WMCA, Inc. v. Lomenzo

PETITIONER:WMCA, Inc.
RESPONDENT:Lomenzo
LOCATION:U.S. District Court for the Southern District of New York

DOCKET NO.: 20
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 377 US 633 (1964)
ARGUED: Nov 12, 1963 / Nov 13, 1963
DECIDED: Jun 15, 1964

Facts of the case

The WMCA, acting on behalf of several New York City registered voters, challenged the constitutionality of Article III, Sections 2-5 of the New York State constitution alleging that its apportionment formula resulted in unfair weighting of both state legislature houses by favoring lesser populated rural areas over densely populated urban centers. On appeal from a dismissal of their complaint by a three-judge district court, the Supreme Court granted the WMCA certiorari.

Question

Did the apportionment formula contained in Article III, Sections 2-5, of the New York State constitution violate the Fourteenth Amendment’s Equal Protection Clause?

Earl Warren:

Mr. Solicitor General, you may continue.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

Before the recess, I was attempting to indicate without defining precisely what I meant by permissive — permissible objectives of legislative apportionment.

And I was suggesting that if — if a state drew a line, in a way rationally related to one of those permissible objectives, then the apportionment would not run afoul of either my first, second or third general principle.

Whether it runs afoul of the fourth principle, the one introducing a question of degree, remains to be covered, but up to this point, my argument would not condemn any apportionment aimed in such a direction, having such a function.

The point I was trying to make was that those rules are fundamentally different from differentiations or classifications among voters whose function is to give the farmer more representation than the city dweller, the shipping interest, more representation than the wage earner, the city dweller, more or less than the suburbanite and so forth, or the Protestant or the Jew.

The latter kind — that whole latter class when applied to political rights, including representation, we say is the very antithesis of the ideal of equality before the law.

Now, I find support for that proposition that it’s the antithesis of equality before the law, in four places.

In the first place, I suggest that the principle that their polity, the people as a whole, knows no distinction in the political worth of one man as opposed to another, is just as fundamental a strain in our constitutional parity as the principle that it knows no distinction in political matters between the naturalized citizen and the natural born citizen, according to religion or according to the red-headed man and the dark-headed man or the bald-headed man.

We filed an elaborate appendix to our brief in the Maryland case, in which we show the extent to which the ideas of equal representation per capita was accepted in the constitutional convention of 1789 and in the ratifying conventions, as a principle applicable to any government, dealing directly with its own citizens and drawing its authority directly from the citizens in the 18th Century philosophy, as distinguished from a legislative body representing sovereign states.

The practice in later years fell somewhat short of the theory.

Indeed, it was short of the professed ideal and at that time.

But nevertheless, each stage in our history has brought us closer to wiping out the distinctions between one man and another in matters of his political worth.

As Justice Douglas said, in Gray and Sanders, the conception of a politically equality from the declaration of independence to Lincoln’s Gettysburg Address to the Fifteenth, Seventeenth and Eighteenth Amendments can mean only one thing and one man —

(Inaudible)

Archibald Cox:

One vote, nineteenth, Mr. Justice, I’m — I’m sorry.

Occasionally, one finds a political figure, praising the unique virtue of the rural voter or defending the preferred power of some special interest, but I know of no eminent statesman or political philosopher who has avowed to view that it is proper to wait the legislature, so as to assign to the farm interest, the wage earning interest, the urban interest or any other class or interest, a political power disproportioned to its numbers.

That may have done in other countries but I think no one has ever urged that here.

Potter Stewart:

You’re jumping from one thing to another it seems to me Mr. Solicitor General.

Your first principle Gray against Sanders would say that it would be constitutionally impermissible in the Montgomery County District for example, to give two votes to the farmers in that district and only, one vote to the people who lived in Rockville or in — or in the suburban communities.

That’s — that’s one principle.

That’s one principle that was decided in Gray against Sanders.

But now, you’re jumping to something else, when you’re talking about representation of an electorate, all of those voters counted fully and fairly in the election in a — in a representative legislative assembly in the state capital, these are two different subjects.

Archibald Cox:

As I recognize (Voice Overlap) —

Potter Stewart:

There are apples and oranges.

Archibald Cox:

I recognize they are two different subjects, one of my four sources, I’d be glad to deal with now, is Gray and Sanders and I submit that on this point, Gray and Sanders is logically decisive.

I see no rate — if it is impermissible, if it is contrary to our fundamental ideal of authority to give one man more weight than another or one group more weight than another, in choosing a governor, it would seem to me it was equally contrary to the notion of fundamental political authority to deliberately give one group more weight than another in choosing a legislature.

It seems to me that Justice Harlan in this respect was quite right when he said that there was no difference.

Now, this does not, Mr. Justice Stewart, argue that Gray and Sanders is decisive of this whole problem.

It clearly isn’t because legislative apportionment serves functions that elections within a single constituency do not serve, and I was trying to indicate those at the latter part of my argument this morning, but in terms of valuing a man who’s a wage earner more than a man who’s a lawyer or vice versa or according to his religion or anything else, in that field, I see no difference.

Archibald Cox:

It would seem to me that the holding that you can’t differentiate between them when it comes to weighting their votes, is exactly the same that you can’t differentiate between them or exactly the same reason in selecting the legislature.

Now suppose for example, a legislature was elected at large?

Now surely no one would say that you can weight the votes giving wage earners, 10 votes, lawyers, seven votes, bankers, one vote, clergymen, no votes, in electing the members of the legislature at large.

Potter Stewart:

Would follow then —

Archibald Cox:

Well, now why, shouldn’t make any sense —

Potter Stewart:

— what you’ve just said — what you’ve just said, would make anything except a — assuming you have a — at large election within a State, then it would have to — it would have to be majority of the votes cast, all of them being weighed equally.

You couldn’t have a proportional representation in one of its forms.

You couldn’t have list system — system.

Archibald Cox:

I don’t know the list system, proportional representation.

Potter Stewart:

You know that it’s in Cambridge, Massachusetts, a variant of it.

Archibald Cox:

Well, I — I live out a little town where we just voted by counting noses.

Potter Stewart:

And you’ve — well —

Archibald Cox:

I should think you could have proportional representation, yes.

It doesn’t seem to me that anything —

Potter Stewart:

Well, now, this weights votes taking in to an extraordinary degree.

Did that fit in the heir system, I am now talking about?

Archibald Cox:

In an effort to give some representation to those who are outvoted, but not by class.

Potter Stewart:

Yes, by class.

Archibald Cox:

You mean by laborers?

Potter Stewart:

Assuming — assuming people vote by class, yes.

Archibald Cox:

I don’t well —

Potter Stewart:

As — assuming that (Voice Overlap) —

Archibald Cox:

If they vote by class, but the legislature —

Potter Stewart:

— generally speaking, assuming generally speaking, labor union people, generally speaking both are the same kind of a candidate, yes it does.

Archibald Cox:

They may or may not, but isn’t phrased in terms of class.

Potter Stewart:

Well, the whole purpose of it is, if you read Professor Harris’ book is to do it precisely that.

Archibald Cox:

I would’ve thought that the rules applied when people didn’t vote by class just as some of the rules for permissive — some of apportionments for permissive purposes, as I’ve defined them, permissible purposes, may result of course, collaterally in giving more weight to the people who live in the rural areas than to the people who live in the urban areas.

But it’s not phrased in those terms as I understand it, the system of proportional representation is not phrased in those terms and it operates where the people happen to vote by class or don’t vote by class.

It is blind to classes of people that we say that Fourteenth Amendment, in matters of representation, requires blindness to classes of people.

Now, I’ve mentioned two of the four legs on which I put this proposition.

Archibald Cox:

I suggest to you that the history of the practice in making state constitutions conforms to this proposition.

If you examine the state constitutions of the early ones and as they are today, you will find that the central principle, the chief one, is to base representation primarily on population, their qualifications and limitations, but if you examine them, you will find that they are virtually all consistent with the basic distinction that I’ve been seeking to draw between permissible purposes as I have defined them.

The limitations are addressed with rare exceptions, there are some, New York is one, to making the legislature more representative in the sense by avoiding the creation of excessively large district, by recognizing the coherence and independent identity and nerve center quality of independent political subdivision, by preserving a measure of stability and things like that.

No state constitution so far as I know has ever espoused the view that it is a proper function of representation to allocate political power to different social economic classes out of proportion to their number.

Very few have provided for a discrimination against populous areas merely because they are populous.

There are a few of those and that classification, unless it can be related to something else, would fall under my test.

The practice has been somewhat different, but I’ve never supposed that our shortcomings were the measure of our constitutional guarantees.

