t as near as maybe practical according to enumeration of the qualified voters.

Charles E. Whittaker:

(Inaudible) three-judge court judgment (Inaudible)

Charles S. Rhyne:

That is — that is true.

That was a decision of — of the three-judge court that it had no power to enforce or protect the voting rights of these individual plaintiffs who are here.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Charles E. Whittaker:

Does this tax under (Inaudible)

Charles S. Rhyne:

Yes, they do.

They do by the motion to dismiss.

Now, just to show how it’s practically impossible to expect the State legislator, after 60 years of doing nothing to act, now, they set forth in the complaint, these plaintiffs do.

Many facts showing how — that the — the Legislature controlled by the — the rural areas, favor themselves, they’ll adopt a — a general statute and then they exempt the favored counties out.

So that as a result, you have a situation where — with respect to a state allocation of school funds, on an average, the — the favored counties get $152.

The unfavored get $107.

Or — and these were all set forth in rather voluminous exhibits attached to — to the complaint and you have things like this, Pickett County gets $226 per pupil, Shelby County gets $95.

So we set forth these facts showing how they have used their power to discriminate in their favor merely to illustrate the impossibility of expecting those who benefit, those who have usurped these power to ever turn it loose.

Potter Stewart:

Under the constitutional — Tennessee constitutional formula Mr. Rhyne, would the Legislature be dominated by Representatives of urban areas or would it be about in ballots?

Charles S. Rhyne:

I would — would say that it would come close to be in about in — in ballots.

So I think that — that if there’s anything that this — this formula would result in, it would certainly result if carried out in majority rule.

And it’s true, there’s been this great shift of population to the — to the cities, but I haven’t personally figured out.

Potter Stewart:

I wondered if they were a charge here showing (Voice Overlap) —

Charles S. Rhyne:

There are some charges attached to the compliant showing what would happen if the State were redistrict according to the constitutional formula or you look at the — the Exhibit F to the complaint, it shows — it’s on page 30 of the record.

And it shows how that the — the Senate would — would look at — we had a — a redistribution according to the constitutional formula and then in Exhibit E on page 28 of the complaint, we show how the House would look if redistributed according to the constitutional formula.

Potter Stewart:

As I remember the Constitution of — well, I don’t.

I’ve been told about the constitutional — Constitution of Tennessee, the State for some purposes, is divided into three grand divisions and for purposes of their State Supreme Court and their various other purposes.

And the three urban areas, speaking generally, are Memphis in the west — in the west on the river and the national area in the center and Jacksonville and Chattanooga to the east.

And the latter has grown tremendously with the atomic industrial program down there, is that it?

Charles S. Rhyne:

I’m told by my distinguished senior counsel, Mr. Chandler here, that — that Knoxville and Chattanooga are included in the eastern district —

Potter Stewart:

In the east.

Charles S. Rhyne:

— but substance here —

Potter Stewart:

Nashville in the center and Memphis in the west.

Charles S. Rhyne:

Yes, sir.

Potter Stewart:

And that are those the three — those are the three main urban areas in the State, aren’t they?

Charles S. Rhyne:

Yes, they are.

Potter Stewart:

The urban areas.

Charles S. Rhyne:

Yes, they are.

And — and I — I think that —

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Tom C. Clark:

(Voice Overlap) — would represent the (Inaudible)

Charles S. Rhyne:

They would have about 40%, Mr. Justice Clark.

Tom C. Clark:

(Inaudible)

Charles S. Rhyne:

Of the overall of the representation, the urban area that we’re talking about —

Tom C. Clark:

To what extent is the urban area now, I mean the rural level (Inaudible)

Charles S. Rhyne:

Well, it’s two-thirds to one-third.

The representation not — not population, the representation in this Legislature of course is controlled by this 1901 Act, which we say was invalid when adopted in the — and has grown more invalid all the time because they didn’t — they have never done anything about it since that time.

Now, in connection with the facts —

Earl Warren:

Mr. Rhyne, may I ask before you go on to another — another question, if these differences in — in educational subsidies depend entirely upon this — we have upon this apportionment —

Charles S. Rhyne:

No —

Earl Warren:

Are there other factors that are involved in them?

Charles S. Rhyne:

There are other factors, Mr. Chief Justice.

The education law which we have set forth here in the —

Earl Warren:

Well, as long as there are factors that are —

Charles S. Rhyne:

Yes, there are — in it’s — it’s I say, it’s about 100 pages of the record here.

Earl Warren:

Yes.

Charles S. Rhyne:

But there are the factors.

But chiefly, I say they exempt themselves from the State formula and by being exempt, they get certain favored treatment.

That was the — the point I was making and we’re — we’re not asking for any money back.

We’re just pointing that out —

Earl Warren:

Yes.

Charles S. Rhyne:

— to show how it works and how they are favoring themselves.

Now, all avenues of State relief are absolutely closed to these appellants.

I have referred to the — the State Legislature, we have set forth here in an exhibit on page 126 to 160, the record of every proposal for reapportionment in the Tennessee Legislature and that shows that over and over again, every bill for reapportionment since 1901 has voted down that in the Senate, no such bill has ever received more than 13 of the 33 votes and in the House, no bill has ever received more than 36 of the 99 votes.

So I think that it’s almost beyond question that the Legislature itself is not going to change this situation.

Now, with respect to the Tennessee courts, the state courts, the Supreme Court has held that it will not grant any relief here because to do so according to their view, would destroy the Legislature and destroy the Government of Tennessee.

And without discussing the merits of that at this point, I say that — that demonstrates that relief through the state courts is absolutely impossible in the State of Tennessee.

Now, how about the Governor?

The Governor — the Governors I should say, have repeatedly in their messages, the Legislature called attention to this shocking situation and asked the Legislature to reapportion itself.

And as I pointed out just a moment ago, the most they have ever gotten were 13 votes in the Senate and 36 votes in the House.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Charles S. Rhyne:

So — and the Governor can do nothing about it, but call it to the attention of the Legislature.

And they have — have done that over and over again as this exhibit attached to the complaint shows without results.

Now, as for the people themselves, there is no initiative and referendum in Tennessee and so the people can do nothing.

What about constitutional amendment?

The constitutional amendment requires this.

It requires that a — an amendment passed, the State Legislature wants and then be advertised six months before the next meeting of the Legislature, it passed the first time by majority vote.

But the second time, it must pass by two-thirds vote and of course these legislators obviously, are not going to vote any constitutional amendment that will take care of this situation because they control the Legislature.

Charles E. Whittaker:

Well even if they did, wouldn’t you then have just what you have now?

Charles S. Rhyne:

I would say if they did it, we have — just what we have now, Mr. Justice Whittaker.

Charles E. Whittaker:

Well, how would that help?

Charles S. Rhyne:

It wouldn’t help.

I’m merely illustrating it to show that it’s no avenue of relief for us, that we have no way to turn under the State Government and I would also point out that a constitutional convention wouldn’t help us because a constitutional convention is selected the same way as the legislators.

So there is no way, no action that we can get on the state level that will do anything about this inequity of giving us on an average of about one-tenth of a vote or the people or appellants and the favored few, a full vote.

Now —

Earl Warren:

What is the — what is the situation so far as congressional representation is concerned?

Charles S. Rhyne:

In Tennessee?

Earl Warren:

Yes.

Charles S. Rhyne:

I’ll have to ask Mr. Chandler to answer that question.

