Maryland Committee for Fair Representation v. Tawes

PETITIONER:Maryland Committee for Fair Representation
LOCATION:Alabama State Capitol

DECIDED BY: Warren Court (1962-1965)

CITATION: 377 US 656 (1964)
ARGUED: Nov 13, 1963 / Nov 14, 1963
DECIDED: Jun 15, 1964

Archibald Cox – Solicitor General, for the United States as amicus curiae
Alfred L. Scanlan, Jr. – for the appellants
Robert S. Bourbon – for the appellees
Theodore I. Botter – as amicus curiae

Facts of the case

Under its 1867 Constitution, the State of Maryland’s Senate has 29 seats, one for each of 23 counties and six for the City of Baltimore’s legislative districts. The State’s five most populous political subdivisions with over three-fourths of the 1960 population are represented by only slightly over one-third of the Senate’s membership. In the House of Delegates, after temporary legislation in 1962, there existed a maximum population-variance ratio of almost 6-to-1. A group of residents, taxpayers, and voters brought suit, alleging that the legislative malapportionment violated the Equal Protection Clause of the Fourteenth Amendment. Ultimately, the circuit court held that as to certain counties there was invidious discrimination in the apportionment of the House and that the senatorial apportionment was constitutional. The Maryland Court of Appeals affirmed.


Does Maryland’s apportionment scheme violate the Fourteenth Amendment’s Equal Protection Clause by mandating one senator per county and legislative district of Baltimore, regardless of population variances?

Earl Warren:

Number 29, The Maryland Committee for Fair Representation et al. versus J. Millard Tawes Governor.

Mr. Attorney General:

Mr. Chief Justice, may it please the Court.

Following in the wake of the bevy of appeals and cross-appeals of the Alabama reapportion, the litigation as produced, I feel constrained to say with respect to the Maryland case, is just one single set of appellants and one single set of appellee.

I think by learning (Inaudible), the Attorney General, the Assistant Attorney General would agree on that proposition, I believe.

I want to say this though, although I wasn’t always able to identify the appellants or the appellees, or the cross-appellee or the cross-appellants in the Alabama case, I did find in the remarks that some of their attorney, principally Mr. Morgan, Mr. Band and especially Mr. McConnell, a statement of the views that we think are controlling for the Maryland case and indeed for all the cases now to bar this Court.

I especially thought that Mr. McConnell in his response to the inquiry put to him by Justice Harlan concerning the controlling force of the — of Gray versus Sanders, he didn’t go so far as to say that he thought that case to control the Alabama case and the other reapportion cases now being considered by this Court.

But it did say, I believe, and certainly I agree with him, that the principal enunciated there should be determinative of the litigation now before this Court.


Mr. Attorney General:

I think the Court disclaimed the consequences saying in that case that they were ruling on the principles involved in the reapportioned cases, (Inaudible) of course the Court decided only the litigation in the case of controversy before it, but I say in the principle that was enunciated in Gray v. Sanders when applied to the reapportionment case, and the Maryland case, and the other cases before the bar, in the end should be controlled.

Before I plunge into that argument, I think in view of the rather long course of this litigation has taken in reaching this Court, perhaps it’s your procedural history of it that might be helpful.

I think the two questions presented in our view are one.

The question of whether the residents, the eligible voters, the taxpayers, of the five most popular subdivisions of Maryland are being denied at equal protection of the laws as a result of the representation now accorded in the Maryland State Senate.

The second question that I think is presented here is whether those same voters residing in those same areas are being denied equal protection as a result of their representation in the General Assembly considered as a whole body.

The case began with a bill of complaint filed by taxpayers and citizens of those five most popular subdivisions, and they are the counties of Anne Arundel, Baltimore County, Prince George’s County, Montgomery and the City of Baltimore.

The defendants, of course, were the election officials of state who would be called upon to put in operation the mechanism that governed the election for Senators and members of our House of Delegates.

The bill of complaint sought basically declaratory and injunctive relief alleging that the representation provided in the Senate and in the House of Delegates and in the General Assembly as a whole, have violated certain provisions of the State Constitution and certain provisions of the Federal Constitution, mainly Section 1 of the Fourteenth Amendment.

These state issues are no longer in the case.

The court below in effect decided those against this, and all pertinent rulings of the court below, both in the prior case and the case that is now appealed here, rests on federal grounds Fourteenth Amendment decisions.

There originally was a demurrer, of course, in this bill of complaint of Baker v. Carr had not yet to come down, and it was still thought by the Chancellor that Colegrove v. Green was determinative.

After the demurrer was sustained, we appealed in the fall of 1961.

