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

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 1) in Maryland Committee for Fair Representation v. Tawes

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Earl Warren:

Mr. Bourbon, You may continue your argument.

Robert S. Bourbon:

Mr. Chief Justice and members of the Court, may it please the Court.

Because this case came in the first instance before the trial court on bill in answer I think it’s somewhat important to clarify the things that have been said in the bill because this is of some importance I think.

We say that initially the appellants have alleged the gross disparity.

I have already talked about the, what I think the implications of the gross disparity are.

There is no question, but there is a disparity then they, they — taking us a bit further seem to suggest at least in argument from the brief and from the bill that because of the gross disparity that there has been neglect of pressing problems of heavily populated urban and suburban areas.

Now, of course there is nothing in the record as to that.On the contrary this case comes to this Court on motion for summary judgment.

Really all that there is in the record, the Court may find it quite enough, but all that there is in the record is a bill of complaint with some statistics, one of which shows population, an analysis of the disparities between the population of — an analysis of how moneys are paid back to the various counties in relation to the way the paid them in.

Now secondly it seems to me the, the appellants alleged, alleged great number of things which all of which I don’t think can be laid a malapportionment, certainly it isn’t shown in this case.

They talk about the decay of large cities, neglected expansion of suburban areas, financial planning crisis in education, housing, transportation, water, sewerage, urban redevelopment, and civil rights problems.

I submit that none of these, if there facts, none of them are established in this case.

It’s very possible and I’d like to go very quickly to the cut as I see in the State of Maryland how the disparity cuts.

It’s seems as if taking Baltimore City versus the less populated counties that there is disparity which runs in favor of the less populated counties and against Baltimore City.

Taking a disparity between Baltimore City and the so-called suburban counties, the four populous counties, the disparity seems to run in favor of Baltimore City.

Taking another disparity, there seems to be the discrepancy or disproportion between the more populated counties and the less populated county.

So perhaps it’s too easy to say that what we’re talking about here is a urban-rural split.

It may have begun that way but I doubt if it it’s all that way now.

And we — in our brief we tried to show that the problems of the suburban counties are the problems of wealth, they’re the problems of progress.

The problems of Baltimore City for example or the problems of one, problems of need, the problems of the smaller counties may be said perhaps to be somewhere in the middle.

So how does this work out?

If apportionment — if apportionment — the struggle for apportionment is a struggle for power, and I think it is, then we got to situation where the more populous counties may want to be in a position to protect their accumulative wealth vis-a-vis Baltimore City, vis-à-vis the smaller counties and we say may not the state take this into consideration either in acting or not acting in relation to what the apportionment plan it wants to set up.

We think it may.

We think perhaps too little has been emphasized in this Court on the question of the burden which we have running with us as a state in favor of the system which has been set up not just by the legislature, or by the legislature changing the organic law of the state voted upon by majority of the people.

In each case, the apportionment we’re talking about that is result in for example in the Baltimore City situation and that’s all we’re really talking about.

This has been attacked quite heavily, it’s been ridiculed Baltimore City.

Baltimore City is different, Baltimore City is not a county if it were treated like a county these plaintiffs would be in here still.

They’d say you have one state Senator for Baltimore City, this isn’t enough.

They’d be in here alleging disproportion and there would be at least in the figures, a disproportion.

So taking that a little further, what are we suppose to do?

What is the state rationally to do?

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

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Robert S. Bourbon:

It — it we think that based on the exigencies of what developed at the time that these additional changes were made governed, whether or not additional Senators ought to be allocated to Baltimore City.

We got six you might ask.

Suppose we had a hundred, what we say you don’t have a hundred.

I’m setting up a strong man, knocking it down.

I say that six is reasonable figure based upon the situation as it develop and as it’s worked out now perhaps in an overall, on the overall scales, Baltimore City in relation to the Senate, is just about evenly populated.

So we say that they’re very well made now to be a cut between the urban, the so-called, well between Baltimore City and your populated county, because one, Baltimore City is now losing its representation.

It’s losing its tax base, it’s got problems galore.

We can’t deny that, as we say the problems they have to solve cost money, the problems that sub — that the political subdivisions in the outlying areas have to solve, are problems of Congress.

They’re problems of planning and sewage and the appellants alleged.

I don’t know what they are alleging.

They’re alleging perhaps that we don’t have enough sewers or maybe they’re alleging that we don’t have enough planning.

But all you have to do in the Maryland situation, at least in these suburban counties, is to go into those counties and find out whether there is enough planning.

The Park and Planning Commission is one of the most highly developed and emulated planning groups in the country, whereas in Suburban Sanitary Commission, by-county commission is a highly developed sewer and water organization.

They’ve never gone to the legislature, been denied what they needed for these counties.

And appellants can’t show that they have.

Where do they got their money to do these things?

Well they allocated tax, apart tax, they allocate a sewer tax.

The money comes from these counties.

In this connection, I should like to at least comment in passing upon counsel statement that the crisis in education.

This crisis in education, supposedly in planning and money are due to malapportionment.

Montgomery County from which I come from and from which Mr. Scanlan come, we live in the same neighborhood.

The money for Montgomery County in the education field can — can it be said that the money that they get back should be in direct relation to the way they paid it in?

The whole, the whole structure of the school system in Maryland, the educational system is for the more populous, more prosperous counties to help carry the burden for the least prosperous.

And I think a study of the system in Maryland would show that for example Garrett County can’t carry a school system.

It’s got problems, it’s in most of their — a lot of their land up there is state land.

A lot of its land, it’s un develop.

People aren’t living there yet, maybe 50 years from now they will be.

Montgomery County is a bit different, but the appellants want money back in direct relation to the way apparently that’s paid in and there is no principle of government that I know of that requires that you get paid back in direct relation to the way you pay in.

I submit it’s not a Maryland system and certainly hasn’t been the federal system it’s just — it’s just — it’s just common sense.

You say further, one of the main allegations apparently if you cut through the bare, the bare bones of this thing is that the State Senate won’t pass all the bills that the House sends it.

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

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Robert S. Bourbon:

We say that’s — that can’t be, that can’t be standard by which this Court judges the responsiveness of the State Senate.