Earl Warren:

Well —

Charles S. Rhyne:

But I’m not quite — there’s no controversy on — on redistricting insofar as a congressional —

Earl Warren:

Would that mean they do that adequately and fairly?

Charles S. Rhyne:

Yes.

Every 10 years —

Earl Warren:

Evenly?

Charles S. Rhyne:

— without any — any difficulty according to Mr. Chandler here.

Earl Warren:

Is that called by for your Constitution, too?

Charles S. Rhyne:

No.

No, that’s merely done when the numbers of Representatives are certified to the State.

So I — the Constitution itself doesn’t have any provision that relates to congressional representation.

Now, Mr. Chief Justice, in ordering the three-judge hearing in this case, Judge Miller said after reviewing the facts that I have reviewed here, that it’s quite obvious if judicial assistance, federal judicial assistance is not available to these plaintiffs, no remedy, no practical remedy exist at all.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Charles S. Rhyne:

And when these facts were — before the — the three-judge court, they said this that, “This is a clear violation” and I’m quoting, “of the State Constitution and the rights of appellants.”

And then they said further, “The evil is a serious one which should be corrected without further delay,” but “the federal rule as enunciated and applied by the Supreme Court,” causes them to hope that they have no power to do anything about protecting and enforcing the voting rights of these plaintiffs.

Potter Stewart:

Of course, Mr. Rhyne, if this is truly an equal protection denial — denial of equal protection of the laws, I suppose the Congress of the United States under Section 5 with the Fourteenth Amendment, could do something about it, couldn’t it?

Charles S. Rhyne:

Mr. Justice Stewart, that particular part of the Section 5 of the Fourteenth Amendment has never been tried with respect to the malapportionment of State Legislatures.

It’s true that, in times, gone by and I refer to that in discussing Smiley versus Holm and some of the case in a few moments.

They did require equality in congressional districts, but I have some trouble with the Fourteenth Amendment provision that you refer to because in the Fourteenth Amendment, it only provides that you can deny representation to any state, a certain amount that discriminates against anyone on account of a violation of equal protection or anything else.

So it’s not clear that — that the Congress itself, could adopt the law requiring State Legislatures to reapportion.

I — I think that — that there would be a — a great deal of doubt as to whether that legislation that they referred to in Section 5, was intended to encompass this kind of thing.

I think it was more having reference to the congressional rather than to the state malapportionment picture.

I think the — it’s — it’s a fair summary of the facts to — to say as Mr. Chandler has said so many times that the real question here is whether or not, you’re going to have two classes of citizenship in Tennessee, half slave and half free, or at least one-third free and two-thirds slave, because there is no way that you can get out of this illegal straightjacket without some federal assistance.

Now, our first point in support of our complaint is this, that these appellants have proper standing to maintain this suit for redress of their — or deprivation of their — their voting rights.

That a voting right is a civil right and under their Ku Klux Act of 1871, this is one of the civil rights that is referred to there, rights under the Fourteenth Amendment that a state may not deny under color of — of state authority.

We think that the right to a full vote rather than a fractional vote is recognized and guaranteed not only by the Constitution of the State of Tennessee, but by the Constitution of the United States.

The — the right to vote is certainly the most basic or one of the most basic rights that Americans posses.

It’s a very heart of our system and this Court has time and time again, upheld complaints by individual voters to either secure damages for deprivation of their voting rights and it has also ordered injunctions to issue, to protect voting rights.

Now, the violation of the Fourteenth Amendment here by giving these appellants only a fraction of a vote, is a personal private wrong to them.

This is not a public wrong or — or a contention that you have bad government in Tennessee or that we have an own — own interest of that kind, our complaint is based not on any abstract right, but on the right to equal representation, to an equal vote given to the State of Tennessee and protected by the Fourteenth Amendment.

Now, in Smiley versus Holm, this Court allowed a citizen, elector and taxpayer to attack malapportionment of the congressional districting in — in Minnesota.

And the same is true in New York in Koenig versus Flynn and in Missouri in Carroll versus Becker.

They — you reviewed such attacks on the merits and we feel that there can’t be any real question about the standing of these individuals to come into a federal court, rely on the statute, 42 U.S.C. 1983, contend that they have been deprived of one of their civil rights and then rely for jurisdiction of the Court upon 20 or — or 28 U.S.C. 1343 which gives the Federal District Courts original jurisdiction to redress deprivations of civil rights and then in 1957, the Congress made it quite clear by an amendment that they interpret civil right to include voting right all this Court had time and time again, prior to that also included voting rights as a — one of the civil rights that the — anyone was entitled to sue on for deprivation of, under the so-called Ku Klux Act.

So when the Congress in — in 1957 and again in 1960 in the Civil Rights Act, it — it defined both areas any action to make a vote effective.

This Congress, we feel has established a policy or tried to establish a policy of judicial action not in action in this field.

And that the — there can’t be any question about the jurisdiction of federal courts under the Civil Rights Act.

Now, there has been no case that I can find by this Court that really flatly holds that federal courts have no jurisdiction to protect voting rights such as this.

In Smiley versus Holm, Carroll versus Becker, I’ve just referred to.

The Court did order this — this protection.

Now, we recognize that in Colegrove versus Green, we have a major problem of — of distinguishing what we considered to be a misunderstood decision.

There, as the Court will recall, there was a claim that Illinois, if had not reapportioned its congressional districts since I believe in 1901, at that time, this case is dated 1946, was required to — to do so under the Fourteenth Amendment or because in — you had some congressional districts where you had 900,000 people and others with only 100,000.

And this Court voted one to one to three.

And the — the real decision was that — that no relief would — would be granted, but on the jurisdictional point, Mr. Justice Rutledge joined with Mr. Justice Black, who had written the judgment for three who thought jurisdiction exist and held that the Court did have jurisdiction, but he thought it shouldn’t be exercised because of the eminence of the election which was in contest there.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Charles S. Rhyne:

And it’s true that Mr. Justice Frankfurter in — in his opinion after citing Wood versus Broom, which it held that there was no longer any requirement, any federal law requirement that these congressional districts be substantial equally that had been removed in 1929, although it existed in the 1911 Act.

So that as Mr. Justice Frankfurter said there, “The legal merits of this controversy were — were really settled in that case.”

That’s Wood versus Broom which eliminated the requirement of the equality among congressional districts.

Now, we have a different situation here because we have a constitutional provision in Tennessee that requires equality in this House of Representatives’ counties and districts and in the senatorial districts in the Senate.

So the fundamental law that applied — the requirement that applied in the Colegrove case was different.

From here, there was no fundamental law requiring equality of congressional districts there.

The next point of Mr. Justice Frankfurter’s opinion was that Congress had exclusive power to order these congressional districts to be equal.

Now, we feel that no such exclusive power exists in the Congress with respect to reapportionment of state legislatives.

So our interpretation of Colegrove simply is that it is not a decision against this on jurisdiction, but it’s for us on jurisdiction that the decision of this Court was not against jurisdiction, but for a jurisdiction.

And therefore, we distinguish it and we say that the lower court here and the other courts that have cited it as holding that no jurisdiction exists are in error.

Felix Frankfurter:

Does that imply Mr. Rhyne that the Congress of the — that according — that as to of federal voting rights, it would not be unconstitutional to there what you call, second class citizens?

Charles S. Rhyne:

No.

Felix Frankfurter:

There’s a greater constitutional protection for State — in state voting than federal?

Charles S. Rhyne:

I’m — I’m not trying to distinguish between a — a federal law voting right and a — and a state voting right, because we have a state voting right here.