The fourth support for my argument is that it is already claimed that in closely related areas, the Equal Protection Clause prohibits the kind of discrimination that our third principle would condemn.

No one would argue that the state may deny the vote to bankers or wage earners, or lawyers, or farmers on the ground that it wants to encourage one class or discourage another, Mr. Justice Goldberg, each must be permitted the same opportunity to vote.

It seems equally clear as I suggested a moment ago to Justice Stewart that at choosing a legislature; you couldn’t give 10 votes to the banker, nine to the lawyer, and so on in different proportions to different people according to your conception of their work.

Potter Stewart:

What if all the bankers in one State were in a given senatorial district and the bankers and their friends and their families added up to 40% of the voters in that district and everybody else and their friends, their families hated those bankers?

By just by the creation of that district, the State would completely disenfranchise the bankers and their friends, wouldn’t it?

Archibald Cox:

I suppose that if it could be shown as in Gamelion and (Inaudible), that the differentiation — that the districting was drawn for the purpose of getting the bankers, (Voice Overlap) that was the only function it served, and that was the only function that —

Potter Stewart:

Let’s just assume this was a fact and that you couldn’t show that that there was any purpose in it.

Archibald Cox:

I’m not — I have not yet suggested that any — that a discrimination and per capita representation, it results from the States pursuing some permissible practice violates the Equal Protection Clause.

I’m coming — I’m going to discuss that but I — up to this point have simply said that you may not create preferred classes of voters for the sake of having preferred classes of voters in those terms.

Now, if you’re acting for some other function, some of these things that I’ve suggested are permissible, then you have another promise to which I — I may get today but if not, I will come to it in the Alabama case where this is far more squarely raised.

That’s the problem that by analysis this far leaves on unsolved which every way one thinks it should be solved.

I suggested a moment ago that Gray and Sanders in our view was dispositive of this question that it is different from the ultimate question because you may have an apportionment of which is aimed at achieving some permissible function of apportionment whereas when you’re conducting an election, you can’t have that kind of per capita discrimination result because those functions don’t apply to elections.

Let me try to make that point a little clearer again by resorting to what may seem a silly illustration, but I think these silly illustrations do help us to get general rules without getting lost in numbers.

Suppose that — well, let me backup.

It would — the utterly whimsical I take it, at a denial of equal protection to give the voters in the western half of the State twice the representation per capita of voters in the eastern half of the State simply because they live nearer the setting sun.

It would be equally impermissible in order to encourage the economic growth of that half of the State because that is not a proper function of legislative apportionment.

Now, it might be so far as what I have been saying goes entirely permissible for a State to give each county two senators because her policy was to represent counties and this one might conclude and I assume for the moment, it goes to make the legislature work better as a — as a representative body.

If it happened that all the counties with — that were sparsely populated were in the western half of the State proving that that was arithmetically true — proving that arithmetically the people who live there had doubled the representation of the people of the eastern half being simply a collateral result and not the criteria for the differentiation would be in that they didn’t violate this third principle as I have tried the statement.

At this point, I would like to address myself if I may to press it with Justice Harlan asked just before the recess and that is, “What has the Fourteenth Amendment to do with this problem at all?

” It would seem to me, first, that the Fourteenth Amendment that the burden is on anyone who says the Fourteenth Amendment doesn’t apply because it is general in its language.

It doesn’t say everybody’s entitled to equal protection of the law except in voting or equal protection of the law except and that is a representation.

It says that everyone is entitled to equal protection of the law.

I don’t suggest that’s conclusive but I think it bears heavily and throws the honesty of the word.

Archibald Cox:

Second, it would seem to me that this was implicit in the decision in Baker and Carr, that the point has really been adjudicated and I note that connection that Justice Frankfurter in his dissenting opinion.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

Well, this page we cite in our brief which subsequent — which speaks for itself, I was stating it conservatively.

I would assume that it was adjudicated.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

Well, I’m happy — happy to find Your Honor.

The lower courts have all thought that it was clearly indicated by Baker and Carr.

I know too that Justice Frankfurter in his dissenting opinion assumed that the Equal Protection Clause has — or stated that it has some application to some of the silly examples that I have put earlier.

I have put them because it seems to me that we would all agree that the Equal Protection Clause has some application in this field and they really were directed to that point and finally, for reasons that I’ve stated a moment ago, I think that Gray and Sanders squarely resolves that proposition.

I would like to take the remaining moment to apply my third principle to the New York case.

We submit that the apportionment of the New York Legislature violates the Equal Protection Clause because the rule of apportionment in the Constitution discriminates between the favored and disfavored classes of voters.

On the basis of criterion having — criteria having no relevance to any permissible purpose of legislative apportionment.

The Constitution itself provides that the per capita representation of voters living in any county was more than 6% of the population shall be limited to a fraction, now about 60%, of the per capita representation accorded to people who live in a county with less than 6% of the State’s population.

The sole function of the formula, I think it could be shown without any question, is to create politically favored, politically disfavored classes of voters classifying them according to the number of their neighbors that it lives here.

Now, the State makes three arguments in this respect.

First, they say that there are many matters of legislative concern that are having importance to the counties that are handled through the counties and this I am sure is true, but this doesn’t justify the rule in the Senate.

That’s taken care of by the one representative from each county in the House.

There is no such purpose in the Senate.

There are counties who don’t have a representative.

Second, the counsel says that the apportionment formula would limit the physical size of a district — the physical size of the districts because physical size may have a significant bearing on a voter’s capacity that influenced the legislature.

Well, I put it a little differently but nevertheless, I acknowledged earlier that physical size might be a permissible purpose.

But the fault in New York’s argument is that the formula for apportioning the Senate has no rational relationship to the goal of keeping down the size of the district.

There’s nothing in the formula that limits the geographical size of any district.

There are states that do that and I couldn’t make this argument with respect to them.

California is one, Kentucky is another and perhaps there are more.

The purpose of having somebody from every area is again served by the apportionment of the assembly.

In addition, it can be shown that the rule that says that once a county grows and what’s that first ratio county has more representatives than in 1894, those seats are assigned to the less populous or second ratio of counties is permanent even though the total number of first ratio seats diminishes.

So that you have a point of fact, a greater number of second ratio seats available today than you had in 1894 and if my calculations are right, they’re available for a smaller area, so that this really can’t be a direct.

It doesn’t have any tendency to keep down the geographical size of district.

In addition, if one examines the workings of this, he will find that what has been happening is that as the Constitution would permit, the geographical size of districts in New York has in fact been increased.

Archibald Cox:

The people who have benefited are the counties that are getting two or more senators, but not enough to put them into first ratio the more populous county category.

The rural areas are getting bigger.

The top three counties is now one senatorial district.

In 1894, it was two.

It is now a senatorial district that reaches from the Lake down to the Pennsylvania line.

That used to be divided.

I got a list of the others that can be made out.

So that this rule, we say, does not tend to achieve either the purpose of keeping the geographical size of district small or any other permissible purpose.

It is simply a classifying legislation aimed to give the rural voter more votes and our second principle, we think forbids that. The third argument is that New York must take into account, the unique concentration of population of political power in a few localities in order to assure that the wishes and needs of the rest of the State will not be ignored.

I see my time has expired.

Earl Warren:

Very well.

Mr. Galt.

Irving Galt:

Mr. Chief Justice and may it please the Court.

I should like to loose no time in coming down directly if I may to what it is to be a basic difference of opinion as to an issue which is cardinal I think to the determination of this case.

I recall Mr. Sand saying on oral argument, pointing to certain pages of our brief that we express criteria, that we use arguments which actually support his views.

Now, I want to make it crystal clear that on the matter of what constitutes equality of representation, we take sharp, very, very sharp issue with the appellants.

There is a basic difference.

I think it’s beyond argument listening to the appellants, reading their briefs that they equate per capita representation with equality of representation and here, we disagree emphatically.

We only agree to the extent that we believe there should be equality of representation but what does that term connote?

We see no necessary co-relationship between per capita representation and the equality of ac — access to the legislative process.

We don’t regard per capita representation as the test, as the only test, or as the starting point.

Basically, I think that difficulty lies in the question of the conception of a constituency and the — the functions and purposes of a single member district system.

Obviously, it’s one thing to deal as this Court did deal only during the last term with a — a statewide constituency in Gray against Sanders, and the Court laid down the rule while being careful in Mr. Justice Douglas’ opinion to leave open the question of state apportionments, the Court did very definitely lay down the rule that insofar as a single constituency is concerned, a statewide election, there can be but one constitutional standard that they must raise one man, one vote.