There are all kinds as I say, of other factors.

The items suggested and cited by appellant or not after bill, there’s many of them that, that there are very serious study.

For example there was one bill cited by appellants as showing that the Senate had been unresponsive, irresponsible.

It failed to pass a bill which would have really made it easier for some people to get small loans easier and of course it would have raised the interest rate that’s the reason the Senate didn’t pass it.

It wasn’t in the public interest.

This is cited as for example of progressive legislation.

But when we get in this Court and start talking about the merits of legislation, we’re far field really from somewhat this Court’s function would be.

Now, we say this, in touching on the federal system, I haven’t got too much time left.

Say what you may about the analogy, the so-called federal analogy.

The federal system is not a pure federal system even under contemporate political standards.

Say what you want about the federal system, can it be denied that a state which sets up it’s system generally in agreement with the so-called federal system that this Constitution which we’re talking about will find.

One, irresponsible and unreasonable and protect the other?

We say this is, the federal system itself shows the general reasonableness of the plan in the states where you have consensus government.

This is the proposition advanced by Professor Dickson of Washington, George Washington University, that what you’re really talking about is consensus government.

If you’re going to have one man run — one rule — one man, one vote, you’re going to have endless problems.

One man, one vote can’t be applied in these state cases.

Gray v. Sanders is a case all its own.

You may — the Solicitor General may say that it’s dispositive of this case but — but we know it is not because it — it just simply can’t be implemented.

We’ll have district line running through my backyard perhaps, and we’ll have endless litigation for years to come on this so-called one man, one vote.

Because all that has to happen is for the Federal Government to take for example a — a federal installation and put it in Garrett County, which withdraw within three years, two years, 50,000 people to Garrett County.

Immediately, the whole system’s thrown into — into an imbalance because population is your standard, so we say that — that one man, one vote isn’t helping this Court at all.

When you — when — when appellants and the Solicitor General come before this Court and set a standard such as that or something that’s almost next to it or almost akin to it, that haven’t helped the Court at all.

The Court’s still reaching out for standards.

Now, the obvious standard that the Court, I would think is going to — to take into consideration is the population standard.

Now, we say this, that the — that the Maryland System, if it has not arrived at a purely populated basis is working its way there.

We can’t say that there are not disparities in the present healthy delegate setup.

But we say, based on — based on what happened, based on the various court cases in Maryland, the action of a legislature.

This is the goal and that this Court ought to recognize that the State is working towards that and not intervene at this point and consider for example, a Senate in context with the House which — which is malapportioned.

We say this malapportioned in the spirit, in the context of what this Court we think ought to be doing in this cases.

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

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Robert S. Bourbon:

If the House of Delegates is properly apportioned or nearly so or it looks as if it will be so shortly, then the Court can go to this, squarely to the question which this case I think, presents.

That’s a question of whether the State may take its own form of government, may setup its own form of government as it has here, and not deviate from it.

How — how reasonable, how rationale must we be to satisfy the Solicitor General?

So from the beginning, history, geography supports our position.

We’ve never changed.

Each county has had one representative.

As we say, the legislature, as the years have gone through, can look at this situation and see this, this thing that’s growing up.

Sure, there’s a population growth in the suburbs, but the State — this is the — this thing up here, the State, we talked about it but it’s a — it’s really hard to picture it really.

The State has looked through its legislature at these developments and it says, we — we’d like not to have as we’d illustrate it, we’d like not to have Baltimore City and Baltimore County which right now, have almost half the population there on the center of Maryland, have a rule, majority rule in both Houses.

May not the State do that?

Because if the State doesn’t have the right to do that then I suggest you talk about minority rights.

Minority rights will truly be submerged in Maryland and will submerge in any other state where this type of thing happens.

Because if we go to a population basis that the appellant suggest in Maryland, we’re going to have a complete submerge of — of the rights of the majo — of the minority, because even now, with Baltimore counties progressing — progression in population, it won’t be very long before as I say, Baltimore City and Baltimore County, they have — they have an identity in some extent — to some extent of interest.

They’re the logical ones to want to see its power and when we say see its power in our argument of brief, and the newspapers took it up as — as indicating something more insidious.

We don’t mean that, this is — this is a question of power, sheer power in the legislature.

If you’ve got the votes, you may want to do something with those votes.

You may want to vote in something that isn’t in the interest of the state at large.

This is the problem; this is what we’re worried about.

We say that the State may — may look at its own system and may set off these various interests in its State Senate which it had done here.

Hugo L. Black:

You look mainly to the geographical areas rather than to individual to do the voting?

Robert S. Bourbon:

Well, we say this that in reference to the State Senate, if you have a House that looks to the, generally to the population factor, that the State may look to other criteria.

Hugo L. Black:

You’re arguing that large area outside of these big cities, it would be in danger if you let these individuals who live in the big cities vote for as many Representatives as the ones who live in the biggest geographical area.

Robert S. Bourbon:

We say simply that — that what the appellants are asking here is to place the political power in a very close area which is —

Hugo L. Black:

Close geographically.

Robert S. Bourbon:

Geographical area, works out that way —

Hugo L. Black:

That ones to be there more — more human beings who do the voting?

Robert S. Bourbon:

It happens to work out that way but it’s not geog — geography would not be the consideration, perhaps economic interest, the power of the purse in Baltimore City.

It’s the central city in the State, it controls the — controls the purse strings, it controls the money.

Really the seat of Government is in Baltimore, the State Capital’s in Annapolis but many of the major — major state agencies are situated in Baltimore.

So we’ve got this type of thing, we got the power — the — the economic power of the State to an extent — settled in now.

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

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Hugo L. Black:

Well you — as I gathered it, it maybe sound argument, maybe perfectly right but your argument comes down to exist.

People in the City of Baltimore not merely because they’re more of them but because of the power that the people in that small area have could smoke the rest of the State to have a much smaller population.

That’s — seemingly what you argue.

You have a right to deprive people in a particular area of their full right of suffrage which I would think that is, as far as representation is concerned, that full right of suffrage because you want to strip them of some of their power.