Felix Frankfurter:

I understand that.

Charles S. Rhyne:

And I’m merely saying that —

Felix Frankfurter:

You’re suggesting that there would be exclusive remedies in Congress.

Does that mean that the Congress can establish second-rate voters with reference to national interest?

Charles S. Rhyne:

I’m not agreeing with your opinion.

I’m merely distinguishing it from this case, Mr. Justice Frankfurter.

Felix Frankfurter:

I’m — I’m merely suggesting the implication of your — of your distinguishing.

Charles S. Rhyne:

Well, I would say that — that I — I don’t intend to — to distinguish it on that basis.

I think that all voters should be equal in federal elections and in state elections.

Felix Frankfurter:

I can understand your saying we should — if decision is wrong, it should be rejected.

I can understand the distinction you made, because it wouldn’t be for that conclusion.

That under the United States Constitution, Congress would have power to differentiate in voting rights, but the state voters have greater rights than anybody has under the Federal Constitution, with reference to federal rights.

Charles S. Rhyne:

Well, I — I —

Hugo L. Black:

I understood you.

Charles S. Rhyne:

— don’t come to that —

Hugo L. Black:

I understood to distinguish it on the ground that there’re only three members of the Court that have read the — that idea.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
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Charles S. Rhyne:

That’s it.

Hugo L. Black:

And four members thought there was jurisdiction, but one of the four thought that it should — relief should not be granted on equitable ground.

Charles S. Rhyne:

That’s true.

Felix Frankfurter:

You said that, but you also said that I relied on the — the opinion relied on the exclusiveness congressional power.

Charles S. Rhyne:

And — and it did.

It referred to this —

Felix Frankfurter:

And you reject — and you said that differentiates from yours.

Now —

Charles S. Rhyne:

Well —

Felix Frankfurter:

— as to that argument —

Charles S. Rhyne:

I’m — I didn’t —

Felix Frankfurter:

I don’t mind —

Charles S. Rhyne:

— to say all have been that —

Felix Frankfurter:

— objecting on good round, but not on bad grounds.

[Laughter]

Charles S. Rhyne:

Well, I would say that insofar as — as Colegrove is concerned then I will just make the — the one distinction that it did vote 4 to 3 —

Felix Frankfurter:

Alright.

Charles S. Rhyne:

— a far jurisdiction.

Felix Frankfurter:

I know four is more than three that I can understand, I wouldn’t confer.

[Laughter]

Charles S. Rhyne:

Now, in the Gomillion case, it’s true that — that Colegrove was distinguished on the basis that you had affirmative action in Gomillion.

Now, we have affirmative action here.

This 1901 Act was invalid, when it was adopted and over and over again, since 1901, the Tennessee Legislature has rejected any reapportionment time and time again.

Charles E. Whittaker:

(Inaudible) would make this bill affirmative actions or non-action?

Charles S. Rhyne:

As to jurisdiction Mr. Justice Whittaker, I — I would agree that it doesn’t make any difference.

I think that non-action can be just as bad as affirmative action, but that distinction was made in — in Gomillion and I just wanted to point out that we do have the affirmative action here in — in this case.

Now, we — we feel that — that jurisdiction exists and that it should be exercised, because this record presents one of the — the clearest denials of constitutional rights.

We feel that’s ever been brought before this Court, we have this mathematical standard that guarantees equality.

We have the periodic reexamination to be sure that the — the equality is maintained.

We have the qualifications for voters established by Tennessee and they must treat everyone who’d come within those qualifications equally, and they’re not doing it by willful, purposeful discrimination.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
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Charles S. Rhyne:

They are not giving to the appellants here and those similar situated a full vote.

There is no rationale basis for this discrimination on the basis of residents or geography, anymore than there’s any rational basis for discrimination on the base of race, color, creed and certainly the Fourteenth Amendment is not exhausted in the race area.

It reaches other forms of discrimination and we think that it certainly reaches this discrimination which is presented in this case.

Because as Mr. Justice Holm said in Nixon versus Herndon, “All persons whether colored or white shall stand equal before the laws of the State.”

So without further discussion of the — of the merits because I’ve read the statement by the three-judge court which said that, “We were right on the merits that our rights were denied and had been denied and that something should be done about this.”

I move along to an area where there is some dispute at least between us and our distinguished adversary, the Attorney General of — of Tennessee and — and his associates on the nature of the remedy.

Now, we feel that we brought here a — a case or controversy that is right for judicial determination and which calls for a judicial remedy.

And we want to demonstrate that the relief that we seek is within the historical remedies of a court of equity.

The state courts have given it in the past and it’s not beyond the reach of a court, a federal court of equity.

We are asking this Court to — to reverse and remand to the District Court, so it can perform its equity judicial duty.

Now, what do we suggest as — as a first step?

We say that if this Court finds that jurisdiction exists, it should reverse and remand to the District Court.

And that on that point alone — on that action alone, we feel that the Legislature of — of Tennessee must be presumed once this Court has declared the law to — to follow that law and it — then it will go ahead and perform its legislative function.

Now, we have some history to back us up recently in — in New Jersey, the New Jersey Supreme Court held that it had jurisdiction and it waited to enter its order until the Legislature could act and the Legislature did act.

In Minnesota, Federal District Court held that it had jurisdiction and that wait for the Legislature to act and the Legislature did act.

Hugo L. Black:

What case was that?

Charles S. Rhyne:

In Magraw versus Donovan, it’s cited in our — our brief, Mr. Justice Black.

Now, we feel —

Felix Frankfurter:

You might cite Illinois too, you might cite Illinois, too.

Charles S. Rhyne:

Well, they haven’t done so well in Illinois, Mr. Justice Frankfurter.

Felix Frankfurter:

They reapportioned.

Charles S. Rhyne:

Well, I could cite —

Felix Frankfurter:

I think they’ve done —

Charles S. Rhyne:

— some others like Wisconsin, yes.

Felix Frankfurter:

I think they’ve done just as well as these other States?

Charles S. Rhyne:

Yes.

Well, in Wisconsin and — and in the other States, it’s true.

That — that some of them have, but if on finding that jurisdiction exists and reversing the District Court, there’s any further relief that is — is required.

We feel that there are several other alternative steps that we merely want to mention because to demonstrate to this Court that they are judicial things that can be done to hear this malignant cancer that exists in this field.

And the first thing that we would — would suggest is that all of the state officials who have anything to do with elections, be enjoined from conducting any further elections on the 1901 Act.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Charles S. Rhyne:

We’re not asking for ouster of the current Legislature or anything like that.

We just prevent him from continued use of the 1901 Act and then we think that the Governor would call him in the special session and they would go ahead and perform there legislative function.

John M. Harlan II:

Supposing they don’t that, then —

Charles S. Rhyne:

Well —

John M. Harlan II:

— what will the Court do?

Charles S. Rhyne:

— in tandem with that Mr. Justice Harlan, we would suggest the possibility of a declaratory judgment that 1901 Act is invalid.

Then if you coupled the two together, we certainly think that the Legislature would act.

Charles E. Whittaker:

What about the suggestions that will be time enough to meet that situation if it arises?

Charles S. Rhyne:

I like that suggestion, Mr. Justice Whittaker.

I’m merely mentioning now some of the things that would be considered not but you, but by the District Court to demonstrate that there is a reasonable way that this can be worked out on the remedy field and that there is no uncertainty about a court of equity fashioning a remedy that would meet the — the facts of this situation.

And they could take this step-by-step.

