Reynolds v. Sims

PETITIONER:Reynolds
RESPONDENT:Sims
LOCATION:Alabama State Capitol

DOCKET NO.: 23
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 377 US 533 (1964)
ARGUED: Nov 13, 1963
DECIDED: Jun 15, 1964

Facts of the case

In 1961, M.O. Sims, David J. Vann (Vann v. Baggett), John McConnell (McConnell v. Baggett), and other voters from Jefferson County, Alabama, challenged the apportionment of the state legislature. The Alabama Constitution prescribed that each county was entitled to at least one representative and that there were to be as many senatorial districts as there were senators. Population variance ratios of as great as 41-to-1 existed in the Senate.

Question

Did Alabama’s apportionment scheme violate the Fourteenth Amendment’s Equal Protection Clause by mandating at least one representative per county and creating as many senatorial districts as there were senators, regardless of population variances?

David J. Vann:

As I was saying before, the lunch hour, our purpose in being in this appeal is because we feel that additional relief in this case is necessary now.

Potter Stewart:

Just a — just before we recessed to the lunch, you said that you were made various efforts of — in the Legislature of Alabama?

David J. Vann:

That is correct.

Potter Stewart:

And I think the last thing you said was that you urged the Governor to veto the — what do you call the Crawford bill and to amend — to amend the Legislature, what does that mean?

David J. Vann:

Well we have, one of the Alabama Constitution, a procedure of executive amendment.

The executive can veto a bill and propose an amendment to the bill which if accepted by the legislature would avoid his veto.

And we asked the Governor to amend the Crawford-Webb Bill to provide for proper reapportionment and submit it back to the legislature with an executive amendment, the Governor refused to do so.

Potter Stewart:

So this provision means in effect that the Governor has a substantial amount of potential legislative power, is that correct?

David J. Vann:

Yes, but the Governor’s veto in Alabama can be overwritten by a simple majority, so it’s not as effective a veto as you have in some other States and in federal veto.

Potter Stewart:

But it’s a — it’s a — it’s a talking veto, speaking veto.

David J. Vann:

A talking veto.

And the — when you have a position, as we were in Justice Stewart, where in the State Senate, with 20% of the people, we only had — we had less than 3% of the representation.

We couldn’t — we — although we were in near majority status with others counties affected, we couldn’t even effectively use those legislative devices used to protect minorities.

We don’t have enough power to even use minority protection in the State Senate (Inaudible), for example the filibuster.

Potter Stewart:

You mean a negative kind of protection (Voice Overlap).

David J. Vann:

That’s right, I say the — let’s say the majority doesn’t even — can’t — doesn’t — it can’t even effectively utilize normal minority protection.

Arthur J. Goldberg:

Then (Inaudible)

David J. Vann:

In our judgment, no.

And that is one of the — I pointed.

That I would like to cover in a very short time that I have.

One, I like to say why, why we feel additional relief is needed and we have asked in effect for alternatively for a direction to the District Court to — to provide at least substantially population reinforcement in the State Senate or we’ve asked for a declaration from the Court, the declaration — well either remediate, we think might result in a legislative result before the District Court could handle it, it would give the District Court another opportunity if the legislature, again, failed to act.

Now, we have this situation, the Senate has provided for in the — in the order below.

It does not even eliminate the most egregious discrimination in the — in the Senate.

In other words, the — the fact that our county with 20% of the people has only one Senator means that we have one-seventh of the voice, that our population would entitle us to in the State Senate.

The senate district of Bibb and Perry has 20 times the voice of my county, Mobile County which Mr. McConnell comes here, only has a third of the voice to this population would entitle to it, and Bibb and Perry County have ten times the voice of Mobile.

Now, this produces a very serious problem and it has very mediate and very practical results.

A member of a legislature is more than a person to vote.

A member of the State Senate along his own committees, he’s Chairman of Committees.

He has powers beyond his vote in the channeling of legislation.

The existence of representation affects your areas’ relationship with the State Executive.

David J. Vann:

In our county, may it please the Court, has been generally regarded by the State as the pool from which the taxes should come and the place that which very little of the money should return.

This — we’ve had state aid to small counties without the consent of the payer for that aid.

Now, coming to the point, and I think the crucial point is that, pointed out by Attorney General Richmond Flowers.

The crucial point that I think has cost the legislature to be at loggerheads, it was a crucial point that I think disturbed the District Court below was the provision of Section 200 of the State — of the State Constitution which says, “No county shall be divided between two districts, and no district shall be made up of more than two counties not contiguous to each other.”

Now, the first line there, “No county shall be divided between two districts,” is the point that has troubled people.

Now, the appellants get around there by simply changing the language when they quote the Constitution.

In their brief, at page 15 and 18, they simply changed the word between to into and this — this was the way they argued it this morning.

The assuming of what that word between means by changing it to into.

The Solicitor General in his brief merely tasked this vital point of, by assuming in his statement of facts that this means “into” instead of between.

Solicitor General, in his brief sights and treats this in its footnote on page 6 by saying that this has been interpreted by apportionment under the 1901 constitution.

Well, in the first place, until the Crawford-Webb Bill was passed, there had never been an apportionment statute.

You are cited to code provisions in the 1940 Code which appear to be a legislative apportionment of some kind.

Well now, the Legislature of Alabama reapportioned itself almost faithfully, every ten years, from 1920 through 1892.

And the code, in existence in 1901, had a code section in it which set out the latest apportionment under the 1892 Bill.

When the code was revised in 1903 and again in 1923, the Code Committee simply wrote the constitutional provisions in instead of adding inaccurate code section which of course no longer apply.

The only semblance of — of anything is the incorporation into the Code of the Constitution itself by a Code Committee.

There’s never been a legislative act to intervene it.

The question has never been ruled on by the Supreme Court of Alabama.

That was another thing we did.

We asked the Governor and we had to right to ask for advisory opinions.

We asked him to submit this question to the Alabama Supreme Court which he refused to do.

Because this has been the point, when you have a group of people who held legislative power, they hold it in a minority basis.

They’re being asked to vote themselves out of power or to reduce their power.

They don’t want to give away anymore power than they have to.

And I think the Legislature of Alabama, I know many members, is basically a fair-minded body.

I think if they knew what the standard was, we’d have an excellent chance of getting a proper bill from the legislature.

But as long as this point is in doubt and we attempt to be to get it ruled-on on the court below.

As long as this point is in doubt, I think it’s almost impossible to get relief from the legislature.

And therefore, I think that it is a vital importance.

Now, let’s —

(Inaudible)

David J. Vann:

Alright, that’s what I want to tell you sir.

The Constitution in five or six places including this provision in 284 which says, “Population shall not be removed by constitutional amendment” which is a strong — a statement as the constitutional convention could have made, repeatedly, states that population is the standard, is their goal and is their guideline.

Now, interpreting the instrument within its four corners as — in accordance with Alabama practice and the cases which we have cited in our brief to you, this provision would be entitled — I mean, would be interpreted as being in line with that statement and that would make it a provision which is a provision against gerrymandering which is very reasonable that if you’ve got a group of a republican voters or — or group of pink people or blue people or green people, you can’t divide them up and tack them on to the additional counties by dividing a county into fragments.

Now, this provision originally came into the Constitution of Alabama in substance in the original constitution.

And there was never any discussion of it and on the floor of any subsequent constitutional convention.

The language got changed several times in redrafting but it’s been there from the first.

Now, as it was originally worded in the Constitution of 1819 it said, “When a senatorial district shall be composed of two or more counties, no county shall be divided in forming a district.”

Which is exactly the interpretation which we say the Court should be — should place upon it today.

Now, this is an interpretation within the framework entirely of Alabama law.

Now, we feel that in dealing with an historic document of people such as the Constitution of Alabama and it is one of those more ancient in its origins of those — of the 50 states that the court should deal with them most candidly.

But we believe this, we believe that population is the standard of the Fourteenth Amendment and we believe the Court should place an interpretation upon our State Constitution, so as to make that Constitution or have — as to prevent the Constitution from reaching a constitutional issue that would strike its provision down unnecessarily.

Or reading it, this rule of construction is applied that you would — the Court would still adapt our interpretation.

Earl Warren:

When and why did they change that 1814 provision you just read?

David J. Vann:

Well, I believe it was first changed in the period during the Civil War.

We had quite a series of constitutional conventions.

We had one right at the first to Civil War where they wrote succession into the Constitution.