Robert S. Bourbon:

Mr. Justice Black, what — what I’m trying to say is that, we have what the State seems to have, what would perhaps be the better type of system is a consensus form of government which you set off interest here on one basis and — and interest here on another basis.

Perhaps in the House of Delegates, the — the area that I’m talking about might be well represented on a population basis in one House and be able to control that House.

But the State may look at the entire system, take everything in context and decide that looking at the other system in the State Senate that it might choose to give lesser strength to those areas which if it we’re on the population basis would dominate the second House, that’s all I’m saying.

Hugo L. Black:

Your arguments are not new, they were made in the original Constitutional Convention in connection with electing Congressmen by the people —

Robert S. Bourbon:

That’s correct, that’s correct.

Hugo L. Black:

Rather than by a limited number of people.

Robert S. Bourbon:

That’s correct.

Hugo L. Black:

And your arguments are very similar to those.

But — well if it may not be of importance, — what was on those debates, they certainly referred to right of the individuals to vote is one of the fundamental article in a Republican type of government.

Robert S. Bourbon:

Well —

Hugo L. Black:

You would consider it that, wouldn’t you?

The right of suffrage — by the people, all the people.

Robert S. Bourbon:

The right of suffrage has several connotations, Mr. Justice Black, if they were talking about —

Hugo L. Black:

If they were using it in the debates there, when there was an effort made to limit, an effort made to do one or two things.

One was to deprive the people of the right to vote for their Congressmen at all.

The other one was to limit the vote to freeholders who own land and who might have that were suggested in the bench the other day the pass through a viewpoint.

And both of those were voted down, the — the original and the original Constitution has specifically voted down the idea that it is best to have your elections in such a way that the people who own land and farms could eliminate the others from unequal consideration and having their votes counted.

Robert S. Bourbon:

Well, Mr. Justice Black, all I can say and answer to that is, one must be impressed to an extent on what the founding father said that one must also be impressed about what they did and what they did —

Hugo L. Black:

You made a reference to the Senate.

Robert S. Bourbon:

With reference to the Senate and to the House of Representatives.

Hugo L. Black:

That’s right, the Senate, they considered they had it right between them as to whether you have a confederation of states, each group which had one or whether you would have one government.

It almost failed, the chance to have a Constitution almost founded on that point but the — the ground on which the Senate was given an equal number of votes in addition to the fact that it had to be done to get a compromise or is it, they should be treated as though each one them was an individual in having their votes counted on the Senate floor, that was the basis there but there was no suggestion that except for that, except by some who — who did not believe on other people’s vote.

There was no suggestion that you could take away part of the votes for some where they had an election in order to give others more power to run the Government.

As a matter of fact, they made — their arguments been made here by taxing.

One man said that, if the man’s going to have a right of suffrage, is fundamental and if the — the man who is to pay taxes is denied the privilege of voting for the people who levies and collects the tax, he will not be living in a free country.

That was the line of argument that was made.

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

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Robert S. Bourbon:

Well, — but as — as I go back to what I — what I said, there’s a thing that impresses me about the federal system, no matter what was said and the considerable was said, Mr. Madison has cited on both sides of — both sides of our position and rightly so because he said things on both sides I believe and that’s the reason for amicus.

Hugo L. Black:

Well you can’t — what I’m trying to get in is whether whatever may be the force of the argument, I do not see how you can possibly say that the counties or district within a state are to be treated on the basis, that there somehow in the situation that the original 13th Congress were by each one, must be given an individual vote to protect the individual states from the overpowering influence of some of the other states.

Robert S. Bourbon:

Well —

Hugo L. Black:

I don’t think that can be said about the counties?

Robert S. Bourbon:

What I’ve tried to do here today is to say that though.

I believe that our position is simply that the County System has always been a system of representation from the earliest times in our Government.

The point, the point really is whether the State may do that?

And that’s — that’s why we’re here.

Hugo L. Black:

Because I think you presented your case very well indeed if I may say so.

Robert S. Bourbon:

Thank you sir —

Byron R. White:

(Inaudible)

Robert S. Bourbon:

I — I think it does but the reason I refine my — there’s a difference if the Court will have noticed between our jurisdictional statement and our statement as setup in the brief.

I realize the rules are right strict on that point but I thought that it would be helpful to the Court to try and specify what I thought was a central question in this case which is the State Senate.

Byron R. White:

(Inaudible)

Robert S. Bourbon:

Well, to this we say — well we say this that even if the Court finds that the House is not on — setup on the population basis at the present time, that’s in the spirit of what this Court seems to have been trying to do in Baker versus Carr, as in the segregation cases not to arrive at some point tomorrow, acknowledging that the point of which they were trying to arrive, might not come until 10 years from now.

But the point is — is a state working towards that point?

Now, if it is working towards that point which we submit in this present House of Delegates situation we have that, then why should — I think simply as a matter of policy, why should this Court jump then in and immediately, just simply jump in the lower courts on your side is what I’m trying to say.

They’ve moved ahead and they’ve setup — they’ve approved an apportionment plan, the House of Delegates has approved an apportionment plan.

I think the House of Delegates will do better.

I’m sure it will, but why should this Court come in and now take the Senate System and set it up on some basis which you would not perhaps otherwise do at the House were completely apportioned according to population.

We say it’s not the spirit of — of what I think the Court is trying to do.

Byron R. White:

(Inaudible)

Robert S. Bourbon:

I’m not sure I’ve analyzed the — the results quite in that way.

Tom C. Clark:

Well they’re both anchored to the minimum of one Representative for one county.

Robert S. Bourbon:

As a matter of fact the Solicitor General I think, was — was incorrect when he said one, in the House of Delegates.

I think, it’s two, two minimum for each —

Tom C. Clark:

Two for each county?

Robert S. Bourbon:

Yes sir, I mean that this thing ought to be known.

Tom C. Clark:

But it’s the same principle?

Your Senate is anchored to one per county except in both —

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

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Robert S. Bourbon:

That’s right, that’s right.

Tom C. Clark:

And your House is anchored to two to a county, now, Justice White’s question is whether or not, is that as the Solicitor General claims, fails to meet the requirements of the Fourteenth Amendment as to the House, with reference to it, being population wise when it’s anchored to two to a county?

