Maryland Committee for Fair Representation v. Tawes – Oral Argument – November 14, 1963 (Part 1)

Media for Maryland Committee for Fair Representation v. Tawes

Audio Transcription for Oral Argument – November 13, 1963 in Maryland Committee for Fair Representation v. Tawes
Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Earl Warren:

Maryland Committee for Fair Representation, et al., Appellants, versus J. Millard Tawes, Governor, et al.

Mr. Scanlan, you may continue your argument.

Alfred L. Scanlan, Jr.:

Mr. Chief Justice, may it please the Court.

When the Court adjourned for the afternoon recess yesterday, I believe I was attempting to acquaint the Court with some of the gross discrepancies in the representation now provided in the Maryland State Senate.

For example, it is now possible for approximately 14% of the people in the less populous counties to elect the majority of the Maryland State Senate.

This was not always so.

The careful research here by the Solicitor General and his staff has revealed that in 1790, for instance, it took at least 40% to elect the majority of the Maryland State Senate.

This percentage has dwindled steadily through the years.

In 1937, it’s about 18%.

As I said, it’s now about 14%.

If the population projections are anywhere near accurate by 1970, it will be 12%.

24% —

Earl Warren:

Is that according to formula or is that according to the — just the manner the legislature choose to do it?

Alfred L. Scanlan, Jr.:

It’s according to no formula, Mr. Chief Justice.

It’s the — the representation in the Maryland Senate is provided by the constitution, Article 3 Section 2, under which each county gets one —

Earl Warren:

Yes.

Alfred L. Scanlan, Jr.:

— except Baltimore, which gets six.

And as the population migrations change, it results in a situation where counties that were once rural have now become suburban indeed urban, yet their representation, except for Baltimore, is frozen at one Senate.

Earl Warren:

But that isn’t required by your constitution?

Alfred L. Scanlan, Jr.:

Oh well, at present time, it is.

They —

Earl Warren:

It is, yes.

That’s what I want to —

Alfred L. Scanlan, Jr.:

It’s frozen into the constitution.

I think up until the temporary reapportioning of the House of Delegates, it was only Delaware and Maryland where the representation in both houses, Senate and House, were riveted, frozen in perpetuum into the constitution with no chance, and I’ll come to that in a minute, of unhinging except the federal court in Sincock v. Duffy on frozen event.

What do you think would be a permissible percent of deviation, equality of representation?

Alfred L. Scanlan, Jr.:

I would say this, Mr. Justice Harlan. I think that one house, we’re completely based on population, which is not the Maryland situation now like they say we have conceded.

The New Jersey Attorney General says for the purposes of this case, we have conceded that the House is based on population.

That would be like conceding that the sun rises in the west and sets in the east, that Jupiter and the moon are equidistant from the Earth.

The fact is right now in the House of Delegates, the disparities were large, six to one, and even now 36% of the population could elect the House.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Alfred L. Scanlan, Jr.:

But assuming arguendo that the House of Delegates of Maryland were based squarely on population, I would say that we would start out with the standards that I think should be applicable, equality of suffrage, but it might be possible — it might be possible in order to recognize the county as an instrumentality to provide a minimum representation in the State Senate where each county had one provided that the numbers of the Senate were expanding so that additional senators could be given to the suburban counties like they were given to Baltimore, there’s ample precedents in Maryland’s history.

They were given to Baltimore.

If the suburban counties were treated as fairly as Baltimore has been treated — now Baltimore’s population is declining and they’re almost fairly represented in the Senate, not quite but almost, if we were treated as fairly as they, I would say the argument would be pretty good that the — that the legislature had done all that the Constitution requires of them, but we’re a long way from that.

But there is a precedent for that sort of thing.

I will say speaking of the disparities in the Maryland Senate and referring to what Justice Clark has called the crazy quilt approach and what the Solicitor General on occasion has referred to without rhyme or reason, not only do we have gross disparities between the urban and suburban counties, the more populous counties and areas in the City of Baltimore, but we have even within the classes disparities.

For instance, Baltimore with approximately 950,000 people has six senators.

A Baltimore County right next to it with over 500,000 now, very closely related to the City of Baltimore, Annapolis etcetera.

500,000 people, one senator.

The senator from Baltimore County is elected by more people than it takes to elect the majority of the Maryland State Senate.

And I want at this point maybe to dispose of this nonsense about accessibility as a ground for deviation.

Do you really think that the senator from Baltimore County representing 500,000 people is more accessible to its constituents than the senator from Calvert representing 16,000?

I suggest that the senator from Calvert has much more accessibility to his constituents than the senator from Baltimore County or the senator from Los Angeles County, five million.

He’s accessible, I suppose.

But I guess I better not press this argument too far because they’ll turn it around and say because the rural senators know the interest of their constituents better, this is a factor that can be taken into consideration in granting them more representation.

They have a cork for every hole.

Now, as far as the Senate is concerned, and I’ll deal with the whole House a little later, surely we have what Justice Clark said were incommensurables of both magnitude and frequency.

From the point of view of what Justice Stewart has referred to as the simple arithmetic, we are in dire stress.

But Justice Stewart is right.

There’s more to it than that.

There’s more to it than arithmetic.

And we believe that malapportionment on the gross scale, which now exists in Maryland, has very practical, adverse consequences.

It’s not only an exercise in abstract injustice or mathematical inequality.

There’s a great deal more to it than that.

A number of years ago, Mr. Lewis down there and a pioneer law review article cataloged the adverse practical effects of long continued malapportionment.

Since then, other scholars, other lawyers with briefs filed with this Court, in Baker v. Carr, and in some of the cases before you today have done it on a general basis.

But I can truthfully say that in Maryland, the record in this case shows adverse, harmful effects flowing from the gross malapportionment about which we now complain.

I believe that was Professor McKay and Mr. Pfeiffer in the brief amicus curiae filed on behalf of the American Civil Liberties Union in this case that cataloged — there are listed four categories of harm that flow from gross malapportionment.

The first of course and the most paramount is the dilution of the vote, the harm to the voter himself.

Certainly we have that in Maryland and then we have it in the second aspect.

In Maryland, a lot of money comes back from the state to the counties.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Alfred L. Scanlan, Jr.:

Especially important is this in regard to our education system.

This money is returned to the local political subdivisions under various equalization formulae.

Now these formulae have been put in the statutes by the controlling body, which of course are the representatives and the senators from the less populous counties, and this has resulted over the years in a very small — much smaller percentage of the money coming back to the big counties than they should be entitled to.

And this is important especially in education where we’re struggling in Montgomery County, and I’m sure the same is true in Baltimore County and in Prince George’s, and perhaps very shortly in Anne Arundel.

And it has that therefore a practical adverse effect.

The second category of harm which the American Civil Liberties’ brief refers to is the neglect of urban and suburban needs, and I think I’ve touched upon that.

I think the record shows that.

For instance, at the last session of the General Assembly, there was a bill proposed, it passed the House a substantial majority.

And this bill whatever changed the return of money for education, based it on number of pupils and would have been a considerable benefit to the suburban counties, and all their representatives in the House of Delegates voted substantially for it and passed.

It was of course a beating down in the Senate.

The third —

Hugo L. Black:

Did you say the American Civil Liberties’ brief was filed in this particular case?

Alfred L. Scanlan, Jr.:

Oh, I’m sorry, in all four, Your — Mr. Justice Black.

Men has tend —

Hugo L. Black:

You have no separate one for this —

Alfred L. Scanlan, Jr.:

No, no separate one.

It — it’s the —

Hugo L. Black:

You’re referring to the general?

Alfred L. Scanlan, Jr.:

The general brief, that’s right.

The third category of harm, I think you’ll find the summary of category of harm in their brief at pages 12 and 13.

The third category of harm to which they refer is the so-called legislative stalemate and I think I won’t delay on that, but if our brief at pages 61 through 64 summarizes a classic example of legislative stalemate such as it took place at the last set of the Maryland General Assembly.

On the one hand, a House of Delegates, at least related to population, at least a substantial majority of the population had bare majority control.

It didn’t have enough to push through a Constitutional Amendment but at least they had a majority.

And on the other side, a Senate completely dominated by the less populous interest.

They were logged against the whole session and out of ten important pieces of legislation that we referred to in our brief, seven of them broke down in deadlock, so we have that category of harm in this record.

The fourth category of harm is the tenancy if the urban and suburban needs are left unmet of those people that go somewhere and that go to the Federal Government.

And while the record here is not precisely clear as to Maryland, I think one that we could summon some of the former mayors of Baltimore here, they could tell you what this has meant to Baltimore in their efforts to get the Metropolitan Transport Authority for instance.

But we do have one classic example.

Potter Stewart:

In Baltimore?

I thought you said Baltimore was overrepresented?

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Alfred L. Scanlan, Jr.:

No, I said Baltimore is reaching the point, Mr. Justice Stewart, where it is almost properly represented.

But over the years, Baltimore at one time, the only urban center of Maryland, has been boxed in by the less populous —

Potter Stewart:

But the complaint now is that Baltimore is certainly in contrast to Montgomery County and the others is overrepresented and going to be more so as time goes on.

Is that correct?

Alfred L. Scanlan, Jr.:

It — if — if —

Potter Stewart:

Or do I misunderstand you?

Alfred L. Scanlan, Jr.:

Well, that’s not incorrect.

Baltimore looked at in relation only to the suburban counties is much better off than we are.

But Baltimore looked in relation to the state as a whole is still underrepresented.

It’s reaching the point where they really can’t complain.

But it hasn’t reached that point yet.

Potter Stewart:

And do you — well, it’s — now that I’ve interrupted you, I’ve been interested in your argument that these were all bad things and it’s a bad thing that the state money go to the impoverished areas of the state for schools and so on and — and not come back totally to the richest county of the state like Montgomery County.

Are we supposed to weigh these political issues here and decide this is a bad thing or a good thing?

Alfred L. Scanlan, Jr.:

No.

If I put it as you put it, I would have overstated it.

I didn’t say that all the money should come back in absolute proportion.

Obviously, some areas have a lower standard of income and obviously, if Government is to go on, those that happen to be more affluent, should contribute more.

Potter Stewart:

Montgomery County has what, has the highest medium income of any counties in the United States of America?