And there, the law has done everything it conceivably can do to guarantee to the 20 voters within the single constituency system the equality of access to the legislative process with every other citizen, but I submit that it’s an entirely different matter when it comes to a single member district system with its series of constituencies leading to the election of representatives in a state legislature.

It’s much more complex.

It’s much more of a problem because you have — in the very nature of this system, you have residents of different districts and indeed residents of the same district vying with each other for their legislator’s attention and it’s a matter which comes down to something like this.

Isn’t that a problem in reality of assuring that — the man let’s say in Schuyler County, the County with a citizen population of but about 15,000 has as much influence on his legislative representative as the man in New York or Kings County.

Let’s see how the question of physical size of the geographical area —

Your — your argument and your brief, as I read it, all proceed in the premise that the measure, the constitutional standard against which these conflicting views have got be judged, are from the Equal Protection Clause that working from that.

Do you accept that proposition, do you?

Irving Galt:

We and — of necessity in view of the Baker decision, of course, accept for the proposition that the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment —

Well, of course there is —

Irving Galt:

— is applicable to Fourteenth Amendment.

There is room for Baker to operate even though you rejected that proposition.

You recognize that, don’t you?

Irving Galt:

I’m — I’m sorry, I didn’t get the question.

I say, you didn’t — you recognize that there is room for Baker to operate without your — without accepting that proposition if one rejects it.

Irving Galt:

Without accepting the proposition of the Equal Protection —

Yes.

Irving Galt:

— Clause applies to apportionment cases?

Well, I think the Baker case made it expressly applicable to apportionment cases.

The question is whether an apportionment case will fit into the condemnation of the Equal Protection Clause.

And here, we say —

Oh, that’s the question I’m putting to you.

Irving Galt:

Pardon?

That’s the question I’m putting to you whether —

Irving Galt:

We say —

— whether the Equal Protection Clause in the field of apportionment, the abstract notion of equal protection as embodied in the Fourteenth Amendment applies to apportionment as distinguished — as the distribution of governmental power within the State as distinguished from its obvious application in relation to racial discrimination as it bears upon individual voting rights.

Irving Galt:

It certainly, I think, can apply and the question then will be whether the — whether the well-recognized, well-developed standards under the Equal Protection Clause condemn the apportionment system but —

Well, that’s alright.

I just want to get the premises of your argument.

Irving Galt:

Yes.

But assuredly, we — we contend most vigorously that the Equal Protection Clause, when viewed against the rational that we will be discussing certainly will not and should not strike down New York’s apportionment system in any respect and I was making some of these references to problems which exist irrespective of whether it’s New York or another State.

These may exist and I wanted to point out that for example, the physical size of the district to which so much reference was made in the Solicitor General’s argument, in the appellant’s argument, this matter of physical size of the district in reality is very important.

You can take for example a citizen, let’s call him A, who lives in a district of 5000 square miles and we have such a senatorial district in the State of New York, and a citizen B who lives in a district of one square mile.

Now, even if the populations were the same or they were dissimilar or anything else, it can hardly be said that the man living in the 5000 square mile county has equality of that access to his representative in comparison with the man living in the closely concentrated county with its much greater cohesion of interest.

It’s much more ready accessibility to the legislative representative, to the legislature itself and its ability to make its interest felt.

I can take for instance in the City of New York where you have high-rise apartment houses.

You can walk into the local movie house and you maybe in one or two assembly districts.

People may be coming one or two assembly in senate districts.

Irving Galt:

It’s very easy for the people meeting in a PTA meeting to make their legislature know that they want a traffic light on the corner and they have no difficulty at all going to the very door of their legislature representative to tell him so.

But it’s quite a different thing when you take, for instance, St. Lawrence County up in the 40th senatorial district, up at the northeast part of the State.

That County alone is larger than the State of Delaware.

I think it’s something like 2700 square miles and the State of Delaware itself will be here on its own apportionment case, come the first week of December or so and yet, that has one assemblyman and it is part of a multi-county senatorial district, the three county-senatorial districts that expands an area larger than the State of Connecticut.

Now, what is important to a resident of St. Lawrence County for instance, who lives near the seaway, the St. Lawrence seaway or who’s interested in the — in the smelting operations that occur in one part of the county, is of no interest whatever to the fellow who lives on the other edge of that same county or elsewhere in that county or maybe a farmer or something else.

Arthur J. Goldberg:

Mr. Galt, is your argument run against (Inaudible)

Irving Galt:

No.

Arthur J. Goldberg:

And is it your assistance and as such as so define (Inaudible) and I think that your argument was that (Inaudible) is a legitimate consideration concern (Inaudible)

Irving Galt:

Your Honor, I must say that I don’t believe that is the corollary which flows from the argument because what we are pointing out is that there are instances in New York with all the features that are taken into consideration that still present problems.

Here, we hear discussions and we hear arguments from the appellants and from the Solicitor General about the size of districts and we know that this still occurs.

They say that we enlarge the senate, let’s say.

Well, obviously the enlargement of the senate rule is — is intended to keep the size of districts down and with what New York has, we still have an occasional district which is that large and which does present the problem.

And of course Your Honor can see that there will be several alternatives if we carry this idea of enlarging to a great extent that we add so many people to our house for example that there can be no room for — for compact discussion or on the other hand, we enlarge districts and we have more enlarged districts such as the 40th senatorial district, we have a real problem on our hand.

How then does New York or any State to that matter guarantee to each voters so far as it reasonably and possibly can and consistent with the Fourteenth Amendment equality of access to the councils of Government?

Certainly, the State consistent with the Equal Protection Clause must think in those terms and when you consider New York especially with its extremely or regular population density, you can see the kind of problems with which that State must conjure.

Have you read the debates of the constitutional convention in New York of 1894?

Irving Galt:

Yes, I did when we had the case right on the statute (Voice Overlap) —

There are quite a group of distinguished lawyers who were delegates of that convention, are they not?

Irving Galt:

Yes (Inaudible)

Roehr is one of them I think.

Irving Galt:

Yes, Your Honor.

and others.

Do you find anything in those debates that indicated that any of those men entertained any doubts that so far as the Federal Constitution was concerned, they were free to device an apportionment plan that they thought best needed — would be needed in the New York State?

Irving Galt:

I can honestly say that I found nothing in the debates that so indicate and now Your Honors, I wanted to say —

Earl Warren:

Did they go into that of the hearing?

Irving Galt:

Pardon?

Earl Warren:

Did they go into that at the hearing?

Irving Galt:

At the — what — what that aspect of the constitutional convention, not that I recall.

I don’t believe that there’s anything in the record other than the proceedings of the convention itself.

The reference is made to the proceedings of the convention itself, but taking up that particular aspect of it, there’s negative concept that they did not go into it.

Irving Galt:

I suppose the assumption is that they didn’t think that the problem even applied and I would certainly agree with them wholeheartedly if that was their assumption.

Certainly, no one thought as far as I can (Voice Overlap) —

There is liable debate, wasn’t there as to different measures?

Irving Galt:

There were debates, there were — there were enumerable debates as to different measures mostly on the matter of wisdom of doing it one way or another, but that’s a legislative function to debate the wisdom of (Voice Overlap) —

And of course of those debates which were in the subject to differences of view and having to notice these problems can be presented — they’re subject of differences of view, was it — did anybody suggest that a proposal that somebody put forward that he disagree with was unconstitutional under the federal system (Voice Overlap) —

Irving Galt:

I don’t recall it.

This doesn’t exclude the possibility that was — that somebody might have said it.

My memory is not that infallible but I just do not recall it nor do I think that it would have been likely to have been raised at that time and I don’t think that that was a problem in the convention to the best — to the very best of my recollection.

Earl Warren:

I thought — I thought in the court below that counsel tried to show what was in the minds of the —

Irving Galt:

Oh yes and now with constitution.

Earl Warren:

— constitution makers and they were denied that right.

Irving Galt:

Well, Mr. Justice — Mr. Chief Justice Warren, it’s quite true that there is a question of an offer of proof here and what was tried to be done down there in that connection was to — was to introduce proof and offer.

Our proof was made and of course rejected by the (Inaudible) Court to show the intention of the legislators in 1894.

Now of course, taking Your Honor your own McGowan against Maryland opinion, of course you don’t ascribe a sort of legislative mens rea to a large deliberate of body of that kind.

The test obviously is not what personal preferences if any one way or the other may have motivated legislators.

The Act itself is to be judged in the light of constitutional standards and it’s immaterial, plainly immaterial what the legislate — what the legislators or the delegates to the constitutional convention may or may not have entertained as personal opinions.

