Baker v. Carr – Oral Argument – April 20, 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 19, 1961 in Baker v. Carr

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Earl Warren:

— et al., Appellants versus Joe C. Carr et al.

Mr. Glasgow, you may continue your argument.

James M. Glasgow:

May it please — Mr. Chief Justice and may it please the Court.

Yesterday afternoon when the recess occurred, I was about to discuss the opinion of the three-judge court.

The opinion maybe found at page 214 of the record.

The three-judge court announced the following rule as applicable and decisive of the case in that court.

From a review of these decisions, referring to the decisions on page 216 of the opinion, the court said that, “The federal courts whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration will not intervene in cases of this type to compel legislative reapportionment.”

The court thought it was highly significant that the question of reapportionment had been before the state court in the case of Kidd versus McCanless and the court points out that it is significant that the case of Kidd versus McCanless involved the identical apportionment statutes and the identical state of facts as confronted the three-judge court.

The court also pointed out that in view of Kidd versus McCanless and other opinions from this Court, it did not think that question could be adjudicated in that court as — or was appropriate for judicial relief.

Felix Frankfurter:

Well, Kidd against McCanless wasn’t passed on by this Court, Mr. Attorney General.

James M. Glasgow:

Kidd versus McCanless —

Felix Frankfurter:

It wasn’t passed, it wasn’t adjudicated here?

James M. Glasgow:

No, sir.

If — that wasn’t appealed to this Court in that case and this Court dismissed the appeal on the authority of Colegrove versus Green and Anderson versus Jordan.

Now, the court also points out that the suggested remedies that had been asked for in the complaint are indirect in the sense that they are not sought directly against the legislature of Tennessee and this is a lawsuit involving state administrative and judicial officers.

The court also pointed out that it could — had no authority to order an election at large as prayed for in the complaint and that if it were to do so, it would lead to serious geographical inequalities and other discriminations probably — probably to a greater extent than those already existing.

The court then said that the Constitution of the State vested the duty of making an enumeration of voters squarely in the hands of the State legislature and concluded by pointing out that this would amount to nothing more than a kind of judicial legislation and an unwarranted intrusion into the political affairs of the State of Tennessee.

General Wilson and I have divided the issues to be argued here this afternoon and I will deal primarily with the questions of state law which are involved, which we think are important and which we think are decisive of the question and that the Court need not reach the alleged federal questions.

If my time permits, I will also discuss the issue of justiciability and General Wilson will go into the questions of discrimination and the proposed remedies.

Briefly, I would summarize our contentions at this point and point out that we think that state law is decisive of this lawsuit that the issues here are not justiciable as between the parties, that the subject — there is — there are no adverse interests, that the suit is unauthorized under the — the Eleventh Amendment and the subject matter generally is not justiciable.

We insist that the federal courts lacked jurisdiction of the question and that reapportionment is a political or a legislative question.

We think that the Court has already announced principles which decide the issues in this case.

We further insist that there is no discrimination and that the 1901 statute is valid in Constitution.

What is the issue in this case?

Is it voting rights or is it a Republican Form of Government?

If I understand the — the proposition stated in the argument of the Solicitor General’s brief, I believe it’s on page 17, in the opening sentence he said the issue involves the proposition of fair representation in the legislative halls.

It’s one thing to insist upon voting rights, we think.

We think that it’s quite another thing to insist upon fair representation and a Republican Form of Government.

In turning to the state law and we are aware of the cases which this Court has said that it is loath, I believe the term is, to decide questions of state law.

The Court has also said that it doesn’t like to venture into the delicate field of faith of federal and state relationships.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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James M. Glasgow:

With that in mind, I would like to discuss for a few moments, the Tennessee constitutional provisions.

Yesterday, it was brought to the attention of the Court that Article I, Section 5 of the Tennessee Constitution, guarantees the right of suffrage and also elections shall be free and equal.

We insist that Article IV of the Constitution and not Article I, Section 5, controls the right to vote in the state and the right here certainly is a state right because it involves the election of state officers.

(Inaudible)

James M. Glasgow:

We think so, if Your Honor please?

We think that in view of the — this Court’s opinions in the various cases such as Smiley versus Holm, Carroll versus Becker, Wood versus Broom and others that there is a federal right that is guaranteed to a citizen of the United States to vote for a congressman under the Federal Constitution.

On the other hand, the Federal Constitution is silent on the question of state legislatures and state representation.

Article I, Section 5 of our Constitution, which is in the Bill of Rights, is very brief and with the Court’s permission, I would like to read the first sentence.

“The elections shall be free and equal and the right of suffrage, as here and after declared, shall never be denied to any person entitled thereto, except upon a conviction by a jury of some infamous crime previously ascertained and declared below and judgment thereon by Court of Competent Jurisdiction.

Now, the words that were not pointed out to the Court yesterday and I’m sure that was by inadvertence, are the words “here and after declared” and that we insist the — refers to Article IV, Section 1 of our Constitution which prescribes then of the voting qualifications and defines the right to vote.

Now, every citizen or a person in Tennessee who is a age of 21 years, who has been a resident of the State for 12 months and who has resided in his county for 3 months, is guaranteed the right to vote under Article IV, Section 1.

Now, none of these appellants insist that they have been denied access to the ballot box.

None of these appellants insist that they haven’t been permitted to cast their votes in free and equal elections.

None, except insofar as Article I, Section 5 is concerned, none of them insist that their votes have not been counted.

And we insist, may it please the Court, that in considering what their rights are in regard to the right of suffrage if they meet these qualifications and they participate in elections, that is all that they’re entitled to by way of a right to vote under the State Constitution.

I would also point out that we have a provision in our Constitution which is similar to the provision in the Federal Constitution that the General Assembly shall be the judges of the qualifications of its members and also of their election.

Now, the federal cases I think are very clear that that is an exclusive function of the legislative body.

That is that body exclusively determines what the qualifications of its members may be.

It also exclusively determines what — whether or not a member of Congress has been duly elected for example and in our state, whether or not a member of the legislature has been duly elected and in the case of State versus Shumate in 172 Tennessee at 451, the Court said that “It would not enter into any kind of judgment or would not enter in any kind of what judgment, it would not do anything about enforcing that type of right.

That anything that arose in regard to the qualifications of the members of the General Assembly was something that the House concerned would have to dispose of.”

Now, we insist that the Courts of Tennessee under that provision would not have any authority whatsoever to determine whether or not a member of the General Assembly had been duly elected.

We think that’s a question that must be determined under the Constitution by the House itself.

Now, what is the significance of that proposition?