Alfred L. Scanlan, Jr.:

Yes, but we have a lot of poor people there too, and the school budget is getting astronomical.

We contribute heavily to the State.

We have 11% of the population.

We contribute 19% of the income tax.

I’m sure the Automobile Registration Tax is (Inaudible).

I’m not arguing — I’m not arguing that we shouldn’t contribute more than our per capita share but I am arguing that no adjustment in this equalization formula can be made even when the situation of the suburban counties cries out for some state assistance.

And in the educational field, this is a critical matter, and I don’t think that the structure of government should be rigged so that there can never be any change in the formulae.

Potter Stewart:

Now it’s true, is it not, that Montgomery County or a large part of it and a large part of it where there’s been such a great increase in the population is a socially, economically identified with the District of Columbia?

Alfred L. Scanlan, Jr.:

In part, in part.

Potter Stewart:

The idea is in fact a dormitory county, a bedroom county, and I certainly don’t consider that a pejorative word.

I think it’s a status word.

I think the people in Greenwich, Connecticut or Far Hills, New Jersey are rather proud that they are living in dormitory counties, but it would certainly show that a very large part of the population, a very great many of the people to which you’ve been referring have their social life, their economic life, their occupational life, their certainly five-day a week life in the City of Washington and the District of Columbia under the police protection and under the — with all the facilities offered by the District of Columbia and to that extent are not identified with the State of Maryland.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Potter Stewart:

Is that fair to say?

Isn’t that —

Alfred L. Scanlan, Jr.:

No.

I think now you have overstated it.

It is true that Montgomery County has — we’ll take that as an example, Baltimore County perhaps in relation to Baltimore has a similar situation.

It is true that many of the people that reside in Montgomery County have their place of employment in the District of Columbia.

Potter Stewart:

You’re one of them, I gather.

Alfred L. Scanlan, Jr.:

Yes, I am.

And not that I’m not proud to be a resident of Montgomery County and a Marylander, but they pay their taxes in Montgomery County for the State of Maryland.

Their children go to school there.

Their life is related to Montgomery County.

Moreover, as my adversary admits, there’s much diffusion of interest in these counties.

We have our dairy farmers.

Montgomery County has some of the most wonderful agricultural land in the world.

Potter Stewart:

Now, would — wouldn’t those interests be represented largely by the representatives from the other agricultural areas of the state?

Alfred L. Scanlan, Jr.:

Possibly in some instances, in other instance it’s not.

But I don’t think that’s the answer to it.

Why should the farmer in Montgomery County, when he casts his vote for his delegate down at Annapolis or his senator, have his vote in effect count 20 times less than the farmer on the Eastern Shore when he votes for his delegate?

Similarly in Anne Arundel.

They have fishermen in Anne Arundel, some of the finest fishing in the world, just as good as in the Eastern Shore.

Why are the fishermen in Anne Arundel discounted compared to the fishermen on the eastern shore?

Potter Stewart:

I think you’re making an assumption.

Maybe it is a fair one but I still haven’t quite been able to get it that his vote counts any more nor any less.

He votes for a representative to send to Annapolis within his district.

Alfred L. Scanlan, Jr.:

Yes, but as Mr. McConnell —

Potter Stewart:

And his vote counts fully within that district.

Alfred L. Scanlan, Jr.:

But as Mr. McConnell put it yesterday, he is a citizen of Maryland.

He is governed by Maryland.

Maryland makes laws for the fishermen in Anne Arundel as well as for the fishermen on the Eastern Shore and they should be treated differently, not because — I mean they should be treated the same not because they’re fishermen but because they’re citizens.

They’re people.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Alfred L. Scanlan, Jr.:

We believe that representation should be based on people, persons.

Potter Stewart:

Do you suggest that — wouldn’t it be entirely irrational for the — for Maryland as a state to realize that in the smaller agricultural counties, the people of the State are completely tied to the land and to the State in every possible way?

If they are stock farmers, they can’t leave even a day unless they get somebody to milk the cows and feed the horses.

That these people, so completely and intimately tied to the State, are different — have — have different problems and completely and wholly identified to the State of Maryland as contrasted — as contrasted to the people of Montgomery County who leave every morning and go to the District of Columbia where they worked all day and come back only at night and who make their living —

Alfred L. Scanlan, Jr.:

I —

Potter Stewart:

— and live their working lives outside of the State of Maryland.

Alfred L. Scanlan, Jr.:

I think within the framework of the American system, the represented state self-government based on persons, not occupation.

It’s not what they do but it would be irrational.

And I don’t dispute that excellent theories have been advanced for corporate representation.

I recall however that our Spanish and Italian friends experimented along this line in the not too recent past and while the record has not yet been fully written, I think it’s fair to say that those experiences, both to the nation’s concern and to the world, have proved infelicitous.

And I say whatever the rationality of corporate representation by occupation, by banker, by seaport and with all due deference to Your Honors, hypothetical in your ruling on the State and (Inaudible) Diamond Mine, whatever rational argument can be made in another context and in another tradition, it doesn’t hold up in the American tradition where Government is supposed to relate to people and people are supposed to be treated equally if they’re similarly situated.

Potter Stewart:

I would suppose the word tradition implies history, doesn’t it?

Alfred L. Scanlan, Jr.:

Pardon?

Potter Stewart:

When we talk about tradition, we talk about history.

Is that right?

Alfred L. Scanlan, Jr.:

That’s correct.

Potter Stewart:

Well now, certainly the history is all against you, isn’t it?

Alfred L. Scanlan, Jr.:

Well, I don’t think so and I think —

Potter Stewart:

The history of what has actually been practiced in each of the states.

Alfred L. Scanlan, Jr.:

No, I think — I think the history is the other way.

I think that the original practice, the original tradition has been deviated from in many, many, many significant instance.

Obviously that’s true or these States wouldn’t be here today.

But I think the best analysis of the constitutional history that lies in kindness was made in the majority opinion in Gray V. Sanders.

It started from the — the Declaration of Independence.

It proceeded through Lincoln’s Gettysburg Address.

Potter Stewart:

Neither one of those is part of the Constitution.

Alfred L. Scanlan, Jr.:

Well, all right, but as part of the American tradition, I thought we were —

What we’re saying about —

Alfred L. Scanlan, Jr.:

All right.

As a matter of fact, there was nothing said about in the unit rule case prior to that time.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Alfred L. Scanlan, Jr.:

There was no direct case authority except the voting right cases for the decision reached there.

But the Court took into account the broad general constitutional purposes of analogous amendments.

Many years ago, Chief Justice Stone, when he was dean at Columbia, complained that courts were quite willing to approach a new situation and analogize from cases decided prior to that time but were very reluctant to do it with respect to statutes and constitutional provision.

Statutes and even more so it seems to me constitutional provisions are a declaration not only of what is law in the past but they supply a premise for analysis when a new situation arise.

Now in the past, the discrepancies among the states up until the day of the 1900’s were perhaps not too significant.

But when they reach the point of gross absurdity as they have today and certainly in Maryland’s case, if Maryland’s case satisfies the Fourteenth Amendment, anything satisfies the Fourteenth Amendment.

Well —

Potter Stewart:

Now, you’re saying as I gather, putting to one side these six senators from the City of Baltimore for a moment, you’re saying that if there are these population disparities among the counties of a state, of the size, that we find in the State of Maryland, then it is per se a violation of the Fourteenth Amendment to have a Senate portioned on the basis of one senator per county, period.

Alfred L. Scanlan, Jr.:

That’s correct.

I would like to just —

Potter Stewart:

Even though you would concede I suppose that this is a — an intelligible system, a rational system within that limited meaning.

Alfred L. Scanlan, Jr.:

Yes, a rational or within the limitations that I ascribed.

Potter Stewart:

One senator per county, you say, is automatically constitutionally invalid if there are population differences —

Alfred L. Scanlan, Jr.:

That’s right.

Potter Stewart:

— of this magnitude.

Alfred L. Scanlan, Jr.:

I think — say when Montana was admitted to the Union, I — I do believe they had something like a federal plan there.

And I think at that time, the disbursements of population and the very thin population of Montana would produce a result where a federal plan in the unitary state would not be particularly offensive, not resolve any gross disparity.

As I here I think — oh, one point I’d like to make, and it’s made in our briefs but I won’t belabor it, we have absolutely no chance for a relief at the hands in the legislature.

The whole history of Maryland is a proof of that.

The only time they did reapportion voluntarily was with respect to Baltimore on three different occasions that I’ve mentioned yesterday and the other last occasion was the Special Session that took place after Judge Duckett had struck down the representation provided in the House of Delegates.

It establishes however that when you do have a controlling court decision, you can be reasonably sure that the legislature will act and I think not only this case but most of what’s happened since this Court’s decision in Baker v. Carr is proof of that.

Now, I want to say in passing, Maryland does not have the initiative, does not have the referendum.

There is a provision in the Maryland Constitution for a constitutional convention every 20 years and dutifully the vote has held.

I think a majority of the voters approved it in 1930 but a very substantial majority of those voting under question approved it in 1950.

Well, no convention has ever been called despite the fact that over a dozen bills have been introduced to the House and — I mean in the General Assembly.

Many of these bills have passed the House incidentally where the least population is given some sort of a fair shake but they’re killed in the Senate.

Of course, I don’t think there’s any secret about this.

There are some that I know, some Senators from the rural counties are quite interested in constitutional reform.

We haven’t had a major overhaul of the Maryland Constitution since 1867.

Since that time, we’ve had 111 amendments who voted to it.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Alfred L. Scanlan, Jr.:

It’s a hodgepodge.

It’s a very difficult constitution to deal with like many State Constitution.

And there’s only one reason they don’t call the convention.

It’s not that they’re particularly against constitutional reform.

They’re afraid that the convention might do something about the reapportionment.

I don’t think they need to be too afraid because if the constitution — the constitutional convention would convene, the representation in it would be the same as now exist in the General Assembly and the less populous areas would dominate.

As a matter of fact, it recalls to my New Jersey’s experience, and I’m sure Mr. Justice Brennan is familiar with that when New Jersey finally achieved its great constitutional reform after a hundred more years.

It only did so by agreeing in the call to the Convention — for the Convention that the Convention could not meddle with change or alter the representation provided in the New Jersey General Assembly.