Robert S. Bourbon:

Well all I can say in this, I think if the Court will go back, I think, again I’m looking to history but I think the history of this thing is that from the beginning of the founding of the State, that in so far as population is concerned, that they gave a minimum to each of the counties.

This — this I think from 1776, that insofar as you’re talking about a reasonable state policy of doing this, that this complies at least, it’s been consistent.

This has always been the procedure in Maryland and I think that the — the indication from early Constitutions in Maryland is that the — that the founding fathers at that time wanted the House of Delegates to be based on population admittedly —

Byron R. White:

I take it you do not disagree with the statement.

Robert S. Bourbon:

I said, well —

Byron R. White:

(Inaudible)

Robert S. Bourbon:

I hadn’t — I hadn’t made that same conclusion.

Now, I don’t know whether I agree with that, I haven’t sat down and — and analyzed that in the — or that time of reference —

William J. Brennan, Jr.:

Mr. Bourbon, may I ask, how many — how many are these ones?

Robert S. Bourbon:

23 sir in Baltimore City.

William J. Brennan, Jr.:

And how many are in the House of Delegates?

Robert S. Bourbon:

At the present time, 142.

William J. Brennan, Jr.:

142, so this 46 actually, above 46, two-third count of the difference go up to 196 whatever that is.

Is that on a population basis?

Robert S. Bourbon:

Yes sir, yes sir.

William J. Brennan, Jr.:

On a population basis?

Robert S. Bourbon:

Yes sir, there’s a quite an involved formula but it is — it is on population basis and we — Mr. Scanlan set it out to the bill itself in the back of the brief.

Byron R. White:

36% I take it (Inaudible)

Robert S. Bourbon:

My well —

Byron R. White:

Let me get to your (Inaudible)

Robert S. Bourbon:

Of the 19 counties, other than the populous counties which we’re representing about 1 million people.

I figured that they could elect 45% of the House, now the — and those are my figures, I haven’t gone in my own brief, I haven’t sat down, I’ve got in brief the complete analysis, I’m not trying to not answer your question, I — I simply haven’t done it in the same way that the Solicitor General has.

The problem in this case is the statistics, everybody is trying to get statistics working for them and some are more successful than others as Mr. Scanlan has been in talking about the great disparity.

Oh, this is a problem that I’ve tried to point up to the Court, the disparity in there may not be critical depending on the look that the Court takes of all the other institutions in our State.

Earl Warren:

Mr. Bourbon, may I ask you this.

Is there any political remedy for malapportionment in Maryland other than through the legislature itself?

Robert S. Bourbon:

No sir, there’s no initiative.

The only way that a Constitutional Convention can be gotten is to — is for the House of Delegates and the Senate to call one.

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

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Earl Warren:

And when was the last time they called one?

Robert S. Bourbon:

The last Constitutional Convention I think was in 1867.

Earl Warren:

It has — is the question never been submitted to the people before first, since that time?

Robert S. Bourbon:

Oh yes, in 1950, the question was put to the people whether a Constitutional Convention should be called and the response was that a majority of those who voted, although not a majority of those who voted in the general — that is a majority of those who voted on the question were in favor of calling the Constitutional Convention.

But not a majority of those who voted for all officers will be —

Earl Warren:

What control — what control as a matter of law, the number that voted for it?

Robert S. Bourbon:

Well, I tell you how the legislature viewed it, there was an effort to put through.

Earl Warren:

That’s what I’m hearing.

Robert S. Bourbon:

Those were introduced which never passed since that time, we took the — I think the Attorney General at that time took the position that since the majority which voted for the Constitutional Amendment did not constitute a majority of those voting in the election.

Therefore, under the applicable statute, under the applicable constitutional provision, it was questionable whether it was in a so-called mandate.

This, the legislature, may had taken and done what it did with it.

That it’s clear that the legislature has not acted to call a Constitutional Convention, that’s quite clear.

Earl Warren:

One there — one there one in 1930 also, the vote of people on that so?

Robert S. Bourbon:

I think there — there had been earlier votes —

Earl Warren:

Yes, but they voted for it clearly at that time?

Robert S. Bourbon:

I — I believe so —

Earl Warren:

And the legislature has declined ever since they had a Constitutional Convention?

Robert S. Bourbon:

That’s indeed so sir.

Earl Warren:

Well then, they just — the people’s vote doesn’t amount to anything in that situation if a malapportioned legislature doesn’t — doesn’t choose, assuming that it is.

If it doesn’t choose to call the election, there is no remedy at all?

Robert S. Bourbon:

That’s correct, which gets me into one point that I’d like to make on this —

Earl Warren:

You may.

Robert S. Bourbon:

Mr. Chief Justice Warren, you will recall that in California in 1948 and 1962, they had the same kind of vote put to the people in reference to the State Senate.

In both cases, they rejected efforts to redo the State Senate on the basis which would take the Senator from — from Los Angeles County, perhaps giving him some company in that county.

Earl Warren:

Yes.

Robert S. Bourbon:

The people as I understand who voted — voted most strongly to — to have this thing not carried were the people of Los Angeles County.

So you wonder, it’s — it’s entirely I propose to this case to wonder to what effect the Court should give a vote of the people.

I’m not saying don’t give a vote, don’t give effect to the — to a vote of the people on whatever on constitutional amendments or calls for a convention.

But I would say this and I would call the Court’s attention to this case, Thigpen v. Meyers in the Washington State case, where they struck down both Congressional district and a state legislative district in both the House and the Senate.

It was raised by the defendants in that case, they said, “well that’s one of our defenses.”

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

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Robert S. Bourbon:

A man — a question was put to the people just recently whether these should be setup.

These various districts should be setup on population.

They turned it down and the Court there said, well that’s a — that’s of no importance to us because the rights of the majority ought not to be carried by a rule — by a vote of the majority.

So I — I don’t know what effect I give to this except to say, it may or may not be important in this —

Earl Warren:

That’s the reason I asked you about the remedy because in some states, like California, they have both the initiative and the referendum.

Robert S. Bourbon:

That’s right.