Then we had one under the Military Government at the end of the Civil War where they wrote of abolition of slavery into the State Constitution.

And this was submitted, that voted the people and it didn’t pass but Military Governor certified it did and they had a bunch of confusion about that, so they came back the next year, I think and had another constitution.

And during this time, this thing does not change.

Then following the last carpetbagger constitution, if you pardon me, is what we call it in Alabama.

The Court after the Tilden election had another convention and I might say that no one who attended any of the previous conventions was at the Constitution of 1875.

And wrote another constitution and it was at that time, with no discussion that this change was made and it was incorporated without a comment in the constitution of 1801.

Now, — I mean 1901, I have to say this, that no county has ever had two senators.

But at no time since 1901, has the failure to give a county two senators, produced serious ratios.

There were times when someone might be entitled to two, but 1901 was the time of the industrialization of Jefferson County.

Our city, Birmingham did not exist at the time of the Civil War.

We had this massive vote in the 1890s — and then really massive after 1901.

So the problem did not attain its serious proportions until after 1901.

Earl Warren:

When — when did the Supreme Court give its advisory opinion with the — this meant that it couldn’t have two counties in one —

David J. Vann:

It never had.

This question has never been submitted.

Earl Warren:

That — that wasn’t submitted (Voice Overlap) —

David J. Vann:

We asked — that we asked the Governor to submit it.

Earl Warren:

I see, yes.

David J. Vann:

In fact, I think we asked the Legislature to submit it and they all refused to submit it and I think they were afraid of what might be said and they thought they would just go home with just one senator.

Arthur J. Goldberg:

Then why do you — why do (Inaudible)

David J. Vann:

Well, you might say it leaned —

Arthur J. Goldberg:

(Inaudible)

David J. Vann:

You might say it leaned heavily and I’ve read it that way.

And I’ve also read it to say, just the opposite.

That’s a right confusing paragraph of — it seems to me, in one way the Court says that we ought to do that but if we did it, we would give the people with the majority of the — of the citizens, a majority of the votes in the city is in fact — and say that’s some horrible result of — and with that statement, it sort of disturbs me.

Arthur J. Goldberg:

(Inaudible) doesn’t before, to follow it (Inaudible) constitution.

David J. Vann:

That’s right, they say if (Voice Overlap), if we do this we would have to rule this but we’re not satisfied we should do so.

Arthur J. Goldberg:

(Inaudible)

David J. Vann:

Well now, this is the point that the Solicitor General makes, so this is a temporary order.

This is not a temporary order in my estimation.

And in fact — in fact, I believe that if this was a temporary order or at least one of the appeals, would not be properly in this Court, I think you have to treat this as a final order below.

Arthur J. Goldberg:

How can you say that (Inaudible)

David J. Vann:

Well, as I said it is a provisional order.

Arthur J. Goldberg:

Well, why is it a provisional (Inaudible)

David J. Vann:

Well, provisional order is one which remains in effect until a changed.

Now, in basic of the Court is seeking change, Your Honor, by the Legislature.

Of course, in the legislature, of course, it has many more to, who’s available to deal with reinforcement.

They can change the sizes, if — if they’re not seriously affecting the representation of some other county, they can deal with these problems of economy and so forth and — and maybe shift counties around without — where there’s no discrimination resulting, I would conceive that.The courts can’t do that.

Court merely wants to put a perfect plan of how they would do this and I would call the Court’s attention to Moss against Burkhart, which will be before the Court, I understand later in the year.

And I feel that the court below should have done what Monroe said in that case that if a court is going to enter a provisional order, it should intertwine that protects our constitutional right, as you said in the Watson case Your Honor, constitutional rights are for the here and now.

And there’s must be some overwhelming reason for not doing so.

Well, at the time this — this order was in, the Legislature had recognized I think that it could not, that its order — that its bills were not good because they — they not only passed the constitutional amendment, they not only passed the Crawford-Webb Bill, they passed the special primary act.

And they said, if the legislatures reapportion by the — by a court, they started the whole special — election system, anticipating an order from the court.

David J. Vann:

The whole reinforcement of the legislatures that now sits went through without one single cage, without — none of the boogerman that have been raised opposing a court dealing with this question arose.

They set up a special act, we elected the new legislature, it’s now in session.

But the Senate provisions are the provisions which the court itself held were unconstitutional.

They’re not — and they’re not just a little unconstitutional.

They did not remove any of the most egregious wherever it is now.

On its face, it appears to do more than it does because the special Primary Act said at the same time that if a new district has within if someone who’s already been nominated and are made primary, he will be the nominee and there’ll be no election.

And the Legislature had framed the whole Crawford-Web Bill around the existing members of the Senate.

So while on its subjects, it appears to makes steps at removing egregious discrimination.

The two bills in para materia sitting side-by-side meant that there was no change in the Senate at all.

Arthur J. Goldberg:

(Inaudible) that’s precisely what the District Court has said.

District Court (Inaudible)

The court said, they certainly — they know what to do (Inaudible)question.

In other words, the Senator said (Inaudible) temporary privilege for the election, that fit to election.

David J. Vann:

Correct.

Arthur J. Goldberg:

(Inaudible)

David J. Vann:

Correct.

Arthur J. Goldberg:

(Inaudible)

David J. Vann:

That’s right.

But here —

Arthur J. Goldberg:

(Inaudible)

David J. Vann:

Now I — I’ve said this and — and let me emphasize.

The Legislature has many tools to deal with reinforcement.

They set up a plan under which, we are denied the equal protection of the laws in representation in the forming of a permanent plan.

In other words, the Court has set it up, leaving in control the same people who don’t want to give up the power and they’re going to — they’re going to — we must assume if — under the natural course of events, they are going to device a permanent plan, if they do which limits us just as much as they think they can get away with in this Court.

Now, I mean we have to make this assumption, I believe.

And I believe that we’re entitled equal protection in the formation of that plan and that’s the reason I —

Arthur J. Goldberg:

What was your — what was your (Inaudible) of the court?

What would you have (Inaudible) court to do?

David J. Vann:

I’ll have the court — the court below I think would have one of several choices and I think the discretion of that court should be recognized.

Arthur J. Goldberg:

But the court order from election is derived (Voice Overlap) —

David J. Vann:

The Court — the Court needs to order no election.

I don’t believe the court should order an election at large because I believe this is a chaotic form of election where you’re electing 105 members of one house, 135 of others.

You’ll have many areas of state with no representation at all and I could go on.

And these are the reasons I object to do election at large and feel that this is a much more conservative remedy of, they — but they could treat that.

They could use — they could modify this.

We have a special election procedure.

For instance, if the appellant should win in this case and if you were to (Inaudible) by reversal, the ten new legislators from my county, there would be vacancies.

They’ll all provide the Government shall call it special election to fill the vacancies and the legislation.

If the court below gave us the proper representation, the laws of Alabama are in any existence, the court has to do nothing required the Government calls special election to fill those vacancies.

You can, without disruption, without any court supervision of elections or anything of that nature make the correction.

Or this — the other remedy which was rejected below that you could use proportional voting in the present legislature without affecting its members at all since the next election is a long way off, you could give the one senator from Jefferson County seven votes in this matter and effect equal proportions by proportional voting.

This was a remedy suggested by amicus brief below.

Potter Stewart:

To multiply its committee assignment 0.70?

David J. Vann:

We couldn’t do that and this is the reason we objected proportional voting below, and we that we felt with an election coming on that this was impractical since he couldn’t serve him any more committee in many times.

Potter Stewart:

May I ask you?

An election was held in 1952.

David J. Vann:

That’s Correct.

Potter Stewart:

Under this court order.

I mean, in conformity with the — with the —

David J. Vann:

(Voice Overlap) with special Primary Act and just (Inaudible) general election.

Potter Stewart:

But the apportionment as to — as decree by this — by this District Court’s decree, wasn’t it?

David J. Vann:

That’s correct.

Potter Stewart:

An election made conformity with that.

Now, what are the terms of the legislature?

How long are they going to serve — is that legislature (Voice Overlap)?

David J. Vann:

All members served for four years —

Potter Stewart:

Four years and both House and —

David J. Vann:

So they have three more years to serve.

This is a long time.

Potter Stewart:

Both House and Senate.

David J. Vann:

That’s right.

They’ve already passed more taxes in any of legislature history and we failed.

Earl Warren:

Very well.