Now, I think that we have made out a prima facie case for a violation of the Fourteenth Amendment with respect to the representation that’s provided in the Maryland State Senate and for that matter in the General Assembly as a whole.

But before we could say that with any self-assurance, I think we ought to deal with the burden of proof that’s put upon us.

I agree and the Assistant Solicitor General from New York yesterday made much of the point that there’s a presumption of constitutionality that kept coming back to Mr. Chief Justice Warren’s statement to that effect in McGowan v. Maryland and no one disputes that.

But surely side by side with that elementary principle of how this Court decides constitutional cases, there seem to be another well-established doctrine that — where fundamental liberties are involved, civil liberties if you want to call them that, or political liberties, the right of free speech, the right to free exercise of religion, the right to freedom of assembly, and I would think the right of suffrage.

The right to be fairly and equally represented comes within that line of cases that began, I suppose, or maybe didn’t begin but are referred to in the famous Footnote 4 by Chief Justice Stone in the Carolene Products case.

It seems to me if this Court is going to view with a dim light eye, legislation that attempts to impair the right of free speech of an extremist agitator where the right to free exercise of dissident, non-theist group.

It seems to me that the right of suffrage when the claim is made is being denied thousands of citizens in the states.

But then the standard of this Court is to apply is one of the careful.

I won’t say the presumption is reversed.

Presumption of constitutionality may still be there, but this Court approaches those cases with a slightly different point of view that it does with mere economic regulation.

And as far as the right of suffrage is concerned, one of the most famous cases that ever reached this Court of another matter, Yick Wo versus Hopkins which annunciated the principles of equal protection that live in the law to this day and we hope forever, they’re indicted as true.

The Court remarked that the right of suffrage was the most fundamental because it was preservative of all the others.

In the end, no matter what this Court says or does, in the end, it is the people in their legislative body, congress or the states that will decide the fate of this nation.

And therefore, it seems to me that this Court has a special obligation to see to it that if the people are going to decide monumental questions of state and federal affairs that the mechanism of government isn’t perpetually rigged in favor to some and against others.

So I think then as far as the burden of proof is concerned, we can say that we have established the prima facie case.

I think we would have had —

Alfred L. Scanlan, Jr.:

Well, I’d say this, Justice Warren — Justice Harlan.

I think it’s fairly clear we perhaps would not have a union if the representatives from the larger states hadn’t agreed to the famous compromise of the constitutional convention.

I don’t — I don’t dispute that.

That’s right.

Whether or not the — whether or not the — the favors of the constitution would have cast in their chips and gone home, if they could have foreseen what has now come to pass in Baker v. Carr and Gray v. Sanders, I don’t know.

(Inaudible)

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Alfred L. Scanlan, Jr.:

Yes.

(Inaudible)

Alfred L. Scanlan, Jr.:

That’s true, Your Honor.

I was trying to answer the frame of reference that Justice Harlan put it to me.

I just think that the — that’s difficult to answer.

Would you be optimistic today if the constitution (Inaudible)

Alfred L. Scanlan, Jr.:

I think if such amendment could be submitted to a referendum of the people, I would have confidence in it.

But if it had to proceed to the malapportioned state legislature, I’d have grave doubts about it.

Potter Stewart:

Why would you need an amendment?

After Baker against Carr, doesn’t Congress have the power?

Alfred L. Scanlan, Jr.:

Did Congress have the power?

Potter Stewart:

Yes.

Alfred L. Scanlan, Jr.:

No, I don’t think we’ve perceived that far.

I simply don’t —

Potter Stewart:

Why not?

Well, isn’t it the logical conclusion?

Baker against Carr said that the state apportionments can run a file on the Equal Protection Clause of the Fourteenth Amendment?

The last provision of the Fourteenth Amendment authorizes Congress to enact legislation to carry out that amendment.

Why doesn’t Congress have the power right now?

Alfred L. Scanlan, Jr.:

Well, under that analysis, Congress has the power to reach down to do many things in the affairs of the states when they violate the Fourteenth Amendment but I see no — aside from the invidious days of the reconstruction of Congress, I don’t see any instance of Congress so acting particularly.

Potter Stewart:

Well, we’re not talking about the probabilities, political probabilities, but tell me what’s wrong about that analogy.

Alfred L. Scanlan, Jr.:

As an abstract theory, it is probably sound.

What do you find in the Baker against Carr that says anything whatever is the (Inaudible)

Alfred L. Scanlan, Jr.:

Well, I’ve — Baker v. Carr is true, it decided only that if persons coming to this Court or of lower courts alleging gross disparities in their representation in the legislature have stated the course of action over which this Court has jurisdiction, I agree that the — the Court went over than that.

But it seems implicit that in the decision, implicit in the decision was the further premise that if gross malapportions could be established and no reasonable justification for them could be advanced, then there was an unreasonable classification of the type prohibited by the Fourteenth Amendment.

(Inaudible)

Alfred L. Scanlan, Jr.:

You’re right Your Honor.

Sometimes under questioning by certain justices — I don’t want to [Laughter]– I stand corrected by a much more knowledgeable authority, Mr. Justice Harlan.

It is explicit in the Baker v. Carr.

Earl Warren:

He was speaking for himself.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Alfred L. Scanlan, Jr.:

Well, I hope he has as many friends this time as he did last.

Earl Warren:

(Inaudible)

Alfred L. Scanlan, Jr.:

Well, I am — unlike the Attorney General of Alabama, I’m going to proceed on the assumption that Baker v. Carr is still the law.

Now, under —

Potter Stewart:

Doesn’t it follow that Congress after — since Baker — after Baker against Carr, the Congress has power in this field under Section 5 of the Fourteenth Amendment?

Alfred L. Scanlan, Jr.:

Yes.

As a matter of fact though, Congress — some members of the Congress reacted in a different way.

There was a state of the constitutional amendments introduced that would prohibit — well, it would provide that Lower House had to be based on population and if it was and then — then it would be proper for a state to use other criteria in its Second House but I don’t think any of those even got to a hearing.

Given the fact that Congress (Inaudible)

Alfred L. Scanlan, Jr.:

That’s right.

I would say then that we have met our burden of presenting a prima facie case and the burden then fell on our learned adversaries to rebut it then.

And they’ve attempted to do that by two or three lines of argument, one of which at least — or maybe both of which were accepted by the Court of Appeals of Maryland.

The first is the so-called “federal analogy.”

Now I don’t think that really I have to argue the federal analogy question.

It really isn’t in our case.

It may be in the New Jersey case but the New Jersey Attorney General is elected to intervene from an amicus curiae to make the federal analogy argument.

Now maybe it does exist in New Jersey.

But for the reasons that we gave yesterday, it doesn’t exist in Maryland.

It never had, at least since 1864.

Baltimore has six senators.

The population principle therefore has been taken into account the Upper House.

There’s no analogy to the federal senate.

The Lower House, we have gross disparities of representation still, even though much more reasonable.

If —

(Inaudible)

Alfred L. Scanlan, Jr.:

No, I didn’t — I said that —

(Inaudible)

Alfred L. Scanlan, Jr.:

Oh, it’s — yes, legislation that was considered at the last session of the General Assembly.

The last session of the General Assembly was the first one where we ever had an arrangement that the Lower House was at least in the — last in the hands of a majority of the voters.

76% of the voters control 55% of the representation, but this is the first time that we ever had that situation along with the —

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Byron R. White:

The present House of Maryland, can a minority elect a majority?

Alfred L. Scanlan, Jr.:

Yes, but I must be candid about that and that was — we could only say that was true.

We took Montgomery County away and added it to the rural — the less populous areas.

To be fair about it and to be consistent about it, the same 76% of the people that live in the populous areas can elect 55% of the representatives.

Of course, that’s still short of even a constitutional majority.

I know — I know the case that our adversaries often rely on and I’m not sure that it is still is in good law.

I think it’s been severely described by Baker v. —

Byron R. White:

I think we have here then the situation, where one house of the assembly is apportioned to the satisfaction and in accordance with the population?

Alfred L. Scanlan, Jr.:

Not — no, not in accordance with the population, Mr. Justice White.

We still have disparities —

Byron R. White:

But you have — do you have at least just one House that is elected by a majority?

Alfred L. Scanlan, Jr.:

By a bare majority.

A substantial majority of the people can elect the bare majority of the House but not enough even for a constitutional amendment in that House.

Conversely a very small minority of the people 24 — well, 24% can elect two-thirds of the Senate, which is more than necessary for a constitutional amendment, and have 49% in the Lower House.

I think that under the various categories that the Solicitor General has referred to over the last few days by any — by any stretch, by any analysis, we fall within almost any of those categories.

Byron R. White:

But then in terms of rural and urban (Inaudible) —

Alfred L. Scanlan, Jr.:

Yes, within the percentage limitations that I mentioned.

Potter Stewart:

It’s not rural and urban.

It’s rural and suburban, isn’t it?

I mean the urban that — the big city, the State of Baltimore, you know much more about it than I do —

Alfred L. Scanlan, Jr.:

City of Baltimore —

Potter Stewart:

— but — but it — the State of Maryland extends pretty far east and west and it’s got a good many towns and various interests, it’s been called in last Sunday’s paper, I think, a microcosmo of the United States. But there is one big Metropolis and that’s the City of Baltimore.

Is that right?

Is that correct factually?

Alfred L. Scanlan, Jr.:

Well, yes.

I think looking at — depending on how you define metropolis but even in Baltimore County, which is right next to it, and Towson and Wilfred and those places, they are substantial towns in the city.

Potter Stewart:

But they’re satellites to the — to the metropolis, those particular ones I suppose.

Alfred L. Scanlan, Jr.:

Well, I —

Potter Stewart:

In any event, there is one big city.

Alfred L. Scanlan, Jr.:

Yes, there’s one — Baltimore is the largest city in Maryland —

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Potter Stewart:

Almost a million people, is that it?

So —

Alfred L. Scanlan, Jr.:

Yes.

Potter Stewart:

And there’s not — no other city comparable in size.

Is that —

Alfred L. Scanlan, Jr.:

No, that’s right.

But on the other hand, if Silver Spring were incorporated as a city, it would be getting up there I would say with Baltimore but on a respectable level, the same way with Towson and Baltimore County.

