Sailors v. Board of Education of the County of Kent

PETITIONER:James Sailors
RESPONDENT:Board of Education of the County of Kent
LOCATION:El Paso Natural Gas Co. Headquarters

DOCKET NO.: 430
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 387 US 105 (1967)
ARGUED: Apr 17, 1967 / Apr 18, 1967
DECIDED: May 22, 1967

Facts of the case

Question

  • Oral Argument – April 18, 1967
  • Audio Transcription for Oral Argument – April 18, 1967 in Sailors v. Board of Education of the County of Kent

    Audio Transcription for Oral Argument – April 17, 1967 in Sailors v. Board of Education of the County of Kent

    Earl Warren:

    Number 430, James Sailors et al., versus Board of Education of the County of Kent et al.

    Mr. Strawhecker or Mr. Mi — Mr. Miles first.

    Wendell A. Miles:

    Yes, Mr. Chief Justice.

    It is the contention of the appellant, Mr. James Sailors and others individual plaintiffs of this case that the constitutional principle of Reynolds versus Sims companion cases related thereto extends to the county level of Government.

    And on that basis and consistent with those decisions any logic and in some policy that the Equal Protection Clause extends no less to the local level than it does to the state level.

    The facts involved in this matter as far as James Sailors and his people related individual plaintiffs are concerned or spouse.

    Under the 1960 Census, Kent County, the second largest populous county in the State of Michigan, in Western Michigan had a population of some 363,000.

    The City of Grand Rapids which also comprises the Grand Rapids School District has a population of 201,000 of those 363,000 or some 55%, that after World War II as in all communities, large communities, the flight to suburbia the core cities became surrounded with the young afluent populations who generally and before that time had been living in the city to help solve the city’s problems.

    And the city itself became the receptacle for large numbers of poor culturally deprived people.

    It is the contention of the plaintiff that in order to preserve its tax base, the plaintiff as a citizen of the school district, the City of Grand Rapids, and others within that school district made various annexations surrounding and this is rised to the particular controversy involved.

    Now, there’s a peculiar system set up as an extension of state government into the county level.

    Part of county Government is taken cared of by a Board of Supervisors that handles the ditches, the roads, and matters of that type.

    And another part of state government delegated to the county level provides for a county board of education.

    Now, this is an all powerful important body.

    In the City of Michigan under the appropriate acts, this board is composed of five people, the county board in each of the counties of the state, five members and each two years biannually.

    Notice goes out to each of the school districts in the county, the individual school districts in the county of which at the time of the origin of this case there was some 40 to 50 to come at a common place and each representative of each of these school districts may then cast its ballot, its ballot for a member or two members for the exception of the third time around of the county board.

    William O. Douglas:

    Does the popular vote ends with the election of the local school district?

    Wendell A. Miles:

    Popular vote as such Your Honor, Mr. Justice Douglas, is so set that the indiviudal voter elector has voted for his candidates for the local school board.

    That local school board sends its member to this constituent assembly which in turn elects the five members to the county board.

    Incidentally —

    Earl Warren:

    Does the first board have proportionate representation?

    Wendell A. Miles:

    Is the first board Mr. Chief Justice is elected at large in each case, it has proportionate representation.

    Earl Warren:

    At large in the county?

    Wendell A. Miles:

    Yet large within its school district.

    Earl Warren:

    In school districts.

    Wendell A. Miles:

    For instance as a resident of the City of Grand Rapids with some 201,000 other people, I am allowed to vote for the nine members of my school district.

    And that 201,000 people school district representing 55% of the population of the whole county is allowed one vote as it casts its vote for a member of the county board.

    If I was a member of an area known as Nelson Center, I would be coming from an area of 100 people.

    I would be casting my vote for the school board which reflects my view, my thought at the next county school board election.

    And as a person from Nelson Center, my vote is cast for a member of the county school board equally to and alongside of that member of the City of Grand Rapids School District that has 201,000 people.

    Wendell A. Miles:

    Thus we have asserted that the ratio of imbalance and the county school board for the County of Kent now known as the intermediate school board was at the time of the election of the people that took action on this case some 2000 to one between the Grand Rapids School District and Nelson Center.

    That has now been corrected all the way to 900 to 1 as we understand.

    You say that it still a hopeless imbalance.

    Now, the State of Michigan has delegated educational functions on the county level, and these are extremely important to every person in the county.

    The county board is stripped down of all of its labels is a legislative body.

    It sets policy for the entire county.

    It has the power to tax.

    It has the power to levy taxes on everybody of the county.

    And at the time of the creation or voting for the constituent board that existed at the time of the action.

    In this case, 2% of the people in Kent County could control the county board which would determine what taxes would be laid upon all of the people of the county for various functions special education, bonding.

    Furthermore, the county board is empowered to set up a separate school for juvenile delinquents working with the courts.

    It’s a policymaking board what position should the county board take with reference to juvenile delinqeuncy in the county of education of youth.

    What position should it take as to what taxes should go for special education or not.

    Now, another peculiar twist is that the constituent assembly, and by the constituent assembly we say that this one representative of each school district whether it be the one representing 201,000 or 100 people has the ultimate power under the Act, this constituent assembly, the ultimate veto power on the amount of taxes that will be levied by this county board.

    Now, we assert and claim that this is nothing more than a sophisticated method of depriving the people of equal representation and although more so in this case because it has the power to tax, because it has the power to bond, because it imposes obligations on people, not school districts, not on stamps, but on everyone.

    It may have and does have the power to oppose the same tax on an elector, a person who lives in the Grand Rapids School District whether 201,000 people as it has for Nelson Center that has 100 people.

    And we submit that with this all powerful power to tax, that with this all powerful policymaking legislative body which it is in determining policy in the County of Kent that it must be under logic commonsense because it is the contention of the appellant, James Sailors and others in this case.

    Earl Warren:

    I didn’t quite understand what you said after it has the power to tax, you then said it had the power to do something else.

    I didn’t understand whether it was to borrow or to buy, which did you say?

    Wendell A. Miles:

    I said, I’m sure I didn’t say borrow — bond, bond, Your Honor, Mr. Chief Justice, bond the public.

    Earl Warren:

    Bond.

    Wendell A. Miles:

    Bond.

    Yes.

    Earl Warren:

    Oh yes.

    Wendell A. Miles:

    Which the Court says it’s an obligation and —

    Earl Warren:

    — that’s borrowing a little too.

    Wendell A. Miles:

    The Court properly understood —

    Earl Warren:

    Yes, bond.

    Wendell A. Miles:

    — or know the other word, yes.

    Bond, borrow, certainly, obligate —

    Earl Warren:

    Bond the whole county.

    Wendell A. Miles:

    Yes Your Honor.

    Now, it is of such importance if both sides in this case agree that it is a very important board, that it has very important functions.