Hugo L. Black:

So why do we have to anticipate what steps that would take it all?

Charles S. Rhyne:

I don’t think you do, Mr. Justice Black.

Hugo L. Black:

Just believe you (Voice Overlap) —

Charles S. Rhyne:

I think that all you need to do is — is reverse and remand.

I say I’m merely mentioning these to demonstrate that there are a lot of things that a court of equity can do to cure this situation or to assist the Legislature in moving to do its duty.

Another thing that — that we mentioned in our brief that could be done is the Court could appoint a master to conduct an election under the constitutional formula, or order the state officials to come up with the plan which under the constitutional formula, which it could approve or disapprove.

We also mentioned the possibility of an election at large.

This Court in Smiley versus Holm and other cases that order elections at large for congressional Representatives and we think that you could do the same thing here, because in Kidd versus McCanless, they said you couldn’t have an election at large, but when it comes down to whether or not, a federally protected right is to be enforced or destroyed.

This Court can take its own view of the remedy and it need not follow the view of the — of Tennessee court.

And we also have the fact that the Tennessee Constitution has almost identical provision with those relied upon by Mr. Chief Justice Hughes in Smiley versus Holm, when he ordered this election at large out in — in Minnesota.

Now, I mentioned these remedies and the distinguished Solicitor General will probably mention these and others, but I merely wanted to demonstrate that these things would be temporary that these are — are judicial things — these are things that courts can do, and that the courts are not helpless.

That this, we just cannot accept the view that the federal courts are — are helpless to prevent the very flagrant and gross violation of the Fourteenth Amendment of which we have demonstrated here in — in this case.

Now, Mr. Chief Justice, I’d like to reserve the balance of my time for response.

Earl Warren:

You may.

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

The United States appears in this case as amicus curiae partly because it involves the constitutional rights of the large number of citizens, both in Tennessee and elsewhere, but also because it raises issues that lie very close to the heart — our system of government.

It involves not only the integrity of the electoral process, but also of course, a difficult and delicate question concerning the proper role of the judiciary in securing voters’ fair representation in their State Legislature.

I shall devote my argument to three propositions.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
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Archibald Cox:

The first is that the complaint alleges a deprivation of rights under the Fourteenth Amendment, the right to be free from arbitrary discrimination in the exercise of the franchise which is sufficiently personal to give the victims of the discrimination standing to sue.

Under the general jurisdictional statutes of course, the federal courts do have a right to hear cases, to remedy alleged depravations of rights under the Fourteenth Amendment.

Our second proposition is that a complaint alleging the deprivation of constitutional rights through malapportoinment presents a justiciable controversy.

In the sense that the courts do have jurisdiction over the subject matter to hear the case, adjudicate its merits and grant equitable relief under appropriate circumstances also under other circumstances, they might in the exercise of the discretion of an equity court, dismissed the complaint on the ground that there was no useful relief which the Court could administer.

Our third proposition is that at this stage of the case, there is at least enough likelihood that the court below sitting as court of equity, could find some administrable form of relief to make it improper, to dismiss the complaint at the very outset before the facts had been fully with the appellant.

It seems —

Potter Stewart:

That one of yours — as I heard it, neither none of your three points had to do with the basic substance of this case, whether or not this is a — a violation of the Fourteenth Amendment.

Archibald Cox:

Well, I think that’s about to this extent.

The court below — of course, the court below had jurisdiction.

If the complaint states a claim under the Fourteenth Amendment —

Potter Stewart:

Yes.

Archibald Cox:

— whether the complaint is well founded or not.

Potter Stewart:

Yes.

Archibald Cox:

At least if it’s not patently frivolous.

We think the point is involved at least to the extent that we should show that this isn’t a feudal suing client, but it does not seem necessary or indeed, not even appropriate for the Court to rule now, whether there has or has not been a violation to Fourteenth Amendment.

If it decides that there is a substantial claim —

Potter Stewart:

What —

Archibald Cox:

— then there was jurisdiction and there ought to be a ruling by the lower court.

Potter Stewart:

Well, that’s right.

But there has to be implicitly a ruling that the allegations of this complaint alleged a violation of the Fourteenth Amendment.

Archibald Cox:

There has to be an allegation that they —

Potter Stewart:

In fact —

Archibald Cox:

— alleged a violation, but not a determination that what they alleged is a violation, if I may put it that way.

In other words, the — the question whether this complaint states a cause of action is different from the question whether the court had jurisdiction over the subject matter.

This — this was the first case I think of is an opinion of Justice Holmes in Hart against Keith Vaudeville Exchange, where he does say, “If you state a claim even if it’s not well-founded of federal right, the Court has jurisdiction at least where the claim isn’t patently frivolous.”

Now, I do propose to show that the — to argue that on the face of the complaint —

Potter Stewart:

It is not patently frivolous.

Archibald Cox:

It is not patently frivolous and of course, in doing that, I shall be in effect, directed myself to the proposition that there is a prima facie violation.

Potter Stewart:

Yes.

Archibald Cox:

So, it comes to the same thing.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Charles E. Whittaker:

Mr. Solicitor, if we should take your view, need we do more than call that the complaint states a cause of action and that the District Court must exercise it?

Archibald Cox:

They must exercise its jurisdiction.

Charles E. Whittaker:

Yes.

Archibald Cox:

I think all you need hold is that the case is within the jurisdiction of the federal courts and that the court below must go on and determine whether this complaint States a cause of action.

And in other words, adjudicate the merits of the claim that is a violation under the Fourteenth Amendment.

Charles E. Whittaker:

Alright.

Archibald Cox:

Let me — let me perhaps by using an example, I can make a little clear the point that I have in mind.

Let us suppose that the apportionment in Vermont were such that it was in proportion to population, except that every town, they have the New England system of town government, was entitled to at least one representative, because of the present distribution of population, that that would not result in an equitable — it would not result in an — representation in ratio to the population.

Such an — an allegation that this violated the Fourteenth Amendment would be within the jurisdiction of the federal court, but it might well be held when one got to the merits on that the Fourteenth Amendment didn’t require an absolutely equal apportionment of seats and that there, although the complaint was within the court’s jurisdiction, each shouldn’t be dismissed on the merit.

Now, as I said to Justice Stewart, I do want to repeat that I am arguing here of course that this isn’t a frivolous complaint and the thrust of my argument is necessarily that there is on the face of the complaint, a violation of the Fourteenth Amendment.

We think it’s quite —

Earl Warren:

Well, didn’t the — oh, didn’t the court below hold both — both that we have no jurisdiction — it had no jurisdiction and also that it did not state the cause of action?

Archibald Cox:

I thought that —

Earl Warren:

You do?

Archibald Cox:

— Mr. Chief Justice.

I thought the court did rest on two grounds which it didn’t clearly distinguish.

One, that there was no jurisdiction.

Earl Warren:

Yes.

Archibald Cox:

And two that even if there was federal jurisdiction, jurisdiction over the subject matter —

Earl Warren:

Yes.

Archibald Cox:

— that this was not an appropriate case for the exercise of powers of the court of equity.

Here again [Laughs] I have another —

Earl Warren:

(Inaudible) line.

Archibald Cox:

Yes.

They were together and yet if I might refer that for a moment —

Earl Warren:

Yes, yes.

Archibald Cox:

— I think that the difference does go to the heart of this case.

I was about to develop my part that the complaint does sufficiently allege a deprivation of Fourteenth Amendment rights, under color of state law to bring the case within the general jurisdictional statute.