Potter Stewart:

But these other counties we’re talking about are basically suburban in so far as there’s been a — the population, and then the suburban, they’re the — the — the city to which their satellite is the City of Washington.

Alfred L. Scanlan, Jr.:

Well, they’re close to Washington and many people have their place of employment —

Potter Stewart:

That’s suburban Washington.

Alfred L. Scanlan, Jr.:

All right.

That’s fair enough to say.

I will say however this illustrates our adversaries are worried that if the minority — if the minority rule — if the majority rule is substituted with minority rule, we’ll have a tyranny of the majority.

And my answer to that first off is that you have the election between the majority and the minority.

Lincoln put it rather simply a long time ago when he said, “Unanimity is impossible.

The rule of a minority, as a permanent arrangement, is wholly inadmissible, so that in rejecting the majority principle, anarchy or despotism in some form is all that is left.”

Aristotle put it a little more simply when he said a majority is more likely to be right.

But they’re concerned about a tyranny of the majority, yet in their brief they admit that the interests of all these counties that we’ve lumped together as the five most populous subdivisions, the four counties in the City of Baltimore, are quite different and they’re right.

If we become a majority, I’ll say this.

I’ll promise this, too.

We will be as nice to them as they were to us.

So how can they — how can they complain if they admit the interests of these people are different.

Immediately if we get the representation that we think the constitution entitles us to, we’ll suddenly turn around and be a monstrous — turn us monster.

I’m sure the suburbanites — the suburbanites in Montgomery County will have interests quite different from the people in Anne Arundel or the people in Baltimore County.

If we get the representation we think we’re entitled to, we will have to have coalitions just as they have to do it today.

As a matter of fact, I think the latest statistics in this general area show that it’s really become a case of the suburban areas against the big city in many problems.

But that may be so, but that doesn’t detract from our basic premise that the structure of government within which the framework within which you work these problems out should they base it primarily on the concept of equal suffrage.

May I reserve the remainder of my time?

Earl Warren:

You may, Mr. Scanlan.

Mr. Solicitor General.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Archibald Cox:

Mr. Chief Justice, May it please the Court.

I want to devote myself to two, and if I have time, three subjects in this case.

First, I want to simply as I can to state the way that our basic analysis applies to the Maryland case.

Second, there are some points in our constitutional history that I would like to deal with briefly, and then third, if the time does permit, I shall try to deal with some of the general questions that have been raised in the course of the preceding days.

It’s our view that the apportionment in the Maryland legislature violates the Equal Protection Clause of the Fourteenth Amendment for two independently sufficient reasons.

First, we say that apportionment of the Senate, because of this system of giving one senator to each county but six to the City of Baltimore, grossly discriminates against Baltimore County the areas surrounding the city, but not including —

Potter Stewart:

Not including this?

Archibald Cox:

Not including this.

That’s correct, and against the Prince Georgia’s and Montgomery counties and if there is no discoverable reason for this pattern of inequality so that it falls on the same ground that the Tennessee apportionment that fell in Mr. Justice Clark’s opinion in Baker and Carr, the same ground that we argued that the Alabama existing apportionment was a violation of the Fourteenth Amendment.

Byron R. White:

General Cox, (Inaudible)

Archibald Cox:

That’s it.

Byron R. White:

(Inaudible)

Archibald Cox:

I have grave trouble with his suggestion assuming that it fits this case.

It seems to me contrary to the whole nation, the whole system of making us one nation for commercial, economic, business purposes, and enabling us to work on both back and fourth across state lines and move on to work on one side and live on another as we see fit.

As applied to this case however, it doesn’t explain Baltimore County, which is one of the worst of the discrimination.

Potter Stewart:

There might be quite a different rational explanation for Baltimore County, I suggest.

Archibald Cox:

The state suggests then — I have — there may be.

I have thought of none, but would fit as rational —

Potter Stewart:

The City and County of Baltimore have seven senators.

I believe the rationalization might be that, that area is fully represented by those seven senators.

Archibald Cox:

To say that the people elected by the City of Baltimore represent the people in Baltimore County seems to me a wholly unwarranted assumption.

Potter Stewart:

Do you really know?

I don’t know.

I don’t know the political realities and the political forces that work in the State of Maryland.

Do you?

Archibald Cox:

It would seem to me —

Potter Stewart:

Do you know how much community of interest and how much diversity of interest there is in fact between the suburban Baltimore and the core city?

Archibald Cox:

I would think —

Potter Stewart:

I don’t know —

Archibald Cox:

— that it would be — I would think that it would be sheer chance if they represented the people of the County of Baltimore on any substantial number of issues and that that is an assumption that the court –- that the legislature can’t reasonably make without any evidence.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Potter Stewart:

Suppose it’s — again I don’t know but I suppose that generally speaking, the County of Baltimore wouldn’t have those people there were it not for the core city.

Like most of suburban counties, there wouldn’t be suburbs unless there were urban, unless they were a city.

Archibald Cox:

I take it would have many people there.

They’re going to live somewhere.

There are local interests there, all kinds of divergent interests.

Potter Stewart:

In that area, if there were no City of Baltimore, those people would not be suburbanized. They would be farmers probably.

Archibald Cox:

They would have say somewhat different life than they do.

Clearly it might be that Towson would be the central city if Baltimore wouldn’t have been the city.

But I do suggest that this notion which has been expressed several times that somehow by over representing one group of people, you are representing the people that live somewhere else is a highly unlikely proposition.

Byron R. White:

Well, would it be (Inaudible) in the Baltimore City everyday.

To that extent, would it be six senators in Baltimore city who represent the particular professional business interest of those residents.

Archibald Cox:

I don’t know.

They are going to be more responsive to the people who elect them or who on many issues will not have the same interest even in the business ways.

The people who live in the central city for example, Mr. Justice, I take it would not have the same business interest as the bankers and management people who live out in the suburbs.

Byron R. White:

Maybe so but I would suppose that the —

Archibald Cox:

On some question —

Byron R. White:

Is that the industries and banks and professions are largely — they were the people who spend the nights in Baltimore County —

Archibald Cox:

On some —

Byron R. White:

— senators of Baltimore city would be indeed responsive to those —

Archibald Cox:

On some questions, it would undoubtedly be an identity of interest.

On other questions, it would be a very grave split of interest.

And I think to allow a state without any evidence that — of what the committee or disparity is, especially to come along as (Inaudible) and suggests that this is the rationalization, is to allow it to offer a wholly arbitrary assumption, and therefore something that we’ll not do as a justification for inequalities in an area as important as the Equal Protection Clause and the area of political rights.

(Inaudible)

Archibald Cox:

I tried —

(Inaudible)

Archibald Cox:

I think —

(Inaudible)

Archibald Cox:

I think, Your Honor will find that I have directed myself to this quite explicitly during my argument in the New York case.

Basically, my argument on that point comes to this, that although creating this kind of distinctions maybe is clearly permissible in the fields that you have mentioned, but it is not permissible under the Equal Protection Clause in the area of political rights both.

And here, we take our stand very squarely on the proposition as stated by Justice Black and Justice Douglas in (Inaudible) Peters.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Archibald Cox:

The creation by law of favored groups or citizens and to grant to them a preferred political right is the worst of all discriminations under a democratic system of government.

Now, I would like to also to suggest on this point, Mr. Justice, that of that proposition which is a limited proposition and doesn’t resolve all the questions in the apportionment case, but on that proposition, I submit that Gray and Sanders is clearly decisive.

And I — a few moments ago, scribbled down a little example that I thought might illustrate the reason I think so.

Suppose we take a very simple state and assume it has four counties.

The counties are equal in every respect, say that one of them has factories whereas the others are pastoral.

Each county has 40,000 people.

The three pastoral counties are given four units each in selecting a governor, and the factory county is given one unit in selecting a governor, one.

Potter Stewart:

A governor who —

Archibald Cox:

A governor, correct.

Potter Stewart:

So the constituency is the entire state?

Archibald Cox:

So the constituency is the entire state.

It was held in Gray and Sanders that that was impermissible.

Now, I take it that the reason that that is impermissible is not that it’s a government.

The reason that it is impermissible is that you may not, in giving people, in waiting votes for governor, you may not say we want to favor the pastoral life.

We want to encourage the pastoral life that it rests on the proposition that in this area, ours is a society that does not permit political classes.

Now I come and presume that we have exactly the same figures in this state with respect to the number of senators, four for each of the three pastoral counties and one for the factory area.

And in other words, the waiting exactly corresponds to that of governor.

I submit to you that the reason that was applicable in the governor case is equally applicable in the Senate case.

It is this that I had in mind when I said that I thought to that extent and with reference only to that extent that Mr. Justice Harlan was right in his dissenting opinion in Baker and Sanders when he said these are the same things.

If you are going to admit this range of considerations to enter into the rule of constitutional determination, I see no way of distinguishing between the choice of the legislature and the choice of the governor.

It seems to me it’s just as irrelevant as it is the Attorney General argued that case and I’m arguing this one, or that that case came from Georgia and this present one comes from Maryland, or the same thing — I won’t go through all the figures — the same thing applies to the choice of the assembly, of course.

Now where the difference seems to me to come, as I said, I think the case is dispositive on that proposition where the difference seems to me to come is that there are elements that may enter into the choice of a legislature which by hypothesis don’t come in when you’re selecting one man for a single constituency.

One of those elements may be that I think I suggested before that you may have an island off the coast.

This was a case with Nantucket and Martha’s Vineyard.

And you want to have somebody there who knows something about the needs of the people on that island or somebody from the upper peninsula of Michigan who knows something about it, whereas those people would be because of the difficulties of communication, transportation, time and so forth largely unrepresented unless you brought someone in to the extent that one is concerned in apportionment With that kind of question, there I would agree that Gray and Sanders is not logically dispositive and I take it, although of course I have no way of knowing, that it is that kind of difference that the court must have had in mind when it said that the one case didn’t decide the other.

I don’t believe it was saying while you can’t create preferred political classes in selecting a governor, you can have preferred political classes in selecting a legislature.

That would seem to me to be a completely illogical difference.

Byron R. White:

(Inaudible)

Archibald Cox:

Oh yes.