    And we understand and we contend that any legislative body that has the power to tax and tax some people should therefore be one that represents people or the people should be permitted to vote taxation-wise or vote on the legislation themselves, not an old town hall system but either the people should have the power to vote on taxes or the power to give direction to the county school boards function to whether the school should or should not be set up for juvenile delinquents whether they should or should not have special education to provide for retarded children, and otherwise, either the people should have this direct power to vote on it or its representative should have one or the other.

    And that the people of the Grand Rapids School District certainty are deprived of the power to vote equally because they don’t have equal representation.

    Byron R. White:

    Does it make any difference to you what the actual result in this case was in terms of where the five men — men — five men board came from?

    Was the election held?

    Wendell A. Miles:

    It would make no difference to us where they came from, Your Honor.

    Byron R. White:

    Whether the four of five come from Grand Rapids?

    Wendell A. Miles:

    No, it would not Your Honor whether they came from Grand Rapids or they all came from Nelson Center, if the —

    Byron R. White:

    But where did they come from in this case?

    Wendell A. Miles:

    Mr. Justice White, one of them came from the City of Grand Rapids as this has been stated in the briefs as a courtesy.

    They allowed the City of Grand Rapids to have one.

    The other four came from out county and traditionally come from out county that is other than the City of Grand Rapids.

    One of them as a matter of fact that voted in this case to the annex certain property from the Grand Rapids School District had a proposition before the same board.

    And he moved or second to the motion to deannex a piece of property from the Grand Rapids School District.

    And at a subsequent meeting, he come in from the Grandville School District one of the smaller ones was likewise awarded a piece of property from the Grand Rapids School District.

    That is to say, proposed or second the motion to deannex a piece of territory from the Grand Rapids School District on one occasion and have pending before the same body at the same time a petition to deannex another piece and he was given —

    Byron R. White:

    What if the Michigan law provided for appointment of county school boards by the governor?

    And the governor made the same appointments to the — this particular county school board that it — that — that the same people from the same places and Grand Rapids would feel like they’ve been left out with only one out of five men.

    Would they have any complaint under Reynolds against Sims?

    Wendell A. Miles:

    Yes, Mr. Justice White I believe they would.

    It would certainly satisfy part of it that the responsibility of the governor that is being elected by all of the people as far as the people of the County of Kent and specifically the City of Grand Rapids School District is concerned, there would — the governor is accountable to everybody it would be a vast improvement but we insist that it would be clearly unconstitutional because we as citizens have the right to participate in the election of those who impose taxes upon us.

    Byron R. White:

    Well, what if the Court — what if the Court disagreed with you on that because the governor could appoint whoever he wanted to as far as the Constitution is concerned that would that also determine this case?

    Wendell A. Miles:

    I could say very candidly, partially it would apart from the constitutional aspects of saying that we can’t vote for people who spread taxes or levy taxes on us.

    At least the members of the Kent County board would not be acountable to 2 or 5 or 18% of the population for their reelection.

    At least it would be a presumably an at large type of representation.

    I would say apart from the power to tax and the power to bond that that would be an appropriate solution as far as we’re concerned.

    But with the power to tax and bond with these legislative powers to lay taxes on the people and levy them and require everybody to pay them, I would submit Mr. Justice White that those rights belong with the people to elect their representatives.

    Now, we submit that our county board of education or intermediate school district as it is now called is just as much a part of county government as is any other countywide phase of government.

    Wendell A. Miles:

    We submit that it’s just as important as this Court has indicated that probably education is the most important thing that government handles on the local level these days and certainly from the record the size of the budgets and the amount of hours and time and participation by the large number of citizens would seem to justify that.

    We are told that we should go to the state legislature and ask for a remedy there that this is a political question.

    And we submit that it is no more a political question as such or one in which we should have to receive or redress from the legislature than was the case of Reynolds against Sims in which it was recognized.

    Then a great imbalance in representation may be corrected before the Courts and this is the thing which we seek and ask for in this case.

    Potter Stewart:

    How many school districts are there in Kent County, Mr. Miles?

    Wendell A. Miles:

    As of today —

    Potter Stewart:

    Yes

    Wendell A. Miles:

    — Mr. Justice Stewart, there are 21 school districts.

    Potter Stewart:

    And did each one of those school districts have the same number of members on its local district school board?

    Wendell A. Miles:

    No they do not.

    Potter Stewart:

    Okay.

    Wendell A. Miles:

    They rated by the size of the school board whether this is a second class school district or a third class school district but they are properly independently elected at large —

    Potter Stewart:

    — at large by the dis — by the —

    Wendell A. Miles:

    Yes.

    Potter Stewart:

    — people in the district.

    Wendell A. Miles:

    No trouble there.

    Potter Stewart:

    By the people in the district.

    Wendell A. Miles:

    By the people in the district.

    Potter Stewart:

    And — and how many members are there?

    Would it range from about three to around nine or what is it?

    Wendell A. Miles:

    Five to nine.

    Byron R. White:

    Five to nine.

    And then one of those five to nine goes every two years to a biannual meeting to elect five members of the county school board.

    Wendell A. Miles:

    That’s right, Your Honor.

    Potter Stewart:

    How is that one selected?

    How is that one representative of each school district —

    Wendell A. Miles:

    By the county board not the dis —

    Potter Stewart:

    By the District Court.

    Wendell A. Miles:

    Yes, but it didn’t — by the individual school board.

    Potter Stewart:

    It elects one of its members to go —

    Wendell A. Miles:

    That’s right.

    Byron R. White:

    — as a representative of that school district.

    Yes sir.

    Potter Stewart:

    And the — then the election of the five members of the county school board I realized there’s staggard terms of which I think I had just on that.

    Wendell A. Miles:

    That’s right, two at a time —

    Potter Stewart:

    Two at a time.

    Wendell A. Miles:

    But the fifth one —

    Potter Stewart:

    But tho — that membership is elected by the deputies at this biannual meeting from among their members, from among themselves they elect?

    Wendell A. Miles:

    No, anyone may be elected and this is an interesting also wrinkle under the Act that if a person wants to be elected, he must go to the people and get 50 signatures to be nominated.

    This is what we call an election that actually had its antecedents back in the people themselves, he gets 50 signatures nominating petition to become eligible for election by this constituent assembly of the various school districts.

    Potter Stewart:

    To election as a member of the county school board.

    Wendell A. Miles:

    That’s right.

    Potter Stewart:

    And he can be a stranger, he can be a nonmember of any district school board, can’t he?

    Wendell A. Miles:

    He could be legally a member or not a member.

    Potter Stewart:

    But he — but he usually is a member of one of the district school board, is he?

    Wendell A. Miles:

    Whether he’s usually or not it comes to mind there are at least two at this time who are members of the school board and one of them from Grand Rapids by courtesy.

    One of them I know of the Grandville School District which is one of those districts.

    Potter Stewart:

    Anyone from Nelson Center, you’ve been telling us a lot about Nelson Center.

    Wendell A. Miles:

    Not currently, Your Honor.