The right to be free from hostile or capricious discrimination by a state in defining the class of people entitled to vote or in the exercise of the franchise, is a federal right protected by the Fourteenth Amendment.

It’s also a right enforceable by the courts.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Archibald Cox:

Both points have been adjudicated on many occasions, in cases such as Nixon and Herndon, the Texas Jaybird case and others of that type.

The closest precedents do involve racial discrimination, but I suggest that the Fourteenth Amendment prescribes other arbitrary and capricious distinctions affecting the right to vote.

Certainly, a statute that said that redheaded women should not be permitted to vote or that no one who had ever visited the British Commonwealth should permitted to vote, would be a violation of the Fourteenth Amendment.

And I take it, we would also agree with the illustration that Mr. Justice Black has used in dissenting opinions that if a statute give the voters in the west half of the State, 25 votes and the voters in the east half of the State, only one vote, that there would be a violation of the Fourteenth Amendment.

Now, where the apportionment statute has the same effect as allowing the voters in the sparsely settled west half to elect five Representatives for everyone that the populous county in the east half can elect.

Thereto, it would seem, the result is the same and that there must equally be a violation of the Fourteenth Amendment.

Potter Stewart:

Mr. Cox —

Archibald Cox:

That were —

Potter Stewart:

— one of the State with 95 counties saying, which had very desperate populations as Tennessee does, Shelby County I suppose has what?

A million people or many hundred thousand and while these counties has 5000, what if a State with 95 counties decided to set up a unicameral legislature, giving simply one Representative to each county.

Will that — would that — could that —

Archibald Cox:

Well, I think —

Potter Stewart:

— will attack under the Fourteenth Amendment?

Archibald Cox:

I think that a — a question under the Fourteenth Amendment would be presented.

I am not suggesting, clearly not suggesting — intending to suggest that the Fourteenth Amendment requires the apportionment of Representatives in both houses of the Legislature, in the ratio to the population.

It’s quite plain to mean that that is not the Fourteenth Amendment requirement.

Our history makes it plain that other considerations, geographical distribution, historic association of political subdivisions and things of that kind, may be taken into consideration.

Certainly in one house and I would assume for present purposes, maybe taken into account in both houses.

The point that I do insist on —

Potter Stewart:

A State doesn’t have to have two houses, does it?

Archibald Cox:

Doesn’t have to have two.

Potter Stewart:

I think Nebraska does not, does it?

Obsess me to hear to there, but —

Archibald Cox:

I — I —

Potter Stewart:

— but you would agree that a State doesn’t have to have to two —

Archibald Cox:

I would agree it doesn’t have to have two (Voice Overlap) —

Potter Stewart:

At one, you can have the same I suppose.

Archibald Cox:

And I would assume for present purposes that there’s only one, that there did not have to be an exactly mathematical apportionment in terms of the population.

What I do insist on, is that the State must have some rational basis for its apportionment.

And I think that the case we have here is one where it appears at least that the States that there is no rational basis for the apportionment.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

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Archibald Cox:

The Tennessee Constitution requires apportionment in the ratio to the population, in both houses of the Legislature.

The apportionment is so — the ratio is so out of proportion today that a vote in some counties is worth 20 times a vote in other counties.

Now, I say that where the apportionment that the State has departs from the only ostensible basis on which the apportionment is based, by that degree — that this is such an egregious error that it stands on the face of it as arbitrary and capricious.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

That’s true.

William J. Brennan, Jr.:

The basis for apportionment so that it did hand it so far (Inaudible)

Archibald Cox:

Well, no.

I don’t think I even have to go quite that far.

I think if Tennessee came in at the trial on the merits of this case and show to some other rational foundation for what it is done, that then the complaint — I don’t like as a — amicus to talk my friend on the Court, [Laughs] but at least my argument would be consistent with dismissing the complaint at that stage.

All I say is that where you have an ostensible basis and what you do comes up with no resemblance to it that that at least, puts the burden on you of coming forward with an explanation.

Now, let me make it plain that this is not a claim that there is a federal right to have Tennessee follow the Tennessee Constitution.

The only federal right that I’m speaking to is the right to have some rational basis for the apportionment and we say at this stage, that on the face of it, this is so egregious, crazy.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

On the face of what we have in front of this at this stage is I think what I —

Felix Frankfurter:

You’ve had a case in this Court Mr. Solicitor in which it was conceded that there was a complete departure from the expressed and explicit and formally define terms of the Tennessee Constitution as to taxation, in making a difference between railroad and other properties for purpose of taxation.

And this Court said that doesn’t make any good.

So that the fact that Tennessee has written something into its Constitution, doesn’t give it less power than if it deleted this from the Constitution and then came here.

Archibald Cox:

Except that — it would seem to me that here Tennessee, at least I had urged on Your Honor that the ostensible basis was following the Tennessee Constitution.

Tennessee has —

Felix Frankfurter:

So it has in the tax — in the tax case.

Archibald Cox:

Well, if —

Felix Frankfurter:

It stopped for a time, then it became settled practice to disregard the provision in the — in the Tennessee Constitution, that’s the Browning case, if we have it in 10.

Archibald Cox:

I regret that I’m not familiar with it.

I would surmise that there must have been some other rational basis.

It was pointed out in argument to this Court for the tax classification and so here, if some other rational basis is pointed out at some stage of the case, that would present a different issue, then I say the Court has behind it — before it.

At this stage, whether they’re simply considering, whether this jurisdiction of the subject matter.

Felix Frankfurter:

But if according to your statement, Tennessee has a right to be irrational for not having anything in its Constitution and making differentiation as a matter of history, you use the word, history a little while ago, then I don’t see what difference it makes that it’s written in the Constitution, but disregarded its own Constitution.

Archibald Cox:

It gave — well, I would argue that one could infer from that, but this hadn’t been done rationally.

That’s what it was it boils down to where the —

Felix Frankfurter:

History, very often isn’t irrational.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
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Archibald Cox:

Well, perhaps where it’s entirely irrational, it –- the results don’t conform to the Fourteenth Amendment.

Charles E. Whittaker:

Do I properly gather that the arguments you’ve been making (Inaudible) your answer to Mr. Justice Stewart (Inaudible) you’re proceeding on the due process basis.

Archibald Cox:

I hadn’t sought to distinguish between due process and equal protection.

That would seem to me the requirement of a rational basis for the discrimination, goes to the Equal Protection Clause and if there is a bad enough lack of rationality, then as I understand it, it goes to due process too.

The complaint makes claims under both clauses.

Charles E. Whittaker:

(Inaudible) Equal Protection Clause.

Archibald Cox:

Well, under equal – I didn’t intend to – the Equal Protection Clause requires a reasonable classification.

And I suppose that means when it has something rational behind it.

And I was seeking to argue that here, on the basis of what we have, there is a not frivolous claim, that this classification running against the voters in the under represented county is not a rational classification.

I would think it was also bad enough to violate the Due Process Clause.

But I don’t think there’s any difference between Mr. Rhyne and myself on that point.

I’d like to go on now to consider the justiciably — justiciability of this claim of unconstitutional apportionment.

And to begin by drawing the distinction to which I adverted in a discussion with the Chief Justice a moment ago.

The distinction seems to me to be exemplified by the difference between the opinions of Justice Frankfurter and Justice Rutledge in the case of Colegrove and Green.

It’s one thing I think, to hold that the courts have no jurisdiction over claims of malapportionment.

Meaning, that there is no power to deal with the subject matter, because it – because it presents a nonjusticiable political question.