To us it simply means this, that if there is any question here concerning the electoral process in the State in — with reference to the election of members of the General Assembly, then it must follow that any question which arises in regard to that election must be decided by the legislature itself and the Courts should not intrude upon the prerogatives of the legislature.

Charles E. Whittaker:

Mr. Glasgow, granting that that would be — maybe true as respects in an elected official, does that prevent the Court of Tennessee, while the State is getting ready to hold an election, to require the State to comply with its Constitution?

James M. Glasgow:

I take it that Your Honor is referring to the question of apportionment.

Charles E. Whittaker:

Yes.

James M. Glasgow:

Now, in that regard, may it please the Court, we disagree with our opponents as to the effect of the Tennessee constitutional apportionment provisions.

We think that the question is probably been laid to rest in Kidd versus McCanless and that being true, we think that what the Tennessee court has, at least by implication, said in regard to those provisions, is binding in this Court and on the federal courts generally.

And as was pointed out from the bench here yesterday, I think there are reported decisions of this Court where it — it’s been pointed out that although there maybe a violation of a state constitutional provision, that question must be addressed exclusively to the state court and not the federal courts.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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James M. Glasgow:

Now, Article II, Section 1 of our Constitution, creates three branches of Government; the executive, judicial and the legislative.

The second section of our Constitution provides that, “No member of either department shall exercise the functions of the other.”

In other words, they must be kept separate.

Our court has adhered to that principle and in the case of Richardson versus Young, 122 Tennessee 471, the court discusses the proposition in detail.

There, the Court said that the Courts are not to perform legislative functions.

Now, the three apportionment provisions of our Constitution commence immediately after Section 2 and they’re contained in Article II, Sections 3 through 6 inclusive.

Section 3 provides that the General — that the General Assembly shall be constituted of the House of Representatives and the Senate.

Section 4 provides for an enumeration of voters and apportionment of representatives within every subsequent term of 10 years.

Section 5 provides for apportionment among the counties or House districts according to qualified voters not to exceed the number of 99.

Section 6 provides that the number of senators also to be apportioned shall never exceed one-third of the number in the House and finally, no county maybe divided in creating those districts.

Now, under the present system of Tenne — in Tennessee, the House of Representatives is composed of 99 members and the State Senate is composed of 33.

Now, the appellants argue very strenuously that these provisions in the Tennessee Constitution are mandatory, hence, self-executed.

They insist that the 1901 apportionment statute became obsolete and invalid in 1911 because an enumeration was not made within the 10-year period as required by these provisions.

I will discuss Kidd versus McCanless in that respect in detail in a few moments, but if this point, suffice it to say, that we disagree with their construction and that there are a number of precedents in the state law or state decisions which hold contrary to their insistence.

The appellants also insist that in regard to these provisions, there is a measurable discrimination.

These arguments of course we reject as being unsound.

We think that the Court is being asked to usurp legislative functions and that the courts should assume a dominant role and make this legislature subservient to the judicial process, we think that falls squarely in teeth with the doctrine of separation of powers.

Now, again we assert that apportionment statutes as we have them in Tennessee are valid and as was suggested here yesterday, if we disregard the Tennessee constitutional provisions for the purpose of argument, the question then becomes whether or not the State legislature had the authority to enact an apportionment statute.

Our court has said repeatedly that the legislature has plenary authority except as inhibited by the State Constitution.

And we insist that the legislature of Tennessee certainly had a right to pass an apportionment statute in the absence of any constitutional provision.

The appellants also insist that there has been gross discrimination in regard to the distribution of State revenues and particularly in regard to general education appropriations and the rural roads allocations.

I would like to point out to the Court that on page 209 of the records there appears what we considered to be an interesting answer to those charges.

It’s a very brief statement that was filed by the former Solicitor General in this cause.

One would think —

(Inaudible)

James M. Glasgow:

Yes sir.

One would think that the cities and the rural legislators or the city legislators and the rural legislators are constantly at each others throats and that the general education bills are always passed over the opposition of the city legislators and that the gasoline tax distribution was made over their opposition, but these — this insert indicates that Chapter 14 of the Public Acts of 1959 which is a general appropriations law and is specially pleaded in this case, the Act was passed by the House by a vote of 81 “Aye’s” 11 “No’s”.

The 11 No’s were all by representatives from rural counties.

Another — I beg the Court’s pardon that is the Rural Roads Act of 1955.

The General Education Law of 1950 — 59 was passed for the Senate by a unanimous vote of 33 Aye’s.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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James M. Glasgow:

In the House of Representatives there were 91 “Aye’s” and 6 “No’s”.

Now we think that that is an answer to some of these charges of discrimination with reference to the distribution and allocation of tax funds.

And certainly the logic of the proposition is that that must be an exclusively governmental function to be handled entirely by the legislature.

It’s just as important that the under populated rural counties have educational systems that are financed adequately as it is to have them financed adequately in the larger cities.

The record also contains the case of Kidd versus McCanless, it’s at page 59 in the record.

That case, as found by the District Court, involved the identical facts and the identical statutes.

In that case the Supreme Court of Tennessee rejected the contention that the 1901 apportionment statute became invalid in 1911.

Now, we insist, may it please the Court that that is tantamount to holding that those provisions are not self-executing and that they’re not mandatory.

If they were, the Court could not have found that the Act did not expire in 1911, so we think that the doctrine of the Kidd case as decided in the state court has the effect of going against what they insist is basic in this lawsuit and that is that those provisions are mandatory and self-executing.

Now, the Chancellor in the court below in Kidd versus McCanless said — overruled the demurrer that was filed to the billing chancellery and held that the statute was invalid.

He then fell back on the de facto doctrine and said that all of the acts which had been done by the legislative body were valid as the de facto acts.

The Court quotes at length from the Chancellor’s opinion on page 62 of the record.

Then the court pointed out that the de facto doctrine could not apply because once the — the legislature was declared a de facto body, then he would have no authority whatsoever to act.

And if it had no authority to act, we in substance would have no legislature in Tennessee.

That being true, the court finally declared that the ultimate result of holding this act unconstitutional by reason of the lapse of time would be to deprive us of the present legislature and the means of electing a new one and ultimately bring about the destruction of the state itself.

We submit, may it please the Court that in view of the Kidd case that the arguments — that the Tennessee apportionment provisions in the Constitution are self-executing and mandatory are unsound.

Now, what was the effect of this Court’s dismissal of the appeal?

Same issues were involved, same statutes were involved and we think that the force and effect of this Court’s dismissal of the appeal because if there are — were federal questions then or federal questions now, there certainly were questions then.