    As a matter of fact I think it has been phrased to this Court by my opposition that Nelson Center ceased to exist as a school district.

    Just recently I raised it for this reason that the Board that passed upon the deannexation that came up in this case was elected.

    One of the boards to be that of Nelson Center, Your Honor, and this is a posture in which this case comes.

    On the other hand, I’m not at all reluctant to pursue this question or observation the Court makes that we still have some 18 to 20% that control the whole majority.

    Population-wise under the 21 that we now have that can control of the whole county board.

    Potter Stewart:

    The county school board has the power to impose taxes?

    Wendell A. Miles:

    Yes it does, Your Honor.

    Potter Stewart:

    Up to a certain limitation I suppose.

    Wendell A. Miles:

    Well, as long as it’s within the 15 mills —

    Potter Stewart:

    And the —

    Wendell A. Miles:

    As a practical matter it never is but it certainly has the right to impose taxes up to the 15 mills and it has the right to or not to impose a special half mill for what we call special education help for the remedial redeem retarded —

    Potter Stewart:

    And has the power to make policy decisions with respect —

    Wendell A. Miles:

    It has vast powers to make —

    Potter Stewart:

    With respect to these special schools and the truck system and various others —

    Wendell A. Miles:

    It has vast power to empower to go ahead and make policy decisions.

    As a matter of fact in one of the annual report says within the transcript of the record, the county school board superintendent makes the observation.

    He said we are the people who should be acting as the intermediary for you local people to the state.

    He said meaning and implying quite obviously that we should be helping you solve the metropolitan problems of this county.

    We submit, Your Honor, they can’t be solved when the people of the Grand Rapids School District can be deprived of all representation on the board.

    Potter Stewart:

    Now what — what power as to the local school, the 21 school districts have?

    What powers do they have —

    Wendell A. Miles:

    To —

    Potter Stewart:

    — within the school districts?

    Wendell A. Miles:

    Largely to run their own districts.

    Potter Stewart:

    To any power they must have, I suppose they have some policymaking functions don’t they?

    Wendell A. Miles:

    Certainly they do.

    Potter Stewart:

    Or am I wrong?

    Wendell A. Miles:

    Certainly they do.

    They have large powers, the largest vast powers within the particular school district as are outlined in legislation in the transcript of record, and they are the repository of this, yes.

    Potter Stewart:

    Do they have any taxing power within the distrcit?

    Wendell A. Miles:

    Yes, they do Your Honor.

    Potter Stewart:

    Within their district?

    Wendell A. Miles:

    Yes, they do Your Honor.

    They have vast taxing power to take care of many of the problems that they have witin their individual districts.

    However, as I have indicated to this Court that additional powers have been by legislature or state legislature imposed or given to the county board —

    Potter Stewart:

    To the county board.

    Wendell A. Miles:

    — which are extremely important particularly to the Grand Rapids School District in this case to help meet, we submit, 20th century problems that in the core city now occupied by large numbers of culturally deprived people that is it’s necessary that the Grand Rapids School District should have some sort of proportional representation so that this people who have the power to tax, who have the power to make policy decisions, who have the power as the superintendent says, to be in appropriate goal between policy-wide between the local district and the state district to properly interpret those things to the state and not —

    Potter Stewart:

    Now, the school district, the Grand Rapids School District as you told me, as I understand it, itself has power to impose taxes within its district, —

    Wendell A. Miles:

    Yes sir.

    Potter Stewart:

    — has power to make policy within its district.

    Wendell A. Miles:

    Yes, it does.

    Potter Stewart:

    Then can a county school board reverse or veto any of those decisions by the district?

    Wendell A. Miles:

    It cannot.

    Its powers are supplemental to it.

    Potter Stewart:

    Supplemental and they can’t — they can’t take away anything —

    Wendell A. Miles:

    We do not, we do not —

    Potter Stewart:

    Or overrule anything that the Grand Rapids District has decided to do.

    Wendell A. Miles:

    It — we do not claim that and it is not true.

    It does not have the power to do that.

    Only possibly —

    Earl Warren:

    But it’s conflicting power and policy that the county board will establish?

    Wendell A. Miles:

    Conflict does not come to mind, Your Honor and I cannot answer that the county board would prevail in it.

    Earl Warren:

    Well, why (Inaudible) the county board has the power over these board policies?

    Wendell A. Miles:

    Because in the supplemental powers Your Honor on the matter of setting up school for delinquents, that’s the county board function alone given to the county board and the matter of — of special education this is given to the county board on a matter of policy representing between the local school districts in the state and developing policy to our state board, this is given to the county board.

    We submit that that is a vast residue of power.

    Earl Warren:

    Well, suppose you say then that they want to set one policy (Inaudible).

    Wendell A. Miles:

    Mr. Chief Justice I would say that the policy that would prevail would be the one that was decided by the State Board of Education.

    It could make the decision of what was to prevail.

    Specifically answering your question, I would say that the county board would not necessarily, would not have the power to override the local school district on policy matter as such.

    What I was addressing —

    Byron R. White:

    (Inaudible)

    Wendell A. Miles:

    Can it — another word they can Your Honor I am aware that —

    Byron R. White:

    (Inaudible)

    Wendell A. Miles:

    Yes it has a power to go ahead and build another high school.

    Byron R. White:

    (Inaudible)

    Wendell A. Miles:

    Yes it has all of those powers Your Honor to go right ahead if they had the money, if it could, if it would, with the problems that it has with the core cities that it has for its tax base of what it may have, whether it may have, it has those powers.

    Legally speaking, it has those powers.

    Thank you, Your Honor.

    Earl Warren:

    Mr. Strawhecker.

    Paul O. Strawhecker:

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

    The question is whether the composition of local units of government is a state matter and not a subject within the jurisdiction of the Court or to put it another way, will the Court extend Reynolds into this new and unchartered political picket?

    Paul O. Strawhecker:

    Will the Court assume that a constitutionally apportioned legislature will fail to correct any malapportionment in its boards, in its agencies, in its instrumentalities when corrective measures are needed?

    In the many briefs —

    William O. Douglas:

    Is political picket a constitutional phrase.

    Paul O. Strawhecker:

    It was first viewed, I believe, by Mr. Justice Frankfurter.

    Hugo L. Black:

    I think we need to hold what is political picketing.

    Paul O. Strawhecker:

    You held that but this, my point is, is a new picket and not the one that Mr. Justice Frankfurter was talking about.

    Hugo L. Black:

    To the better or worse.

    Paul O. Strawhecker:

    I think — actually, I think there are many more brumbles in this picket Mr. Justice Douglas than in the one Mr. Justice Frankfurter was talking about.

    Earl Warren:

    But is it your position that the principle cannot apply to any local government?Is that the position that you are taking?

    Paul O. Strawhecker:

    That is my position on behalf representing the Kent County board of education flatly.

    Potter Stewart:

    Well, you don’t need to take any such broad position.