Byron R. White:

(Inaudible)

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Archibald Cox:

Oh yes because —

Byron R. White:

(Inaudible)

Archibald Cox:

Well then, I do and the difference is this, Justice White —

Byron R. White:

(Inaudible)

Archibald Cox:

Well, the State of Maryland does say that we can — I don’t think there is, but the State of Maryland says that Baltimore is unique and that if you can get a whole lot of these unique factors that the state may special — choose to give them a special advantage over the suburban path.

So that I think the crazy quilt formula and the point, I’m now making frequently have to be applied like two halves of a pair of shears that — and I think the crazy quilt is enough for this, but if they say, “Well, Baltimore gets more representatives to favor the shipping entry”, I suppose that is intelligible or rational in the very sense that I have to deal with it then on this proposition.

That’s why I said I thought this came into play.

Tom C. Clark:

(Inaudible) everyone has dealt with the Senate.

Archibald Cox:

Well, I would — the House in Maryland is — let me take it as I go along, may I?

It will fit in with my next point.

I said the Maryland legislature was unconstitutionally apportioned for two reasons.

Our second reason is the same one that I pressed yesterday in connection with the Alabama 67 Senator amendment.

To with, that the apportionment here, even though it’d be supposed to be based on rhyme or reason and to be based on the desire to recognize counties and geographical problems so completely sacrifices a notion of popular will or majority rule and create such gross inequalities that it is a violation.

It is arbitrary in the sense that it’s — what you’re trying to secure is utterly inconsequential in terms of the harm it does.

Now, at that point, Mr. Justice Clark, I think it becomes pertinent to look at both Houses.

In the Senate, inequalities run as high as 50 to one.

They are very commonly 14 and 15 to one.

In the House, the inequalities run as high as five to one if my memory is correct.

In the House, there are eight counties with four times the population, the per capita representation of Baltimore —

Tom C. Clark:

There’s no minimum in the House, is there?

Archibald Cox:

What?

Tom C. Clark:

There’s no minimum in the House that won.

Archibald Cox:

In fact, they’ve done it this way.

They — although they give arbitrary numbers, apparently what was done was each county was given one, then the risk were apportioned regarding to population.

But then they went on and said, “Oh, there are some people who will lose representatives and we can’t permit that to happen, so we will give everybody at least the representatives he had before.”

Whether this meets the definition of an intelligible rule, I don’t know.

I obviously can’t state it.

Tom C. Clark:

Every county does have one representative.

Archibald Cox:

So every county does have one.

The result of that is that counties with only 36% of the population elect the majority of the Maryland Senate — of the Maryland House, whereas counties with only 14% of the population elect the majority of the Senate.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Archibald Cox:

Put it another way around, it might take as many as 54% — as many as 64% of the people of Maryland to get a bill through the House and as many as 86% to get a bill through the Senate.

And I think that you can’t simply say well, the urban people can get it through because more than the majority are urban because I don’t think their interests are that uniform.

So here we think that whatever figure, and I want to make a claim that I suggest no figure with respect to what constitutes unreasonable minority control or unreasonably gross inequality, here we think that the Maryland situation in both Houses judging them together is so — so submerges the principle of majority rule and creates such gross inequality that it is arbitrary that what Maryland must be said to be doing, to use a phrase I did yesterday, was not really take geography into account.

This isn’t Texas or California.

It’s a little state, that it wasn’t really taking geography into account but was creating a class society, a class political society.

Byron R. White:

Mr. Solicitor General, do you (Inaudible)

Archibald Cox:

I — I think he did because he made one point, which I’m sure we would be in agreement on, and that is he said you really don’t have to consider the federal analogy here because neither House is apportioned in accordance with the population, whereas of course in the Congress, the lower House is.

Potter Stewart:

Well, I agree with that position but I didn’t think he took — I thought that he felt that a very close to a bare majority of the population or very close to a majority of the population could elect a bare majority of the House.

Archibald Cox:

Well, I — I — if he did, I think he misspoke himself because the figure is that as counties having —

Potter Stewart:

36%?

Archibald Cox:

— as little as 36% of the population can elect the majority of the House, which would mean that it might take as much as 64% to elect a majority of the House.

That House was this (Inaudible)

Archibald Cox:

Yes, that’s true.

That’s true

Potter Stewart:

And you say also that the — this is what I don’t quite understand, is between you and him.

Your brief says that the disparities favor the same voters in both branches.

Archibald Cox:

I —

Potter Stewart:

Now, I suppose that could be consistent with what he said, what he described —

Archibald Cox:

Oh, I don’t think he would dispute that for a minute —

Potter Stewart:

Well then — well then — well then, make it consistent with the practical effect of a deadlock between the two Houses.

Archibald Cox:

Oh, I — I think what he meant by that was that even if the popular majority was able to control the Senate, still this little 14% that’s been elect — electing was able to control the House, (Inaudible) myself, that this — this little 14% would still be able to control the Senate.

In other words, people who, if they could amass 54% — 64% of the House could get a bill through would have to amass 86% of the Senate.

Well, you might be able to do one without the other.

Indeed perhaps it not infrequently works out that way and that’s what would result in the deadlock.

I think the only differences between Mr. Scanlan and myself are — if I may just take a minute to explain them — are two, Mr. Justice White.

One, he does take the plunge that I have said I prefer to leave it to the future and say that the Constitution requires per capita equality, substantial per capita equality in both Houses where I’ve said — (Voice Overlap) —

Potter Stewart:

(Voice Overlap) he has to do it.

Archibald Cox:

What?

Potter Stewart:

I think he rather feels he has to do this.

Archibald Cox:

No, I don’t think he does.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Archibald Cox:

I — I would be surprised.

The second —

Potter Stewart:

Well, that certainly is the impression left with me because of the situation of the House, that he was in the House, that the people he was interested in they apparently could control —

Archibald Cox:

If there’s a — if there’s a difference on this, I submit that I’m right and he’s wrong.

The other part where we are clearly in difference, although I suspect he will agree with me now that he’s had an opportunity to reflect, it’s of course true — it’s of course true that under the Fourteenth Amendment, the Congress has power to lay down rules that would prevent a state from making an unconstitutional apportionment.

Potter Stewart:

As a matter of fact —

Archibald Cox:

I would —

Potter Stewart:

— they’ve provided a — they’ve — isn’t this suit brought under — under the Act of Congress?

Archibald Cox:

Yes, under the Civil Act —

Potter Stewart:

That —

Archibald Cox:

— yes.

Potter Stewart:

— that apparently lets the courts adjudicate this sooner.

Archibald Cox:

But I would emphasize that it is not fair — it’s not fair in a sense, accurate in my judgment, to the say that our position amounts to saying that the Congress can apportion the state legislature because it would seem to me that the power of Congress went only to deny to rules that would prevent a denial of equal protection.

And that equal protection does not provide exactly how each seat in a state assembly or Senate is to be apportioned.

Potter Stewart:

For sure I would in fact suggest that we might think at least twice before we accepted the invitation to lay down the so-called guidelines rather than simply to decide cases?

Archibald Cox:

Oh, I would think so indeed.

I would think that indeed I have — I think it’s been implicit in everything I’ve said that the Court should decide these cases, that what guidelines there are should emerge from deciding the minimum required in each of these cases and that the invitation to set forth general abstract rule is not one that I’m pressing in front of the Court.

(Inaudible)

Archibald Cox:

Well, I meant only to state —

(Inaudible)

Archibald Cox:

Well, the Congress — I intended only to put in other words what the Fourteenth Amendment says. It may enact — may enact laws that are necessary and proper or appropriate.

I forget what the phrase is.

Potter Stewart:

It says it shall have enough power to enforce by appropriate legislature —

Archibald Cox:

By appropriate legislature —

Potter Stewart:

— the provisions of this article.

Archibald Cox:

— provisions of this article.

Now, I would think it would — it could at least be argued that to set out an exact apportionment for each of the 50 states doing the district thing and assigning the number of seats was much more than was appropriate to carry out the Fourteenth Amendment, and therefore I thought it was misleading, not intentionally so but unfortunate to suggest that recognizing that power of Congress was to recognize that this Congress can tell the states how to apportion themselves, that I did not intend to express any opinion on how much you can do beyond the bare minimum of what the Fourteenth Amendment requires.

I take it that appropriate legislation leaves Congress a wide degree of discretion that’s perhaps related to the particular subject matter.

I wasn’t trying to state.

I apologize for being so long.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Earl Warren:

You have answered the questions, so alright.

Mr. Bourbon.

Robert S. Bourbon:

Mr. Chief Justice, may it please the Court.

I would like as I open to call the Court’s attention to a development in the State of Maryland within the last 14 days, which conceivably could have some bearing on this case.

Certainly it’s in point.

Exactly two weeks ago today, Judge Barnes, a judge of the Baltimore City Supreme Bench, a bench which has general equity power struck down in Baltimore City, the districting laws which had obtained there since 1922, as Mr. Scanlan touch upon the subject, the Baltimore City situation is there so that it has six districts and each of which is a state senator, a prior to the 1962 so-called Stopgap Legislation and had 36 representatives or the members of the House of Delegates, six from each district.

Following that Stopgap Legislation, the third district was given two additional delegates and the Fifth District was given one additional delegate.

And I’d like to, if I might, because I’m probably buying some trouble by doing it, but that I call to the Court the population disparity which existed in the Baltimore City legislative districts.

The First District had a population of 94,761.

The Second District had a population of 84,213.

The Third District had a population of 278,759.

Fourth District had 118,339.

The Fifth had 223,417.

The Sixth District had 139,539.

The Court struck the districting down on the basis of the same portion of the constitution which is in question here relating to Baltimore City and that specifically requires that the district shall be set up contiguous and as — as much equal on population as could be.

When this case was filed, the Attorney General of Maryland — I didn’t get in the case, but the Attorney General came in and stipulated that the — quite obviously that population disparities which existed in this case were sufficient to violate the state constitutional provision.

On that basis now, we have — well, we haven’t had a decree in that case and — and I don’t know what the decree will say.

We have a situation where we have a formless Baltimore City in relation to these legislative districts.

I would certify to the Court in this respect that the state has no intention of appealing at least on that point.