Mr. McConnell.

John W. McConnell, Jr.:

Mr. Chief Justice, may it please this Court.

We, as appellants, who are also intervene as plaintiffs in the action below.

We have brought this appeal for the simple and sole purpose are they — as we stated in our brief of what the lower court did not say, rather than what it did say.

It may have been animated and perhaps implicit on some of these things such as the question of dividing a county to give more equality of representation of the Senate.

But we feel that the Court, this Court, should set out guidelines for either the lower court or the legislature.

We believe, and I think the appearance here of the Attorney General animates that whatever the court gives as a minimum apportionment will be the maximum apportionment that you receive in the legislature.

We believe that it needs guidelines and standards.

Now, we’ve been here for two days talking on this problem.

Many interesting questions have a risk and I would like to take the brief time that it’s been allotted to this appellant to perhaps answer some of those questions.

First, we are here as individual citizens.

I do not claim to represent an urban area, a certain occupation within there.

I am first a citizen of the State of Alabama.

I am second a lawyer.

Someone else may be first, a citizen and second a banker, but what we are talking about here is protection of individual, their civil private rights.

We think there’s a difference between apportionment and between the selection of the unit to be represented.

We believe and I believe as Mr. Justice Brandeis has said that one of the strength and advantages of our system was that we had 50 laboratories in which various political theories could be tracked and we think that should be strengthen and at no restriction should be placed on the individual state working out their own form of government, but within constitutional standards and limitations.

You may have experimentation, I believe it was Mr. Justice Stewart asked this yesterday, experimentation in the unit of representation, but once that unit is determined, there can be no experimentation in the quality of representation from that unit.

I believe it was Mr. Justice Stewart did ask yesterday about a six House Legislature.

We are talking about here governmental processes.

We are asking for equality in the governmental process.

We say you may have a multimember executive, a counsel.

So long as each individual citizen has equality of representation and each of the members of that multimember executive —

Potter Stewart:

Well are there — are there any states which in fact have Governors’ counsels which are appointive rather than elective and which have — a considerable legislative power?

John W. McConnell, Jr.:

I recall that question yesterday Mr. Justice Stewart and I’m not aware or familiar with one that does and has any legislative power.

But again, —

Potter Stewart:

You know I — I don’t know — but knowing with the states, would many of them have Governor’s counsels or they’re called by various names with more or less a political power, I think legislative power?

John W. McConnell, Jr.:

Well again now, we — we would not say that that would be unconstitutional.

I would have to look at the method of selection and the voice that that counsel has because it will take — in a Gray versus Sanders, where you say it’s a unit wide election, it’s election of statewide official.

You say that the vote must count equal.

Let’s just say that they had been nothing but direct counting.

Then you — you remove at one process and you have a counting of vote and then you have a second counting in which the first votes are changed into a new ratio.

Now, I think you could apply that to your counsel that you’re speaking of.

If the Governor say, who was elected directly by everyone, statewide vote, should select half of those counsel numbers and the other half were hereditary, then that counsel would not be constitutional because the citizen who had an equal voice in the selection of the Governor was only had an equal voice in the selection of half of the numbers of that counsel.

The other half he had no participation.

Now, our point here and so point on appeal is that we think that population must be the initial controlling (Inaudible) and that that must be in every state to the legislative process.

If it’s unicameral, you satisfied it if you have equal voice and one house.

If it’s bicameral such as it is in Alabama, there must be equality in each house because both houses are necessary to enact laws.

If we have equal voice and only one house and no voice, and your question yesterday of home rule.

If you had home rule for Mobile County that I represent here, if they were just one right such as congressional redistrict which will face this Court in the next few days, that is done by the State Legislature.

We would be deprived in Mobile County of our equality and the legislative process, if simply because we had home rule on everything but congressional districting did not have an equal voice and the legislature in the districting of the state for congressional election.

Arthur J. Goldberg:

As your argument lead to this, (Inaudible) to pursue the policy, (Inaudible) what we found in the proceeding, with the legislature, the legislature will have to be large enough so that the population thing could — which was mathematically for that?

John W. McConnell, Jr.:

Your Honor, that — that’s our point and that’s the reason that we are not even satisfied.

Now, the other appellants are here principally because of the same.

We concur on what they say in the Senate but we also do not believe that the apportionment of the State — of the House of Representatives in Alabama, allowing one representative per county first, will give us equality and the legislative process.

They figure that I think it may be a conflict but it’s roughly a little better than 40% which is about what New York is arguing here on this but that’s accurate.

The lower court did comply without constitutional provisions and we say that it’s not necessarily gross.

We say you start with population.

Now, we recognize and — and without disagreement Mr. Justice Stewart, it may not be eighth-grade arithmetic on the first part, but I believe that eighth-grade arithmetic will determine the ratio.

Now, which ratio and where you stop, we recognize that this point and Mr. Justice Goldberg has raised, the size of the house.

If in Alabama you take 106, we have 3,200,000 people, you divide it, you get a ratio of about 30,000 per representative.

Now, we recognize that they will have to be administrative deviation from an exact 30,800 per representative and that there is leeway there.

But we won’t go so far to say that that leeway must be gross before the court will strike it down.

You will look it why the leeway.

And if it simply to keep one precinct from one county, I mean taken out of the county and put in another to equalize the legislature — the district, you may say that that’s alright.

But it doesn’t have to become what in the past we have termed gross by the court act, the question of proportional voting.

We’d feel that the State could establish constitutionally proportional voting.

John W. McConnell, Jr.:

We feel that they could establish three a house legislature, one on geography, one on occupation, one on something else.

But in each house where there’s proportional also, it would have to be that each voter or each citizen in the State, would have to have equality in the representative in each house.

You mentioned management and labor.

If you could divide the State of Alabama into two groups, in which management was two-third and labor was one-third, you can have a house made up of occupations but two-thirds would have to be elected by management and one-third by the other.

Potter Stewart:

Could a state — could a state under the Constitution under the Fourteenth Amendment, you say we’re not going to have any — any — any legislative Assembly.

We’re going to give all of our legislative power to the Governor?

John W. McConnell, Jr.:

It gets then and that’s also an important question, you have these checks and balances.

I don’t think there’s anything necessarily in the Fourteenth Amendment that would say that you had to have the separation of power that we’ve traditionally had between executive and legislature.

But it would say that if you put that power in one, each citizen in the State must have equality in the selection and in the voice of that particular representative, be it Governor or you gave administrative powers to the legislature.

Potter Stewart:

But presumably under — under Gray against Sanders, it would be a statewide general election for the Governor.

John W. McConnell, Jr.:

Yes sir.

Potter Stewart:

Every persons vote counting equally, every qualified voter’s vote counting equally.

Do you think under the Constitution the — the State could have — say you have all the legislative power and all the executive power in the State?

John W. McConnell, Jr.:

I would check into that but it does comes back to the question that was raised yesterday if I might answered this way and I agree with Mr. Justice Goldberg that I think if the Republican Guarantee Clause does have a place here and I don’t — we don’t want to make a case of this as Republican Guarantee recognizing the past decision of the Court as to Justice Douglas.

But we do believe that in answer to Mr. Justice Harlan, where do we find this in the Constitution.

The Federal Constitution mentions only one form of government that you can check from the beginning to end and that is the Republican’s point.

Now, we say having mentioned then we can look back, regards of a question of whether it’s a guarantee or not.

And I’m saying enforce the guarantee but as a measure, a stem, what type of government and what type of equal protection are we talking about in the Fourteenth.

We can look back to the only point that the Constitution had mentioned and I don’t believe that you’ll find in the federal state was average.

You will find a discussion under the Guarantee Clause there.

The question of equal representation, I don’t believe we find the question nor division of power between the executive and the — and the legislative, but you will find and that was not quoted though in the appendix B that the Solicitor General put the — as filed in the Maryland case.

Federal, it’s paper number 39, I believe it is that he quote, “Does not quote an early a paragraph in there relative to equal representation, but that is — our position is that you can experiment on the different forms but there can be no experimentation in which equality is deluded or taken away that within the governmental process.”

Now, we’re only talking about one here, that’s a legislative process.

But to us, it’s unthinkable that we can speak of equal protection of the laws in which the citizen does not have equal participation in that law.

And we’d also wish to emphasize here that there’s a difference between affirmative and negative powers of government.

As we point out in our brief, we feel that a government isn’t — that is not able to act is not a just government.