And it’s quite another to hold that there is jurisdiction of the subject matter that the Court has the right to adjudicate merits and then to go on and consider whether this case is one in which it can appropriately frame a relief, and then to decide as it goes through the case, at any appropriate state of whether equity should act or whether equity should decline the Act.

Now, this is something quite familiar in private law and it was imported by Justice Rutledge’s opinion following an earlier concurring opinion in Wood and Broom into the law — into the law of this Court in dealing with this kind of case.

There are, I think, two very important differences between the two approaches.

A denial of jurisdiction over the subject matter would exclude all malapportionment cases from judicial consideration as category, without regard to the seriousness of the constitutional wrong, without regard to the ability of the Court to grant relief or indeed necessarily without regard to any other considerations.

On the other hand, if the Court has jurisdiction of the subject matter and they followed Justice Rutledge’s analysis, then of course it may examine the merits as whether equity can usefully act and provide flexible treatment according to the necessities of the particular case.

The other difference is one which was suggested by some of Justice Whittaker’s remark.

If there is jurisdiction of the – if there is no jurisdiction of the subject matter, the complaint must be dismissed at the outset.

That’s that.

If there is power to deal with the question, but this is a matter of equitable discretion, then the Court may postpone examining the question of whether it could afford a proper remedy.

It may proceed step by step judging according to the cases it develops.

And in this kind of case, I suggest that in accordance with the response of the State Legislature or other state authorities, what action if any, should be taken.

As I read this Court’s opinions, the Court has never held that it lacks power to deal with controversies over apportionment.

It adjudicated such cases in Smiley and Holm, Carroll and Becker, Koenig and Flynn and then of course later in Wood and Broom.

Of the concurring opinion in Wood and Broom is too short to be absolutely sure, but it seems to me to go on the ground that the Court should decline to exercise its equitable discretion rather than on the ground that it had no power to act.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
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Archibald Cox:

In the later case of Colegrove and Green, as Mr. Rhyne pointed out, a majority of the judges who participated held that there was jurisdiction over the subject matter.

And in — there’s nothing in the subsequent cases which is inconsistent with that conclusion.

It would seem to me that there are not only many distinctions between this case and Colegrove and Green, in terms of the propriety of exercising equitable jurisdiction, but that there are also two that go to the question whether there is jurisdiction of the subject matter.

Colegrove and Green dealt with the apportionment of congressional districts and the opinion relied very heavily upon the power of the House of Representative under Article 1, Section 5 to judge the qualifications of its members and on the power of Congress under Article 1, Section 4 to regulate the time, place and manner of holding elections.

And then the opinion says, the short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House, unless to the House of Representatives determination whether the States have fulfilled their responsibility.

In the present case, we’re dealing of course, with the right to effective representation in a State Government.

The powers of Congress under Article 1 are manifestly irrelevant.

Furthermore, the relation of the Tennessee Legislature to the apportionment of the seats of all its members seems to me, to be quite different from the relation of the Congress to the apportionment of congressional districts in a single state.

Because the way the State — where the State Legislature is involved, a reapportionment would mean in fact, if my count is correct, that of the 50 members who control the lower house, at least 17 couldn’t come back the next time.

That sort of problem is not involved when you’re looking at asking Congress to deal with the problem of apportionment in a single State Legislature.

Now, it’s true as Justice Stewart pointed out that there remains the possible remedy of going to Congress and seeking to have it act under its power to enact legislation to carry up the Fourteenth Amendment.

I think two things are pertinent to consider in that affection.

One is of course that the Court in other cases under the Fourteenth Amendment has never allowed itself to be deterred from action by the fact that Congress might act.

The second is that congressional action in this field it seems to me, could only result in putting the matter right back in the courts.

It’s hardly practicable indeed, I’m not sure it would be constitutional power for Congress to hold a hearing on the apportionment in Tennessee.

So the most it could do would be to lay down a general rule and then to confirm the jurisdiction of the Court to hear such cases.

If we are right, that jurisdiction already exists.

Furthermore, we do –-

Potter Stewart:

We don’t — I still don’t quite understand any articulation of the general rule.

Archibald Cox:

No.

I don’t think, but I — I’d suggest that – that there is no articulation of the general rule by Congress.

The part I was trying to suggest was that the general rule couldn’t be much different from what the Fourteenth Amendment already says.

So that —

Potter Stewart:

It doesn’t have to (Voice Overlap) —

Archibald Cox:

— there would be nothing to gain by – by Congress enacted.

Potter Stewart:

I — I just read it again and it doesn’t say anything about apportionment within the States.

Archibald Cox:

No.

[Laughs]

Potter Stewart:

And Congress could?

Archibald Cox:

But if Congress – if Congress said that in apportioning seats in the State Legislature, no person shall be denied due process of law or the equal protection of the laws.

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Archibald Cox:

It really wouldn’t have added anything thus we see it to what the Fourteenth Amendment already required.

And indeed if the Fourteenth Amendment doesn’t already require it, then Congress would now have no power to pass such legislations.

Potter Stewart:

Suppose though Congress could arguably and theoretically, I will grant, pass legislation along the lines that no state shall dilute anybody’s vote — more than one-half or something like that.

Archibald Cox:

Well, I think – I think that Congress probably could articulate with somewhat more particularity.

They rule that there must – that forbids arbitrary and capricious discrimination.

And I would concede that in theory, Congress could add more.

I am trying to suggest first as I said, the Court has never been deterred by this and I submit that it shouldn’t be deterred here.

Second, that the Congress really couldn’t add very much and that it would end putting the problem of passing on questions of degree in the federal courts.

Now, we have some indication although not explicitly dealing with cases of state apportionment, that Congress is not reluctant to have the federal court safeguard voting rights.

In the Civil Rights Acts of 1957 and 1959, Congress did act not in relation to state apportionment, but in relation to the right to vote and generally speaking what it did was to direct the federal courts to deal with the matter.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

Under the general jurisdictional – or it is labeled under 1983 too, yes.

William J. Brennan, Jr.:

Well that, that (Inaudible)

Archibald Cox:

I guess so, yes.

William J. Brennan, Jr.:

That’s though I gathered (Inaudible)

Archibald Cox:

Well, it’s done a good deal of it, certainly yes.

I think it has though.

I do think the civil — that the enactment of the Civil Rights Act is further indication of a congressional additive.

William J. Brennan, Jr.:

The recent —

Archibald Cox:

The recent acts, yes.

And that they are — while they don’t precisely deal with our problem, we can’t assign jurisdiction under them.

I think they do show a congressional attitude toward this problem which the Court should take into account in dealing with this kind of case.

I would like to turn now to the question whether the Court should exercise the equitable discretion which we submit exists or whether the case should be dismissed as happened in Colegrove and Green, for what of equitable jurisdiction, although the case was within the subject – within the power of the federal court to decide.

In our opinion, there are here, sufficiently compelling circumstances.

It would make it improper to dismiss the bill at this early stage of the case.

I would like to take those compelling circumstances up one by one.

First, I suggest, is that this is not a very troublesome case for adjudication on the merits.

As I suggested earlier, we do have in the Tennessee Constitution, the only ostensible basis for an apportionment.

And the existing apportionment clearly, egregiously departs from that standard.

In the absence of any other standard, then it should not be hard to decide whether this is or is not arbitrary and capricious and of course, we suggest that it is.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
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Archibald Cox:

Second is the seriousness of the wrong.

Here, the apportionment results in giving roughly a third of the people of Tennessee, the power in both Houses in the Legislature to control the other two-thirds.