The Act must be judged on its own merits.

Earl Warren:

I thought that was your position here —

Irving Galt:

Yes.

Earl Warren:

— before you answered Mr. Justice Harlan.

Irving Galt:

Well I — I, I merely attempted to answer Justice Harlan’s question as to whether this or — this circumstance did or did not appear in the record of those proceedings and to the best of my recollection, it did not.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Well, that’s putting it much more flatly than we would put it.

We say that a state and we — in these general principles I’ve been alluding to, I have not yet reached that point.

But as to New York, we will show that the State had a perfect right consistent with every concept of — of federal constitutionality to take into consideration a number of factors and not to be limited by per capita representation either at this whole standard or to the starting point of inquiry.

Now, what we do —

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Yes.

There are other factors.

For example, Mr. Justice Goldberg and I’m talking now not so much about New York in particular but the foundation for this entire problem which may have varying application among different States, depending on their particular situations and problems.

Irving Galt:

But in the State of New York and in many States, there isn’t any doubt that county government is of great importance and in fact, the Solicitor General, a few moments ago very graciously acknowledged that as a matter of — of argument.

It’s true that in New York, county government is becoming more and more important, increasingly important, increasingly useful.

And there is a certain analogy to — for instance the question of federal aid to the States just as the States look to the National Government, for federal aid so in New York and many other States does the — does the county look to its State legislature — State legislature for State aid.

Now, of course the county also is instrumental in initiating legislation in the legislature and suggesting legislation for the State legislature, but let’s come back to the example that I was giving Your Honors of the New York County voter for example.

He’s represented by a senator, a state senator whose entire constituency is in New York County.

Not only that, there are other senators in New York County and he obviously had easy access to the legislature, no particular problem there.

But come back again to the St. Lawrence voter where the senator represents this vast area including these other two counties and I have no doubt that any voter in St. Lawrence County would rightly say under those circumstances that he’s not equally represented with his counterpart in New York County.

In fact, he has a situation in the senatorial district where two other counties are competing for State A for the attention of the State senators.

Now, I say all of this to indicate to some extent what Mr. Justice Stewart referred to during the appellant’s argument as some of the complexities and nuances in the question of securing and achieving equality of representation in a single member district system.

As a matter of fact, it goes further than that.

New York County senator to project further the example is in reality, in a delegation of senators from New York County, senators and assemblymen and they very frequently vote in a block, not only in the county but in the City.

This is common knowledge and it’s a perfectly natural and expected thing and the concept of neighborhood in New York County for example would be such that a so-called neighborhood might well encompass several assembly districts and possibly more than one senate district and it’s difficult to say that equality of representation is achieved when one small, physically small area for instance of that time has such solid control of the legislature has such a — an influential voice in the legislature through its block, through its delegation, through its solidity, through its institutional power that the interest of other areas may very, very easily be ignored.

And yet —

Potter Stewart:

I suppose — I suppose it’s also true that it’s a — but it’s a fact of life, isn’t it Mr. Galt that they’re otherwise being represented in a legislature ways other than being represented by a senator or an assemblyman to see?

In other words, what I have in mind is that there is a bill in Albany of particular interest to New York City.

I suppose representatives of the City as entity, as an institution up here before the rep — committees and the legislature, do they not?

Irving Galt:

Well —

Potter Stewart:

The Mayor and his representatives in New York City.

Irving Galt:

Well, undoubtedly the Mayor has a legislative representative up there in Albany.

But the —

Potter Stewart:

I’m talking now about the representation of the — of the City of New York as an —

Irving Galt:

Well, you mean institution (Voice overlap) —

Potter Stewart:

— in a way — had the way, which it carries as an institution more rapidly.

Irving Galt:

Oh, obviously carries a tremendous institutional weight right there which goes — goes beyond any question of its per capita allocation.

I think and further on, if time will permit and if Your Honors will permit me too, I think I might be able to develop that toward along certain other lines which may serve even more fully to answer Your Honor’s questions.

Potter Stewart:

Well — well, I’ve interrupted you.

I’m — I am interested in the — this business of home rule from the point of view of legislative power possessed by the City of New York — New York City or others, do they have it?

They have it, some of them may have considerable (Inaudible), don’t they?

Irving Galt:

Someone had what?

Potter Stewart:

Some of the municipalities in New York have a considerable amount of home rule.

Irving Galt:

Very definitely in the City of New York.

There is — there are some developments as a matter of fact Your Honor with respect to home rules, something is on the ballot a few weeks ago.

I am not sufficiently familiar with all the details at this time to be able to enlighten Your Honors to any — to any specific degree would be the light that was requested to submit a supplemental brief on that.

I am not sufficiently well versed in all of the details of that to equip Your Honor with the information of this thinking, but I can certainly subscribe to the statement that home rule is a very important ingredient of governmental concept in the State of New York.

Do you think the political pole is democratic in the public parties that it has anything to do with this propriety, which is important?

Irving Galt:

The political opposition of the democratic and republican parties, if Your Honor, I honestly can’t answer that.

In a full sense, I would say that —

Do you live in New York?

Irving Galt:

Yes, I live in New York State, I live in Nassau County.

There are certain — there are certain attitudes described and all that.

When you look at a — a governmental process resulting in an apportionment system, there are a variety of factors to be taken into consideration.

One of them is the natural competing interest of the two parties in our two-party system, but whether that’s responsible for the apportionment, I — I know of nothing to say that it is — that the party factor itself is responsible for the apportionment.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Well —

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Well, there —

Arthur J. Goldberg:

(Inaudible) part of New York.

Irving Galt:

Well, I don’t know whether it’s correct to say that the apportionment has not had a — has not had a political impact.

The — there has been — there certainly has been as the City points out a — a series of representation like this but we have answered that in fact, I think in our briefs by pointing out this because the argument has been made in a broader sense.

The argument is made by the appellant and the City that the minority party viewed from a per capita representation vote has the ascendancy in the legislature but isn’t this Your Honor simply misconceiving the purpose and function of a single-member constituency system.

If, and we show this in our brief, we have undertaken to marshal the figures in that respect.

In our brief, we show that if you look at the notion of a single-member of the district system, you will find that if you treat any given district by the winning party in the district, in other words, district X elects an assembly — a Republican assemblymen, district Y elects a Democratic assemblymen and regardless of the split of the vote, it can be 55, 45, 90, 10 or just a various fraction, you must when you look into the workings and operations of a system of this sort, you must treat the county in which the ultimate representative is a Democrat or a Republican as the case maybe as to all — all practical purposes a Democratic vote in that county or a Republican vote in the county electing Republican.

On that basis, we have shown going back a number of years through the last four or five elections.

I think at page 53 and 54 of our brief, we have shown that viewed in that correct perspective, understanding the nature of this system that the percentage is not that of a minority party in the legislature, actually the percentages range from 56.9% to as high as 65.5% on the basis of the correctly applied formula for — for judging that which we think must be applied here.

Potter Stewart:

And suppose following clearly your thought into the question of what is or what is not true representation and suppose it — at least possible to argue that a Republican voter in the City of New York is better represented by a Republican representative from Rochester than he is by the representative — the Democratic representative from his own district, isn’t that correct?

Irving Galt:

Well, those involved so many concepts that I can’t say that I can answer that category. But I would think —

Potter Stewart:

But at least suggest some of the complexities of this case, doesn’t it?

Irving Galt:

And just — has just answered the complexities, but going beyond that, I think also that when we go back to the simple traffic light situation, when PTAs gather, Republicans, Democrats, minority parties or anyone else irrespective of party down there in these concentrated districts, they all can and do get the assemblymen’s or the state senators here and make known.

In no uncertain time — terms, just what are their desires in the way of legislation to rectify this situation.

So, from that standpoint, the constituency is represented.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Make no —

Arthur J. Goldberg:

— he may not get the vote.

Irving Galt:

And he may not get the vote.

But the point is the important and the cardinal point is that they can register — register their views effectively.

And all of these things that I have been mentioning occur and yet a feature of representative Democratic Government must be I should think that, so far as can be done or desirable goal would be that, the problems of all areas and of all voters are meet for consideration.

And it’s for that reason, and the reasons of that kind that we think it’s suspicious to equate the per capita standard as the appellants have done with equality of representation.

In short, people who cannot be heard or whose voice is varying people, are people who are not equally represented.

And so we say that we can think of at least four factors which might well be taken into consideration in any apportionment system.

There are maybe others, if we had a year to think about them, we’d probably find more but four that we can think of.

First and foremost obviously, the one with so much reference has been made.

It’s an obvious one of the per capita representation idea.