We’ve seen what happened in Alabama for failure to act for 60 years.

What may have been just in 1901 is no long just now.

But what we have here is not protection of a minority against the abuses of the majority.

You have minority control so that there can be no affirmative action.

John W. McConnell, Jr.:

Now, we think that room for experimentation on the checks and balances are the extraordinary majorities under certain circumstances of providing even that a bill would have to pass 82 Legislature in order to provide time for consideration.

But don’t put it in a straightjacket so that even when a majority do want a particular governmental policy that that majority is not able to transmit its desire into law.

And we say that this is not protection of minority, it’s actually giving minority process which we say is not due process.

Arthur J. Goldberg:

In this Court, with the argument of the fact that (Inaudible) is that right?

John W. McConnell, Jr.:

Yes, sir.

We most certainly do when the affect of that failure to act results in what it is resulted in, in Alabama.

It’s certainly a denial of equal protection.

And as I said, we believe that the — the equal protection clause of the Fourteenth Amendment applies to the entire legislative process which in Alabama is both houses that we pointed out, you can initiate legislation in neither house except the tax measure but it requires both houses to affirm it today, adapt any bill and therefore to give the equality in one house and to deny equality in the second house is to deny equality in the entire legislative process because one-half of — of equality does not give you equality.

Earl Warren:

Could you have equality under the 1901 provision, Mr. Mc Connell?

John W. McConnell, Jr.:

You mean if we followed the — the wording of the 1901 Constitution?

Earl Warren:

Yes, yes sir and —

John W. McConnell, Jr.:

We maintain that you could not, Your Honor, in the house.

Now, we concur in the other appellant’s argument of the interpretation that could be given to the Senate provision which we think would square that without declaring unconstitutional.

But in a house where you have a provision that each county must have at least one representative then we maintain, and as Attorney General pointed out, the court gave appellate a method we think is fair, the method of equal proportions in alighting, the representative — the House of Representative.

But even then, Houston County had one representative of 50,000.

Coosa County with only 10,000 populations has one representative.

That’s the worse five to one ratio even with what we say is a fair method.

But once you start by giving 67 representatives to the existing 67 county in one each, then you make it impossible to give equality of representation in remaining seats.

Now, we also have pointed out in our brief effect that the legislature can achieve the 67-Senator Amendment simply by legislative act.

The Constitution provides an upper limit on the size of the house but no lower limit.

They could provide, therefore, a house of 67 numbers in which then each county would be entitled to one.

You would end up with a 67 number house in which the largest would have a population of 634,000, the smallest count.

Now, we believe that the constitutional convention in 1901 in Alabama, if you look at the proceedings and we’ve cited them in a footnote in our brief at pages to constitutional convention.

If you look at the provisions themselves throughout the delegates to that Convention recognized that fairness of population.

Every provision even down to the formation of new counties, they have a provision in there that no county could be formed unless it had enough people in the new county to the ratio of population to give it one representative or it left the old county or counties from which he was taken with a ratio of representation and tying it into one, so that they even thought about this thing have taken in new counties.

They couldn’t delude to vote unless that new county came in with a population sufficient to entitle it to at least one representative.

But to your question Chief Justice, we do not believe that on the house that the — in conformity with the provision of Alabama Constitution would meet the constitutional standards of the Fourteenth Amendment.

Now we, as I said, asked the lower court to declare this in it’s — in our original petition to declare these guidelines regardless, as the Attorney General has pointed out here.

There is — well, as we’ve seen in — in the State of Alabama in this brief here, in his brief has pointed out that one session of legislature is going back with this reapportion legislation that didn’t get anywhere with a further reapportion.

Now, we believe in and not only is full of action necessary and we do recognize that including paragraph of the Court, if the Court and in — by the strong language as — as it could stated that it was going to do something if the legislature did.

John W. McConnell, Jr.:

But we do believe that either the lower court on the legislature needs a guideline, a criteria, a standard by which to measure what they do and what they must do in order to conform to the requirements of the Fourteenth Amendment.

We think that the wording as contained in this Section of Alabama Constitution, about constitutional amendment in which they wrote in that population shall be the basis of representation and that it cannot be changed by constitutional amendment.

In there, it says “as nearly as maybe” and we think that although we’re argue in numbers but numbers is a safe guide here for determining of whether or not we meet that standards.

But we don’t say mathematical exactitude is necessary, in other words, as nearly as maybe, in the perfect setup and election at large, every man’s vote counts to one.

If you break that down into two districts —

Potter Stewart:

Are you suggesting that that would be the perfect setup for a — for a legislative assembly all of them to be elected at large?

John W. McConnell, Jr.:

No sir, I — I didn’t mean that in applying to — I agree with the others that we would have chaos if you had to elect 106 members of the house and 35 members of the State.

Potter Stewart:

Unless you’d probably have (Voice Overlap) all of them — all of them representing a couple of big counties.

John W. McConnell, Jr.:

Well, of course then — and this is another reason that we emphasize and it run through the thread of the New York case, I only speak for Alabama.

But we emphasize they were here for an individual, there are many people in my county, many people in Jackson County who are happy with the rural domination of the legislature.

So we’re not unanimous in this.

Potter Stewart:

In other words, you’re saying that those rural legislators more truly represent some of the voters in Birmingham than do the (Voice Overlap) their own representative.

John W. McConnell, Jr.:

Well, I say most truly Republican.

They don’t like these taxes that it comes out but they may like some of those right now.

We pay more than our shared taxes and — than — than the rest of the State but that’s just a sort of tribute you pay to get other types of laws with which they do agree, but that’s just facing the practicalities of the situation now.

You’ve got into proportional representation that you mentioned.

If there might be some way.

I say that you can experiment there.

But regardless of how you do it, you’ve still got to end up when the representative gets there, he must represent either an equal number or each person must have an equal share of representative of either way you want to put it.

Now, this proportion of voting that you mentioned that was proposed.

The Court asked amicus brief in this — on proportional voting in the legislature.

We opposed it for the simple reason that you ask about committee assignments, another, the filibuster.

There are many ways but the same token, we think that it would be unfair if you gave Jackson County and Mobile County the proper number of representatives and Senators then after they’ve got that, told them they had to vote by county.

Supposed we’ve got seven then you said, “Alright now, you can go to where you’re committed, you can filibuster but when it comes to voting, we’re going to have a unit room,” which we think.

And — and that’s a — a perfect illustration of what we say is — is a denial of — of equality in the legislative process.

But we think that there has to be in both houses and although we do not right to argue that our constitutional provision violates the Fourteenth Amendment, we do believe that there is not any principle that can apply in the State of Alabama and we don’t have near the urban characteristics in New York.

It’s pointed out in the Solicitor General’s brief in non-largest counties here in Alabama have just about 50% of the population.

And those nine are from one any State of the other, and do not necessarily represent common interest or common views and would probably not act together or would rarely act together.

But we believe that the present constitutional provision with regard to House of Representative in Alabama does not meet the standard required by the Fourteenth Amendment and that we believe that either this Court should so declare by the lower court in the act.

Now, we — my particular appellants recommend a solution to that, it’s an experimentation in the type of unit but it ends up with equality of representation.

John W. McConnell, Jr.:

It maybe a little difficult to administer, but we think there’s even a way that you can conform to the Alabama requirements and give equality in the House of Representatives.

But we say — what we ask here is that this Court set out the standard and the guidelines for either the legislature or the lower court to follow an apportionment but that basic to it must be — and this was a thing that worked when they cited Fortson, a Georgia case and even show diverse is higher and others.

A question in the court’s man has to whether or not both houses or the bicameral legislature had to be apportioned to give equality of representation in each house.

And it was that type of language that concerned by the lower court was the principle reason what appeared here because we believe that you do not satisfy any bicameral legislature unless you have equality of representation in both.

Now, we take it from Gray versus Sanders that starts out with the idea of “one man one vote in a statewide” but we do not believe that simply by raising it to another level, to a representative that you can dilute that equality that you started with in the governmental process, here the legislative process, deluded by passing it through something that makes you come out with a different ratio or a different percentage at the next level.

Just as a county unit after all, suppose they had elected people statewide just, like the electors on the federal.

Those electors then in Georgia would have had a certain number of votes based on the country units.

We would have — the Georgia voter would have had equality in selecting elector but that equality in the final analysis would have been taken away.

But we — we urge the Fourteenth Amendment that applies to houses of a bicameral legislature.