I don’t know whether the Court will get into — whether all of these people must run it large because it’s at least questionable whether they may under the Court of Appeals’ first decision in the initial reapportionment case which is in this record and which followed Baker versus Carr and — and annunciated the principles in Baker.

Earl Warren:

What — what is the rationale of that apportionment in the City of Baltimore?

Robert S. Bourbon:

Well, I would simply say this that 40 years ago, it was districted, as I’ll develop in showing how Baltimore City picked up the six senators that it had.

40 years ago, two additional senators were added to Baltimore City.

Now, this had followed by a few years an annexation provision which took — took territory from Baltimore County and from Anne Arundel County and added it to Baltimore City. On that basis, they then had six senators.

It was — it was more nearly in population equal.

Earl Warren:

Yes.

I — I understand that, but why in one — in one district would the legislature put 83,000 people and then another one 225 —

Robert S. Bourbon:

Well —

Earl Warren:

— or something to that effect?

Robert S. Bourbon:

The point is that the legislature — it’s a situation that the legislature allowed to happen if you want to put it on that basis, that we had a 40-year situation where the — where one district grew while the other didn’t grow quite in proportion to that district.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Earl Warren:

Well —

Robert S. Bourbon:

Were it just happened.

Earl Warren:

— I thought they readjust it two years ago.

Robert S. Bourbon:

Not — not the district being in Baltimore City.

No, sir.

Earl Warren:

What — those two that they gave them two years (Voice Overlap) —

Robert S. Bourbon:

They just — they dropped — dropped two delegates into the Fifth District then dropped one — I mean two into the Third District and one into the Fifth District.

They didn’t touch the boundary lines.

They simply dropped the — dropped representation into the district.

So this is a — this population disparity grew through the years much as — much as it’s grown in many of these other cases, which would be for this Court.

It just happened.

And of course, this is the — this is the basis upon which plaintiffs come into this case.

Potter Stewart:

Mr. Bourbon, just so I’ll understand this, this case should you just told us about involved only the districting within Baltimore City —

Robert S. Bourbon:

That’s — that’s — it’s correct.

Potter Stewart:

— of the six districts, and that’s not before us directly and (Voice Overlap) at all.

Robert S. Bourbon:

It’s not — it’s neither been alleged nor do I believe it’s before this Court.

Potter Stewart:

And same way I gather from what you say that it involved only the application of the State Constitution.

Robert S. Bourbon:

I’m glad you asked that question Mr. Justice Stewart, because the Court did comment in that case while establishing no rationale or no argument.

The Court did say that this districting plan violated the equal protection clause.

I say — I say it was not — it wasn’t, I don’t think, argued at the time that the argument was head on it.

The Court did, as a number of other courts have done, they — they find a state ground and superimpose a federal ground on it.

Earl Warren:

But could the — could the legislature anymore discriminate within in — as to districts within the City of Baltimore than it could throughout the state as far as representation is concerned?

Robert S. Bourbon:

I would say that the — the constitutional provision which — which we’re here to talk about today specifically says in relation to those legislative districts in Baltimore City that they’ve got to be as nearly so in population as — as might be.

This is not so with —

Earl Warren:

So they’ll say that is to all the state?

Robert S. Bourbon:

But the constitution doesn’t — doesn’t provide that in the county situation with reference to say the state senators, if this should be the case.

In other words, there’s no mandatory population — equal population requirement on the rest of the state either in reference to the senate or the house.

Earl Warren:

Well, so far as equal protection or the law is concerned, is there any difference between malapportionments of districts within the City of Baltimore than within the — the State of Maryland?

Robert S. Bourbon:

Well, there’s a difference of course between the districting of Baltimore City and the districting of — for example the — the county system in the State of Maryland.

Earl Warren:

Oh that’s what I want you to point out, if you can.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Robert S. Bourbon:

The county system, as well developed, has — has grown up since the earliest times, since 1637 when St. Mary’s County was formed in the State of Maryland.

The Baltimore City districting provisions were added too from time to time and as I say, the — the legislature set arbitrary districts presumably based upon a general population basis and so constituted the districts.

Now, with reference to the —

Earl Warren:

My point is this.

In a — in a city like Baltimore, you have a — a big shipping industry in one part of the city.

You have a — a big industrial area in another part of the city.

You have a big residence district in still another part.

Now, would it be possible for the — for your legislature to wait — wait those districts and say, “Well, in the city, we think that the downtown business area is more important than the — than the residence district, so we’ll — we’ll give them greater representation down there than in the residence district or that we would do the same thing with the — with the shipping industry”?

Robert S. Bourbon:

Certainly not under the State Constitution.

You want to know under the equal protection (Voice Overlap).

Earl Warren:

No I — we’re talking about the Fourteenth Amendment here.

Could they do —

Robert S. Bourbon:

It may be less —

Earl Warren:

— that in the city — could they do that in the City of — of Baltimore any more than they could do it throughout the state where we’re talking about suburbanites and ruralites and urbanites and so forth?

Is — is there any differentiation between the two?

Robert S. Bourbon:

I’d — I would think the criteria, they might be far less justifiable for the — for their own and equal protection basis, for the legislature to set up arbitrary districts in Baltimore City than in the county system because the — the — to begin with, Baltimore City has been — really it’s constituted as a general constituency broken down into legislative districts.

The counties are constituted far differently and for different reasons and — and on different criteria, that is to say the — the Lower Court and the Court of Appeals found the historical basis and the geographical difference between these counties, Baltimore City, and we have a different — different situation.

Requirement — the requirements of the Equal Protection Clause perhaps may be fairly nearly coextensive with the requirements of the State Constitution in respect to Baltimore City districting because perhaps a disparity could not be showing a true disparity in Baltimore City.

It’s not that large a city.

It’s a large city but say this — this opens —

Earl Warren:

Does this situation would hold true you think between city and state even in situations like you have in — in Baltimore as between the City of Baltimore and the County of Baltimore which adjoins it and which is actually a part of it?

Robert S. Bourbon:

Well, I’m not sure I understand the Court’s question but I’ll — I’ll try and answer what I think the question is.

Of course, Baltimore City was taken broadly in 1851 out of Baltimore County.

Earl Warren:

Yes.

Robert S. Bourbon:

It sits — squarely in it —

Earl Warren:

Yes.

Robert S. Bourbon:

— and there are many overlapping considerations, population and other, the industrial and — and the economic considerations.

But I do feel this way that the Baltimore County is a county.

It’s traditionally been a county.

It was founded in 1650. It’s always had the same general type of representation.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Robert S. Bourbon:

And since 1837, it has — it had undeviatingly the same representation.

Baltimore City perhaps is in a different posture because you have to stop the city limit somewhere.

In other words, the state chose to — to form a city in that — at that point and — and at that point, the — the criteria applicable to the City of Baltimore perhaps became somewhat different from the criteria which might be applied to the county because the County of Baltimore is partly — I’d say partly heavily industrial.

We’ve got the Martin plant and the Bethlehem Steel interest at — at one end of the county, in the far end of the county (Inaudible) Towson.

We’ve got heavy population and we’ve got quite a bit of rural country.

So speaking of the county as a county, it — it has — has a diversity but it is — these interests are within the county, the Baltimore City being — of course they’re in the separate independent subdivisions.

What I would like to go into very quickly, if I might, we’ve talked generally about the Maryland situation but I don’t know whether the Court has a true understanding of what — how Maryland came together and exactly how it’s constituted.

And as I say, the county goes back. We’ve — the — the state goes back, we’ve got a deep historical tradition.

It was for the first county that was formed in 1637 and so on.

We have — we have 23 counties in the State of Maryland in the — in the city of Baltimore.

By the constitutional convention of 1776, of course the state was formed some short well before the formation of the federal union.

At that time, state senators for example were elected by an indirect method.

This continued up until 1837 and included within that indirect method of election, votes were given to the town of Baltimore and to the town of Annapolis.

Now in 1837, the situation changed somewhat and each of these counties were given directly a senator and Baltimore town was also given a senator.

In 1850, Baltimore County became an independent political subdivision and it was still given the one-senator representation.

So at that time, each county had representation of one senator in Baltimore City.

In the — under the Constitution of 1864 and 1867, the Constitutional Conventions, the situation changed somewhat with reference to Baltimore City.

Baltimore City was given three — rather two additional state senators.

This was right of course at the time of the Civil War and at that time, certain of the Southern Maryland counties had sympathized with the confederacy and it was thought that to give additional representation to Baltimore City would, to an extent, wait that situation which existed in Southern Maryland.

In 1900, an additional district was created in Baltimore City which gave Baltimore City four districts and four state senators.

In 1922, it was added to — to give Baltimore City two additional state senators so that by 1922, Baltimore City had six state senators and in the — and it had from six legislative districts and — and of course representatives or the members from the House of Delegates in the city.

Now, appellant has made some point that population has always been a consideration in the composition of the Maryland state senate.

We dispute that if — if only on the statistics because in 1920 when Baltimore City had 51% of the state’s population, it had 4 of 27 state senators.

It receded population, may it please the Court, despite — and received its representation despite its population.

And so, the Balt — and so the present districting setup in the Maryland state senate hasn’t been touched since that time in 1922, so we come to this Court with 23 counties, each having one senator and Baltimore City with its six from the districts up until Judge Barne’s decision.

Now, I’d like very quickly to talk about the geographical makeup of Maryland —

(Inaudible)

Robert S. Bourbon:

Yes, sir?

(Inaudible)

Robert S. Bourbon:

No, sir.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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(Inaudible)

Robert S. Bourbon:

Indeed that’s so, although as we point out, we have a deep county tradition in our — in our state government.

Yes, sir.

(Inaudible)

Robert S. Bourbon:

Yes, sir.

(Inaudible) by the Union of (Inaudible)

Robert S. Bourbon:

No, sir.

Now, because it’s — because it’s important in the scheme of this case, I’d like to talk very quickly about the geographical makeup of Maryland.

The Solicitor General has — has talked about Maryland being a small state.

Indeed it is small in relation to, for example, the state from you which you come, Mr. Chief Justice.

However, it has rightly and rightfully been called, we think, America in miniature.

For example, we have a situation where a state begins on the — on the coast and extends to the mountains of the west.

Example, on the Eastern Shore, we have interests which are far different from the interest of Western Maryland.