We think the force and effect of that was to say that there was no substantial federal question and further that the grounds which the state court placed its judgment upon was adequate to support the judgment.

In the case of Maxey versus Powers in 117 Tenn.

381, the Court was confronted with an analogous situation and it’s a case which I bring to the Court’s attention merely to indicate that this is not something that we have devised here on a moment’s notice in the way of an argument.

But there, our court was confronted with construing another provision of our Constitution regarding the laying out of civil districts and counties.

And there, the Redistricting Act was challenged as it is here and the Court said that that was a political question and it being a political question it was the type that the Court could not go into.

We think that the —

Felix Frankfurter:

(Inaudible)

James M. Glasgow:

Perhaps that’s a better statement, sir.

We think that the effect of the arguments in regard to the state law in this proposition is to inject this Court into political controversies in the State of Tennessee and for the federal judiciary to take over the state political situation.

We think that that would be abhorrent to our system of government.

We don’t think that the basic law of our State should be disregarded and on one hand and then the appellants say, “We’ll take this and leave something else.”

We — we think that they should be consistent throughout.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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James M. Glasgow:

We think that the ultimate effect of the courts getting into this situation would be to put the federal judiciary in the — the situation of being on a primrose path in federal state relations.

I come now to the issue of justiciability and as we understand the rule under Article III, Section 2 of the United States Constitution, that is always an issue in every law suit.

Is a case or controversy presented within the meaning of those provisions?

We insist that the appellants have the same interest in apportionment in Tennessee as all other voters and citizens.

They seek to secure to themselves representation which they say would be fairer than what we now have.

In doing so, they have the same interest as all other citizens in a Republican Form of Government.

Therefore, we insist that the complaint does not allege a private wrong and we further insist that the — instead of accepting the allegations as pleaded in the complaint that the Court should look behind those allegations and see exactly what they’re pointed to.

The substance of the matter is that they have not suffered an injury which is direct.

Further, the appellees have no real official interest in reapportionment which are different for most other state officials.

And we would invite the Court’s attention to page 55 of our brief, appendix (a) where we go into the question in some detail as to what the interest of these appellees maybe in regard to the electoral system in Tennessee.

First of all, the Board of Elections is composed of three men who have no other duty than to appoint the County Election Commissioners.

They have no authority on them, they can’t dismiss them, they can do nothing more than appoint them.

They are directed by statute to meet once a year.

Next, the Attorney General is — made a party here and it is said that he has certain duties in regard to the election of — of state legislators.

We reject the idea that he has anymore duty in that regard than he does advising any other state officials.

We think that’s all he does.

The idea that he does more is not founded in — in our statutes.

That being true, certainly, he could have no official entries in reappointment statutes as such.

He is required under our statutes to be made a party in the event the constitutionality of a state statute disabled.

I take it, that’s the primary reason that he was made a party below.

As to the Coordinator of Elections, he has various minor duties in regard to them such as set out here on pages 58 and 59.

He has no supervision over the election, he cannot control the election, he does not conduct it.

The Secretary of State receives certificates from the County Election Commissioners as to the results that — of the elections in those counties.

Now, we insist that that is too remote in the electoral process to be the basis of an injunction against these officials to require them to hold an election at large or to withhold — conducting an election until the General Assembly is appointed, I mean apportioned.

Now, that being true in regard to their interests, we fail to see how they have any interest whatever that reaches to the critical issue of apportionment.

Next, we insist that the — this is an unauthorized suit against the State because the purpose is to compel the legislature to act, not to strike down alone a statute which it enacted many years ago, but the purpose of — of this suit goes further than that, much further.

The purpose is to compel the legislature to reapportion the State of Tennessee and in doing that, we think that that is asked that the courts take over the electoral system and direct the legislature to do something which is beyond the power of the courts.

Article I, Section 17 of our Constitution inhibit suits against the State unless they have been authorized by the General Assembly.

Certainly, the General Assembly has not authorized a suit of this character.

As was pointed out in Petty versus Tennessee Missouri Bridge Commission, the doctrine of governmental immunity — immunity is strictly applied in Tennessee.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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James M. Glasgow:

Now, that being true, we insist that these appellants as citizens of Tennessee have no standing whereby they can maintain a suit and a citizen cannot sue the State within the meaning of the Eleventh Amendment and this Court has so held on a number of occasions.

Finally, I would suggest that the nature of the subject matter which General Wilson will discuss in some detail is such that the courts should not entertain this kind of a complaint and we think that the court below was eminently correct in what it did.

The issues are political and they go to the part of a Republican Form of Government.

We think that reapportionment is a legislative question and if the Court is without power to exercise any kind of equitable power with — in regard to this kind of a question.

If the Court will not exercise its equity power, then we insist that is not a proper case for a declaratory judgment because the declaratory judgment statutes are procedural only and that it would be improper to make a declaration unless the Court is prepared to grant equitable relief.

In conclusion, I would suggest that I think that it would be improper for the courts to take over the political affairs of the States.

I think that in this field of federal and state relationships, it is necessary that the sovereignty of the States and their political affairs be administered by the States.

I think whatever a state court may say or the State’s highest court may say about its own Constitution is binding here if it’s relevant at all in this case.

The effect of the court’s going into this questions, I suggest would be to open up many new fields of litigation and that the court then be called upon to redistrict the various municipalities throughout the country so that the people within the cities would themselves have a fair representation as is contended for here on questions for municipals annexation will the voters be given an opportunity to express themselves?

We respectfully insist that all of those questions may arise in the future.

If the Court goes into this area and we think that the Court should reject such a notion.

Charles E. Whittaker:

(Inaudible) Mr. Glasgow, that Tennessee could tomorrow repeal this constitutional provision that affords the core of this case, wasn’t it?

James M. Glasgow:

I think that the Constitution could be amended and those provisions eliminated, yes sir.

Charles E. Whittaker:

Well as long as it’s their, is it to be ignored?

What does it mean?

Why is it — I don’t follow that.

Is there now, it means something, are you complying with it?

James M. Glasgow:

In — in that sense, no sir.

It hasn’t been complied with in regard to the reapportioning of the legislature since 1901.

Charles E. Whittaker:

But it’s still there.

James M. Glasgow:

Yes sir.

Charles E. Whittaker:

And it gives to a citizen in the great county the right no to have his vote or read down in Shelby County in Memphis not to have his vote diluted by somebody out in the mountains, doesn’t it?

James M. Glasgow:

No, sir.

I don’t think that it means that because I think that the case of Kidd versus McCanless shows that our court doesn’t attach that significance to those provisions.