And if the kind of problems we have been discussing a few moments ago were not present, there might be little justification for departure from it, but these problems assuredly all present, they can’t be ignored, certainly not New York.

They do exist and although New York adheres quite closely to a per capita standard, there are other ingredients that it takes into account; for instance, the guarantee of one representative to one county, the minimum guarantee that each county should have a representative, which is the system used in our state assembly, in one of the two chambers.

Now, I don’t think it’s all debatable, but that, in the light of the close relationship that exists between county and state governments and the problems such as I have mentioned them and that they must be infinitely more of access to the state legislature especially where the county governments are concerned makes this very often a vital feature and a few moments ago, we heard the Solicitor General very frankly concede as much and incidentally, his fire was directed virtually not at all against the assembly and this is one of the reasons.

Hugo L. Black:

May I ask you, have you put it in your brief anywhere the population in your largest county as compared to the population of your smallest county?

Irving Galt:

Yes, we — we can give it to you on the brief Your Honor or in the record.

Hugo L. Black:

But I do not want you to (Voice Overlap) —

Irving Galt:

Oh, we can get that way very quickly but the smallest county would be — the smallest county excluding Hamilton which by the way Your Honor a County of only 4000 or 5000 is joined with Hamilton County —

Hugo L. Black:

Do they have — do they have a representative?

Irving Galt:

No.

They are joined with their neighbor Fulton County.

They have only 4000 or 5000, but the smallest citizen population in the State until the record reference is found would be approximately 15,000 give or take a few hundred.

I think it maybe a little under 15,000 as of the 1960 census for the counties of Schuyler and —

Hugo L. Black:

And what’s your argument?

Irving Galt:

And Yates, I believe for another somewhere around that figure and our largest would be Kings County, the exact — that runs into several millions, 2,518,510 in the County of Kings.

Now, of course, we’re talking now about New York State Your Honor in which nine counties are over 500,000 in population.

Out of 64 in the United States, a tenth Onondaga County is very close to that figure of 500,000 so this merely points up the extremely irregular population density which we have in the State of New York.

And as Mr. Justice Stewart pointed out only indicates the complexity of the problems with which we deal and which I submit we will show have been dealt with fairly and adequately from the standpoint of the Constitution.

Hugo L. Black:

As I understand it, you do not deny that the — compared to population has something to do with it.

Irving Galt:

Now, what — we — we thought —

Hugo L. Black:

May I ask you a fairly straight question, what’s the population of New York City?

Irving Galt:

We don’t deny that that could be taken as a candidate, yeah.

Hugo L. Black:

What’s the population of New York City?

Irving Galt:

New York City’s present population would be about 8,000,000.

I don’t know the exact figures —

Hugo L. Black:

The Chamber of Commerce —

Irving Galt:

— maybe 9,000,000. Maybe I’m — someone over here who maybe in that category for the moment has suggested a higher figure, but it’s well (Inaudible)

Hugo L. Black:

What’s the — what’s the population of the rest of the State?

Irving Galt:

Population of the entire state, the citizen population and as of the 1960 census is somewhere around 16,200,000 as compared to about 14,000,000 and some hundred thousand in 1950.

Hugo L. Black:

That does a test of figures.

Irving Galt:

Yes.

Hugo L. Black:

Suppose they had decided to give New York City one senator and one representative and give the rest of the State a hundred each — a hundred for the rest of the State, what would you say about that?

Irving Galt:

I would say that there would be — first of all, I wouldn’t say that there’s a categorical answer to that.

I would say that that might very well not Mr. Justice Black be unconstitutional.

It would depend on how you would view the situation in light of the standards, the well-defined judicially manageable standard to the development of the Equal Protection Clause.

Now, of course you can have the situation.

Hugo L. Black:

What are those — what are those?

Irving Galt:

The —

Hugo L. Black:

You say well-defined?

Irving Galt:

The — the ones referred to in the Baker opinion, I have reference of course to —

How do you define them in the Constitution and to that effect?

Irving Galt:

Well, the — they of course are the result of decision on development but the — the standards expressed — which were expressly made applicable for legislative apportionment cases of course and Baker is, whether a legislate — whether a legislative act or apportionment rests upon no reasonable bases and either because — either because it’s a crazy quilt and therefore irrational or implements, some invidious corpus or state policy not permissible.

But to come back to your specific example Mr. Justice Black, I think the answer to it might be that in any constitutional area, a point is sometimes reached which becomes a point of absurdity.

And this Court has never had any difficulty in stepping in under such circumstances.

It depends on the extreme to which you carry it.

For instance, we are told in some of our advisory’s briefs or rather some of those who have aligned themselves with the appellants, we’ve been — we’re told about example of a county with one resident, one voter or one resident in it, but this is pretty absurd long before it got to that point and nothing illustrates better than Hamilton County with its 4000 or so population join Fulton, long before it got to that point I’m sure, the State of New York would’ve stepped in and if it did not, there would be a point of absurdity reached.

I think perhaps this is illustrated by something like this Court’s decision in the — was it Thompson against Louisville, the situation where an elderly Negro was prosecuted for no apparent reason, no proof.

Now, this Court does not sit normally and review on criminal proceedings of state courts under normal circumstances, yet, in that case, this Court did intervene where it necessary until you get to that breaking point when you carry it to that extreme, of course the situation becomes different.

But, New York system in any event will present no such problem.

Irving Galt:

As we proposed to show to this Court because I think this Court will agree, New York accommodates and adheres quite closely to a per capita representation standard at the same time accommodating other very valuable ingredients for an apportionment system.

And the fact that it can do so in a State with such irregularity of population of such size, of such extreme problems, of such extreme comparisons of population, and do these and would still maintain its 12th ranking on a per capita stand at the United States.

Ahead of that of three quarters of the State of the Union, I think if anything is a tribute to the validity of its system.

But surely —

Hugo L. Black:

I asked you the question because — I asked you the question because I gather that your argument is in line with what this Court has said about the Equal Protection Clause of the Fourteenth Amendment many times.

Irving Galt:

Yes.

Hugo L. Black:

That in trying to determine whether a particular situation is a violation of it, the Court has not attempted to capture a formula or to set out certain precise standards.

It has recognized that imprecise standards and had said that you look at the circumstances to determine whether it does in fact amount the equal protection of the law.

And in that respect, the Court has treated that the general imprecise language of the Fourteenth Amendment Equal Protection quite differently to those places where the Constitution has its self-prescribed the fixed statute such as not only county rate or (Inaudible).

I gather that you are arguing on the basis, the Court does have to consider the facts and circumstances to see whether or not in effect in the end there has been an invidious discrimination against individual holders, which is barred by the Fourteenth Amendment.

Irving Galt:

Well, first of all, Your Honor, the test would have to be applied as to the rationality.

We are going to show and we have started to show that there are rational factors.

We will show that there are many, many states of fact which could be conceived taking the — taking the presumption of constitutionality which would support the action of the State a lot in the McGowan decision —

Hugo L. Black:

And so do you go far enough to say some that would to reject it?

Irving Galt:

Pardon?

Hugo L. Black:

Do you go far enough to say some that would also reject it?

Irving Galt:

Some what that would also reject it.

I don’t follow you.

Hugo L. Black:

So, when you say — that you’re saying that something that could be thought out that would support.

Yes, something is all through, how would you say it that the — would you say that it was not support of them?

Irving Galt:

No, I do not say that.

I say that the only things that can properly be concede about things, which do support it.

And as a matter of fact, under the McGowan case, that’s certainly enough, but we go further than that.

Your Honor touched upon something which I think is reflected in your own opinion Your Honor in Ferguson against Skrupa only last term, the Kansas debt adjustment statute which if Your Honor — Your Honor discussed the question of exception of lawyers.

And if there was any vestige left of the doctrine which at the turn of the century following the Lochner case and all the way down through late in the 1930s, if there was any vestige left of the idea that this Court will apply economic or social or rather purely subjective concepts to such a thing as the Equal Protection Clause, I think that last vestige was certainly removed in Your Honor’s opinion in Ferguson against Skrupa, and that exactly what we say is the case here.

If we were to subscribe to appellant’s notions of using these subjective tests than the Court of necessity would be doing the very thing which it proscribed in Skrupa or in Ferguson.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

No, as a matter of fact, first of all there is a necessary and quite understandable, if I may say so, Mr. Justice Goldberg, erroneous assumption of fact because one of the things we’re going to show as we did in the statutory court, is that quite contrary to what the appellants came into court saying as their central allegation in their complaint that the New York formula when applied to New York State must necessarily result in a grossly unfair weighting of both houses in favor of the rural interest against the urban interest.