The case was argued and then on the initiative of the Court of Appeals of Maryland was reargued.

We suspect that at that time, I know we were never able to establish it, that they were marking time while waiting for this Court until it handed down its capital decision in Baker v. Carr.

And when this Court did that within a short month thereafter, our Court, the Court of Appeals of Maryland, in a decision report within 180 A. 2d 656 followed them, the opinion of this Court entailed that we had studied the course of action with respect to the malapportionment that existed in the General Assembly of Maryland at that time and sent it back to the Chancellor, Judge Duckett, for a determination whether there was such a reasonable relation to population or unreasonable relation to population in both Houses.

As a matter of fact, that did or did no constitute a violation of the Fourteenth Amendment.

There was a further hearing before the Chancellor — not an evidentiary hearing.

Actually, all the exhibits were stipulated.

There was a motion for summary judgment, but there were really no contested issues of fact anywhere along the line.

On May the 24th, he did hand down a decision in which he struck down the House of Delegate representation as it then stood on May the 24th, 1962.

And within 24 hours, a special session had begun.

After five days of the special session, we had added 19 new delegates to the House of Delegates, and I want to point out that the addition was pursuant to know a statutory formula.

Mr. Attorney General:

If you will notice the appendix to our brief, we set forth the statute — the actual bill as it went through legislature and we did that not to run out printing expenses at the behalf — in behalf of our clients, but to show how a formula was originally set out in the bill and then at the 11th hour was crossed out and the 19 new delegates were just given on a basis of a — two individual counties, Montgomery County has got a four more, Prince George has got four more, Anne Arundel got one more, one of the legislative districts of the City of Baltimore got two, and another got one, and for Baltimore County, the largest county got seven.

Now, the Chancellor, meanwhile, in his original decision tried not to pass on the Senate issue but we promptly appealed that the same day to the Court of Appeals and very shortly thereafter they directed the — the Chancellor to decide that issue.

And when we went back to those federal argument, he decided it, decided against this holding on the basis of the so called federal analogy that there was history in Maryland’s past as to support as a reasonable basis of representation.

We took an appeal of that decision also the same day it was handed down.

And very shortly thereafter on July the 23rd, 1962, it was argued before the Court of Appeals recurring the opinion was issued in the afternoon before the three decision.

And in September, the written opinions were handed down of Judge Brune writing the dissenting opinion adjoined in by Judge Prescott and Judge (Inaudible).

The basic ruling by the Court of Appeals was again with the federal analogy, Maryland’s history, the existence of counties for a long time, their alleged importance and the scheme of Government of Maryland towards the rational basis to justify a finding that it was not offensive — the representation in the Senate was not offensive under the Fourteenth Amendment.

They said that the issue of the House reapportionment was not before them and technically that was correct, but I think in view of some of the arguments made by the appellees and also endorsed by the Attorney General of New Jersey and as amicus curiae brief, I would like to make a very clear what we believe the procedural situation is.

As to the Senate issue, there is no doubt that is clearly before this Court.

After the House issue, after the special reapportionment, we abandoned the claim that the House — qua-House was reapportioned in the manner the defendant the Fourteenth Amendment.

But we never abandon and have pursuit from the beginning as our bill of complaint showed the fair argument — the argument that the legislature considered as a whole does not provide the representation that the — what the minimum guarantee of the Fourteenth Amendment requires.

William J. Brennan, Jr.:

So is — is the apportionment of the House as revised now largely population based?

Mr. Attorney General:

No, Your Honor.

I was going to come to that but we might as well — I think I might have to clarify it now.

No, the House now is a —

William J. Brennan, Jr.:

So the House of Delegates?

Mr. Attorney General:

House of Delegates, the House of Delegates.

The House of Delegates has 143 members, 79 of these, which is 55%, come from the five most popular subdivisions that I have been referring to.

Formally, before the special session and the stop-gap legislation, they had only 60.

They only had — had 60, that was an increased of 19.

Formally, the largest subdivisions had 49% of the representation in the House.

Now, they have 55% of the representation of the House, and I want to emphasize it was done pursuant to know statutory formula.

In effect, it held everybody at the level they were on May the 25th, 1962, that gave 19 more and distributed it in the manner that I had mentioned before.

Finally, I think it’s important to mention that this stop-gap legislation which took care of the House of Delegates only expires by its own terms on January the 1st, 1966.

If it is not superseded by a constitutional amendment, it’s an interesting question of what if — what if it goes back to the Chancellor having struck down what preceded it and what it existed for almost 100 years.

I don’t know what the answer to that would be, but the law says that if it isn’t succeeded by a constitutional amendment by 1966, it expires by its own terms and representation then reverse to the status it was on the day Judge Duckett struck it down after nearly two years ago.