    Paul O. Strawhecker:

    We don’t need —

    Potter Stewart:

    — to ta — take by representing the Kent Board —

    Paul O. Strawhecker:

    — position that’s true in representing Kentwood, Your Honor.

    Byron R. White:

    Exactly, you’re talking about one board of education and one state with a particular and specific organizational set up.

    Paul O. Strawhecker:

    Talking about the Kent County Board of Education and that Kentwood public school which are hurt by this thing in financial wagers.

    Now, I think it is conceded in all of the briefs that have been filed that there is no federal right to vote in local elections.

    I think that is conceded.

    Now, I think that also all of the briefs concede that the power of the state to create and abolish local units of government is absolute.

    Now, we move to the third —

    William O. Douglas:

    Well, that the state could I assume abolish its legislature, couldn’t it?

    Paul O. Strawhecker:

    I beg your pardon —

    William O. Douglas:

    People are thinking they can abolish their legislature, wouldn’t it?

    Paul O. Strawhecker:

    Well, I’m not sure I read the Fortson case that way Mr. Justice Douglas.

    As I understand the Fortson case, the majority of the Court took the position that there is nothing in the federal constitution or its amendments that requires Georgia to elect a governor by popular election.

    That place that one step in the direction that —

    William O. Douglas:

    Well as I understand it, in Pakistan they — at the local level they — everybody votes, and they elect one person who goes to a consitutuent assembly.

    And that person votes the delegates to the next constituent assembly on up to the top.

    Paul O. Strawhecker:

    Pakistan is not you — you — is not unique in that respect, Your Honor.

    William O. Douglas:

    No, but I say is that — could that be done by — by this union?

    Paul O. Strawhecker:

    I think that —

    William O. Douglas:

    By a constitutional ammendment?

    Paul O. Strawhecker:

    — legislature within its constitution, its constitution.

    William O. Douglas:

    Well, that’s something else.

    I’m talking about a constitution of a state drawn along those lines.

    Would that be constitutional?

    Paul O. Strawhecker:

    I don’t know if a constitution should draw along that line.

    Certainly —

    William O. Douglas:

    Well, I asked you if there is which is that could one be drawn along those lines.

    Paul O. Strawhecker:

    Well, in our democratic form of government with a small D, I think that it might be possible but I’m not aware that there is any said constitutional provision.

    William O. Douglas:

    Would that be possible then what you’re talking about is that also being possible by a constitutional amendment.

    Paul O. Strawhecker:

    Oh what we have Mr. Justice Douglas as I understand it in our country is a republican form of government which means that the people elect representatives to cast their ballot.

    Now, that goes through the whole hoof and woof of our entire system of states.

    Now, that requires I think in the broad in our system of government in our political philosophy that requires that in our particular states without the federal constitution that we must provide some appropriate method of our interior works.

    Now, the Constitution of the United States particualrly the second section of the Fourteenth Ammendment does make some specific provisions as to what you have to do in electing both representatives and senators and congress and what you have to do also within your own state.

    But with those limitations I think that a state which is constitutionally apportioned I think very defintely that a state whose legislature and the one in Michigan I think is one of the best in the country today.

    After they are properly apportioned, I think that under the constitution of Michigan and most states, the legislature have the absolute power to make, create, and abolish agencies for its better government.

    Earl Warren:

    No matter how inequitable it might be?

    Paul O. Strawhecker:

    The question of equity in this phrase of it of that instrumentality of government is unique.Go back to Hunter versus Pittsburgh.

    Go back to Attorney General versus Lowrey.

    The people in those cases were overwhelmed and had no right because in these transfers of territory as had been pointed out, its analogy; it’s a good analogy, these transfers in territory that people have never had a right to vote.

    Now, in this very case an odd thing, there were 35 annexations to the City of Grand Rapids in the context to what we’re talking about in the case at bar certified under the Home Rule Act.

    The school code at that time provided that by reason of such annexations, that territory as a matter of law became a part of the Grand Rapids School District.

    Now, because Kentwood was a new school district and there have been nine pieces of territory taken away from it without assemblance, without any right whatever to the people of Kentwood to be heard or to vote, after those nine, it went to the legislature and got that section of the statute up here so that today where there is an annexation under the Home Rule Act that territory still stays in the school district.

    Now, what triggered this case, this piece of territory was a part of Kentwood.

    It was taken away by one of these home rule annexations without a vote of the Kentwood school electors.

    We went back immediately because of the — the pendencies as a matter of fact the legislature had passed to appeal but it hadn’t become effective.

    We went back to the County Board of Education and ask them not to take away from the Grand Rapids Board of Education but to give it factious.

    That’s what this case is about.

    Now, there’s another thing.

    Paul O. Strawhecker:

    My brother cites the 1960 Census, one of the reasons that I mentioned that brambles about this political picket.

    In 1960 the figures that my brother cites, Grand Rapids had 55% of the population.

    In their own brief, they admit that in 1963 it had dropped to 48%.

    Now, I just — in the briefs, in the affidavits, I don’t think there’s any dispute.

    As of now, as of now the 20 school districts, there are 21 including Grand Rapids, the 20 school disctricts on the periphery of the City of Grand Rapids have not only a majority of the population, more than 50% of the population, they have over 17,000 more school children according to the 1966 Census, the 1967 will be taken next month.

    And not only that they have more dollars in valuation.

    So here we are today, they say give us one man one vote, we want the County Board of Education to be apportioned.

    I don’t know how because they haven’t said.

    As I understand it’s done one in two ways possibly.

    We’ll elect them at large or suggest to the legislature they create districts.

    Okay, Reynolds is applied to our situation instead of any relief that my brother and his client, the Grand Rapids Board of Education because they got more voters on the 20 dic — districts as a matter of politics they can go out and elect all five.

    He says that by courtesy Mrs.Keeler is a member of the board.

    It was a matter of fact when we started the hearing I requested that she’d not sit because she was wearing two hats, she elected to sit.

    A few years after that, the 1965, a legislature caught up with it to provide now that members of county boards get sit on a transfer proposition when they are actually members of both boards.

    Now, you go to a districting proposition.

    Suppose this Court should suggest to the Commission of legislature or through the Supreme Court of Michigan that what you should do misrepresented it that type of argument that what you should do is to create districts.

    Alright, the population is still with the 20 school districts.

    They’ve got 17,000 more school children and they’ve got more valuation that my brother talks about on tax so unless there are political gerrymandering as I read in the papers as happening in some of these legislative apportionment things unless they are gerrymandering the result would be the same.

    Byron R. White:

    Mr. Strawhecker, let’s assume that the Michigan law provided for the direct election of this county — county school board by the people.

    And that the two parties or the three parties or how many have put up candidates for all five positions and they are all elected every two years.

    And they are elected by districts.

    Would — I suppose your position is that Reynolds against Sims wouldn’t catch that situation either because it’s a local governmental unit.

    Paul O. Strawhecker:

    That’s correct, Mr. Justice White.