When we come to the statistics and we came to them in that — in the statutory court below and it’s reflected in Mr. Justice — Judge Leavitt’s opinion, we show that the urban counties predominate by far.

New York is a state which is 85 point something urbanized and it has some of the most heavily urbanized counties one can think of.

Irving Galt:

The six plaintiff counties alone and I select them because they are the six plaintiff county with individuals from those six counties, have in themselves a majority of the population of the State and they have, percentage wise, I think we have it here exactly, just the six counties alone, without reference to the New York metropolitan statistical area of nine counties are the ten heaviest urbanized counties.

But those are six counties alone, have a population, a total citizen population of over nine million, 56.2% of the State’s total citizen population, under the 53 apportionment, the one before the court.

60 apportionment has not yet been made, it’s only a projected apportionment.

They have a total of 72 assemblymen, 48% of the present Assembly, a total — they have 28 of 58 senators who are 48.3% of the Assembly.

But when you go to the other urbanized counties and it’s beyond doubt that we have many other urbanized counties, Eerie which is not reflected among the plaintiffs and all the plaintiffs.

Most of the plaintiffs were a 100, most counties, a 100% urbanized, good, many of them 90% and one, Suffolk about 72% urbanized.

Hugo L. Black:

Were you reading it from the brief?

Irving Galt:

I’m not reading it from the brief, but we do have that in the brief, Your Honor.

Hugo L. Black:

Well, I thought you are reading it.

Irving Galt:

I’m not giving the Court anything which is either not in the record or in the brief.

Hugo L. Black:

Well, I understood, I had simply – if you were reading it from the brief, I want to see —

Irving Galt:

Oh, I — I’m — very sorry Your Honor, we’d get to that point.

Hugo L. Black:

Don’t bother that.

Irving Galt:

We have that at several places.

We have it, to begin with early in the brief, the first reference to that is made at pages 8 to 9, where we — where we list a series of counties, a combination of counties.

We have taken the six plaintiff counties which I have just given to you and then Your Honor, at page 9 of our brief, the ten most heavily populated counties, all but one of which are over a half million in population and these — these are very substantial counties, very heavily urbanized.

We have shown that they have a clear control of the State legislature, 65.5% of the Senate and 62% of the Assembly, that’s under the current apportionment.

They will still have under the projected apportionment which is not now before the Court, a clear majority.

They have a population of 73.5% of the total citizen population.

I could go on with these enumerations, particularly the nine-county, New York City metropolitan statistical area which takes in the five counties of the City of New York.

Nassau, Suffolk, Westchester and Rockland and they have a citizen population of 10 million, over 10 million, 10,260,000, under the 1960 census, 63.2% of the total citizen population of the State.

They’re represented by 54% of the assemblymen and 55.2% of the Senate under the projected reapportionment.

They will still have a clear majority 52% to 52.6%.

But I say, all of this only to emphasize that there is no basis whatever to what was the central allegation of the plaintiff’s complaint, what we will brought them into court to answer because the shoe is precisely on the other foot.

There is an urban majority in the State of New York reflected as a majority, as a matter of fact, in the counsels of the legislative government.

They have the majority representatives.

And that’s important for a number of reasons, first of all is, I suppose, is one of the reasons why we have seen a reversed twist in this Court.

The appellants apparently have abandoned their theory and I would emphasize that Mr. Justice Goldberg, of urban — of urban subjection to rural domination because the figures simply won’t support it.

They now, speak in euphemisms of more populous and most populous and less populous counties.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

I — I — what I do wish to point out to the Court and here is something which I think indicates some of the pitfalls and dangers I suppose of statistics and I admit my own mathematical shortcomings, but I would say to this Court that what I think Your Honor has reference to, Mr. Justice Goldberg, are the figures of the theoretical majority, which would be required to elect a majority in the respective Houses.

That’s quite a different thing and in that connection, we referred I think, at pages 35 or 36 or 37 of our brief, page 51 of our brief, to certain figures which compared New York in this respect with all of the States.

We took the David Maizenberg study, which was made in 1955 and reflected that an existing apportionment, which is still the apportionment 1950 — under the 1950 census and it was found in this figure as accurate that New York ranks 12th in the nation.

But then there were figures that we used which might be somewhat misleading and I think I owe it to the Court, to tell them about it.

Not that the — not that the errors are matters which would affect us adversely, but in order for the sake of accuracy, I might mention it.

At those points in the brief, we had also been referring to the 1961 National Municipal League compendium, and it wasn’t until after the brief was written and one of our very — someone who wrote it, called it to our attention that we discovered that the National Municipal League figures were on the 1961 basis and ran into three different categories.

First of all, it took New York as though, we had reapportioned in 1960 or after 1960.

It took Virginia and Maryland and Alabama without that concept and it took other States as though it may have actually been reapportioned prior to (Inaudible)

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Yes.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Yes.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Yes, Your — Your Honor was quite correct there but I am making further point not only that the theoretical majority necessary — new theoretical percentage necessarily to elect the majority, and now, you do that by going to the very bottom, going from the least populous states up until you reach that figure which theoretically can elect the majority.

That’s quite different situation, but I wanted to point out that there were certain possibly misleading figures not the 12th ranking of New York but the percentages because of the discrepancies of date and the different applications of the National Municipal League Compendium and to that, I want to add that instead of New York ranking second among the four States, in the point only of direct relation to the per capita representation, ranking behind Virginia, I think, although I don’t subscribe to this with the necessarily accurate figure but the best I can determine Virginia, unless it has reapportioned since 1960 or 1961, would rank under those figures, 14th behind New York State.

However, the important point is that we do not say that this should be measured from a criterion of — of the population standard.

We have had —

Earl Warren:

To what — to what extent this population important in this field?

Irving Galt:

To — important to?

Earl Warren:

In the — in reapportionment?

Irving Galt:

Oh, well, now that involves a question, which I think would certainly — would have to come up in any event, in the question of — of the exercise of this Court’s equity power and the standards to be applied.

We say that, you cannot give — this is one of the difficulties with these shipping concepts that we have from the appellants.

First, they say and I can’t make out precisely what their argument is in this respect, first they say, you must have a per capita standard.

Then they say, it’s alright to have deviations in one house, although you can’t do it here in New York for reasons which we’ll explore later they — they have said that and — and this immediately, once you accommodate other ingredients, if you’re going to have a viable decree which a state legislature for instance can understand without running the parallel apportioning and reapportioning and — and getting the whole political system of the State into a hopeless tangle, you would have to be able if you follow the — the appellants and even the Solicitor General’s theory in this respect, to give weight to them, but who is to say how much weight should be given to any of these factors?

This is the reason why we have advocated for this Court in connection with its measuring of the situation, not the starting point of per capita representation, espoused by both the appellants and to some extent by the Solicitor General, but we have advocated that the starting point in the highest traditions of this Court and in accordance with the best concepts to develop decisional law under the Equal Protection Clause would be to see that the degree of responsiveness to the popular will, the degree to which citizens have access to the legislative process.

We think they’ve for instance, in applying that, the application I think, is — is very clear.

If you take a state like Tennessee, which was the subject of the Baker case, where it had a constitutional formula written many years ago, a formula which as I best desire — I — I can recall it at the moment, was more on an equal population standard basis, on a per capita basis would something like an apportionment of delegates to counties having two-thirds of the prescribed number and 60 years went by — 70s — almost 70 years went by and the State of Tennessee did not even reapportioned.

It didn’t conform to the mandates of its own state constitution and there was as the opinion pointed out as the — as the majority opinion pointed out and I recall Mr. Justice Clark’s opinion speaking very emphatically about the lack of any such thing as initiative or referendum.

The people had no remedy in Tennessee.

They’re the legislature that locked itself into power as a self-perpetuating oligarchy, never mind the will of the people, and the people had no remedy, that’s one kind of situation.

Irving Galt:

Then very well, the State certainly would have to come along and justify the reasons behind the seemingly inexplicable situation and that I think, would be the Baker case, but New York is not Tennessee and the facts of the Baker case are not the facts of the WMCA case.

Here, we have a principal formula written into our Constitution.

Earl Warren:

We learned about that formula and what I want to know is what part should population play?

Irving Galt:

There’s no particular weight, as such can be ascribed to population or any other factor, nor is it necessary not to use any of the specific factors we have mentioned.

The question is, these factors being available, these factors being useful to accomplishing the legitimate purposes of a single-member district system, whether they are used in such — whether or not, they use or lack of uses — is isn’t — are done in such a way as to offend under the standards of this Court’s requirements of equal protection as explicitly made applicable to apportionment case.