If I get it, is that your argument — in what you’re really saying (Inaudible) determine to this case?

John W. McConnell, Jr.:

No, sir, I don’t see.

I — I would be glad to see Gray versus Sanders.

Naturally.

John W. McConnell, Jr.:

I won’t say it determines it but I certainly think that if you start with the proposition the — there that in a statewide office that each vote should count as one, I think that it end in one.

Because that’s basic and the idea of self government on a representative government that each citizen has equal and that participation and the only way you can carry that over into the legislature is to make that equality start with a vote for the representative and in the voice of the representative and the legislature.

Potter Stewart:

A legislature, a — an individual’s legislator has a constituency which is not statewide.

John W. McConnell, Jr.:

That’s right, sir.

Potter Stewart:

So he’s not a — a statewide officer.

John W. McConnell, Jr.:

But we start and Gray versus Sanders said that you must give each constituent in that —

Potter Stewart:

Within any given constituency and in that case, it was just the State one.

John W. McConnell, Jr.:

But as I said, I am a citizen of the State of Alabama.

I may live in the County of Mobile.

I am representative in a legislature that makes laws for the entire state.

Now, if my voice —

Potter Stewart:

But you have one or more representatives and they — they — who are responsible to your constituency.

John W. McConnell, Jr.:

I have representatives but when they get to the lawmaking body in Montgomery, they speak with a voice on equal to that are the adjacent county.

I can move across the county lines, suddenly my participation change in material.

But I am first a citizen of the State of Alabama, I am subject to laws made by one legislature and all I ask as a citizen is equal participation in that lawmaking process.

I believe my time up — yes.

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

Well, I would like first Mr. Justice White that this Court declared that the Fourteenth Amendment sets up first a standard of population which can be deviated from only under most compelling, and I would even —

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

Yes, sir.

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

No sir, I would — I would — I don’t think it went far enough.

But I think that as Mr. Vann said earlier —

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

Not to go back to the one part of that but to go far with the one that would comply with a guideline that this Court would set out, namely they both —

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

Yes, sir.

I — that — that was — is what we would answer.

Now —

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

Population equal.

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

As to both houses, yes sir.

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

I certainly do Your Honor.

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

I do because in a house, it would still give only 40%.

And if you look at the tables, tasks of the Court’s opinion, it shows a trend of population is going to get worse rather than better and that this 40% may go down.

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

Oh yes, sir.

Yes, sir.

I agree and — and I commend the Court after all it was a pioneering in a new field.

And I’m not criticizing the Court for not going any further.

I wanted too and I want this Court too because simply regarded, it didn’t go far enough but I — I approve of what they did but I ask for more.

Arthur J. Goldberg:

(Inaudible)

John W. McConnell, Jr.:

Yes sir, to this extent under the law that Mr. Vann mentioned in his interstate.

He looked — they provided machinery for just this thing, so that if any vacancies, you simply have an election in those counties or district which there is so that it wouldn’t be a complete turnover.

John W. McConnell, Jr.:

In fact, the invalidation of the way of Crawford and in the Senate resulted in only one election for assumption.

But if —

Arthur J. Goldberg:

If the special election (Voice Overlap) —

John W. McConnell, Jr.:

Special election.

Arthur J. Goldberg:

— certainly would not.

John W. McConnell, Jr.:

Though it’s —

Arthur J. Goldberg:

(Inaudible)

John W. McConnell, Jr.:

That’s right sir.

Arthur J. Goldberg:

(Inaudible)

John W. McConnell, Jr.:

Subsequent to the meeting of the Legislature, no Your Honor.

The legislature adjourned in September of this case, it already had been set down and — and as far as I know, no effort has been made in the lower court since the adjournment of the legislature.

Byron R. White:

(Inaudible)

John W. McConnell, Jr.:

I —

Byron R. White:

The court (Inaudible) determines to affirm these solutions.

Do you (Inaudible)to you that it would start by a separate (Inaudible) the house?

John W. McConnell, Jr.:

That is what troubled us Your Honor in —

Byron R. White:

(Voice Overlap) that you are (Inaudible) —

John W. McConnell, Jr.:

Because if you noticed on page 151 of the record, it says the result may well be that representation of court in a population to some extent and the court italicized that in its opinion to some extent must be required in both houses and it italicized both, this is in the middle of the page there, if invidious discrimination, the legislative systems as a whole.

Now, when we agreed with that as a whole, but this to some extent, worries me because I think that the court maybe as the Attorney General would be satisfied with the house being apportioned in accordance with the requirements of the 1901 Constitution and the way of proper — or the 67-Senator provision.

That I would read that, it’s not clear but I — I think it’s open to that inference.

Tom C. Clark:

Mr. McConell, how many counties would there be and even your view prevail that did not have a representative?

John W. McConnell, Jr.:

Well, Mr. Justice Clark, one of the footnotes we just point out that out of 67 counties, only 27 had a population in excess of the ratio of 30,000 per representative, if you divide 106 in their population, only 27 would be entitled to one.

The remaining 14 except for a few, some of them are closed to the line and you might (Voice Overlap) —

Tom C. Clark:

It’d be a floterial districts.

John W. McConnell, Jr.:

It would have to be floterial district and so it would be over half of the counties.

Tom C. Clark:

Would not have a representative.

John W. McConnell, Jr.:

Would not have a single —

Tom C. Clark:

I mean a single one.

John W. McConnell, Jr.:

They would have a representative but not elected by them solely.

Earl Warren:

Thank you Mr. McConnell.

John W. McConnell, Jr.:

Thank you.

Earl Warren:

Mr. Solicitor General?

Archibald Cox:

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

Before I come to my argument proper, I want to comment very briefly on two points with respect to which our brief maybe misleading.

First is this question concerning the interpretation of the provision in the State Constitution, “No county shall be divided between two districts and no district should be made up with two or more counties not contiguous to each other.”

It’s the first half of that that we’re concerned with.

We have assumed in our brief that this meant that no county could have more than one senator.

Now, I did not — we made the assumption partly because it seemed to make the case hardest against this.

We made the assumption also because we understood perhaps wrongly that that was the interpretation people in Alabama put on it.

I did not mean to be arguing that that was the right interpretation.

Indeed, as I read it as an outsider, it seemed to me it was an extraordinary interpretation and then I would have read the other way.

Byron R. White:

Did you say harder —

Archibald Cox:

But this —

Byron R. White:

— harder case?

Archibald Cox:

I thought it made it a somewhat harder case for us, yes.

Byron R. White:

But why is that?

Archibald Cox:

I have to read it the way they do because —

Byron R. White:

(Inaudible) you said — that you say that one county that you assumed that needed one county per senator or one senator per county.

Archibald Cox:

Yes.

Byron R. White:

That’s the way you read it.

Archibald Cox:

Well in that event —

Byron R. White:

(Inaudible)

Archibald Cox:

Well I didn’t think so but maybe I’m wrong.

I thought at least they’re reading it that way, Alabama could say that in the Crawford-Webb Act and some of these things, it was conforming to its own Constitution and it also could cite as support for what it’s doing in the provisions and a good many state constitutions that do say, that on — county can have only one senator.

And it seemed to me that those things cut against it.

The only point I’m really trying to make is that I do not want to seem to be expressing a considered view on this question, it’s a question of Alabama law, and I’m one of the last equipped by background or experience or anything else that have a view on it.

I’m just going to make a claim that we don’t argue either way.

Potter Stewart:

You — it does seem to be though Mr. Solicitor General.

I should change it.

I’m leading from the footnote 13 at the bottom of page 22, the very last sentence.

Potter Stewart:

A clause after semi-colon, you said that the State’s own interpretation leads to the contrary, that is the State’s own interpretation is that there should be no more than one senator in any one county.

Archibald Cox:

Well that was —

Potter Stewart:

And you claim they’re controlling now, if you change that view as to which — as to how the status (Voice Overlap) —

Archibald Cox:

But after listening to what has been said here about the Alabama understanding an Alabama practice, I’m bound to say that that raises some question in my mind as to whether that is the State’s own interpretation.

That was the point I was trying to make to bring it out very well.

The other point on which I think I was guilty of some misunderstanding is in no statements in which I said that it was questionable whether the Crawford-Webb Act had become effective.

Upon rethinking that, it seems to me that it is quite clear that it would become effective as of the 1966 election.