In other words, if I go back to the argument that if — as our court said, the reapportionment statute did not become obsolete, in 1911 then those provisions can be neither mandatory nor self-executing.

Now, that — that’s uncharacteristic of many state constitutions or many provisions in state constitutions.

In Colegrove versus Green, there are a number of situations which are cited which are not enforceable in the courts in regard to state constitutional provisions.

And we think that whatever the state courts say about those things are controlling and we rely upon the classic statement of Mr. Justice Cardozo when he said that the — a state court’s construction of its own constitution is decisive and controlling everywhere.

And we think that that is the situation with which this Court is confronted on the basis of the Kidd case.

Charles E. Whittaker:

Well, is there any case in Tennessee that holds this constitutional provision does not mean that Tennessee must reapportion every 10 years as its words say?

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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James M. Glasgow:

The only case that there is in Tennessee, if Your Honor please, is Kidd versus McCanless.

Charles E. Whittaker:

The court below, the three-judge court here said that on the affirmance of this bill, as I read it, that a discrimination was being practiced, but they couldn’t do anything about it for want of power, isn’t that what they said?

James M. Glasgow:

That’s true, they said that.

Charles E. Whittaker:

Now, isn’t that substantial also Kidd Chambers or Kidd — the Kidd case, not the ground of it also?

James M. Glasgow:

The ground of a Kidd case as I read it is that the lower court held the act unconstitutional and the Supreme Court said that the trial court erred in holding it unconstitutional because to do so wound in effect place Tennessee without a State legislature.

There — there would be the de facto doctrine which the Chancellor said was applicable.

The Supreme Court rejected and said that the effect of adapting the de facto doctrine would be to abolish the legislature.

Charles E. Whittaker:

If your argument is right as it appeared to me this bill a while ago when you said that the State legislator is competent to determine the election and competency qualification of its own members.

If that’s right, then nothing that could happen toward the future compliance with the statute would in anyway under mind the validity of the present legislature nor in anyway affect the validity of the laws it had enacted since 1911.

James M. Glasgow:

Well, I — I think that that’s true, if Your Honor please.

Charles E. Whittaker:

Yes.

Well then — the how it couldn’t be true that if it were now held that Tennessee, in order to accord equal protection of the laws to its citizens, must comply with its constitutional provision.

How could it then be said that this would leave Tennessee without a present legislature —

James M. Glasgow:

Well —

Charles E. Whittaker:

— or undermine the validity of the laws it had been enacted since 1911?

James M. Glasgow:

In regard to the polarity to the validity of the laws, that have been acted — enacted since 1911, I daresay that the courts would not invalidate those laws, but if the argument which is advanced here is correct that the legislature or the apportionment provisions expired in 1911, then it must be that there — everything that’s been done since 1911, is invalid.

I — I — as a matter of theory, I don’t see how it could be any other way and I think that was the problem that was in the mind of the Tennessee Court.

Charles E. Whittaker:

Well, that couldn’t be true could it or couldn’t, Mr. Glasgow, if your argument is sound that the legislature is competent to determine the election and qualification of its own members and they’ve done that year — term after term since 1911.

Didn’t — if that argument is good, then they were properly elected in the past?

Isn’t that true?

James M. Glasgow:

That’s true.

Charles E. Whittaker:

Well, would that mean that the courts couldn’t do anything about the future with respect to complying or requiring compliance with the Tennessee Constitution?

James M. Glasgow:

Well, it’s our insistence, may it please the Court, in that regard that the question is a political question.

It’s one of that the courts have refused from — for many, many years to adjudicate and that being true, it’s not a proper area for the judiciary and we — we insist and General Wilson will go into the proposition of the equal protection provision that the equal protection provision has no application in this case.

Charles E. Whittaker:

I don’t know the answer to the question.

I was just seeking some information.

James M. Glasgow:

I’m afraid I haven’t been as helpful as I would like to be.

Felix Frankfurter:

(Inaudible)

James M. Glasgow:

That’s true, Your Honor.

Felix Frankfurter:

(Inaudible)

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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James M. Glasgow:

I —

Felix Frankfurter:

(Inaudible)

James M. Glasgow:

If it —

Felix Frankfurter:

(Inaudible)

James M. Glasgow:

If I sounded confident on that score, if Your Honor please, I intended to say nothing or do nothing more than to suggest that I — that I doubt if the courts will hold at anytime the —

Felix Frankfurter:

(Inaudible)

James M. Glasgow:

No — no, sir.

I don’t mean that.

[Laughter]

(Inaudible)

James M. Glasgow:

I haven’t heard that argument made as yet, Your Honor please.

(Inaudible)

James M. Glasgow:

Thank you.

Earl Warren:

Mr. Wilson.

Jack Wilson:

Mr. Chief Justice and may it please the Court.

This case is here on appeal from the three-judge District Court.

A question was raised yesterday as to the duty of this Court on this field.

It is the insistence of the appellees here that this Court must consider at least three things.

One of those is whether this case is justiciable.

The Court must make that determination.

If the case is justiciable then this Court must determine whether the Federal District Court had jurisdiction of the subject matter.

There is, in our view, a difference.

A case maybe justiciable insofar as the parties are concerned but not as to the subject matter or the Court might find that it is justiciable as to the subject matter, but the proper parties are not before the Court.

And then a matter of great importance to the appellees and to the State of Tennessee for determination by this Court and I think perhaps the most important question if the Federal District Court has any jurisdiction is what relief, if any, maybe granted by the Federal District Court.

One of the members of this Court early in the argument yesterday if I understood him, said this.

“If we determine that there is jurisdiction, need this Court concern itself with the question of relief” and the appellees say that this Court must of necessity concern itself with the question of relief.

Now, General Glasgow has, in some detail, considered the question of whether the case is justiciable from the standpoint of the appellants, from the standpoint of the appellees and from the stand point of the subject matter to the extent of whether it is or is not political.

At this time, I wish to address myself to the subject of the nature of the subject matter of this suit insofar as jurisdiction is concerned.

Now, I think it goes without question that the subject matter of a lawsuit is to be determining not necessarily on some technical basis but from a practical standpoint.

What is the frame of the complaint in this case?

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Jack Wilson:

What is this case about?

Well, on the surface, on the face of it, there is an averment here of a violation of rights under the Fourteenth Amendment and the civil rights statutes, but that is not the nature of the complaint.

If the nature of the complaint was a violation of personal rights, the appellants would cite this Court, invoke some statute having to do with voting.

They do not do that.

They invoked as statute having to do with representation in the legislature of Tennessee.

What does the complaint have to say or ask in the way of relief?

Is it that an injunction be issued by the Federal District Court to require these appellants to permit these appellants to register?