Does population exactly have to do although they’ve not in particular to do with it, where is the lack of equal protection, I don’t understand it.

Irving Galt:

Well, the lack of equal protection come in, taking again Mr. Justice Brennan’s majority opinion, if there is a legislature which had done what Tennessee has done in 60 or 70 years, go by, the — and they do not reapportion, they do not stick to their constitution —

I think that —

Irving Galt:

Then they’re likely to have —

I think that that situation hereby everybody has agreed with.

Irving Galt:

That’s right.

We do not have that situation.

Then in answer to the Chief Justice’s question, you said that population (Inaudible) didn’t have really anything to do with it as controlling, they could do it as (Inaudible)

Irving Galt:

We sought it, it’s not — oh, I’m sorry.

In fact, you take population out, you still — what — what’s left to the equal protection argument?

Irving Galt:

The question was what weight had to be attached to it and I merely suggested that it wasn’t a matter of attaching any preconceived notion of so much weight to — to the per capita standards, so much weight to the question of one representative per county.

It’s not a question of that at all, where the — where population might under certain circumstances, enter into the picture is as the — a case like Tennessee, for example, where because of all these developments, it has become a crazy quilt without rhyme or reason.

It’s that kind of failure to observe the standards set forth in the State Constitution.

That kind of — of situation where the — where the legislature locks itself into power and the people literally can do nothing, which is not New York, it’s in that kind of a situation that you may very well find that you will — are led to the situation where there is no policy, but arbitrary in capricious action, paraphrasing of course, Mr. Justice Brennan’s language in Baker.

We have a crazy quilt with outlined or reason following Mr. Justice Clark’s language.

But there isn’t —

Irving Galt:

But there is no particular weight to be scribed to any of these ingredients.

Any or all of them may well belong in any well-balanced apportionment system and certainly, the States have a right to use if — if they so desire, criteria other than population, as the — as the prime standard or one from which certain deviations are permitted.

Incidentally, I — I do wish to state that Solicitor General has been very commendably candid.

He has said that New York’s apportionment system does not represent a crazy quilt.

It’s not without rhyme or reason, it’s consistently applied, but I — I want to point out in that connection of — in making that concession, he — he does not — he — he relies on something entirely different, the so-called third premise, which is not what I’m considering for the moment, but the fact of matter is that there’s no question that we don’t have a crazy quilt.

We don’t have something which is irrational or inexplicable.

We have something which makes sense and particularly makes sense in the State of New York and the problems with which it must deal.

We —

Earl Warren:

He contends it’s arbitrary, doesn’t he?

Irving Galt:

He contends that —

Earl Warren:

It is arbitrary.

Irving Galt:

No, what — what the Solicitor General contends in his attack certainly doesn’t seem to be centered on the Assembly at all, but the Solicitor General apparently contends that we discriminate against certain classes of people in invidious fashion in some — in some way related to an impermissible objective of state policy.

And I submit that simply cannot be demonstrated because when the Solicitor General speaks of farmers, of doctors and lawyers, of other interest groups, first of all, we don’t have representation according to interest groups.

Any group, whether they’d be doctors, farmers or anything else, New York system is so constituted that any of them can have access to the legislative system to the best that we can provide it for them, but the — the — he does not relate that back.

There’s no cross-reference back to the other things that he mentioned.

He says, political subdivisions are alright, one county is alright.

He doesn’t relate that back.

If that argument is to have any force or validity, it can only have force or validity if it relates back to the things on which the New York apportionment system relies and rightfully relies.

Potter Stewart:

Well, what the Solicitor General says in the sentences is that your system discriminates against the voters living in counties which contain more than 6% of the population and in terms of per capita representation, it does, doesn’t it?

Irving Galt:

Well, if in that sense, yes, but no cases of this Court, no concepts of equal protection rule out discrimination.

What they rule out is the invidious discrimination, the discrimination which cannot be justified on any legitimately conceivable set of facts.

Potter Stewart:

That’s — that’s (Inaudible)

Irving Galt:

But the fact that there maybe discrimination does not mean that there’s unconstitutionality from the standpoint of the Equal Protection Clause and that’s exactly this case.

Byron R. White:

(Inaudible) the initial statements in applying the Equal Protection Clause, if there’s unequal treatment, you normally should have a reason for it?

Irving Galt:

Well, yes, if it’s arbitrary.

Byron R. White:

Well, how about the difference between the treatments you accord, the cities with 6% or more of the population and those counties with less and what’s the reason for that?

You say that this is an urban, rural thing at all, if the parties had abandoned this whole argument and you say — it’s because these counties are so heavily urbanized, but you do distinguish between one kind of urbanized county and another, namely, the ones with more than 6% and the one with less.

And what’s your — what’s the justification for that —

Irving Galt:

Do we not —

Byron R. White:

— discrimination, which you admit it is a discrimination?

Irving Galt:

The answer to that I believe, Mr. Justice White, is that —

Byron R. White:

Certainly, it has been in terms of — of access to the legislature or anything like that —

Irving Galt:

No.

Byron R. White:

— because these are urbanized counties.

Irving Galt:

The — the answer to that is I assume Your Honor, speaking to the full ratios of Suffolk, full ratio rule in the Senate applicable to counties of 6% or more, there —

Byron R. White:

Well, don’t you —

Irving Galt:

There was a rationale behind that.

Byron R. White:

Isn’t there a measurable — isn’t there a measurable difference between the representation for 1000 people say in Nassau than — as compared with New York or —

Irving Galt:

As compared with New York County?

Byron R. White:

Yes.

Irving Galt:

Well, I suppose there is.

I don’t know the exact figures off hand that would — though the — the — no, there would not be —

Byron R. White:

Or Suffolk?

Irving Galt:

Nassau and New York County about —

Byron R. White:

Suffolk.

Irving Galt:

Suffolk, yes.

Nassau, itself, during the present apportionment is in the situation where it is not being treated as a full ratio —

Byron R. White:

Well, how about Suffolk?

You called Suffolk as one of the urbanized counties?

Irving Galt:

Yes, it’s 72% urbanized.

Byron R. White:

Yes.

Irving Galt:

And it’s growing rapidly —

Byron R. White:

But it has a — it has a measurable difference in the —

Irving Galt:

Yes.

Byron R. White:

Per capita representation substitutes compared to New York City.

Irving Galt:

Yes and the reason —

Byron R. White:

Now, what’s the reason for that?

Irving Galt:

Well, this — the full ratio rule was designed in the first instance, to — to ensure that there’d be a proper diffusion of political power.

That institutional power in any single county or any small group of counties would not grow so great, the voice of small counties would not be heard.

Now, insofar as these arguments would be made about the counties of 6% or more, the 6% — the question of 6% is a question where a line should be drawn and you can argue if I assume until doomsday, people can argue all day long on where the line should be drawn, but I’m drawing the line itself, constitutionality can hardly earn.

Now, there has to be a line drawn somewhere.

There has to be a measuring point of that kind and they draw that at 6% county, the theory being that these are the counties which have grown so populous that the question of diffusion of political power and the — the case which — which exemplifies that is still the rule in this Court, the MacDougal case.

This is an instance — this is one of the ways in which New York meets that problem.

This isn’t a question of just drawing a line arbitrarily and saying that, all fellows on this side of the line, all fellows on that side of the line, ought to be treated differently.

These counties have reached a certain stature, a certain size a — and they have a certain significance where they — where their institutional weight will take the City of New York, for example.

I don’t think anyone can argue but that the City of New York has a weight which is out of proportion to even its numbers on a part — on a direct per capita representation basis.

The counties in New York City for instance and these, four of them are in the 6% bracket, are crucial to a gubernatorial election.

No Governor can possibly hope or no aspirant for the governorship can possibly hope to be elected for example, unless he can carry a substantial vote in the City of New York, whoever he might be.

And it’s this kind of institutional power, this kind of concentrated power, which this rule was designed to prevent, of course, when you look —

Byron R. White:

Of course, district — districting a state at all, even if where districting completely on the population basis, has the effect of a — of a diffusion of political power, doesn’t it?

Irving Galt:

It might have some of the most unfortunate effects in the world.

For instance, if you had just a single — just a single stand of —

Byron R. White:

Yes, but assume, you just — assume you just — you divide a state into districts, just the very act of doing that as compared to as having an election that were announced to a diffusion of political power.

Irving Galt:

There are all kinds of diffusion —

Byron R. White:

Well, I mean, isn’t that so or not?