And that the statement said, it say that this was intended to take effect only if the constitutional amendment were voted down are inconsistent with the words of the Crawford-Webb Act.

It said it shall effect as of the 1966 election was known ifs, ands, and buts, so that the constitutional amendment, would I take at least out of the conditions subsequent rather than its defeat thing, a condition proceeding.

I don’t think the use of matter either of them, matters to go to the essence but I did want to beguile you of misleading the Court.

Alright, now I do come to the points that we wanted to develop.

Our position as stated in the brief is that the judgment below should be affirmed.

There are number of issues in the case, three apportionments that I think it all falls most easily into place, if we take up the questions in the same sequence that they came before the District Court, what they are facing.

And I shall attempt to relate each of those issues to the basic thesis that I sought to expand yesterday.

But the first question in the District Court was rather the apportionment in effect in Alabama then, the 1901 apportionment violated the Equal Protection Clause.

It’s quite blind I think and to defeat it is hardly argued that that apportionment violated the Equal Protection Clause under the second principle that I sought to state yesterday.

In other words, that it discriminates between people, they stand equally — unequally before the election law without any rhyme or reason, without any justification before the inequality.

And under Baker and Carr, the Court has power to adjudicate that would we should think without any question hold that that apportionment is unconstitutional.

We’ve given the evidence, so it’s a crazy quilt in our brief I see no need to take the time to give the Court a message that was here.

The question then arose but remedy should the District Court direct.

The legislature had already considered this question by raised to the fact that the District Court before it made a firm adjudication had indicated its views and an opinion, and the legislature had done three things.

First, it had provided no rule for the November, 1962 election and there was a legislature to be elected then.

It did pass a law indicating that if the court should direct an apportionment and then the state election would be conducted in accordance with that apportionment, which in effect indicated that if a State was prepared to fit with what the Court might do.

At second, the legislature put up to the people, the so-called 67-Senator Amendment to be voted in November, 1962.

And third, it enacted the Crawford-Webb Act that I referred to early.

That would seem to me that at this point, the District Court was required to consider the 67-Senator Amendment not as an effective provision because it hadn’t been ratified by the people and I supposed ordinarily, a court wouldn’t passed on — the federal court, it wouldn’t passed on the constitutionality of something that hadn’t become effective law.

But here, the Court was under an obligation to shape any decree it might entered as closely to the desires of the people of Alabama as expressed through their public arguments as it was able at the — the prime rating if I may use that expression that the legislature, the best desirable in Alabama, subject to criticism as it might be as unrepresentative had indicated that the apportionment in the 67-Senator Amendment was the one that it thought was most desirable.

And if that did not infringe on the plaintiff’s constitutional rights, then I would think that it would have been an error of law for the District Court not to incorporated that in its decree or at least to permit the election to have been conducted in accordance with that apportionment.

So the court was obliged to consider whether the 67-Senator Amendment would infringe on the plaintiff’s constitutional rights.

It was obliged to consider the Crawford-Webb Act for the same reason.

Archibald Cox:

Now of course, the 1962 election has been held that the Crawford-Webb Act is still in a reality with respect to the 1966 election and therefore, would have to be considered.

So I think that both of those apportionments are before the Court for properly — for consideration just as if they were effective law.

The 67-Senator Amendment, we say is invalid because it makes classifications or differentiations that within the usual equal protection standards are arbitrary and capricious, point out that something maybe arbitrary or capricious for at least three reasons.

They correspond to the second, third and fourth to the proposition as I outlined yesterday.

Something maybe arbitrary and capricious because there was no intelligible foundation to just if — through days had some other system like that.

That’s not applicable to the 67-Senator Amendment.

It does have a rule both with the respect to the Senate and with respect to the House of Representatives.

The rule in the Senate you’ll recall is one from each county.

The rule in the House is one from each county and then the rest according to population.

Potter Stewart:

Does this mean that does not violate the crazy quilt doctrine?

Archibald Cox:

I think it does not violate the crazy quilt doctrine.

Potter Stewart:

In argument.

Archibald Cox:

Yes, that doesn’t mean it’s good.

Potter Stewart:

No, I did not —

Archibald Cox:

It’s not meant on that ground.

Potter Stewart:

It does not violate the crazy quilt doctrine.

Archibald Cox:

Right.

I think in addition to Mr. Justice Stewart that it does not violate the doctrine that I stressed yesterday in the New York case.

Potter Stewart:

The no rhyme or reason doctrine?

Archibald Cox:

No that’s the crazy quilt doctrine.

Potter Stewart:

They are — they are synonymous, are they —

Archibald Cox:

There are just to (Voice Overlap) the same thing.

Let me — let me just include the two or three sentences and perhaps I then can make what I’ve been trying to say clear.

I take it that something maybe arbitrary precious even though intelligible, in the sense that the line that it draws, the differentiation, has no relation to any — no — no rational relationship to any permissible legislative purpose.

But that — that is true in Brown against Board of Education or it’s true in any number of cases that there is an intelligible differentiation of pattern.

And I say that if there is a pattern violates — does not violate the crazy quilt doctrine, still it is an irrational differentiation if the criteria bear no rational relationship to a permissible legislative purpose.

Now, we said that the New York apportionment of the Senate bore no rational relationship when you examine it closely to any permissible legislative purpose because the purposes that would claim for it keeping the size of the county small, giving people access to their representatives and so forth, were purposes that it had to tendency to accomplish when you examined it.

The county — the districts were getting bigger.

What it did was create a class society in a political sense that it happened to say that one class of people should have more votes than another, and that was its only function.

And that we say is a denial of equal protection.

Archibald Cox:

It is not related to any permissible legislative purpose.

Now, the 67-Senator Amendment is not bad on this ground Mr. Justice, in our view.

It is — it has a rational tendency to do two things.

It does — or three things that I suppose taking a — it has a tendency to assure that each county will have at least one representative while at the same time, the legislature does not get so big as to be unmanageable and I presumed that those are not only intelligible but permissible purposes of legislative apportionment.

And in the case of the one senator for each county, it again tends to do the same thing.

So the question arises at this point —

Potter Stewart:

And with respect to the Senate, that’s — that’s the limit of what it propose —

Archibald Cox:

That’s all — that’s —

Potter Stewart:

— more or less, one senator for each counties.

Archibald Cox:

Yes, and the House, it really combines two things, —

Potter Stewart:

Right.

Archibald Cox:

— it’s population and one free.

Potter Stewart:

But in a house, it gives one member to each county than the overflow —

Archibald Cox:

Than the overflowing population.

Potter Stewart:

— population.

Archibald Cox:

That’s correct.

Potter Stewart:

And the — the limit is on the total size of, what 135 or?

Archibald Cox:

105.

Potter Stewart:

105.

Archibald Cox:

That’s correct.

And 67 of them are distributed one for each county which leaves you another 38 to distribute by population.

It results as I point out in a moment in the smallest — the majority might be elected by, I think it’s 41% — by counties having 41% of the population.

In the Senate, it’s much, much smaller.

The Senate is less than 20%.

This brings us to a further of sense in which I think something maybe an unreasonable or arbitrary and capricious differentiation and that is when the objectives to put it generally that the law seeks to accomplish, are so trivial, so inconsequential in relation to the interest that are being sacrificed that anyone would say that that is an unreasonable and arbitrary of balance that has been struck.

And then an effort to incorporate that in the language suitable to the apportionment problems, we suggested as our fourth proposition that the Equal Protection Clause is violated by an apportionment which subordinates the principles of popular representation in majority of rule to other permissible objectives of apportionment to such a degree as to create gross in equalities, in per capita representation and give control of the legislature to representatives chosen by very small minorities of the people.

In applying this principle, the legislature we think must be judged as a whole.

One must have a rule that would be applicable to the unicameral legislature and they had clearly judged it as a whole.

On the other hand, I think in attempting to give more meaning to that general statement, it’s appropriate to take into account that it will generally have to be applied to bicameral legislatures in this county, not invariably but generally and it’s appropriate to see how it would apply to them, so that we suggest to subordinate comments to the generalization.

First, we assume because there’s no need to call it otherwise in these cases that when one House of the Legislature is apportioned substantially according to the population then we assumed that the Fourteenth Amendment may leave considerable room in the other house partaking these other permissible purposes into account.

Archibald Cox:

On the other hand, we submit that it — would require the very strongest kind of showing of other purposes, the — the need for fulfilling them and their importance to justify substantial departures from per capita equality and the sacrifice of majority rule in both houses of the legislature.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Well, I would think that majority rule will not operate a 100% unless you have per capita equality in both houses.