    Byron R. White:

    Now let’s assume that you are wrong on that.

    Paul O. Strawhecker:

    Assume that I’m wrong and the results so far is —

    Byron R. White:

    And assume — and assume that — assume that Reynold against Sims would re — would require that those districts for the election county school board members had to be of equal sides, population-wise.

    Paul O. Strawhecker:

    That’s exactly what I was saying Your Honor that even whether it’s a general election or whether it’s by district in our particular case, the result would be the same.

    And Reynolds versus Sims would not help at all because no matter how you — no ma — no matter how you consider it the — there are more voters in the 20 school disctrics —

    Byron R. White:

    Yes but — I —

    Paul O. Strawhecker:

    — in Grand Rapids.

    Paul O. Strawhecker:

    There is more children —

    Byron R. White:

    If you would —

    Paul O. Strawhecker:

    — there is more evaluation.

    Byron R. White:

    You would say then that if Reynolds against Sims applied to my example of the direct election by districts of the county school board, you would say automatically then that Reynolds against Sims has to apply to these situations that you have in this case and that this case has to satisfy Reynolds against Sims?

    Paul O. Strawhecker:

    I don’t say that, I don’t say that — I —

    Byron R. White:

    Well, what — what would keep Reynolds against Sims from applying to this case if it applies to the direct election?

    Paul O. Strawhecker:

    Well, Reynolds versus — versus Sims will not answer the problem of my brother in the City in Grand Rapids in this case at all because the — one of the assumptions of Reynolds versus Sims is to correct an imbalance in — in minorities, to — to help out minorities to — to get the minorites an equal weighted vote with which I agree.

    Byron R. White:

    And the majority —

    Paul O. Strawhecker:

    The legislative life level but the trouble is that you still got majorities.

    And what I’m saying is, that here is the odd situation of a minority coming up here and saying, apply Reynolds versus Sims because we want equal votes and you give them equal votes.

    And that the majority is still is with the school districts outside of Grand Rapids and they all go out and elect at large the five members of the board.

    They have the political power.

    Not only that you create districts.

    I understand Reynolds versus Sims the districts must be under equal population if possible if that is true and it follows, then the same situation politically applies, it’s done honestly, and not by gerrymandering because the majority will still be with the 20 school districts in the outside.

    Hugo L. Black:

    So your Michigan laws provide for election of school board all over the state?

    Paul O. Strawhecker:

    The Michigan or — I’d say at least a hundred years has been provided in the general school laws that all locals so-called local board of education be elected at large.

    Hugo L. Black:

    Elected by?

    Paul O. Strawhecker:

    Be elected at large.

    First is the Grand Rapids board is a second class school district.

    There are only two, the other city is Flint.

    And by the statute regulating second class they have nine members.

    Now, there was nine members of that board are elected at large three at a time, every year so three at a time by the entire City of Grand Rapids.

    Now, it is the members of those boards would get together and from their membership select one each two years to go to this other assembly for the purpose of selecting and I used the word selecting for the purpose of selecting —

    Hugo L. Black:

    They could not —

    Paul O. Strawhecker:

    Selecting a member or two memebrs of the County Board of Education.

    Now, my brother did not state clearly the qualifications of the member of the County Board of Education is that he must be a tax paying school electorate of a district within the jurisdiction of the county.

    And the statute is I think very clearly set up in the briefs.

    Hugo L. Black:

    I assume you would say that the Constitution of the United States would not compel them to have this election.

    Paul O. Strawhecker:

    It doesn’t compell them at all as I understand the cases and I —

    Hugo L. Black:

    That seems to be the basis of your argument but supposedly it has the election.

    Hugo L. Black:

    Suppose the law, stick to the same election then it can be discriminated against the voters on the ground of equal protection.

    Paul O. Strawhecker:

    Well —

    Hugo L. Black:

    That’s protected, isn’t it?

    Paul O. Strawhecker:

    The Solicitor General calls this a two-step proposition.

    Now, as as I understand it there is no complaint about the constitutionality of the five member board.

    The attack in this case is made on the formation of the assembly which does this election.

    That is one member from each of the 20 boards would come every two years to a meeting place to select one or two members of the county board whose terms are expired.

    Now, that’s two states.

    The complaint is made against that assembly, but the point is this.

    Education has never been a part in Michigan of local self government, never.

    And school electors in Michigan have never had the —

    Hugo L. Black:

    Does that make any difference in the consitutional question here involved?

    Paul O. Strawhecker:

    Oh!

    Very definitely.

    Hugo L. Black:

    But then they’re not Equal Protection Clause.

    Paul O. Strawhecker:

    I say so —

    Hugo L. Black:

    Why is there any election in the law?

    Paul O. Strawhecker:

    I think so.

    Hugo L. Black:

    That it held voting people.

    Paul O. Strawhecker:

    I think so Mr. Justice Black that because as pointed out in Gray versus Sanders, that Georgians had a right to vote.

    And in the Fortson case they said this is not a voting case.

    In my position it’s flatly that in this area these are not voting cases.

    They’re not voting cases because there is no right.

    There certainly is no federally constitu — federally — federal constitutional right that to vote at least that that —

    Hugo L. Black:

    Well if there’s no federal constitutional right to vote, duty to vote, —

    Paul O. Strawhecker:

    To —

    Hugo L. Black:

    — that is not protected.

    Paul O. Strawhecker:

    To vote in this — these elections for local units of government or their membership.

    Hugo L. Black:

    Well I suppose there’s no federal constitutional right vote but the state thinks this is an election, what then about the requirements have you considered?

    Paul O. Strawhecker:

    Well the method of election is actually only a selection what the state is doing in that situation in saying exercising his power to determine the method by which a member of a local unit of government will be selected.

    Paul O. Strawhecker:

    Now, in this ins — instituted by this particular assembly.

    Now, if the — as was suggested on the other argument, there’s no question about what the Michigan legislature tomorrow could say, “Well we will abolish that assembly and we will have every member of every county board of education in the State of Michigan appointed by the Government”.

    And to me — to me here you have a method of selection where you have educators.

    They have to be interested in education, the people who selected for this very sensitive fuction of special education for handicapped children.

    This concept with the county board brand new in Michigans that it was only established in 19 —

    William J. Brennan, Jr.:

    Well, the apportionment cases wouldn’t cover that, would they, provided that they were appointed by the governor?

    Paul O. Strawhecker:

    No they wouldn’t — they wouldn’t.

    There’s no question about it.

    It was appointed by the governor.

    Personally, I believe that the method of selection in the case that we have a bar that’s — at bar that’s what I know about is much fairer actually than to have these people appointed by the governor because we have governors of — in my state, a different political phase every now and then, and the power to appoint five members in the 83 counties of Michigan is a power that I just hope they never have.

    I take the practical point of view that so far as my state is concerned and this County Board of Education is concerned, the method of selection, the method of selection is the fairest that can be divided.

    And preserve at least some motive of — of a membership by the Grand Rapids board.