Is it that their votes be counted?

Is it that they’d be permitted to enter the polling places?

No such thing, no such thing.

What is the relief asked for?

Well, a declaration as to their constitutional rights, and what else?

That the next election or members legislature in the State of Tennessee be enjoined.

That’s the nature of the action, or they say that there be an election at large.

It is the appellees’ contention, may it please the Court, that this case does not involve private rights, that it cannot involve private rights.

We concede and very readily that there is a right under the Constitution of Tennessee for all citizens to have the type of government provided by the Constitution of Tennessee.

But we say that that is not a personal right in the sense that it can be enforced by an individual voter.

It is a constitutional right, Mr. Justice Whittaker, in response to your question but it is not an enforceable right in the courts under the law and Constitution of the State of Tennessee.

Charles E. Whittaker:

Why not?

Jack Wilson:

Simply because of the division of powers under our Constitution, may it please Hour Honor.

The — our state court will not entertain the suit.

They say it’s political.

They say it’s in the legislative field.

They say they could not enforce the right and that is the position under the Tennessee Constitution.

It is not a personal right that can be enforced in our courts.

And I think that for whatever reasons, the Supreme Court of Tennessee may have found that to be true, we believe that this Court will and must, since it is a state right under our state constitution, accept the view of our Supreme Court.

Now, if that is true and we can do no more than to ask the Court at this stage to take our assertion that it is true then the question does not involve anything having to do with the weight of a ballot at the ballot box.

Now, I am aware that this Court has in the past that is to see at least two members and two members of the Court now sitting, have said that they can see no difference between a ballot cast in the — at the ballot box, literally, metal, plastic whatever it is and the effect that that ballot has in the legislature of a state.

The appellees say to this Honorable Court that that theory that that insistence, and we respect it, must in this case be reexamined.

It must be examined microscopically.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Jack Wilson:

The case may and could turn on that question.

Now, what is their difference?

Is there a difference?

We think so.

It said that if a citizen cast his ballot for three state senators when he should be allowed to cast his ballot for six state senators that his right to vote has been denied, we respectfully disagree with that contention.

We say that that ballot cast in the state of Tennessee is put in that ballot box, it is carried, it is counted as all other ballots are counted.

Now, the case is with which this Court has been concerned, Nixon against Herndon, the Terry case, these other cases have been cases where the — the voter was not permitted to put his ballot in the box or if he put it in the box, it was fraudulently counted or not counted at all.

What’s the situation in Tennessee?

It is not at the polls.

The vote of which complaint is made is in the legislative halls of the State of Tennessee.

That’s what this case is about.

Now, what difference does it make as to jurisdiction?

What difference does it make as to whether the case is justiciable?

It makes this difference.

Is there a private personal right involved at the ballot box?

If there is not, what does the civil rights statutes as to voting have to do with this case?

What do rights under the Fourteenth Amendment as to voting have to do with this case if the complaint is in the General Assembly of Tennessee, in the halls and not at the polling places?

That is one of the decisive issues in this case.

Now, what has this Court done heretofore as to those issues?

It has recognized that distinction, has consistently held from Colegrove case up to this very minute while I speak that there is a difference.

Cases from California, from Georgia, from Pennsylvania, from Oklahoma have been before this Court and this Court has refused almost all of the time, even to hear the cases on the merits.

And this Court has said citing the Colegrove decision that no federal question — substantial federal question is involved.

And this Court said in Kidd against McCanless, may it please the Court, that there was no federal question, substantial federal question and that case involved the identical statutes, the identical facts and almost the identical parties.

Now, what about these other state constitutions where this Honorable Court had said that there’s no substantial federal question?

I invite the Court’s attention to the Constitution of Pennsylvania.

That case has been before this Court and within recent years.

Under that constitution like the Constitution of Tennessee, there is a provision almost identical saying that election shall be free and equal.

This Court wouldn’t hear the case.

It wouldn’t even set it down for argument.

What else is in the Constitution of Pennsylvania?

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Jack Wilson:

Well, up there, may it please the Court, they have a specific provision in their constitution that municipality shall be entitled to extra representation in their legislature and they have said in the suit brought as I understood it, that those municipalities still didn’t have the representation they should have because of malapportionment, but this Court refused to hear the cases.

With that type of provision in the constitution, and Tennessee has no such provisions there, what about the Constitution of Oklahoma and that case was before this Court.

Somewhat interestingly and surprisingly to us in Tennessee, the Constitution of Oklahoma has a provision that the reapportionment statutes in that Constitution may be affirmatively enforced in the courts of Oklahoma.

That case came before this Honorable Court.

The Court wouldn’t hear it, the Court wouldn’t hear it wouldn’t even — let it be argued.

Potter Stewart:

But it happened in the Oklahoma state courts?

Jack Wilson:

It was filed in a three-judge Federal District Court, may it please the Court.

Potter Stewart:

I was wondering what the Oklahoma courts have done.

Jack Wilson:

They sustained a motion to dismiss.

Potter Stewart:

The Oklahoma Court, the state court?

Jack Wilson:

No, it was not brought in the state court, may it please Your Honor.

Potter Stewart:

As I understood what you just told us, the constitutional —

Jack Wilson:

Yes, Your Honor, the —

Potter Stewart:

The case itself provides that the Court shall have the — the power to affirmatively enforce it.

Jack Wilson:

Mr. Justice Stewart, you are entirely correct.

The Constitution does so provide but the plaintiffs in that case elected to bring it not in the state court but in the federal court.

But the question is important for the reason that there, the citizens of Oklahoma had determined that the apportionment provision in that statute was either mandatory or was self-executing and that its provisions might be enforced in a court of law or equity.

And such is not true in Tennessee.

On the contrary, our court has held that it cannot enter the field.

And of course one of the questions for this Honorable Court is, “If the Supreme Court of Tennessee has held under our own constitution that it cannot enter the field, will this Court enter the field?”

And I say to the Court that it is not only a — a serious question and an interesting question but one of great importance in the operation of the Government of the State of Tennessee.

Now, I wish to discuss two additional points in the time remaining and those points, the appellees consider of utmost importance and I believe have not been touched upon up to this point.

Let us assume that this Court should refuse to accept the appellees’ insistence here that this is not a personal and private right under the Fourteenth Amendment.

Let us assume that this Court should find that this is a personal right.

We’re assuming this.

The appellees take the opposite view as I have said repeatedly.

What would be the basis for — for finding that some federal right was involved?

And of course, unless there is a federal right, this case is not — this Court is not concerned with the case.

What would the personal or private right be under the Constitution of Tennessee — of the United States?