Arthur J. Goldberg:

Yes, but —

Archibald Cox:

That’s quite clear.

But I was not suggesting that there must be majority rule in the legislature.

I was saying that you couldn’t subordinate it too far to these other objectives.

Arthur J. Goldberg:

What too far?

Archibald Cox:

Well, I think that is something without sound suspicious.

I think that it has to be decided to each case.

In these cases, it is very, very far as I will attempt to show and it is in both houses.

(Inaudible) your population, the rule of (Inaudible)

Archibald Cox:

I would think there was no denial of equal protection.

— of both houses?

Archibald Cox:

Of equal protection, I don’t — I don’t — I haven’t thought of case before but it — it seems to me that all voters, all the populations are being treated alike.

It would be a peculiarly negative form of government but I would — I don’t see immediately and in respect in which people are being classified, their voters are being classified.

Or equally, I — I don’t want to divert too far but I do hoped to deal with this — the question sometimes.

I supposed abolishing the legislature doesn’t violate the Equal Protection Clause.

The question is if you have a legislature and give people the right to choose it just as if you have a court system and give people access to the court then that is equal protection applies.

Now Mr. Justice Goldberg, I — I suggest the answer to the question of degree, let me make just one further answer to this like all questions of degree, it’s hard to get a fix rule but I think sometimes we can clarify our thinking by articulating the generalization, loses it maybe in different ways.

And it occurred to me that what we have — the proposition I have formulated might be put in somewhat different language on this way.

Looking at the balance that the State has struck between these other purposes, like not too large districts, a recognition of the county or town as an entity.

Here’s what it has — looking at it, does one get the conviction that what it has done is try to balance between the notion of per capita equality and majority rule and these other competing considerations that require some modification or as what it has done to weight some areas or some classes people who live in some areas or some categories of people as more important in the political world than others.

When you look at it, which conviction are you left with?

If you’re left with the conviction that this involves creating preferred political classes and subordinate political classes then it violates the Equal Protection Clause.

If you’re left with a conviction that the legislature focused on what I would define as its job and struck this balance well, we might not agree, still it would seem to have done it conscientiously then I think it might satisfy my test.

That’s, again, not more precise.

Let me come to — let me come to this particular case because the 67-Senator Amendment is, I think, most egregious in this respect and Maryland is most egregious in this respect.

And this — and these are really the only two instances that I don’t think you have to face it at Maryland in which this question of degree does have to be faced so that — I — I don’t have to fix and the Court doesn’t have to fix the line and I think it would be wise not to fix the line at least until this — and some pretty clear view as to where it would be.

Potter Stewart:

In New York — in New York, you told us we have —

Archibald Cox:

In New York I don’t have to reach this proposition.

In New York — the rule in New York apportionment its Senate on is — has no relation to any permissible legislative purpose.

But let me put — let me put it — let me put an illustration there like this Mr. Justice Stewart which is not any of these cases, though it’s close to the Virginia case.

Suppose that in New York, the people of Erie County, which is one in Buffalo, one of the big counties, were given only one representative and only one senator, and the rest of the State was apportioned according to population.

I take it to the state would look pretty good in terms of the smallest minority that could control the legislature in either house in terms of majority rule but there would be a clear and an irrational, indeed an invidious discrimination against that county as a matter of majority rule would have to be looked at, at all.

So in the New York case, if you examine it closely, that we suggest this in our brief, we didn’t do it as a good job as within I have but if you examine it closely, you’ll see that the discrimination between the county is over 6% or 350th as the Deputy and Attorney General insist that we must say instead of 6%, does not tend to accomplish any of the purposes that keeping county small.

The counties have been getting bigger.

The people who have been benefiting as — excuse me, the district has been getting bigger.

The county is having the senator, the senate district.

The people who have been benefiting are the people in multidistrict, multi-senatorial district counties with less than 350th, so that we say it has — it falls under my second rule.

It has no rational tendency to accomplish any permissible purpose.

You don’t have to consider this burden.

William J. Brennan, Jr.:

Mr. Solicitor, may I get back to the moment to the 67 —

Archibald Cox:

Yes.

William J. Brennan, Jr.:

— Senator Amendment.

I gather, if I understand your brief correctly, your difficulty is that there is not only one senator for each of the 67 counties but also at least one representative for each of the 67 counties leaving in the lower house only some 39 sets to the apportion on population.

Archibald Cox:

Yes, yes.

William J. Brennan, Jr.:

Are you suggesting that — but let me put the question this way.

If the entire lower house proportioned on the population, would you have any difficulty?

Archibald Cox:

Yes.

Oh, well I really — excuse me, I spoke too quickly.

I — I’ve laid that question to one side and I say it would be a much harder question than the Court has to decide now.

William J. Brennan, Jr.:

But would I still get in trouble?

Archibald Cox:

I think it’s the majority — if the inequalities in the Senate are very, very great and the majority and that the proportions of people who can elect a majority of the Senate is very, very small then the fact that the other house is apportioned according to population, I would say should not be enough to save them.

I am under no necessity of arguing that —

William J. Brennan, Jr.:

But there had to be some kind of population basis —

Archibald Cox:

Yes —

William J. Brennan, Jr.:

— even in the choice of Senate.

Archibald Cox:

But to — to illustrate the principle and not to just lay any emphasis on the figure.

I should think one might well say that if you have population in the lower house and in the upper house, it would take 33% of the people to elect the majority of the senators and it wasn’t too gross inequalities between the county that that would do.

Archibald Cox:

But then if it got way down below 20% as it does in Alabama that that wouldn’t do, alright.

In other words, I think it’s not just to answer both in terms of the two houses.

Although, I point out here that if you don’t have to go that far because neither house —

William J. Brennan, Jr.:

But I — but I would suppose that it might also follow that if in the upper house, it took say 55% to elect the majority of the senator.

Let assume it had all got all the better than 50.

Archibald Cox:

I don’t (Inaudible)

William J. Brennan, Jr.:

Well, alright, 50 or whatever it is, it kept the very high figure anyway.

Archibald Cox:

Yes.

William J. Brennan, Jr.:

And you might still say that the requirement of a single senator — of — the assurance of one assembly man in the lower house might still be —

Archibald Cox:

Oh no.

Well, I think it would be a very freak situation.

If you have one assembly man in the lower house, plus a remainder distributed according to population, your percentages will not drop very, very low —

William J. Brennan, Jr.:

Well, how’s —

Archibald Cox:

— will drops down to around 0.5.

William J. Brennan, Jr.:

— suppose the remainder instead — supposed to — as supposed we — we assumed in the upper house with 50% —

Archibald Cox:

Yes.

William J. Brennan, Jr.:

— like the majority.

But you have a lower house not of a 105 is here with only 39 out of my list if it’s any good.Of course and according to population which had an upper house say of 150 for which it had 75 or 80 according to population even though there was one assured to each county in the lower house.

Archibald Cox:

I — then I think you’d come out would very nearly substantial per capita equality in both houses.

But I think my answer is that if one is substantial equality, then the other can drop fairly low.

If they both start dropping below substantial equality, they’ve got to meet up here.

I don’t want to emphasize again.

I guess I’ve said too much that here neither house is anywhere near equality.

Byron R. White:

But when the other house, say if one house is on population and the other one drops below as you put it, you would require that the reasons for it’s dropping below be something other I supposed than simply referring urban against rural or rural against urban.

Archibald Cox:

Oh I think those are absolutely irrelevant, —

Byron R. White:

Yes.

Archibald Cox:

— that they may not enter into this scale at all.

They might be these things I tried to state yesterday as permissible purposes but urban against rural or management against labor or anything that it involves, what I think can fairly we called class distinctions in the political world are out.

That seems to me the essence of what equal protection means that you can’t set up political class.

Byron R. White:

So if a State comes here and says that, “We — we would like to have one house buried in the population, the reason is to keep nine cities from having control” and you would say, ”That is unacceptable.”

Archibald Cox:

I would say that that was not acceptable, yes because Your Honor, put the point very well yesterday.

When you talked about keeping nine cities or the majority from having control, you were necessarily saying we’re going to turn the control over to a minority.

And I — whether the majority maybe trusted or not, I say no greater reason to trust the minority and the hypothesis of our constitution is that one is neither better nor worse than the other.