    And they admit that they Grand Rapids board has had a member on that county board for sometime and the same member is on that board now that voted against the transfer initally in this case.

    Now, I firmly urge that in our case, the method of selection is fair.

    It’s reasonable.

    That method has not caused any disparity, minority situation in our case whatever.

    It’s a proper method of selection where people who are dedicated to education by serving on boards of education get together to select the members of this county board which has its very sensitive function in Michigan as special education in handicapped children, which is administered on a countrywide basis without regard to race, color or creed and certainly without regard to the district from which they come.

    Now, the 1935 Act specifically provided that nothing in this county board act or power should conflict with the powers under the general school law entertained in which historically a local — so-called local or constituent board of education had.

    There can be no conflict.

    I don’t believe that there — is even such a conflict that should be — could be resolved by the State Board of Education because there isn’t that.

    The local boards run schools generally from kindergarten to the 12th grade except within the framework and the requirements of law in the State Board of Education they run their own schools according to what their lights are the best education for the children.

    Now, that’s entirely distinct in the part from the duties of the County Board of Education.

    Abe Fortas:

    Would you mind if I —

    Paul O. Strawhecker:

    Pardon.

    Earl Warren:

    Would you mind telling us what the powers of this board are, as you will?

    Paul O. Strawhecker:

    Well, its powers since 1935 have been somewhat expanded.

    When this case first started, they do not have the power to tax.

    What they had to do once they submit a budget to what we call the allocation board to be divided within the 15 mills.

    Recently, primarily because of this great thing that come to Michigan this county special education program for handicapped children which preceded federal grants and developments in that respect in the county.

    Now, that’s adopted by the counties by referendum.

    Paul O. Strawhecker:

    Now, because of that, they were given the tax power as I believe and the power to bond for the purpose of building facilities.

    But their powers Mr. Chief Justice are limited.

    The bonding power is to the specific phases.

    Originally they took the place of a county superintendent who was a politician run for office on a partisan ticket.

    Then the county superintendent schools is now and I used to have historically in every state I believe is now appointed by the county board.

    That was one of the purposes of it then they use to help the rural school districts, and the teachers they would help in their employment.

    I think that they still do that.

    They worked and originally intended to help actually the rural school districts.

    And now it is expanded until it’s true they do have the power to tax for very limited purposes are not broad purposes.

    They have — and the power to bond is a limited power to only a bond for a certain type of facilities.

    That generally Mr. Chief Justice is their power.

    It’s something that is superimposed but certainly it has no control whatever to local boards of education.

    Mr Justice Fortas —

    Abe Fortas:

    Well I — you’re getting around in response to Chief Justice’s question.

    What I wanted to ask you, it seems to me, that there maybe two lines of inquiry here.One is, how was this Board selected and the other is its powers.

    Now, this Board has selected as I understand it by a vote of the members of the — of representatives of the 39 separate district boards of education — 21.

    Paul O. Strawhecker:

    As of now Your Honor there are only 21.

    Abe Fortas:

    Alright 21, and they get together and they — they elect this five-man board.

    Is it five-man?

    Paul O. Strawhecker:

    It is Your Honor.

    Abe Fortas:

    Alright, that’s good enough.

    Now, second on the question of the, what this board does, what kind of governmental function does it exercise?

    As I undertand it now, it has not — it does not generally — have general jurisdiction over the education in the county.

    Paul O. Strawhecker:

    Definitely not, Your Honor.

    Abe Fortas:

    Alright, it has jurisdiction first with respect to certain specialized facilites for retarded children or whatver it is etcetera.

    And then or is it the fact that its taxing power and bonding power are limited to the raising of funds for those purposes?

    Paul O. Strawhecker:

    Yes, I think that’s correct Your Honor.

    And —

    Abe Fortas:

    Now —

    Paul O. Strawhecker:

    And it’s a more limited power of bonding than local school districts board of education has.

    Abe Fortas:

    Alright, now it does not — it is not the agency charged if I correctly understand this with raising money by taxes or by the issuance of bonds for the general schools.

    Paul O. Strawhecker:

    Oh!

    Definitely not, absolutely not.

    Abe Fortas:

    And in additon to those specialized functions, I take it that the reading of these briefs that its powers are auxiliary and in aid of the educational functions of the district boards of education, is that correct?

    Paul O. Strawhecker:

    That’s correct, for instance the special education program, these smaller school districts in Grand Rapids.

    Now, I know that Grand Rapids has had a handicap program for many years.

    The other districts weren’t wealthy enough to do it so the idea was to help the county base, tax base do it.

    Abe Fortas:

    Alright, now one further question.

    I take it that this specific controversy arose out of still another power of this county board.

    And that has the power to transfer geographical areas from one school district to another, is that correct?

    Paul O. Strawhecker:

    Correct, Your Honor.

    Abe Fortas:

    Now, are there any other significant powers that I have not stated?

    Paul O. Strawhecker:

    I don’t think so Your Honor.

    I think your — your statement that the powers are axuiliary is — is accurate.

    That they are auxiliary, they’re not the same.

    And as a matter of fact when it was organized, the statute specifically provided that it was not intended by the fact that it takes away or detracts in anyway the powers of local boards of education.

    Byron R. White:

    Well, does — in line of Mr. Justice Fortas question does the county board have anything to do with consolidation?

    Paul O. Strawhecker:

    No absolutely not.

    Annexation and consolidation provisions are under two different sections.

    What we’re dealing with in this case is the power to transfer the upon or live across the road from a school house but that was in any district then this child had to walk through the snow three miles, the other school districts so he would go some place to ask that his house be set off in the other school district.

    Byron R. White:

    But the number of scho —

    Paul O. Strawhecker:

    — that is the problem.

    Byron R. White:

    — the number of school districts have declined fro 40 or 50 down to 21, is that by consolidation?

    Paul O. Strawhecker:

    No, it’s — it’s by the reorganization of the Act.

    Earl Warren:

    Very well.

    Number 624, Moody versus Flowers.

    At the —

    Mr. Chief Justice, I was to move the admission of Mr. Francis Beytagh of the Ohio Bar to argue on behalf of United States amicus curiae.

    This case which the Court has just carried and the three immediately succeeding cases had so moved.

    Earl Warren:

    The motion is granted.

    Thank you.

    Earl Warren:

    Mr. Beytagh.

    Francis X. Beytagh, Jr.:

    Mr. Chief Justice and may it please the Court.

    As an initial manner I’d like to state that the Court should lay the facts in the case that you just heard on our view of the more complicated of the four cases before the Court, and in our view also the case is the most difficult of the four involving local government apportionment.

    All of the cases from the government’s point of view involved one overwriting and submitting an issue and that is simply stated whether the equal population requirement of Reynolds versus Sims and other cases that relate to state legislative apportionment also apply at the local level of government.

    Our interest in these four cases stems from our view that the issue, principal issue involved is one of importance to millions of Americans and that the case — the case has really involved fundamental right to fair and equal treatment in the electoral process of the local level.