Earl Warren:

And it has in California, for instance, it has been exercised in this very area, three or four times since the — since their Constitutional Amendment of one Senator to one county has been in existence.

In fact, two years ago, they had a — they had a measure on there and it was rejected by the people.

Robert S. Bourbon:

That’s correct.

Earl Warren:

But the people did have a remedy and I want to know if in Maryland you had somewhat akin to that?

Robert S. Bourbon:

No sir, we have no initiative but I again not to be in any sense flip on the inch I say, that the question isn’t whether the legislature wouldn’t apportion because quite — this is self-evident, the legislatures have not done it.

The question is whether the system that’s in existence.

The system that’s in question here is one which this Court feel squares with the whatever requirements the Court is going to say that the Equal Protection Law establishes.

Earl Warren:

Yes, I think that’s right.

Mr. — Mr. Botter?

Theodore I. Botter:

Mr. Chief Justice and Associate Justices, may it please the Court.

I appear here for the State of New Jersey and the 14 other states who joined on our brief as friends of the Court.

I hope to use a short amount of time that we were great — we were graciously given by the State of Maryland to endeavor to analyze the problem and find some solutions and standards so as to help preserve not only the form of government chosen by the State of Maryland, but the forms of government chosen by the 15 states who have appeared here as friends of the Court as well as many other states in the country.

State governments usually conform to three general categories, one, in which a population is used as the basic or primary standard in one House and pure political subdivisions are used as the basis for apportionment in a second house.

The second category is where you have a population standard in one House and districts used in the second House by combining or dividing political subdivisions or using other areas.

Examples of the first category are New Jersey, Arizona and Idaho which use counties and Vermont which uses — it uses towns.

William J. Brennan, Jr.:

Well, not in New Jersey (Inaudible)

Theodore I. Botter:

New Jersey uses —

William J. Brennan, Jr.:

We have 21 counties?

Theodore I. Botter:

21 counties.

William J. Brennan, Jr.:

One Senator for each —

Theodore I. Botter:

That’s right, Mr. Justice Brennan.

William J. Brennan, Jr.:

There are 60 assemblymen, I think.

Theodore I. Botter:

60 Assemblymen.

William J. Brennan, Jr.:

One Assemblyman guarantees a vote?

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

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Theodore I. Botter:

That’s right.

William J. Brennan, Jr.:

And really the population and apportionment then only 39 senators.

Theodore I. Botter:

There are actually only five slightly under populated counties which are overrepresented.

William J. Brennan, Jr.:

But the fact is we guarantee one assemblyman to each of the 21 counties.

Theodore I. Botter:

That’s right.

William J. Brennan, Jr.:

As well as one Senator.

Theodore I. Botter:

That’s right.

William J. Brennan, Jr.:

We actually apportion on a population basis.

Only 39 assemblymen out of the — out of 60.

I — I don’t agree with that Mr. Justice Brennan because after the first allocation is made, the balance are apportioned on the population basis.

Theodore I. Botter:

There are —

William J. Brennan, Jr.:

There are 39 of them?

Theodore I. Botter:

Well, actually in the equal proportions method, although they start with that formula, you’ll find that all of the counties bear a very substantial relationship in terms of population and that it does take practically 50% to elect a majority in the House.

You start with the large counties, it takes counties with 51% of the population to get 31 votes —

William J. Brennan, Jr.:

It’s only 19% who elect the majority in the Senate.

Theodore I. Botter:

In the Senate — In the Senate, yes.

In the second category of the states, you have Illinois, Louisiana, Hawaii and California.

The third category of states have population as the basis of apportionment in both Houses, Alabama, Indiana, Oklahoma are examples.

But Alabama and Indiana by constitutional amendments that have been proposed are trying to move into the first category.

Now, we setup these categories or I might say that Maryland, we consider a variant in the first category where the only discrepancy in the Senate is that Baltimore, the City of Baltimore is given especial treatment otherwise it is population basically in one House and counties in another.

We setup these categories because we feel that in answering the validity and the seeking standards for determining the validity of the first category, it will make answers to the remainder very simple.

Actually, there’s no problem with the third category, both Houses are on a population basis.

The second category has some special problems because you are sometimes or rather artificially dividing or combining counties.

But the first category presents the greatest disparities in per capita population in one House.

In New Jersey, it’s 20 to 1, smallest to the largest counties with 19% controlling.

And in Vermont, it goes up to 900 or over 900 to 1 because one town only has 38 people and one other town has over 34,000 in Vermont and it only takes 11% to control the Vermont Senate.

Now, can we justify the first category?

In looking for standards, we feel that the first place to look is the Guaranty Clause.

It’s amazing that there’s been so much argument in these cases for three days and Solicitor General Cox has never once mentioned the Guaranty Clause, Mr. (Inaudible) of Alabama was kind enough to admit that he thought there was some — might be some standards there and we think, it’s the most appropriate clause to start with.

It deals directly with this problem.

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

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Theodore I. Botter:

If you read the clause, it tells us something about our problem.

The United States shall guarantee to every state in this union, a Republican form of government.

Now, we have to ask what is a permissible Republican form of government?

What does the clause mean?

Well we start with its language.

We think it means what it says.

The United States shall guarantee to every state in this union a Republican form government.

Now, we know from the debates in the Constitutional Convention of 1787, it meant at least that a state could not adopt a monarchy because they said, if one state did it, others might and then the whole union will be jeopardized.

But we think there is a little bit more meaning to be gleamed from the debates because Madison proposed that the cause read slightly differently.

He said that, the Constitutions of each state and the existing laws of each state should be guaranteed by the United States and I think it was, I’m not sure, it might have been Wilson of Pennsylvania who suggested the final form of the language but I don’t there was any meaning or change of intent and if we look at what Madison said in the Federalist No. 42, it bears out what he said during the debates.

The existing Constitutions or the existing forms of government the states had were to be guaranteed and any state can — could choose another Republican form and claim for the guarantee of this constitutional provision.

Now, we’ll come back to that in a moment.

We also think there’s room for play in the Equal Protection Clause and that it has application to this problem.

We think that the two clauses should be juxtaposed in this fashion.

That the Guaranty Clause we say, guarantees a state to choose a form of government.