A vote in some counties and — is worth 19 or 20 times a vote in other counties.

The serious consequences of this kind of maldistribution are discussed in our brief, also in the appellant’s brief, but I don’t intend to recount them all here.

I would emphasize, however, that this kind of wrong is peculiarly one which calls for judicial intervention.

We’ve often been reminded and quite right that the ultimate safeguard of constitutional rights is a vigilant electorate.

But where the wrong goes to the existence or distribution of the franchise, then the electorate can do nothing to protect itself.

No matter how vigilant the majority of the people of Tennessee are, there is nothing that they can do under these circumstances to assert their constitutional rights.

The only power to reapportion is in the Legislature.

There is no provision for initiative or referendum.

The only power that can call a constitutional convention is the Legislature.

The Legislature of Tennessee has failed to act for 60 years and the Tennessee court has refused to act.

The short of this case is as Judge Miller pointed out in his opinion convening the three-judge court that either there is a remedy in the federal court or there is no remedy at all.

So this is not a question where one can look to the working of the political process to solve the violation of a constitutional right.

The third point which should be emphasized and I really just spoke to it a moment ago is that there is no other remedy that the plaintiffs have here.

I’ve outlined the lack of a remedy in Tennessee and discussed earlier, the lack of a remedy, a practical remedy in Congress and also the fact that the Court has never withheld its hand under the Fourteenth Amendment waiting for Congress to act and is therefore no need to re-elaborate those propositions.

Potter Stewart:

You — you’re suggesting, Mr. Solicitor that as to good many things if we – if we agreed with you, we should decline to decide here, but shouldn’t – should send them back to the three-judge District Court for decision, as I – as I understand it.

Archibald Cox:

That’s correct.

Potter Stewart:

But you are suggesting that we should decide, I suppose that this is a case in which equitable jurisdiction should be exercised, should be invoked (Voice Overlap) —

Archibald Cox:

That’s what I am suggesting.

Potter Stewart:

Well, are you suggesting that – that if the Court after a hearing finds that all these things that you tell us are true, then there it should – that we should say then, it should exercise equitable jurisdiction.

Or —

Archibald Cox:

I think you — all you need (Voice Overlap) —

Potter Stewart:

— are you suggesting that we leave it all up to the District Court.

Archibald Cox:

Well, I think – I think the two possible views and I would press both on the Court, the normal practice is, of course, to consider the question of remedies after you’ve dealt with the merits as Justice Whittaker suggested.

And it would seem to me entirely proper for the Court to say there is jurisdiction of the subject matter.

We don’t need to go beyond that now.

Now, in a number of cases, including Colegrove and Green and no doubt some of the per curiams, although I can only speculate about them, the Court has gone ahead and said, “Is there so little chance that an equity court could usefully contribute here, that the bill should be dismissed for want of jurisdiction, now.

And I wouldn’t object very much to anyone who’s taking that view.

That is if there’s clearly nothing the Court could usefully do, it might as well say so and be done with it.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
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Archibald Cox:

But I think all we need to show at this stage is that one can’t properly come to the conclusion that there’s clearly nothing the Court can do at this stage.

That may turn out later and that brings me to the question, what can the Court do which should be weighed, I think, in with the need for action.

After all, whether you –

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

That something I’ve lost to let –-

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

I would say – I was urging that – no, I’m not pressing quite that far.

I would say that it shows that something should be done if possible, but that the Court should not finally determine at this stage whether it is possible.

Charles E. Whittaker:

Mr. Solicitor, specifically, are you urging that if there is jurisdiction in the District Court as you contend there is, then this is not a proper case for it to withhold the hand of equity?

Archibald Cox:

I’m urging that this is not a proper case for it to rule now, that it should withhold the hand of equity.

It does — what — what I’m suggesting is this, that here, the proceedings in the District Court after all, may go through a number of stages.

And you’ll first, be ruling on jurisdiction, then one might deal with the merits.

And there might be a hearing on the — what relief if any was appropriate.

I think the Court has power at anyone of those stages, to say, “Now, that all the facts have been laid in front of us and we have studied them, we know more than we did before about the possibilities of granting relief.”

That I would say it was possible at any of those stages and the Court shouldn’t prejudge the question that — that the District Court would conclude that there wasn’t any useful relief that could be administered.

I don’t think it’ll turn out that way, but I don’t see any occasion to decide that in advance.

Charles E. Whittaker:

Well, if there is a clear constitutional right that’s being violated and if these parties have standing to raise the question, then is there not both power and duty in the courts to enforce that constitutional right?

Archibald Cox:

Yes.

Charles E. Whittaker:

Well, if there is –-

Archibald Cox:

If —

Charles E. Whittaker:

— if there is then, once you concede the power, then how could there be a case of justifiable equitable withholding of the hand?

Archibald Cox:

Well, because there maybe a case where the court of equity just couldn’t work out any sensible form of equitable relief.

Potter Stewart:

Majority of the Court in Colegrove against Green (Voice Overlap) —

Archibald Cox:

I was just going to say, let me use Colegrove and Green as an example.

In Colegrove and Green, there were apparently only two choices.

One would be to hold the election at large.

Now, there, the disease might well be worst than the cure —

Potter Stewart:

Of course —

Archibald Cox:

But [Laughs] well, it’s enough that it’d be words.

Hugo L. Black:

You haven’t been so held in it.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
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Archibald Cox:

[Laughs] I mean —

Hugo L. Black:

It hadn’t been so (Voice Overlap) —

[Laughter]

Archibald Cox:

I think my point —

Hugo L. Black:

And —

Archibald Cox:

— has been made for me.

Hugo L. Black:

I want to find out that, I thought in the Broom case that they gave some kind of relief like this.

Archibald Cox:

Not my recollection, Mr. Justice Black.

In Wood and Broom?

I don’t think so.

Hugo L. Black:

What was the relief there that you said could be granted?

Archibald Cox:

I thought in Wood and Broom, the complaint was dismissed.

It was held that the –- that the 1911 was an apportionment act, did not require an equitable division of the districts within the State.

I suggest you must be thinking –-

Hugo L. Black:

What -– what was the argument about the electing from the State at large there?

Archibald Cox:

In Wood and Broom?

Hugo L. Black:

Yes.

Archibald Cox:

Well, the complainants were challenging.

I guess I’d — I guess the answer is I don’t remember.

Hugo L. Black:

Alright.

Archibald Cox:

The other possible remedy in Colegrove and Green would have been to redraw the Illinois congressional districts on the man.

Now, I don’t see how a court could embark on such a test as that.

That it — it — there are just too many possibilities, that it’s too much involved in the political process, that it is something that the Court really shouldn’t undertake to do.

Charles E. Whittaker:

What is -– what is too much involved in the (Inaudible) process of the Fourteenth Amendment?

Archibald Cox:

Attempting to layout 30 equally apportioned — whatever the number is 30 districts for the election of congressional Representatives on the map of Illinois with nothing to start with except the outline of the map and the figures on the voting population.

Hugo L. Black:

May I ask you with reference to your suggestion to this point that might occur, we merely hold that this – we whether hold that jurisdiction would stop there, without saying that there was enough stated that is required trial.

Next thing would be that it would be right back up, on the basis of a motion to dismiss on the ground that failed to state the cause of action.

Do I understand that is your suggestion that we stop short of holding that this — there’s enough alleged in here to justify relief if –- if the facts are established and —

Archibald Cox:

As —

Hugo L. Black:

— as we hold the jurisdiction?