    As an initial matter since the facts and only the Michigan School Board case have been stated to the Court, I feel that in order to discuss all four of the cases which I shall do subsequently, I should first briefly summarize the facts in the other three cases.

    Two of them Numbers 491 and 624 involved county governing Boards.

    Number 491 involves the Board of Supervisors of Suffolk County, New York.

    That Board was composed prior to the holding of the court below of 10 members who were elected from the 10 towns which comprised the county.

    Each supervisor had one vote.

    The towns vary in population from 172,000 to 1300 under the 1960 Census.

    That results in a population variance ratio of an excess of 100 to 1.

    The Board functions as a policy determining vying the county and it firmly has substantial governmental powers.

    There’s no dispute about that the Suffolk County did.

    The three-judge federal court below held the district and scheme unconstitutional and ordered a weighted voting plan, weighted insofar as to weight of the votes of the supervisors into the temporary effect.

    The other county court case Number 624 comes from Alabama.

    It involves the Board of Revenue and Control of Houston County, Alabama.

    Only one of the five elected members of that Board, there are six members.

    The sixth is the probate judge in the county who serves ex officio in votes when there’s a tie.

    Only one of the five elected members of that Board is elected from the City of Dothan, Alabama which contains about 60% of the total population of Houston County.

    There are claims to the contrary as to the powers of the Board but I think upon analysis explained that the Board exercises and performs important governmental functions in Houston County.

    Its apportionment is prescribed by state statute unlike the situation in the Suffolk County case where the charter prescribes for it.

    But it is a state statute limited in that — in this application to Houston County alone.

    The three-judge court that was convened in the Alabama case determined not to speculate about whether Reynolds would be applied at the local level and dismissed the suit splitting to one.

    But it also indicated that on the merits, the majority fe — felt that Reynolds should not be applied at the local level.

    District Judge Johnson dissented.

    The fourth remaining case, Number 724, comes from Virginia Beach, Virginia.

    It’s on appeal from the Fourth Circuit unlike the other three cases of which come from three-judge district courts.

    Under the scheme involved for electing members of the city council of Virginia Beach, all 11 councilmen are elected at large.

    Francis X. Beytagh, Jr.:

    However, under a plan that’s called the seven-four plan.Seven of the 11 members are required to live in residence districts which are prescribed by the city council charter which are grossly disproportioned in population.

    The largest has about 30,000 people in it.

    The smallest residence district is about 700.

    Potter Stewart:

    And it — as I understand it, all 11 are elected by the entire electorate of the new and large city of Virginia Beach.

    Francis X. Beytagh, Jr.:

    That’s right.

    They’re all elected — all 11 are elected at large.

    Potter Stewart:

    At large by the —

    Francis X. Beytagh, Jr.:

    And the other four, also can live anywhere in the — in the city.

    The seven are required to live and prescribed residence districts, and the other four can live —

    Potter Stewart:

    For within the old city.

    Francis X. Beytagh, Jr.:

    Right, and the Court have ordered in the city (Voice Overlap)

    Potter Stewart:

    And all the borders of the new city elect wholly at large.

    Francis X. Beytagh, Jr.:

    The Fourth Circuit held a plan invalid reversing the single judge district court concluding that the large beach area which was mainly relied upon didn’t save the plan.

    Thus, in our view these four cases involved three of the most basic and common forms of local government, county governing boards, city councils, and school board.

    And I think considered together present a good vehicle for discussing the constitutional question that we feel is the principal issue here raised.

    You presented there any jurisdictional bond in these cases?

    Francis X. Beytagh, Jr.:

    Yes, we do Your Honor.

    We point out in our brief and I shall defer in the main of the brief to the discussion of jurisdictional question, but we point out that in our view into the cases there is some question about whether this Court has jurisdiction on direct appeal under Section 1253.

    Section 1253 says that direct appeal from a three-judge court’s decision granting or denying an injunction lies that the case was the one required to be heard by three judges.

    Now, in our view the basic jurisdictional statute with three-judge courts 2281, has been construed by this Court as relating only to situations that involved statutes of general statewide application.

    And we have difficulty although arguments to the contrary are made in the Suffolk County case and in the Alabama case concluding that on the basis of that construction of 2281 statutes of general statewide application that either of the Suffolk County Charter or the specific statute relating to Houston County, Alabama fit within that category.

    Arguments are made to the contrary and I assume will be made by the — for the parties but we have — we’ve raised this question and as to the other two cases that we feel jurisdiction is appropriate, we think that in response to the Court’s question in Number 724, that the answer to that question of whether a three-judge court should have been convened is no, it should not have been convened as the Court undoubtedly know that it was initially convened and then Circuit Judge Bryan wrote an opinion determining that the matter was local in nature and the three-judge court was not required.

    We feel that the procedure there was proper, the Fourth Circuit has jurisdiction and the case is properly here on appeal from the Fourth Circuit.

    Now, in view of the government there can really be but one answer to the basic question of whether Reynolds applied to its local level?

    And that is that it does.

    It seems to us that as an initial matter, this simply close logically from the basic constitutional underpinnings of Reynolds.

    We don’t just rely on logic.

    It seems to us also that sound policy considerations argue for this result as well.

    You have heard to some extent well here I supposed some horrible arguments about how many bodies are involved.

    We realized how many are involved and we’ve attempted in our brief to demonstrate to the Court that nevertheless we feel that the principle insofar as the question is relevant to the constitutional decision-making, the matter is manageable by the courts.

    Francis X. Beytagh, Jr.:

    I’d like to make clear our basic constitutional position.

    It’s simply this.

    It doesn’t have anything to do with whether there’s a federal constitutional right to elect local bodies.

    That’s Justice Black had pointed out.

    It’s not the question —

    William J. Brennan, Jr.:

    Well on your brief, I guess you had the — you think only 724 is properly here?

    Francis X. Beytagh, Jr.:

    No, we think that the School Board case just argued is properly here also.

    William O. Douglas:

    Because that was the statewide —

    Francis X. Beytagh, Jr.:

    The statute there was one that related to all such bodies throughout the state and not just to — and as we construed the — the case is under 2281, that’s a state statute filling up the — our basic position is this where members of the local governmental body are under state or local law elected, not appointed and where directly or indirectly they’re elected from districts and where the body is one that is intended to be representative in nature, that in no circumstances, the Equal Protection Clause requires that the districts established and be substantially equal in population or that some alternative arrangement that coincides with that basic principle be established.

    Potter Stewart:

    How would you do it then?

    Some or all of the various proposals of taking back in the early years of this century by — to improve the — to improve the more simplistic former electoral process such proposal is the Hair system of proportional representation or the list system or some variant evidence found in the – by Weimar Republic or the Third Republic in France.

    Are those all out or are they in or what?

    Francis X. Beytagh, Jr.:

    I don’t think so Your Honor.