Of course, reliance has had upon the Fourteenth Amendment, but since there is no question here about voting now under our insistence, what would the right involved?

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Jack Wilson:

Well, necessarily, under our view, it would involve a right to equality of representation in a state legislature.

That would be the type of right that this Court would have to find, was protected by the Federal Constitution.

Now, has this Honorable Court ever so held up to this time?

It has not.

It has held that the right to vote for a state officer, the right of representation in a state legislative body is purely a state right.

We think that that is sound.

We think that the —

(Inaudible)

Jack Wilson:

May it please the Court, this Court did hold that the right to have a vote counted at the — the vote counted at the ballot box, and there seems to be no question about that.

And I would like to say and emphasize that any citizen of Tennessee who has the right to vote in a state election in Tennessee under our theory and insistence, has the right to have the vote that he puts in the ballot box counted when it’s taken out of the ballot box, that most assuredly is a state right.

Now, Your Honor has reference to the classic in Saylor cases.

Those cases involved literally a denial of the franchise at the ballot box, not in a legislative hall.

Now, returning if I may to the question here of whether that is a federal right.

Now, may it please the Court, if there is a federal right here as to the extent of representation in a state legislature, it arises and may arise under the frame of this complaint only by the route of discrimination.

And I daresay that most actions laid under the Fourteenth Amendment would come — would follow that route of discrimination.

Now, let’s get down to bad route on this thing.

If there is discrimination under the Fourteenth Amendment, will it bear examination?

Well, you’re going to have discrimination, you’re going to have to treat one class different from another class, I think.

Now, it’s recognized in sound law that of course there maybe – classification under state law.

Is there discrimination between classes where there is unequal representation in the state legislature and this case may turn on that?

This case may turn on that very point.

We say not.

We say that that can’t be discrimination in the usual sense.

And why do I say that?

Let me give you one illustration and I think this is important.

It said that according to the appellants here that if this thing goes through the ballot box.

We say it does.

We say it’s in the legislative hall.

Now, the reason we say it can’t be discrimination is this.

The effect of inadequate representation in the legislative halls has no direct casual connection with whether the person affected cast his ballot or did not cast.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Jack Wilson:

Now, many of our states and some of our border states give 18-year of citizens the right to vote.

Tennessee does not.

What is the status of a citizen in Tennessee 18 years old, 19 years old, 20 years old, who under the law of Tennessee does not have the right to vote and yet he is very greatly affected as a citizen by what the legislature does in the halls of the General Assembly of Tennessee.

Is there discrimination as to him?

If so, when and where did it arise?

Then the question comes up, if there’s discrimination here, an unlawful discrimination?

Was it purposeful?

Is it purposeful and intentional?

Can that be shown where there is unequal — inequitable representation when the involvement is that it’s due not to an affirmative act of the legislature, but to the passage of time and shifts in population.

Now, may it please the Court, we very seriously insist that there is not and cannot be any discrimination in this case.

It isn’t a case involving voting.

The right to representation in a state legislature is not protected under the Fourteenth Amendment as the right to vote might be, the right to vote at polls.

We say that the Civil Rights Act is confined literally to the right to vote at the polls and that that is not at issue in this case.

Now, due to the limitation in time, I must take up our final and perhaps most important, certainly, equally, important point from the standpoint of the appellees.

Now may it please the Court, and that is the question of relief, I invite the Court’s attention and I do not want this repetition to be offensive and I hope that it isn’t.

The real party in interest in this case in Tennessee is not before the Court.

That’s the legislature of Tennessee.

It’s their action or their inaction of which complaint is made.

There is no complaint incidentally and I would like to emphasize it, there is no complaint as to anyone of the appellees before the Court.

It is averred that they have done anything, they shouldn’t have done.

That it is averred when the Court gets into the case and the Tennessee law that there is anything that any of these appellees could do.

And that of course again goes to the question of whether the case is justiciable.

But since the legislature of Tennessee is not before this Court, either actually or figuratively, the appellees who are before the Court on behalf of the State of Tennessee do think it proper, do think it important to discuss the question of relief and certainly that would be most important if this case is sent back to the three — three-judge District Court.

Now, may it please the Court, there are three principal suggestions here as to relief.

As we view the case, it will be the duty of this Court to determine whether any one of those three maybe granted or if not, whether some other possible type of relief could be granted in the event the Court finds that the District Court has jurisdiction.

The first subject suggested relief by the appellants here is that there be a declaration, that the apportionment statutes in Tennessee are unconstitutional.

What would be the effect of a declaration by the Federal District Court at the reappor — the apportionment statutes of Tennessee are unconstitutional.

We connected — the appellees connected with the government of the state of Tennessee, take the position that the effect would be and must of necessity be that the government of the State of Tennessee is operating unconstitutionally.

I submit that there could be no other reasonable conclusion.

The Federal District Court let it say, makes that declaration and as its decree, what does the State of Tennessee and its government can do?

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Jack Wilson:

It’s operating unconstitutionally.

Can it, aside from the rule in Luther against Borden, the old case discussed a moment ago, upon the declaration being entered, the decree, what may the State of Tennessee do as to let us say the operation of its courts?

If the government is operating unconstitutionally, may it continue to sentence defendants in criminal courts, may it?

May it continue to pay its school teachers?

It’s an unconstitutional government at that time.

May it pay its judges?

May it maintain its hospitals for the mentally ill?

What happens to the State of Tennessee upon that declaration?

Well, of all practical purposes and I might – I pause here to say that this is not theoretical, may it please the Court.

This matter, when you are directly connected with the operation of a state government.

Suppose the State of Tennessee had planned to execute a defendant in a capital case on the day following the declaration entered by the three-judge District Court.

What would the Attorney General of Tennessee advise the warden of a state penitentiary as to carrying out that execution?

Frankly, I don’t know.

I hope the question doesn’t arise.

The question will not arise if no such declaration is made by a Federal District Court and that is one reason why and an important reason why from a practical standpoint that we say the Federal District Court should not enter any such decree.

This is a matter for settlement by the citizens of Tennessee.

Now, may it please the Court, and my time — very little remains, there are two other proportions.

It is said, “Let’s enjoin the next election for the legislature of Tennessee, let’s enjoin it.”

Who enjoins?

Not a state court, not a court of the State of Tennessee.

A Federal District Court enjoining a state election or state officers, has it ever been done in the history of the United States?

Would this Court send this case back with directions to the Federal District Court to enjoin the next election of members of the legislature in the State of Tennessee, actually, not?

I cannot believe you will do it.