Now, the pertinent facts of these, the population fact show that about now Maryland has 3,300,000 people, or maybe a little more the time of 1960 census it had about the 3,100,000 people and about 70% — 6% of these people live in these five most popular subdivisions that we’ve been talking about, and these subdivisions of course have been characterized for the most part, except Baltimore City, by a phenomenal grow especially even before the war, but especially since the war in the last 20 years the counties of Montgomery and Prince George’s and Anne Arundel and all of the —

William J. Brennan, Jr.:

But what’s the legislative district (Inaudible)?

It’s not county, is it?

Mr. Attorney General:

Oh, yes.

William J. Brennan, Jr.:

It is?

Mr. Attorney General:

Oh, yes.

The — in the Senate, it is one Senator for each county, except the City of Baltimore.

It’s divided into six legislative districts.

William J. Brennan, Jr.:

Now, the House of Delegates is there?

Mr. Attorney General:

The House of Delegates is based on county.

In other words, in 19 — in 1950, we grows into the constitution the representation that the counties had on the basis of the 1940 census.

For instance, North Chester County with 23,000 — maybe I’m a little low there, maybe 28,000 people, has formed Hartford County.

William J. Brennan, Jr.:

But then they’ve chosen (Inaudible).

Mr. Attorney General:

Yes, every delegate runs within the county.

We do not have legislative or election districts with the single exception of the City of Baltimore.

There, you’ll have one Senator for each one of the legislative districts and it used to be six delegates for each one of the legislative districts in the City of Baltimore.

Now, one has two more and another has one.

Now — yes, Your Honor?


Mr. Attorney General:

They come — they tell us Baltimore is unique and I find it a proposition that — that it’s quite irrefutable.

I know that — but I know many Baltimoreans and they agree it’s unique.

Some people tell me it’s a seaport but I don’t think — Annapolis is landlocked.

I think the answer to your question is that over the generations with the struggle for political power in Maryland, the forces of Baltimore while usually at a great disadvantage when matched against their country cousin, nevertheless on occasion could summon up some strength, and those occasions occurred three times in the history of our State.

The first occasion was I believe in 19 — 1864.

At that time, Maryland was really under the yolk of the Union Army.

It was a state thorn of thunder.

And at that time, the more — the pro-Federalist forces met and had a convention and gave Baltimore finally two more Senators and created their free legislative district, each Senator having one and each district having the same number of re — representative as the law of the county.

This was confirmed by the Convention of 1867 and it was — as a matter of fact, there were some attempts in the Convention to prep them back that the feeling was that Baltimore’s views were pro quo slavery at that time and it might be just as well have — have them have a few votes.

So they didn’t prep them back.

Now in 1900, again, there was an addition of a Senator.

It’s very hard to say how that came about the — the meager legislative history we have is called from the pages of the Baltimore Sun, it seems that they had a fairly strong Mayor and the political situation in many event produced another additional Senator and another legislative district to the City of Baltimore.

Finally in 1922, when by happy coincidence we had one of the greatest and strongest Governors of Maryland, Albert Ritchie who was a Baltimorean and in concert with the terrific journalistic attack led by H.L Mencken of the Baltimore Sun and the day-after-day barrage about the unfairness of the situation, Baltimore again was able to get two more Senators and two more legislative district which is what they have today, except the slight addition in 1962 of few more delegates.

But I want to emphasize, the only reason they’ve got it was the — the arguments made for them to get it was their population, not because they’re a seaport.

As a matter fact, with the — the — their uniqueness was the point argued against them.

Mr. Attorney General:

It was said that they really didn’t need this representation event though they were entitled to it by their population because they were so unique.

They were like business — it was the business center of Maryland, the commercial center, and the — the comment was often made, “Baltimore can get anything it wants out of the legislature, and therefore you don’t need the representation.”

But it was only because of their population that they got this additional representation.

Now, the — the — the representation as I said before is one Senator for each of the — the county, and one Senator for each of the legislative districts.

We have 23 counties and six legislative districts which makes 29 Senators.

Now, under the present system, 76% population with the Maryland population elects only 34% of the Senate.

On the other hand, 24% of the population can elect 66%, more than enough for a constitutional amendment.

Now, four counties living aside Baltimore City hall just like four so-called suburban county like some of my adversaries sometimes content — contentiously refer to as the “bedroom county”.

They have 45%, perhaps more today maybe 46% to 47% of population of the state, but they only have 14% of the representation of the State Senate and these — but these inequities not just less populous area versus the — I see the light is on, it’s recess time.