We have basically a farming — a community along the Chesapeake Bay area.

We have of course the canning interest and — and in the Chesapeake Bay area, we have the well-known seafood interest.

Along the coast, we have the recreation interest and we have Assateague Island, which the Court is very familiar with.

As we go into Southern Maryland, we have what is basically a — an agrarian farm type community with large dependents upon the tobacco crop.

As we move into Central Maryland, we submit that we have the great population masses of Baltimore City and Baltimore County, the great industrial complex, the court complex.

It got a high degree of — of population concentration.

There’s no question about it, extending from perhaps Glen Burnie and through the Dundalk area after the Towson area.

It’s just one large metropolitan unit, high concentration of — of population.

Within that general metropolitan area, it may fairly be said that one hip of the state’s population dwells.

I think — think this is — won’t be disputed by appellants or by Mr. Scanlan.

As we move west out of Baltimore City, we — we had Frederick and Washington counties, which are basically farming counties in Washington County and is — is an apple-growing county, but it must be remembered that for a great period of time, Washington County and Allegany County for example were depressed areas.

This resulted from the loss of certain wartime type industries.

It became highly depressed.

Allegany County at this time is a depressed area and as I say, Washington County became so depressed that it — it had to go to the federal government of course for help as it did to the state.

It was — it was in bad shape.

Garrett County is — is quite far out.

It’s on the little boot of Maryland.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Robert S. Bourbon:

It’s — it’s quite different from the rest of the state and to an extent, it is also a depressed area.

Allegany and Garrett County have strip mining interest with which Baltimore citizens or even citizens of Hagerstown or Washington County couldn’t care less.

They — they don’t understand that they don’t care perhaps.

In addition, Garrett County is trying to develop a — a recreation type community where — where people can go during the summer and the winter.

Now, having set up that — that context, we say that we have — we have the same representation unquestionably from Garrett County in the state senate and from Kent County as we do from Baltimore County that is the basic unit of one senator.

Now, in getting into what I’d thought would be my form of my argument, I would like to go to the basic questions which we think are involved in this case, actually the basic question.

We think the — the only question before this Court is a question of the makeup of the Maryland state senate and — and we say this for several reasons, one of which is that the stopgap legislation, which was passed and which as we’ve indicated in our brief, is certainly not perfect apportionment according to population in the House.

Nonetheless, it’s the type of apportionment that even appellants at the time when they were speaking a little more freely agreed would satisfy them for the time being.

It was called stopgap legislation.

Now, neither the Lower Court, that is the court in Anne Arundel County, the equity Judge nor the Court of Appeals decided the point of whether the whole legislature ought to be taken into consideration.

We submit that point is not before this Court for a couple of additional reasons, that one of which is the so-called stopgap legislation as we pointed out in the footnote in our brief.

It was litigated in independent litigation in the Calvert County Circuit Court and it was sustained.

Its constitutionality was sustained and it was never appealed from.

And further, we — we have serious doubt whether — whether this Court at this time should consider the present population under the stopgap system for this reason.

The — the trial court proceeded in — in other words, a long jump was taken forward in the question of population according — representation according to population in the House.

If this Court intervenes at this point in that — in that item, we say that it’s — it’s not in the spirit of the pace at which perhaps apportioning matters ought to proceed.

For example, in some of the three-judge federal courts, I think Alabama is a case, the Court — these courts have been quite frank in stating that the apportionment plan which was then under consideration didn’t meet all the criteria that they would wish of apportionment plans but that it was a step forward, that it would do for a time being, and we say that that’s the kind of apportionment with — that we now have in the Maryland House of Delegates, far from perfect but — but the — the march is on.

We think we’ll get — I believe we’ll get apportionment according to population, perhaps strictly so in the Maryland House of Delegates, although we don’t have it now.

Arthur J. Goldberg:

(Inaudible) that the Lower House would apportion — strictly apportion (Inaudible) before us that that (Inaudible)

Robert S. Bourbon:

I would say it will make my argument la little better, a little stronger.

Arthur J. Goldberg:

(Inaudible)

Robert S. Bourbon:

I — I — perhaps it is relevant, Mr. Justice Goldberg.

I say that — that if — if you take into context the spirit of this apportioning move, it’s apportioned according to population.

And in that context, the state senate already so considered.

Now, I think Mr. Justice Frankfurter perhaps went to the heart of this question in his — in his dissent in this Baker versus Carr, and I’m not trying to reargue Baker v. Carr but he said that before we top off the debasement or dilution of the right to vote, we ought to talk about what a man’s vote is worth in the context of — of — of our institutions and the context of our constitution which we’re holding up as the absolute yardstick.

And I would be frank to say that I know this Court wants help on the question of standards but I don’t think it’s gotten much help to this point.

That standard is so difficult to apply when looking at the — at the various institutions, the state institutions that — that are called into question.

It’s — it’s an enormous job to establish standards which — which can be readily or — or somewhat readily applied to all the varying circumstances in the states.

Now, we say this contrary to what appellants feel.

This is not a simple voting case.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Robert S. Bourbon:

This is not a simple civil rights case.

Not to any of those cases are simple.

They’re important rights.

We say that tied up with — with this thing is the basic question of representative government and — and I’m frank to — to observe that I don’t think any of the — especially the consensus of courts that Mr. (Inaudible) cited here two days ago, I don’t think that those courts have gotten into the basic question, the basic problem of representative government.

That is to say if — if we have a right here, which this Court has — has — the Court has said there is a right that we have to — to consider in context with that right, with that right which the plaintiff must articulate.

We’ve got to talk about what we ought to have in state government, what we ought to have in state legislatures in reference to the vote because appellants — the appellants registered, appellants voted, they had their votes counted but what they’re complaining about is that the time their state senators stepped into the — into the State House, it became smaller in stature because of this dilution of their vote.

Now, certainly it ought to be observed that before the — before a comment can be made upon the makeup of the state representative system, and we’re really talking — when we talk about the state, we’re talking about the state legislature.

We’ve got to talk about what makes the legislature go.

When (Inaudible) goes to the legislature, what makes him run when he’s a — a delegate or a senator?

We say that the Courts have not gone into any of the criteria that — that — that are quite obviously there.

For example, well, I’ve never served in the state legislature.

I’ve been there many times.

I’ve worked there eight or nine sessions and I know that there are far more important items in consideration of even a single piece of legislation and simply to — in other words, what I’m — what I’m getting at is that the Court can take your Fourteenth Amendment even as — as flexible and — and as Lou says its standards may be and hold it against the state — hold it against the state legislature.

But until you talk about — about the question of compromise, the part that compromise plays in any bill, on any legislative enactment, for example the — the last bill that gave — that created the constitutional memo to give Baltimore City two additional state senators.

What — what was the reason for that?

Well, the appellants — the appellants have no trouble with that.

The Solicitor General has no trouble with that.

The standards are there, easily — easily applied Fourteenth Amendment standards.

We submit that they’re not so easily applied, that this situation that this Court has before it now doesn’t lend itself readily to the — to the adoption of — of equal protection principles.

For example, the thing that — that might have caused that bill to pass the legislature which gave Baltimore City two additional senators is politics, pure and simple, just a simple play of politics.

The compromise element was — was apparent.

The appellant say population played a factor.

They’re just saying that.

The record is the void of — of this — of this fact, that it’s a fact.

There’s no question Baltimore City had population.

So when we get into the representative system, when we get into those state legislature, we’re talking about the politics that control the situation, a party control talking about the compromise that’s quite evident in any bill, talking about to use them (Inaudible) vote swapping.

This happens everyday.

It happens every hour.

This is — this is what makes it turn.

This is what — these — this is the grease that — that makes the squeaky wheel of the legislature turn.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Robert S. Bourbon:

These are — these are important criteria.

None of the courts have — have gone into it.

Potter Stewart:

But would you think that in any given state, Mr. Bourbon, it might also be relevant to inquire as to the basic distribution of political power including legislative power within the state and that you’re aware, I suppose, that there are — there are tremendous variations as among the state in the distribution of legislative power.

Robert S. Bourbon:

I would say this —

Potter Stewart:

In other words, in some states the — the executive has given a great deal of legislative power.

In other states, various independent boards and commissions give a great deal of the legislative power.

In other states, appointees of the executive, the governor’s counsel has given a great deal of legislative power.

In some states, the legislature itself has almost all the legislative power.

Wouldn’t it be relevant to inquire in any given state what the actual situation is in that state?

And the point of view of — of who — where does the legislation actually come from and what does, what power — what political powers within the state does it represent?

Well, rather than just to look at the — in the state and the abstract as a state would be at Hawaii, which is a series of islands, or North Dakota or Maine and — and assume that they — they all have the same makeup.

Robert S. Bourbon:

I — I say this, Mr. Justice Stewart.

If — if the Court determines that it will consider the House of Delegates under its present composition, I would say then indeed we should go to the — to the whole complex of state government.

What I’m talking about is the responsiveness, the total responsiveness of state government. This depends on a lot of factors.

Depends — I would say primarily depends to a large extent upon the strength of the governor.

We see there’s an executive here in Washington.

It’s become more and more the thing.

The governor continues the legislatures out.

The governor plans the programs that he’s a strong governor if he rides his program through the legislature and if he’s got a legislature which is not opposite to him politically.

This may make a difference and may make a greater difference.

In other words, a total responsiveness of state government is — is quite important.

And as I say, the —

Earl Warren:

Mr. Bourbon, under our system, isn’t it one thing for the state to diffuse its power through the representation of its people provided that representation is fair, where on the other hand, it would not be appropriate for the government to diffuse its power if the ones who are diffusing that power had not been fairly represented.

Robert S. Bourbon:

I understand it.

In other words, you’re taking it to a second degree in a sense.

Well —

Earl Warren:

Yes.

In other words, if your legislature is fairly a representative of all — all the people, there’s no question about that and they want to diffuse their power in some way, that’s representative government.

But assume you start with the premise that your — that your legislature is not fairly chosen according to representative principles, cannot then diffuse its power and divest any part of your people of any power that they have.

Robert S. Bourbon:

Mr. Chief Justice, I — I simply answer this by saying this.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Robert S. Bourbon:

I understand exactly your question.