What is the third suggested —

Potter Stewart:

(Inaudible) members of this District Court involved in a similar situation with the Governor of Tennessee when he was a district judge, Judge Martin.

Jack Wilson:

In an entirely different aspect, may it please the Court.

That case had to do with sending the national guard of the State of Tennessee to the polling places in one of the counties.

Potter Stewart:

Yes.

Jack Wilson:

But there was no question of enjoining a state election and I believe that there never would be by a Federal District Judge who was familiar with the Tennessee law.

Now, may it please the Court, the third suggested remedy is this.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Jack Wilson:

When I have an election at large, let the Federal District Court say we will ignore these reapportionment statutes.

Let’s hold an election at large.

Well now, the Supreme Court of Tennessee has said that the Constitution of Tennessee has no provision whatsoever for the holding of an election at large for members of the legislature.

The Federal District Court found that to be true and the Federal District Court went further and said that to permit the holding of an election at large would, could and probably would result in greater inequities than now exists.

And as was suggested here by a question of one others members of this Court, the effect of that election at large more than likely would be simply to reverse the situation.

The urban representatives would take over and be largely in the majority, it would be just a flip of a coin at that time.

Potter Stewart:

Would that be true of you — if you figure that out if —

Jack Wilson:

Not mathematically, may it please the Court, but I think from a practical standpoint and psychologically if I may use that word.

Now, what is the — to happen about this?

What is the remedy?

It’s averred here that the legislature of Tennessee has taken no action for 60 years.

If I maybe permitted to go outside the record momentarily, the legislature of Tennessee which adjourned the 17th day of March, did take some action.

It has not reapportioned.

Whether the legislature of Tennessee will reapportion within the next few years, I do not know, but it did pass a resolution to require an enumeration of the qualified voters under the Constitution.

It did pass a resolution to study the subject.

That fact will have no bearing nor it’s not persuasive with this Court but I simply mention it as a matter of information.

Potter Stewart:

The legislature, you mean every two years?

Jack Wilson:

Yes, Your Honor.

Potter Stewart:

In the odd number of years?

Jack Wilson:

Yes, Your Honor.

Potter Stewart:

(Inaudible) year —

Jack Wilson:

Yes, Your Honor.

Potter Stewart:

So it has met in 1961 and is now adjourned.

Jack Wilson:

Yes, Your Honor.

Potter Stewart:

And won’t — won’t convene again unless there’s a special session until 1963 —

Jack Wilson:

That’s correct.

Potter Stewart:

— after the 1962 election.

Jack Wilson:

That’s correct, sir.

Potter Stewart:

And I suppose there are provisions for special sessions in the legislature.

Jack Wilson:

Indeed, there are.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Potter Stewart:

On the call of the Governor?

Jack Wilson:

Yes, Your Honor.

Potter Stewart:

Any other way for a special session?

Jack Wilson:

That’s the only way, Your Honor.

Now, may it please the Court, in conclusion, we think that this case in addition to the points discussed, we hope and believe thoroughly does involve this.

There is not only a question here of the enforcement or possible enforcement of state rights by a federal court.

There is also the question of whether the judiciary, and in this instance federal judiciary, will step over into the legislative field.

Those are two very serious questions.

Now, we think that from time immemorial, citizens of Tennessee like all other Americans have been proud of their state.

We believe that the citizens of Tennessee can take care of this problem and will take care of it.

We say that for this Court to send this case back to the Federal District Court saying that that court has jurisdiction and that that court may grant relief is authorized to do so that that would be a little short of putting the State of Tennessee in a political or governmental receivership.

I think it would be a little short of that.

I think it would be saying that the people of Tennessee incapable of self-government and that they cannot and never will be able to solve this problem.

Earl Warren:

(Inaudible)

Z. T. Osborn, Jr.:

Mr. Chief Justice and may it please the Court.

This Honorable Court in light of the closing made, it might well be alerted to this that for the first time in 60 years, a state legislature in Tennessee agreed to have an enumeration and that that only after this Honorable Court noted probable jurisdiction in this case.

Had it not been for that, the allegations made would have been just as literally true as they were following the 1959 legislature.

Now, in this case, we seek not a declaration by this Court as to how a state legislature should be apportioned.

We do not seek to obtain from this Court any action that the courts have not traditionally granted.

What we seek from this Court is this, examination of an act of a state legislature for whether it complied with, the Constitution of Tennessee and the Constitution of the United States.

We ask this Court to pass upon whether a state legislature can, in the base of certain rights that are established and conferred by the State Constitution, adopted now in 1870 and following Tennessee’s readmission to the union upon its ratification of the Fourteenth Amendment which served to guarantee the equal protection of rights that were established by the state as whether or not a state legislature can — by an act destroy those rights.

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

It means that — it — it means that if this Court —

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

If it means that, if Your Honors do review this Act for its constitutionality and if you do find that the Act of 1901 apportioning Tennessee in violation of the Constitution of Tennessee and of the Constitution of United States, if you find that that Act is invalid, there are certain things that will follow in logic as pointed out by this Court in Smiley versus Holm and in other cases.

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

Yes.

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

Right.

Felix Frankfurter:

(Inaudible)

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Z. T. Osborn, Jr.:

This is what we say that we are entitled to.

If this act of apportionment which was not based upon an enumeration, no enumeration was in fact made which was not based upon the provisions of Tennessee’s Constitution, but was based upon some matter pulled out of the air, not susceptible to any rationalization.

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

When and —

Felix Frankfurter:

So therefore, (Inaudible)

Z. T. Osborn, Jr.:

Yes.

Felix Frankfurter:

(Inaudible) is that right?

Z. T. Osborn, Jr.:

Yes, alright.

And — and now, I will —

William J. Brennan, Jr.:

(Inaudible)

Z. T. Osborn, Jr.:

Yes.

Felix Frankfurter:

But if you have that ground (Inaudible)

Z. T. Osborn, Jr.:

I’ll now explain why and very briefly why.

We do ask for a declaration respecting an election at large and a declaration respecting a constitutional election.

The reasoning in Smiley versus Holm is simply this, that if a state legislature given power to apportion, does not apportion then the legislature or congressional declaration — congressional delegation remains unapportioned and at large.

Now, if we have no act of an — of apportionment, we do have if we have to elect another legislature, we do have two alternatives; either to let the legislature subject us to an election at large, an election of an unapportioned legislature or the Court saying to these defendants who hold our elections, “You may as an alternative provide for an election in compliance with the mathematical formula expressed in the Constitution of Tennessee.

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

Exactly the same provision in the Constitution of Tennessee for an election at large as there is in the Constitution of the United States for an election of congressmen at large.