    In the first place is — is I’m sure you realize you — you don’t reach those in these cases.

    Potter Stewart:

    Well, but they — but these — these systems are utilized in some communities in our country have been certainly.

    Francis X. Beytagh, Jr.:

    We don’t have any — any basic disagreement with proportional representation system so long as the —

    Potter Stewart:

    But certainly entirely contrary to what you said the Constitution seems to say the Constitution requires in your brief?

    Francis X. Beytagh, Jr.:

    No, we —

    Potter Stewart:

    Under the — the Hair system of proportional representation is suppose to guarantee minority representation.

    And Reynolds against Sims requires a majority move.

    Francis X. Beytagh, Jr.:

    Well, it — it requires the — it requires the majority rule in the sense that where there is a districting scheme, it requires that those districts should be set up on a — on equal population basis.

    I don’t know what the answer constitutionally is to a proportional representation scheme which attempts to treat all voters equally and yet ensure —

    Potter Stewart:

    Guarantee representatives of identifiable or people who choose to coalesce ideologically rather than geographically within a — in a constituency.

    Francis X. Beytagh, Jr.:

    The New York City Council situation is somewhat relevant to a case called (Inaudible) versus Wagner, I believe, that came up and involves a scheme where the at large to at large members of the city council are required to be from different political parties.

    The Court dismissed the appeal several years ago and — and that was initially tested.

    And subsequently another challenge to the scheme was upheld.

    I think those questions are very difficult ones.

    I don’t think the position —

    Potter Stewart:

    It seems to me that the reasoning of your — they aren’t difficult.

    They’re difficult for me as one reason I ask you but it seems to me the reasoning of your brief would just make impossible any such supposedly a progressive and lightened experimentation along those lines.

    Potter Stewart:

    Such systems as would guarantee for example a party, a minority party representation in the city council or a school board by providing that not more than six out of nine should be from a certain political party.

    All those are completely made unconstitutional under the argument that I gather.

    Francis X. Beytagh, Jr.:

    I think it depends on how far you — how far you push — pushed the principle.

    Potter Stewart:

    That’s why you’ve pushed it all away and you pushed all those things off the Board.I wondered if I misunderstood you.

    Francis X. Beytagh, Jr.:

    As the cases that — that are before the Court, they don’t draw any of those schemes.

    And in our view all of them are covered by principle that — that we stated in — in the brief that we derived from Reynolds.

    Now, when an appropriate case comes along that involves one of those kinds of schemes, I think the question then is going to be whether the principles established in Reynolds and the Equal Protection Clause principles generally are such that — that that’s sort of scheme will be condoned under the Fourteenth Amendment.

    And I think it depe — it depends on the particular arrangement that you have and how much of a voice that you give in.

    Potter Stewart:

    Isn’t it that — doesn’t it — depends upon the — among the infinite variety of arrangements that — that undoubtedly exist in the county, certainly the thousands of various local governmental units in the 50 states of this nation.

    Doesn’t it depend?

    Doesn’t the equal protection answer depend upon the particular ratio that — that you have.

    Isn’t it too Justice Fortas suggested earlier, how is it selected, elected, or appointed?What powers does it have?

    Is there — is it proper actually to say no matter what the arrangement, no matter what the history, no matter what the function, no matter how presently selected or what the purposes are in the present selection, whether they guarantee minority representation, or what, these all go out, these all have to come under this mathematical formula.

    The Equal Protection Clause permits, allows, no variation from this mathematical scheme.

    That’s what currently bothered me about your — about your brief.

    Francis X. Beytagh, Jr.:

    Well it seems to me that consistent with Reynolds it’s rather difficult to make out reasons for supporting such an approach.

    There are an infinite variety of all these kinds of bodies and schemes.

    But Reynolds, of course, construed the Equal Protection Clause insofar as the individual voter’s right is concerned.

    And it’s the same individual voter in the — in the local election in the — as it is in the state law.

    I understand your brief exactly will be based on what you — Reynolds to say.

    There’s no margin to variation taking account the consideration that my Brother Stewart had just mentioned, the local orders of the government and in more than there is — that the statement

    Francis X. Beytagh, Jr.:

    I think that’s right but I — but — but Reynolds, he asked about proportional representation schemes.

    And I don’t think that Reynolds speaks necessarily proportional representation schemes.

    Illinois for instance has had an arrangement in which you had something like proportional representation scheme.

    I don’t think that was drawn out by the — by the lower court or by this Court in reviewing that case.

    In our view where members of these local bodies are appointed instead of elected or whether they’re elected at large rather than from districts, we feel that the equal protection — equal population principle announced in Reynolds would be inapplicable.

    All of the four bodies in our view that are involved here fit within the category of those covered by the principle, and we submit that includes the city council in Number 724 where at large elections are held but unequally populated residence districts are set up.

    And it includes also the School Board in Number 430 despite the difficulties with the two-step election scheme that is presented there.

    Potter Stewart:

    Suppose that these laws of the states very briefly with respect to how a city in the next territory, the one I’m familiar with is one in which the resident freeholders and the territory proposed to be annexed, have to vote in favor of annexation which makes annexation of course extremely difficult.

    And I suppose this Virginia Beach situation probably would reflect some current in other words to — to persuade the people to be annexed — to be annexed to the municipality where —

    Francis X. Beytagh, Jr.:

    Well it wasn’t really —

    Potter Stewart:

    Are you sure that they would be — they — their voices will be heard in the — in the city government?

    Francis X. Beytagh, Jr.:

    As we understand, it wasn’t an annexation — it wasn’t an annexation.

    Probably (Voice Overlap) yes, because, yes, because the City of Norfolk was proposing to move under Virginia Beach —

    Potter Stewart:

    I’m thinking — or of course, city is surrounded by as many in Ohio are you know, by — by satellite municipalities in order to get those municipalities, those people with their tax base and with their leadership, and so on to join the city, you have to.

    They don’t want to be swallowed up.

    Francis X. Beytagh, Jr.:

    It’s clear that to some extent, the original — the original city council that was set up here was not under the seven-four plan.

    It took the six sitting former supervisors and put them on the council and the five city council members of Virginia Beach, and put them on the council.

    It’s clear that there — there was a relationship between the adoption of that scheme and an attempt to get both of the former bodies to go along with.

    But I’m not sure that it wouldn’t go ahead without that because the overwriting concerns seem to be avoiding annexation by the City of Norfolk.

    As an initial matter in our view that there can be no serious questions that the Equal Protection Clause applies generally to action at the local as well as the state level Cooper and Aaron, come in, in light what it seemed to us established that beyond doubt.

    And nor do we think that it’d be seriously contended the Court has already decided this question.

    Some suggestions have made that several per curiam indicate the Court feels that the question of local apportionment is one that the Court is not going to get involved in.

    We don’t read those cases that way and noting of jurisdiction in these cases it seems to me makes clear that that’s not the position the Court has taken.

    Earl Warren:

    We’ll recess now.