It maybe category one, population of one House areal or rather political subdivision, bases in another House, it maybe category three, if a state likes though some have chosen, they can select population as the base of apportionment in both Houses.

In making this choice of a form of government, we think the States have complete sovereignty and complete discretion.

Now, in the application or implementation of the form of government, we would say, the Equal Protection Clause has application.

In other words, when a state says, we’re going to choose a county form or political subdivision basis in one House, it must be not invidious in the application of that form and in that respect, it answers Mr. Justice Black’s question but if a state says by its Constitution or by its practice, that every county shall get one vote, it couldn’t say, Cape May County is to be excluded because it’s too far South, we don’t like them there.

Some of them are below the Mason Dixon line.

Byron R. White:

Suppose the States has in the Constitution that the both Houses (Inaudible)

Theodore I. Botter:

Except to this extent, Mr. Justice White, that the application of federal standards, federal constitutional standards, as in the Nashville case where the Court has said, the State can choose — the State in practice can do anything that’s constitutionally permissible.

I would say that the fact that a state has chosen its Constitution, a population standard for both Houses, would reflect on the rationality of any departure but I would also say that it was —

Byron R. White:

Well, there’s quite clear difference.

Theodore I. Botter:

No, there’s a difference, if the first category is constitutionally permissible under federal standards, then a state that applied the first category wven though it’s constitutional, its State Constitution says it should, would not violate federal standards.

Byron R. White:

But if the State chooses have it in population basis.

Theodore I. Botter:

Yes sir.

Byron R. White:

Where county has 25 and another county (Inaudible)

Theodore I. Botter:

I would say that if — if one House is well apportioned and another House ignored population despite the State’s own Constitution, but chose to apportion the second House in a form that is constitutionally — federally constitutionally permissible that this Court would not intervene as Mr. Justice Brennan said, and to put “no, we don’t enforce state constitutional rights.”

So that’s so long as the State in practice, did not go beyond the federal constitutional standards, it would be all right.

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

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Theodore I. Botter:

In the Nashville case, you had a question of discriminatory taxation.

The State Constitution said, all property; real property, should be assessed equally but they treated railroads unequally and Mr. Justice Frankfurter writing the opinion, said, that doesn’t violate a federal right.

There are in other examples of how the implementation would have to comply with the Guaranty Clause.

You couldn’t arbitrarily for example, take three little — take 10 men and make counties out of them in an unreal fashion and give them votes because this would not be part of our concept — fundamental concept of representative government or you could form some form of government if you choose, that would fit into the four circles drawn by Solicitor General Cox and probably ask for the protection of the Guaranty Clause for that form of government.

I’d say it might be a different form.

Arthur J. Goldberg:

Originally, you have an established number of voters (Inaudible), what would you say then?

Theodore I. Botter:

I don’t know if that — that’s happened in any state Mr. Justice Goldberg and I would prefer to deal with it.

I think the Court with deal with it when it — when it —

Arthur J. Goldberg:

(Inaudible)

Theodore I. Botter:

Yes.

Arthur J. Goldberg:

(Inaudible)

Theodore I. Botter:

It has —

Arthur J. Goldberg:

(Inaudible)

Theodore I. Botter:

Yes.

Arthur J. Goldberg:

(Inaudible)

Theodore I. Botter:

Yes.

Arthur J. Goldberg:

Would there be a denial?

Theodore I. Botter:

Denial of equal protection to the overpopulated counties.

I don’t think so.

In my opinion, first of all, it is an extreme case.

I don’t know what one should do with really extreme cases.

Arthur J. Goldberg:

But not —

Theodore I. Botter:

In —

Arthur J. Goldberg:

— necessary the following?

As the States now proceeded to establish (Inaudible)

Theodore I. Botter:

It — it — it might be unreasonable.

It might be so extreme as to be unreasonable because it departed from some sent — fundamental concept of a representative government.

It would be unreal and unrealistic to have a county compose of 10 people wielding an extreme amount of power proportionally in the legislature.

But I would — I would prefer to deal with Vermont, for example which has a ratio of over 900 to 1, and I think when you get in to specific cases, you can find rationality before it.

Vermont has 246 towns represented in one House.

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

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Theodore I. Botter:

The Senate is well-apportioned on a population basis.

Now, of the 246 towns, a small — half of them, only represent a small percentage of the population of Vermont.

But over 200 towns — 225 towns to be exact in Vermont have less than 4,000 population per town.

And so, in effect, they have a rule of majority of towns voting and there is a unanimity or — or some general conformity of interest.

And they don’t find this bad.

As a matter of fact, Vermont came into the union in 1791 with a unicameral legislature with 50 to 1 ratios and it was admitted to the union, no one thought that was bad, 22% of the population ruled the one House that made all the legislation for Vermont but it was admitted to the union.

And they didn’t have a Senate until 1830.

And in 1830, no one knew the formula of equal proportions, no one knew too much about mathematical equality and proportionate representation.

So I say, that at least historically, you can support Vermont, and if you support Vermont, you can support almost any of the other states that take the category one form of government and I — yes.

William J. Brennan, Jr.:

(Voice Overlap) Vermont in 1830?

Theodore I. Botter:

No, it came in 1791 Mr. Justice Brennan.

William J. Brennan, Jr.:

14th?

Theodore I. Botter:

It was the 14th State, yes sir.

Now, incidentally, in terms of look — supporting our view that you look to the 14th — to the Guaranty Clause, there’s an excellent article by Professor Jerold Israel in 61 Michigan Law Review, 135 — at 135, which holds the same thing.

That’s the place you’d look when you’re looking for standards in the first instance.

Now, you also look to Baker v. Carr and there I find a lot of Justices agreed that there was room for play, room for waiting and even in the majority opinion of Mr. Justice Brennan, it’s only invidious discrimination that’s to be struck down.

Only no policy, only — a form that has no rationality and we say, there is rationality for the forms of the government we choose.

Now, the real question that we have tried to address ourselves principally to the brief, in the brief is this, must majority rule be the standard for two Houses in the legislature?

We say, no.

Almost all of those on the other side say, yes, but we don’t know where they get it from.