The two provisions are — are almost identical.

This Court held that a statement in the United States Constitution that the people could choose congressmen and then could go on and let the congressmen apportioned or legislatures apportioned.

Upon their failure, the people still had a right to elect congressmen and in Tennessee’s Constitution, the legislature is dependent upon the people.

It is to be chosen by the people and if the legislature should fail to exercise its power to apportion, still the legislature would exist.

And to argue to the contrary is — as the Attorney General does is to say that the legislature somehow depends upon some act of its own for its existence.

Now, it’d be the —

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

Yes.

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

No, only the terms which have been by this Court, your — this Honorable Court construed to mean and to in effect provide for an election at large.

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

Well, the —

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Felix Frankfurter:

I understood the value and purposes —

Z. T. Osborn, Jr.:

Yes.

Felix Frankfurter:

(Inaudible)

Z. T. Osborn, Jr.:

It is derivative.

We’re — we’re saying that the same provision in the Constitution of the United States construed by this Court exists in the Constitution of Tennessee and is construed and it would be similarly construed.

Now, we want — we want — in this rebuttal to — to follow upon a trend suggested by Mr. Justice Whittaker which is this.

You never have to reach the de facto doctrine with respect to any prior act of the legislature.

The de facto doctrine would — would not be applied by this Court or by the Court of Tennessee or any of the courts of the United States to the question of seat — of a seat in the legislature or to the question of whether there were 10 invalid seats in that legislature or a dozen people that were not entailed to be there.

Commencing with the apology of the parliament of King James, the legislatures have consistently been held to be the exclusive judge of the qualification of their members and the de facto only applies, it’s — it’s never applied to anyone except some official elected to some office and the question then of whether he’s properly elected or whether his office is properly created.

The courts do pass upon that but they do not pass upon the question of — of a seat in the legislature.

So, if General Wilson should be asked whether to go ahead and execute this prisoner and he’s smart, I know him well enough.

He would say it once, “Go ahead and execute the prisoner.

We had an — a law against murder long before the illegal act of 1901 unlawfully apportioned in Tennessee.”

And he would secondly say that the courts have always rejected any attack upon an act of the legislature based upon its membership.

So, he would — he would — he sets up — he puts the ox in the ditch in order to try to get — get him out but he would not be concerned with any of those things that he urges.

Earl Warren:

Mr. Rhyne.

Charles S. Rhyne:

Mr. Chief Justice and may it please the Court.

First of all, I would like to say on behalf of the Solicitor General that he wanted to lodge with the clerk the maps to which he referred yesterday and if that maybe done, he would appreciate it very much, and we would too.

Mr. Chief Justice and — and may it please the Court.

I listened very careful to my distinguished adversaries here to see if they could utter one word in defense of the factual discrimination which exists in this case and I failed to hear it.

I think there can be no question but what’s the right to vote is created by the State of Tennessee and we don’t challenge that at all.

We say that when that right is created, it must be given to everyone in equality under the measurable equality set forth in the Constitution of Tennessee.

And that if anyone is discriminated against, by then, that the right to vote is a part of their civil rights and the Fourteenth Amendment comes into play and we have that protection.

We do not believe that — that any state can invade a federally protected right and so keep it completely destroyed or nullified or — or eliminated or that all relief is blocked forever such as the situation here.

And I also call the Court’s attention to the fact that the — the Saylor case which was referred to here in five ballot box stuffing, not just counting ballots but stuffing ballot boxes so that — that votes were deluded so it’s — it’s right in point with this, what I would call ballot-box rigging here so that one man’s vote is worth only a tenth or a twentieth of another man’s vote and I say that there can be no question but what that is discrimination.

I say there can be no question but what under the Civil Rights Act, the right to vote is protected, that it is a civil right and that it is a personal right.

I was quite surprised to — to hear it argued that the — that the right to vote is — is not a personal right, why, certainly it’s a personal right.

And it’s been held so in Herndon versus Nixon and all other cases that I’ve ever read involving the right to vote in this Court.

So, we say that the State of Tennessee has no power in this 1901 Act or in any other to — to nullify a federally protected right.

We say that here we’re asking this Court which is under our system of checks and balances, the ultimate safeguard of individual rights of civil liberties in this country to carry out its duty.

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr

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Charles S. Rhyne:

The legislature of the State of Tennessee is not the ultimate safeguard of individual civil rights under the Constitution of the United States of America, this Court and the federal courts and all courts are.

And so, we say that the right to vote is such a civil right and that it is protected under the Fourteenth Amendment and we would sum up our case in this way.

We have here 11 voters who have been given a right in Tennessee to vote in equality with all other voters similarly situated.

And the State of Tennessee has, through this Act of — of 1901, taken away their right of equality and given them a one-twentieth or one-tenth of the right to vote.

And so, when all other avenues of relief are blocked, we ultimately must come here, we’re at the end of the line.

There cannot be a judicial no man’s land where civil rights are involved in the United States of America and that is what is involved here.

And this Court in Smiley versus Holm and in case after case has always held that the right to vote of an American is important, that it is a personal right and then it cannot be taken away by any action of any state government.

So therefore, we believe that these individual voters have a — a right which under these facts have been taken away and we ask this Court to do as courts have from time immemorial, reverse and remand this case to the District Court with the instructions to provide a remedy that is adequate to the protection of the right that is here before the Court and which Tennessee has deluded and destroyed.

John M. Harlan II:

Could I ask you a question before you sit down Mr. Rhyne?

Supposing starts — Tennessee started in a new on all this today, do you recognize any right in the State to make a classification of some kind between urban and city voters?

Charles S. Rhyne:

Well, we start to do it —

John M. Harlan II:

Did they make any (Inaudible)

Charles S. Rhyne:

It’s unreasonable — if it’s unreasonable classification but there’s no defense here that this classification that’s involved here, Mr. Justice Harlan, is reasonable.

We would recognize any reasonable classification.

John M. Harlan II:

You don’t stand on a numerical one — but it doesn’t have to be inapplicable.

Charles S. Rhyne:

Not an absolute — not an absolute slab rule numerical provision.

Felix Frankfurter:

(Inaudible)

Charles S. Rhyne:

The only other one I know of, Mr. Justice Frankfurter is in Oklahoma.

Now, I — I have not — I have not researched out that point —

Felix Frankfurter:

(Inaudible)

Charles S. Rhyne:

Pardon?

Felix Frankfurter:

(Inaudible)

Charles S. Rhyne:

Yes, it is and I do know that once the — the Supreme Court of Arkansas did reapportion the State of Arkansas, but it seemed to have done that just under — or without any specific constitutional provision.