And — so that would be my answer to that — to that line of argument.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Well, I — I would say — no.

I — I don’t think so.

I’ve — I think that some of these things are very real.

My political experience is limited to having bit of town that official where the town is the unit of (Inaudible).

And I think it was very real that the people in the legislature, the general court look to the people who are the town officials to know pretty well what was going into that — going on in their town, what its people thought, what its needs were.

And I think this is something of which can be — I assume can be taken into effect.

I think it’s a real argument.

It’s a different kind of argument at least other than arguments that are made about the rural against urban.

Now, to this extent Mr. Justice Goldberg, I — of course, we would have to agree with you.

I assumed that it happens in a great many instances in legislation.

We both know when the labor (Inaudible) that one reason will be given and another reason is in people’s mind.

But as long as the Court and this allows play in the joints, I think it is a good thing.

As long as the good reason is available to justify it, I don’t see how the court can go behind it and say that they’ve taken these other things into account.

That’s why a moment ago in trying to rearticulate my test in way I — I spoke not of the practice of the legislation but of what the legislation — its function was, what looked that objectively it seemed to do.

Did it create preferred classes or was it something that looking at it that honestly be judged the other way?

May I say just one sentence Mr. Chief Justice?

Earl Warren:

Yes.

Archibald Cox:

With respect to the decree below, it seems to us that the Court, the District Court, for reasons that it very well articulated made a wise exercise of its discretion here.

It concluded that the decree would enable the legislature to reapportion itself.

It retained jurisdiction to act if it had to and bearing in mind the delicate interplay between the State and the federal court, between the political function and the judicial function, it seems to us that that was clearly not an abuse of discretion.

Earl Warren:

Mr. Pitts.

W. McLean Pitts:

Mr. Chief Justice, may it please the Court.

I have — and this with infamous argument for which in counsel and I must — trying to this proposition, I’d like to call the Court’s attention.

This is in the dissenting opinion by Justice Harlan, which I view the same way in which he asked before.

I can find nothing in the Equal Protection Clause or else where in the Federal Constitution could expressly or impliedly supports the view that State of Legislature must be so contracted as to let with approximate equality of the force are irrevocable, not only is that proposition hinted by history but it strikes deep into the heart of our federal system.

W. McLean Pitts:

Its acceptance would require us to turn our backs on the regard which this Court had always shown with the judgment of state legislators and courts all matters basically of local concern.

Now, that was — that was Mr. Justice Harlan’s — taken from Justice Harlan’s dissenting opinion in Baker versus Carr, which is our position in this case here.

He asked me, in my open argument whether or not I should subscribe that I found anything or — the way he put it was that are must necessarily I believe attack —

(Inaudible)

W. McLean Pitts:

Yes that’s right.

I believe you Mr. Justice Harlan.

But I want to get back to this proposition.

I wish that was in the majority.

If we are — as I see this case here, if it’s in three years — it’s got to be in three years discrimination before it could violate the Fourteenth Amendment of the Equal Protection Clause.

Now, if nearly the cause of proportion on its population then we must look to the United States Senate.

If we look to United States Senate, you can see where in 19 — according to 1960 census, date, years of following figures 31 million people in the 26 most populous state representing 17% of the population of the United States had 52%of the representation in the United States Senate.

Now, as Fourteenth Amendment going to look forward, more protection to the voters then it would in — and to its state voters then it would to federal voters.

Now, that’s the proposition it seems to me that this Court faces.

The other proposition is — in history I believe I’m correct in stating this, then on our system of Electoral College.

I believe that there has been a person elected that didn’t receive the popular vote, majority of popular vote but received the majority of an Electoral College.

Now if our system in Alabama is so discriminator that it violates the Equal Protection Clause then why don’t those two provisions there provide us some protection under the Constitution.

Why don’t we get some protection from these other states, in the federal election, in the Senate?

Now, we contend that the Alabama Constitution was a rational claim by putting certain checks in there but not having over 105, it kept the house to the lowest.

Thirty-five senators and then you had to form your senatorial districts.

We contend that that, it will not any and discrimination there in the Constitution itself, but it was because the legislature had failed to act over a period of 60 years.

And when they did submit the 67-Senator Amendment, able to try to submit it to the people before the people ever had a chance to vote on it, it was dropped down by our federal court.

Byron R. White:

Is the — is the Crawford-Webb Act now in — is in effect, isn’t it?

W. McLean Pitts:

The way of the Crawford bill?

Byron R. White:

Yes.

W. McLean Pitts:

Well, it’s not in effect because the Federal District Court has knocked it out.

Byron R. White:

I know but the — there was nothing — there was nothing left to do, nothing left to happen to it in some of the effect.

W. McLean Pitts:

No sir.

It became in effect in 1966.

Byron R. White:

If the Court has enacted it, it would — I guess —

W. McLean Pitts:

If the Court had enacted it, the way of Crawford to be able — it would be gone into low in 1960.

Byron R. White:

But the only and the only apportion of system that is in effect — that would be in effect is the court’s order does not stand is the old system.

W. McLean Pitts:

Would be the old system, yes, sir.

Byron R. White:

Yes.

W. McLean Pitts:

But —

Byron R. White:

Without either the constitutional amendment or the (Inaudible)?

W. McLean Pitts:

You mean if — if this Court should reverse the decision?

Byron R. White:

(Inaudible)

W. McLean Pitts:

I would say that the 67 —

Byron R. White:

There were just an out — there were just an out effect outright to the person —

W. McLean Pitts:

I will say that —

Byron R. White:

— outside the court’s order, the only apportionment system would be in effect is —

W. McLean Pitts:

Within the 67-Senator Amendment bill (Voice Overlap) —

Byron R. White:

Well, it’s in effect.

It’s in effect.

W. McLean Pitts:

Sir?

Byron R. White:

People have never voted them.

W. McLean Pitts:

Yes, sir but it would’ve been resubmitted to the people by —

Byron R. White:

I know but — as of now — as of now, they wouldn’t be —

W. McLean Pitts:

As of now, yes.

But the way of the Crawford to be able to be — it would back on the book.

Byron R. White:

I understand, I understand but not in the 1966.

W. McLean Pitts:

I understand — that’s right.

And the Senate — and the 1967 started the membership could be submitted to the people as a constitutional amendment.

Byron R. White:

If the — actually the legislature that’s been elected wasn’t there — if the current legislature wasn’t elected with the old apportionment of it.

W. McLean Pitts:

No, sir.

It was the current legislature was elected under this Court.

Byron R. White:

Interim order, into the interim order.

W. McLean Pitts:

Yes in the Court’s approval.

The two bills would put together.

The 67-Senator bill and the way of Crawford bill take into provisions of the house from the 67-Senator and the provisions of the Senate from the way of Crawford, the two put together that is what the federal court decree.

W. McLean Pitts:

We submit to the Court that the people of Alabama should have a right to vote on their own constitutional amendment in which their legislature has fast, they should be given the right and have the opportunity of voting to see whether or not they would reapportion the Legislature of Alabama.

Now, even though that may not meet the requirements of what the people — the attorneys of the appellee desired still there would be a reapportionment and I do not believe on the Baker versus Carr that it would be any invidious discrimination there, that there is a rational claim.

And for that reason, we say that then we’d have a reapportioned legislature that would meet the requirement of the test that has been laid down by this Court.

As to what this Court could do is to be reversed, that might have put several things.

It could be reversed and a — could — the legislature could be forced to submit or — or to require all of the numbers to run on a state of large base.

I don’t think the Legislature of Alabama is addressed by the Attorney General’s statement and the other attorneys with the appellate that the Legislature of Alabama would ever allow that to happen.

I think that they would pass some type of reapportionment bill that would reapportion the State of Alabama.

But to place what these gentlemen wants, attorneys for the appellate on the basis that they want re-approval is strictly have in both houses on this population basis then we are going to have a big majority of the State of Alabama that is not going to have any representation but is going to be under the thumb of the dense areas where the population has grew because of industrial area.

And we submit that it’s just as bad to have a people living under those conditions as is to be having a minority of ruling a majority.

We believe that the Constitution of Alabama has set a system of checks and balance and it stated how it should be in it and if the constitution in providing for representation in the House of Legislature is reasonable, rational and can be bought.

We respectfully submit to this Court that this case should be reversed and the opinion of the District Court.

Earl Warren:

Mr. Scanlan.

This is —