Mr. Cox said in his brief, that it was — it was the Delegates to the Federal Constitutional Convention were in general agreement that the standard, whatever they had for the Federal Government, the standard for the states is population for both Houses of Legislature.I don’t find that in the constitutional debates at all.

In fact, I find quite the contrary.

Governor Randolph in his introduction of the resolutions that became the basis for our Federal Constitution said, but we must guard against ma — majority, the excesses of democracy.

He said, we thought we had a strong Senate in Virginia but we found it wasn’t strong enough and Maryland too.

I think he said, found their Senate was just a phantom and New York and Massachusetts too.

Even Madison who proposed proportionate representation for both of the Federal Houses of legislature, say that the same time and he repeated this in the Federalist No. 10.

He said that the same time, there is a difference between Democracy and Republican Government and in for — using representative forms of government, we must divide our society into so many parts that the majority — the major faction will have difficulty in uniting and having their way to the exclusion of the will of the minority.

So we find no unanimity as a matter of fact, I like to quote Mr. Chie — Mr. Gorham of Massachusetts who expressly said, “There is a need to protect minority groups from oppression by the majority,” and he said, “This remark was applicable not only to states but to counties or other districts of the same state.”

And incidentally, we draw some comfort in using the federal analogy from this language, it’s at page 29 of our brief.

More recently, Woodrow Wilson said, “The Senate, the Federal Senate, says as often from headlong popular attorney.”

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

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Theodore I. Botter:

Our view is that an intentional check upon the majority rule in both Houses is a rational objective of state bicameral government.

Forms of representative government, commonly and historically employed by the states should serve as a guide to what is permissible.

We refer to Vermont, Arizona came in after the Fourteenth Amendment in 1912 with two senators per county and discrepancies of 9-to-1 with 27% controlling one House.

Hawaii and Alaska came in 1959.

United States Commerce specifically said in their Act of Admission, they comply with the Federal Constitution, their Constitutions did and interestingly enough in 1962 for current acceptance of this thesis, the voters in Colorado rejected a referendum which would have provided proportionate representation in both Houses and every county in the state including the central areas, the East — Eastern Slopes which have a — the largest portion of population in Colorado, even they voted against equal representation, proportioned at the population of both Houses and the public selected a principle which falls into our second category.

In New Jersey of course, we’ve had this form of government since 1776.

Before the Federal Government had it, we think it’s good.

In Illinois, recently was upheld the 1954 Amendment to the Illinois Constitution where the Court said, “The apportionment was on an arbitrary, clearly political compromised motivated area of basis and upheld it.”

Why?

Because they said, “Cook County and Chicago can rule one House but we don’t think Illinois has to accept their rule in both Houses,” and they had an — an area principle to protect the downstate counties.

I’d like to — my time is running out.

I’d like to say that equal protection means more than mathematical equality, it also means protection.

Our argument is that majority rule in both Houses, does not afford adequate protection or minority interest.

The majority has the one House that usually elects the Senate or the Governor.

It usually elects highway commissioners who decide where highways had to go and we think that the minority in one branch of the legislative government should have some bargaining power.

We also think that there’s some rejection of minority rule as of — as a governing principle in the Federal Constitution itself.

For example, if there’s a tie in the vote for the President, it goes into the House of Representatives with each state having just one vote, so the population doesn’t rule there.

My time is up and I’d like to say in conclusion as we did in our brief that it’s not irrational for a wagon driver when urging his horse down a hill to keep one hand on the break and that’s what we think this form of government does that we’re espousing.

Earl Warren:

Number —

Byron R. White:

Could I — oh excuse me.

Earl Warren:

Yes, go ahead, just go and finish.

Byron R. White:

Would you take some exception then to both Houses being equally disproportionate to population? I take it you certainly pick one House maybe —

Theodore I. Botter:

We —

Byron R. White:

— and the other — and the other one is on top.

Theodore I. Botter:

Yes.

Mr. Justice White, I know that question would come.

It happen to —

Byron R. White:

You almost got cut.

Theodore I. Botter:

We we’re on our brief on the assumption that if you had one House that’s good, you could have wide discrepancies in another House.

We did because all the states who joined our brief after we wrote it incidentally, happened to have a House that’s either constitutionally required to be apportioned that way or it’s actually apportioned that way.

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

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Byron R. White:

Yes.

Theodore I. Botter:

So it’s satisfies the people that I represent for the moment but I would like to say that I think there is as to can — you can find historical support for that proposition that you advanced.

And in saying that we should accept historically acceptable forms of government if one state thinks at the right time, that kind of a light, I think we have to accept somewhat this corollary to our rule but I don’t find perfect historical support for it.

Vermont is a — is a real exception.

There was only one — a one House legislature with minority control.

The same, you can argue that it was majority of town’s control.

There’re a lot of little towns in the first legislature of Vermont.

Byron R. White:

But if the justification for your — for your one House is that there must be some check on the majority —

Theodore I. Botter:

Yes.

Byron R. White:

— and this is really the justifying factor, I suppose that you could turn it around and say that you should have some protection against the rational minorities do?

Theodore I. Botter:

We’re satisfied, we would be satisfied with that rule and I think there is historical support for it in the Constitutional Convention itself.

Almost all the delegates were in agreement that the House of Representatives should be apportioned on a population basis.

There was hardly any fight about that.

Later on, Madison started saying when the going got rough, well at least one House ought to follow this principle when he couldn’t — couldn’t assert the principle for both Houses.

Byron R. White:

The trouble I had is that if you’re a — because Guaranty Clause argument and some other here is that it would also justify both Houses being disproportionate.

Theodore I. Botter:

No.

If you go back to the Republican, —

Byron R. White:

All the states may choose.

Theodore I. Botter:

— if — I’m sorry.

Byron R. White:

The states may choose a form of representative government.

Theodore I. Botter:

I think there was some qualifications.

I think that in — as I said, if you go to the Guaranty Clause, it’s not too much to work with because we don’t know — they didn’t say too much about the Clause.

We know that a monarchy is no good.

And we also know that that it means that these forms of government that the states had in 1787 were probably good and most of them were — had at least one House based on population or popular basis.