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Archibald Cox:

Well, my suggestion was that the Court did not have to rule on that question at this stage, that it could send it back for the guidance of the lower court and I presume that the Court could decide whether it wished to decide it on the papers or whether it wished to take further testimony.

Hugo L. Black:

What if — there’d still be the question of the — whether it stated a cause of action, the two things are different, jurisdiction in the stating cause of action.

Archibald Cox:

Are different.

Yes.

Hugo L. Black:

Yes.

Archibald Cox:

I think that question does not need to be determined now, if the Court is –-

Hugo L. Black:

But if we did — if we didn’t, what (Voice Overlap) —

Archibald Cox:

It would be — it be argued in detail, in the three-judge court.

Hugo L. Black:

And if it was dismissed on that ground, it has to come back?

Archibald Cox:

That it will – whichever way it went, it might well come back to.

Hugo L. Black:

Not whichever way it went —

Archibald Cox:

And therefore — what?

Hugo L. Black:

Not whichever way it went, because if they held it stated the cause of action –-

Archibald Cox:

It could come back (Voice Overlap) –-

Hugo L. Black:

And had a trial.

Archibald Cox:

That’s correct.

Hugo L. Black:

If they would hold it, done straight the cause of action, which seems to be the claim of the plaintiffs here, then it would be dismissed and come right back.

Archibald Cox:

It could come back immediately —

Hugo L. Black:

That’s right.

Archibald Cox:

— only if it were dismissed below, which seems unlikely on the basis of the Court’s opinion, but I don’t think that it fully went into this question.

And this Court — what I was trying to suggest earlier was that this Court might want the benefit of a full exploration of the point by the three-judge court before it decided.

I would think this was a matter –- this Court should determine on the basis of how sure it feels or what doubts it has about whether the complaint does state a cause of action.

The point that I was seeking to make, Justice Whittaker, is that the problem of the remedy here differs very greatly from case-to-case.

That there maybe cases dealing with apportionment where we could — could see – let me say simply for the purposes of argument as you will, that it would be so far removed from a judicial function that the Court should not embark on the test.

We do not think that this is such a case.

The time is so short that I can’t go into it, but there are four and I suggest a fifth factor in the present situation that sharply distinguishes Colegrove and Green.

In the first place, the Tennessee Constitution requires an apportionment in the relation to population.

Second, it says that it must be by counties, where possible.

Third, no county may be divided.

Fourth, when counties are put together, they must be adjacent.

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Archibald Cox:

And then I would add that if the Court were driven to the point where it must intervene, that I think we would all agree that there should be as little disturbance of the existing districts for the House and Senate as possible.

Now, taking the map with respect to the Senate, one can remove the most glaring of the inequities, simply by merging five existing pairs of senatorial districts and allocating the Senators say, if — if I may put it that way, to the Chattanooga area, the Knoxville area, the Nashville area and the Memphis area.

This doesn’t seem to me to involve any of the difficulties, at least in anything like the same degree that there were in Colegrove and Green.

One can accomplish much of the same thing by putting 11 pairs of adjacent counties together in the House of Representatives.

So that the range of discretion and the degree of interference which would be involved, if the Court were forced to go this far would be very small indeed.

Now, I’d like to make one more point with respect to the remedy.

It’s quite clear of course, that what is most to be desired is that the Tennessee Legislature and the people of Tennessee will themselves correct this.

And one of the advantages of a court of equity is that it can proceed slowly and a step at a time.

Up to this point, the Tennessee authorities have simply taken the position as I understand it, well nobody touches.

If the federal court takes jurisdiction, that in itself will generate great forces for a change.

If the Court goes on to the merits and holds that there is an unconstitutional apportionment, I should be amazed if the Tennessee Legislature didn’t act.

After all, the force of the principle of legitimacy, the solemn adjudication that there is a constitutional obligation carries a great effect with most of the people in this country.

So that at that stage, as happened in New Jersey, there’s a very good chance that the legislature would act.

Finally, there are these remedies and others are outlined in our brief, if the Court were driven to it.

Earl Warren:

Mr. Glasgow.

James M. Glasgow:

Mr. Chief Justice, may it please the Court.

This is an appeal from a three-judge District Court sitting in the Middle District of Tennessee, dismissing a complaint which was filed for the purpose of obtaining the reapportionment of general assembly districts within the State.

There are certain observations in regard to the pleadings which I think are pertinent and should be discussed at the outset.

First of all, the 11 plaintiffs who bring this suit alleged that they do so, on behalf of all of the voters of Tennessee.

They also alleged that they bring it as a class action in the sense that they say that they have been discriminated against because their votes count less than those of their country cousins.

They alleged further that they’re entitled to maintain this suit as a voting rights case.

The defendants on the other hand are certain state administrative and judicial officials.

The truth of the situation is in regard to those defendants and I don’t understand that there are any substantial allegations to the contrary.

These defendants have very little to do with what the Legislature may ultimately do with regard to this issue of reapportionment.

It is alleged in the complaint that they do have certain functions to perform in regard to this proposition of elections.

But in either event, it seems to us that there is a lack of parties here to properly present this question.

We -– there’s no county election commission that’s brought before the Court in regard to holding elections.

The general assembly wasn’t attempted and it’s brought before the Court in regard to the reapportioning of the State.

We think that in view of the situation in regard to these parties that the complaint is bad.

Now, very rapidly, I want to summarize the allegations in regard to the — what they predicate their claim upon.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
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James M. Glasgow:

First of all, they say that the 1901 Act apportioning the State of Tennessee is unconstitutional because it interferes with their voting rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

They have heard that their voting rights have been debased.

They claim that as a result of the Tennessee apportionment formula in the Constitution that they are entitled to have the courts examine this question and find and declare that those provisions are mandatory and self-executions.

Now, they make these general affirmance in regard to the provisions being mandatory and being self-executing and we suggest to the Court that those are nothing more than a – the conclusions of the pleading.

They also assert that the 1901 apportionment statute became obsolete in 1911 and therefore it would become unconstitutional.

They set — also assert that the failure to reapportion has been purposely and systematically handled by the Legislature in such a way as to be a denial of their rights.

They point to population growths and shifts and use the census figures in order to support their contentions.

They charged that there’s a discrimination in the allocation and distribution of state aid funds, particularly with reference to gasoline taxes and the general education appropriations.

They imply that there would be a different distribution.

In the event, the Court grants them relief.

It held substantially three prayers in their complaint.

The first one is that the apportionment statutes be declared unconstitutional.

Then they say that these appellees should be enjoined from doing various the acts which they do in regard to elections.

And they should not do any of those things until the State is reapportioned in — in accordance with the constitutional formula.

Then they finally assert that the appellees should be directed to hold a next election at large, for the members of the general assembly in Tennessee.

Now, in the District Court, the complaint was met with a motion to dismiss.

It was –- the motion to dismiss is on three grounds.

First of all that the Court lacks jurisdiction of the subject matter, secondly, the complaint fails to state a claim upon which relief maybe granted and third, that there was a failure to join indispensable parties.

After the case was heard, a number of intervenors were permitted to come into the case including the Mayor of the City of Nashville and the Cities of Knoxville and Chattanooga.

The three-judge court held that either on account of elect – of jurisdiction of the subject matter or the inappropriateness of the subject matter, it felt that it was bound by the prior decisions of this Court and relied upon Colegrove versus Green and the other cases which have been eluded to.

Earl Warren:

We’ll recess now, Mr. Glasgow.