What we are here to argue is not what might be but what is, that is to say — and I don’t mean to be — to be —

Earl Warren:

No, no —

Robert S. Bourbon:

— against that.

We’re — we’re here with a — with a state.

A — a state is called in effect before this Court to — I don’t know whether we have to justify what we’ve done but I’ll get to that when I talk about burden of proof.

The question is what — what have they done that is — that is unreasonable in this situation?

Your — your assumption is that if for example perhaps a majority elected a majority in both Senate and the House, then — then the question of diffusion of political strength would be one — would be perhaps a bit different than if you’re talking about diffusing your political strength in the Maryland situation now.

That’s — that’s your point I (Voice Overlap).

Earl Warren:

Well I was — I was merely hypothesizing and trying to differentiate between the situation where the power was diffused under fair representation and the diffusion of power where it wasn’t fair.

I don’t say — I don’t say that you’re — you’re unfair in your —

Robert S. Bourbon:

No —

Earl Warren:

— representation.

I’m merely asking if it doesn’t make a difference how the state does it, whether they do it after or through fair representation or whether they do it through unfair representation?

Robert S. Bourbon:

I — I — I just don’t know whether it would make a difference.

It — the end result might be virtually the same.

But I think appellants assume that if — if they had the type of representation they think they ought to have in the Maryland assembly that the result would be somewhat different and —

Earl Warren:

Yes.

Robert S. Bourbon:

— and — so most specifically when they talk about the equalization formula, they get into this situation.

They say that — that if we had the kind of representation we think we should have that it would affect the — the equalization formula much differently.

We get back more than we get now.

Earl Warren:

That’s right.

Robert S. Bourbon:

We don’t know whether that — whether that can be assumed.

Earl Warren:

No.

Robert S. Bourbon:

It’s — it’s entirely possible it might affect all of these things.

It might — it might make a change in the type of — of results that — that the majority got out of the legislature.

I don’t know whether that answers your question —

Earl Warren:

Yes.

I think you have, except this.

Now, assume — take the other one (Inaudible) and assume that — that they are not fairly represented, then would the — would the same action of the legislature be justifiable?

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Robert S. Bourbon:

I say that it’s — it’s justifiable in context with the type of system which the state has already set up and which is in question now.

Again, we’re — we’re talking about on the one hand as we understand, a — a hypothesis and the other a situation that is, and it’s the situation that is with which I’m concerned and you’re concerned of course, very much so.

There may be a difference there.

Indeed there may be a difference.

I — I would be able — I would concede that the — that the difference in the basis of representation might make a difference in the type of results that these Appellants got at their legislature.

It might not.

It might make no difference.

That is to say if you — if you complain about the quality of government in the State House and say that — that better apportionment will better this quality of government, it may not.

It may not.

Earl Warren:

(Inaudible)

Robert S. Bourbon:

We don’t know and — and one of the problems in this case is, I think, that no one has — has really devised a deep down analytical critique of the system with which this Court has got to deal in these cases.

And again, I say you take a — a fairly absolute standard of the Equal Protection Clause and you put it against the legislature and you don’t even know — I’m not sure I know in — in it — in its deepest sense what makes all these factors go.

Well, what part of politics play in that bill?

What part did the compromise play in that?

When a bill dies, why did it die?

These Appellants seem to suggest and it’s quite contrary to — to life as it is at the legislature.

If the House doesn’t pass a senate bill, the House apparently is unresponsive.

A great number of factors, anyone who’s ever had anything to do with the legislature knows that a great number of factors come into play.

A bill dies —

Arthur J. Goldberg:

Inaudible) representative (Inaudible)

Robert S. Bourbon:

Well, represent — representative government in context with a system that the state can validly establish.

In other words, we say representative government in Maryland perhaps could be had — I’m sorry.

Arthur J. Goldberg:

(Inaudible) If I understood you, (Inaudible)

Robert S. Bourbon:

Thats — thats — I say that.

Arthur J. Goldberg:

(Inaudible)

Robert S. Bourbon:

I understand that.

I understand that, Mr. Justice Goldberg.

But what I am saying is this, and I’m sure the Court understands me, is that the Court has only to look at the spade of cases which were decided early in this — in this reapportionment thing.

Look at the — look at the Virginia case, the (Inaudible) case.

Look at the Oklahoma case.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Robert S. Bourbon:

Look at the Washington State case, the Colorado case, look at Delaware.

These courts seem almost hypnotized and mesmerized with this disparity.

But the disparity standing by itself, we submit, may not mean anything.

That is to say this.

They take the disparity and they say because there’s a disparity and various discrimination exists and they assume the very thing that this Court must determine because the disparity we say, standing by itself not taken in context with your state institution, with your — with your governmental responsiveness, with the makeup of your legislature, with all the other merit of factors means nothing.

And yet, this burden of proof becomes important because they take this burden of proof and they say, “Mr. State — State of Oklahoma, you have this — this tremendous burden to meet.

We’ve shown that you’ve invidiously discriminated”, and in the case of the Oklahoma case they said, “We don’t think disparity.

This is a way it worked in our case.”

We don’t think a simple disparity means anything but we do say that 10 to 1 is too much.

What does that mean?

I don’t know what it means because the Court Justice readily could have said 8 to 1 or 40 to 1, could have said 33 to 1 in the Maryland case which Chief Judge Brune said in the dissent.

The problem is where — where do you stop?

If — if the Court is going to — if the Court is going to determine these cases by an 8 to 1 disparity or 5 to 1 or 3 to 1, Delaware got it down to 1 1/2 to 1.

You can’t get much lower than that.

Some of the other states, for example we know California has an enormous disparity.

This will be tested soon enough.

They have one state senator representing a county which five million people are located, has set off against an upper county in the State of California, a disparity of 431 to 1.

Potter Stewart:

431 to 1?

Robert S. Bourbon:

I think it works out to 400 and something to 1.

Vermont — Vermont has a disparity which looks worst on paper than California’s.

But Vermont very well may have the type of system which this Court will find rational, that is to say representation in a — in a House which is based on towns.

Who can say?

Who can say that this is an improper form?

So we say the disparity question —

Hugo L. Black:

If the State of Maryland could decide that —

Robert S. Bourbon:

I beg your pardon, sir?

Hugo L. Black:

Suppose the State of Maryland should decide Baltimore got a — got a lot of compensating advantages?

As a matter of fact, it didn’t need a representative and would provide a senate and legislature composed of people from everywhere except Baltimore County.

Would that violate its constitutional provisions?

Robert S. Bourbon:

Well, it very well might.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Hugo L. Black:

Why?

What — what provision?

Robert S. Bourbon:

When we — we get to the type of answer that Mr. Golf from New York gave two days ago.

When — when a situation gets to an absurd result, perhaps that the absurdity itself carried to an absurd conclusion is sufficient there on which to perhaps strike it down in the Fourteenth Amendment.

Hugo L. Black:

What provision would you say it violated because it was absurd?

There’s no specific provision of the constitution that says that the legislature will not be absurd if it wants to.

Robert S. Bourbon:

Of course that’s what the Appellants are saying here.

Hugo L. Black:

What — yes.

What specific provision would you allow?

You say that Baltimore — the County of Baltimore would not be denied its federal constitutional rights by having it provided that the laws shall be made by a representative of other sections of the state leaving Baltimore County out.

What provision of the constitution was violated?

Robert S. Bourbon:

Well, the question — the question then would be whether perhaps under the — perhaps the theory would be of — of someone from Baltimore County who had no representation that the state had acted unreasonably and that while it had given representation to —

Hugo L. Black:

But which provision would you find that in if you’re looking for a specific provision?

Which one would you find a provision if the state shall not act in a matter that this Court considers unreasonable?

Robert S. Bourbon:

I would say the Equal Protection Clause and under the — under the Baker case.

I’m not trying to — I’m not trying to reargue Baker versus Carr.

Hugo L. Black:

You do — you — you say then that the — that they can’t deny Baltimore complete representation under the constitution, federal constitution?

Robert S. Bourbon:

They very well might not be able to.

Potter Stewart:

So it clearly under Baker against Carr violate the Equal Protection Clause, wouldn’t it?

Why not I just say so and go on?

Robert S. Bourbon:

Well —

Earl Warren:

So why not go on a little farther than that (Inaudible) and — and take this that might be — might be a practical situation.

Suppose the State of Maryland said, “We’re — we’re going to divide our house exactly as we divide our senate.”

And it proceeded to do so and we found that under that situation, 14% in each house could determine the laws.

What would you say about that?

Robert S. Bourbon:

I would say that most probably under Baker v. Carr, as Mr. Justice Brennan wrote it, that the Court could then look at the general assembly and say, “We think that population is a factor in one of those houses,” or it could say — and — and until the Court speaks, we don’t know what you could say.

It — may be it’s going to be a factor on both houses, maybe — maybe the Court is going to say, “We think that the House of Delegates, which — which was supposed to be a population representing a type of house, we think that a — that a standard should be applied somewhat substantially in accord with population.”

The house of the senate, the state can set it up on any rational, not unreasonable plan that they choose to do.

That is the — and — and this is precisely the point that the courts have arrived at.

Now, you’ve got to decide what you’re going to do on these houses taking this kind of a situation.

Audio Transcription for Oral Argument – November 14, 1963 (Part 2) in Maryland Committee for Fair Representation v. Tawes

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Robert S. Bourbon:

You’ve got an extreme case and I don’t think you’d — you’d have much trouble applying some kind of a population standard maybe to the house.

Potter Stewart:

Suppose Baltimore on the Equal Protection — I mean Maryland under the Equal Protection Clause could give Baltimore complete and 100% home rule and say that “You’re not going to be represented in our legislature since our legislature doesn’t have any power over you in Baltimore.”

That would be —

Robert S. Bourbon:

That — that perhaps could be so if the legislature would stop taxing them maybe.

Potter Stewart:

That’s what I mean.

Robert S. Bourbon:

Yes.

Potter Stewart:

My assumption —

Robert S. Bourbon:

If they tax them, yes.

If they tax them, then we’d have the Boston Tea Party all over.

We say this.

I probably talked enough on the burden of proof, but I — but I — I can’t emphasize in my judgment, kind of expiring the brain, sorry.

Earl Warren:

Well — we’ll recess now.