11 of the 13 colonies had bicameral legislatures, and most — and — and a — in all — in seven of those, you had only one House based on a non-population standard.

So that you have historical support for the proposition that not only is it acceptable, but it is probably what the founders intended to protect.

Now, whether a state should be able to set up a system of minority rule in both Houses, I think there is room for this Court to interpret that Guaranty Clause to determine whether that’s the kind of representative government that is protected.

And if it’s not, then it would be — we’d be within the power of the Court to use the Equal Protection Clause to cut it down if it felt that this denied equal protection or was invidiously discriminatory.

But in doing so, we respectfully suggest that there is wide latitude, you just can’t — you just can’t take heads and — and align them all up and — and come to result.

There has to be some play even in both Houses.

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

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Theodore I. Botter:

Thank you very much.

Earl Warren:

Very well.

Number 69 — what?

Alfred L. Scanlan, Jr.:

I think I have a little time left.

Earl Warren:

Mr. Scanlan, I have overlooked your — your rebuttal, sorry.

Alfred L. Scanlan, Jr.:

It’s sleeping late in the working day that maybe little time after the alarm but I’d like to take advantage of every minute of it.

Earl Warren:

Okay.

You may.

Alfred L. Scanlan, Jr.:

One point with respect to the House, the Solicitor General and I are in complete agreement and he is correct when he says that the same people that are short-changed on the Senate side, are short-changed on the House side, they come from the same counties.

If the House in Maryland were based on population, the less populous political subdivisions, the 19 counties would have 37, not 63 Representatives.

And the five most populous subdivisions would have 105.

Byron R. White:

(Inaudible) if we have a probably with time to the — that we — in order for them to (Inaudible) but also (Inaudible).

Alfred L. Scanlan, Jr.:

Well, we’re not worried about the House, qua House.

If we had worried about the time, to be frank about it, we’d probably have to start new litigation if we wanted to attack just the House.

But from the beginning we have attacked the Senate, we had attacked the House and we had attacked the General Assembly as a whole.

Byron R. White:

(Inaudible)

Alfred L. Scanlan, Jr.:

No, they can’t block quite the majority.

They have — they’re — they’re overweighed in the House but they don’t elect the majorities.

Byron R. White:

(Inaudible)

Alfred L. Scanlan, Jr.:

Well, I think he and he spoke himself.

What he meant was if you took Montgomery County away from the five most populous category and switched it around, it would come up with the figure of 36%.

I was trying to be a little bit more consistent and not play the numbers game.

I stuck to the five subdivisions constituting 76% of the population.

And these then are the same people and then this — we’re in complete agreement, are the same people that are short-changed in both Houses.

Now, one comment on this virtual representation point that’s come up here, the idea that lawyers or businessmen from Baltimore County, would like — wouldn’t mind being represented by Senators from Baltimore City.

Well, I for myself, I would not like to be told by people who don’t represent me who will and I think that for instance that the people in Westchester County in New York ever had a labor under a system like that and they were represented by the Senators from New York City, they threw up their hands and heart.

This is the old idea of virtual representation.

I don’t think that’s any representation at all.

One other comment about the — a state’s right to prefer in interest.

When we’re talking about the state doing that and doing this and doing this, who are we talking about?

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

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Alfred L. Scanlan, Jr.:

We’re talking about a locked in minority that’s had a lock on the representation in the Maryland General Assembly since 1866 or 1867th.

And if that’s the state, they’re correct, I say that’s a minority power locked in the structure of the government of the state exercising the sovereignty of the state but it doesn’t necessarily represent the state in the sense that the people of the state.

Arthur J. Goldberg:

Mr. Scanlan, however, I believe the — attorney general of New Jersey told us that people vote.

Alfred L. Scanlan, Jr.:

But we haven’t had — we haven’t had that opportunity since 1867 except to approve what was done for Baltimore but even if we had, and even if we had turned it down, it seems to me that — that we couldn’t vote away the rights of them — of — of the citizens.

Even if a majority said, “We don’t care, let the minority rule.”

I think equal protection, perhaps due process would prevent it but we don’t’ have that in this case and I don’t — I don’t think I have to deal with it directly.

One final —

William J. Brennan, Jr.:

I just wanted to know.

Alfred L. Scanlan, Jr.:

Yes sir.

William J. Brennan, Jr.:

(Inaudible)

Alfred L. Scanlan, Jr.:

No.

Now, there’s been a slight change.

They are — they are — it’s a little short.

There has been an improvement and my learned adversary says, “If we just wait a little longer, it’ll improve a little more.”

William J. Brennan, Jr.:

(Inaudible)

Alfred L. Scanlan, Jr.:

No.

I think they have doubt.

To be fair, they have now 45% of the representation in the House.

They don’t have a majority in the House but they have an overwhelming majority in the Senate and they can initiate constitutional amendments, they can block anything in the Senate.

All we can do is, initiate and perhaps carry bills in the House.

That’s about all.

Byron R. White:

But do you think it would be correct, (Inaudible)

Alfred L. Scanlan, Jr.:

Well, I thought the amicus went further Your Honor and said that this case —

Byron R. White:

(Inaudible)

Alfred L. Scanlan, Jr.:

Yes.

He said — I — I — I don’t want — I — I don’t know whether I understand you.

I thought the amicus said that the Maryland case presents a situation where you have a House based on population and the Senate chosen on another basis.

It does not because the fact is and I can concede this away if I wanted to.

As I said earlier, if you like conceding that the sun rises in the East — in the West.

The fact is that the Maryland House is not based on population and I gave you the figures as I started the rebuttal the way this — if that were the case, if that — if we had 105 delegates or something close to that, say 100, then he could make this argument and then my adversary could say, “This case involves the federal plan.”

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

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Alfred L. Scanlan, Jr.:

I don’t think even if it did involve the federal plans make any difference for the reason stated in the brief.

But believe me, this case does not involve a federal plan.

If this is the federal plan, then any state can avail — avoid the force of Baker v. Carr by just creating some sort of a second House and you might as well have not decided the Baker v. Carr but believe me, Your Honors, it wouldn’t mean nothing at all.