Irving Galt:

Are you asking that my —

Byron R. White:

If you view the same results in your legislature, if your legislature was elected at large or you’d have the — you may have a rather different result than a — than a (Voice Overlap) —

Irving Galt:

You might have one party control, you might have a splintering of a great number of parties, you might do — there are certain conditions under which the equal population stand, it might if applied in full force without reference to such of these other factors as we have mentioned, actually militates severely against a proper concept of equal access to the legislative process and these —

Byron R. White:

But still not sure why — what’s your — what’s your justification is for distinguishing between — between a 1000 people in New York County compared with a 1000 people in Suffolk County.

I have no idea —

Irving Galt:

Well, it isn’t a question of — of discriminating them be — against them because they’re in one county or another.

One county like Nassau maybe in the 50 decade and under the 50 apportionment, not —

Byron R. White:

Well, let’s just talk about — let’s just talk about — assume as is true in your case, a county with — in a — an urban county with less than 6% of the population has more representatives per thousand and some county with more than 6%.

Now, certainly, that’s true.

Irving Galt:

That — that counties with less than 6% of the representation — 6% of the population have more representation?

Byron R. White:

Per thousand.

Irving Galt:

They’re not — oh, per thousand, yes.

Byron R. White:

Sure.

Irving Galt:

Yes, I misunderstood Your Honor.

Byron R. White:

Sure.

Irving Galt:

Yes, the second ratio —

Byron R. White:

That’s true, that’s true and I also would like to know of what’s your justification for discriminating between these two kinds of cities here.

Irving Galt:

Well, you have — you have these two rules, the enlightenment for the Senate rule and the full ratio rule, designed for the purposes among others, of keeping down the size of districts and a —

Byron R. White:

Keeping down the size of districts?

Irving Galt:

Yes, the physical size, I’m not talking about the population size.

Keeping down the physical size of districts, avoiding as much as possible, multicounty districts including multicounty senatorial districts, some of which, we still do have.

And the — the threat of concentrated power in a single county — the — the great institutional power which it can will.

These are the reasons where I might —

Byron R. White:

And what about the threat of the concentration of power in the — in the areas with only a minority of the population.

Byron R. White:

Now which would you prefer, the tyranny of the minority or the tyranny of the majority?

Irving Galt:

I would prefer no tyranny at all but I see that —

Byron R. White:

Well, certainly.

Irving Galt:

I see that there is —

Byron R. White:

That there’s going to be control by either the majority or the minority, now which would you prefer?

You apparently would prefer that control by the minority?

Irving Galt:

No, the — as a matter of fact, we’ve made the point very emphatically in our brief that the only majority identified by the appellants here, the urban majority does in fact, have the actual control of the New York State Legislature, and on a per capita basis.

In a vote on a constitutional convention and I think, you will find it admitted at the very last page or next to the last page of the appellants’ brief.

Actually, they have the — the power electing not only delegates under the formula — under the allocation of senatorial representatives, what was 15 representatives-at-large, they could change that.

So, I don’t understand what concept of majority rule or minority rule would be at play here, but this isn’t the question of — of entrenching any particular minority.

This is a question of being able to give to the people in the less populous counties, a sufficient ability to make their voice heard, rule their legislators on these problems that are so important to any —

Byron R. White:

Like — like in Suffolk County.

Irving Galt:

Well, Suffolk County — Your Honor mentioned Suffolk County, Suffolk County is going to get —

Byron R. White:

Well, if we can pick anyone and several others?

Irving Galt:

Suffolk County is going to get two additional Senators under the next apportionment, as it happens.

These are not going to any of the less populous counties.

They are going for this county, Suffolk County, the one that Your Honor mentioned.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

No, not at all.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

No, I don’t think so.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Not —

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Not —

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Sure, it does not.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

In — in that sense, yes.

It may not work out that they have the actual numerical majority, but the point is that a — a system must and should be used in the State and properly may be used which does give them a — a — the ability to have their interests expressed.

Irving Galt:

That’s the purpose of — of a representation system.

They must be heard and this is the way in which it was done.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

No, but —

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

No, but the point is Mr. Justice Goldberg, that any — any departure that you might have from a — per capita standard could be said, to have a less populous dominate and that’s 49% or 48% or something like that, elect the majority.

It cannot be said to be dominance.

That recalls something that the Solicitor General said earlier today.

He spoke of the difference between a theoretical majority of 41% in 1906, electing a majority and under the projected 1960 apportionment of something like 38% or 37 point something, just about 30% — 37% or 38%, let’s say 37%, but overlooked in that and the — and the statement appears I think at page 35, page 23 of the Solicitor General’s brief, is the fact that the 1950 apportionment, the one now, before the Court, the figure was 40.9% for the Senate.

Now, obviously, one-tenth of 1% is not going to cross the twilight zone and enter into the field of unconstitutionality and if what was a de minimis in 1906 with 41%, you have 40.9% in 1950 and 1953, surely no assault can be made from that standpoint.

And what great difference does 38% make?

This is what I mean by the factor of population, not necessarily being crucial and determinative.

The difference of 37% and 41% is not so terribly great.

Earl Warren:

Mr. Galt, I understood Mr. Sand’s (Inaudible) that the importance of the rural or the urban counties grew and unless the rural counties grew a greater disparity there became between the urban representation and the rural representation in favor of the rural representation, is that true, of necessity?

Irving Galt:

Well, I didn’t — I didn’t — unless I misunderstood in my — I don’t think he used the terms of urban and rural but in terms of most populous and least populous counties —

Earl Warren:

Well, well, let’s put it that way, (Voice Overlap) —

Irving Galt:

I think he has to use that frame of reference and get back to relying solely on per capita standard, precisely because the urban, rural argument, the carbon copy of Tennessee’s complaint, is for purposes apparently in this Court, not — not in the case anymore.

But he says, what he’s — what he was — had reference to I think, was the question of when — when the so-called full ratio rule is applied in the Senate, for a county having 6% of the population in order to gain additional senators over the three to which it is then entitled, it has to have a full ratio which is measured by the — dividing 50, the basic number of senators and to the citizen population of the State.

Manifestly then, in order to give after you’ve enlarged the senate by the numbers of additional senators over 1894, now had by the 6% counties, you must then take a — you must then have another ratio, obviously, you have to have another ratio in order to distribute the 30 or 31 or so senators to the other counties, but this only points up what we were discussing before.

This is not done for any arbitrary reason but to make sure that the necessary access is there.

Earl Warren:

Well, I know, but does it lead to less proportionate representation for the most populous communities and greater representation.

Irving Galt:

On per capital standard, yes, but the point is that —

Earl Warren:

And that’s a matter of necessity under the formula.

It just has to go that way.

Irving Galt:

And I would —

Earl Warren:

Always.

Irving Galt:

Well, yes.

I would — and I would remind Your Honor, too that although we are not — we dispute the reliance, sole reliance on a per capita standard, nevertheless, we remind the Court that even if we had to be judged in that light, we — we certainly rank very high in the nation on that basis, ahead of three-quarters of the States.

But —

Potter Stewart:

When you’re talking about the most populous counties, you’re — this — this has been given in a technical definition in the briefs and we’re now talking about counties which have more than 6 per 6 — 6% of the total population of the State.

Potter Stewart:

It’s — isn’t that correct?

Irving Galt:

That’s right.

That’s their frame of reference.

Potter Stewart:

That’s there frame or that’s there definition of most populous counties.

Irving Galt:

Not my definition.

Potter Stewart:

No, it’s of those five or six counties, which have more, each of them has more than 6% of the population of the State, is that right?

Irving Galt:

That’s right.

Potter Stewart:

And the inevitable consequence mentioned by Mr. Sand, and refuted now by the Chief Justice would be true, would it not, until it at least you reach another full ratio in one of these counties with more than 6% of the State and that would go back again, wouldn’t it, to a — a more equitable representation or am I mistaken?

Irving Galt:

If you — I — I didn’t follow that last —

Potter Stewart:

It’s just this full ratio rule, isn’t it?

Irving Galt:

Yes.

Potter Stewart:

And you have to have — you have to have a full fraction in order to get another senator.

Irving Galt:

Yes, full ratio.

Potter Stewart:

In order to get another senator.

Irving Galt:

The ratio of let’s say a 100,000, 150,000, whatever it might be, you have to have that in full.

Potter Stewart:

In full in order to get another senator.

Irving Galt:

Get — getting over three senators, not all —

Potter Stewart:

And — and in order — and if you do have that —

Irving Galt:

Yes.

Potter Stewart:

And no less and not — and no more, then you do get another senator?

Irving Galt:

That’s right.

Potter Stewart:

That attempt doesn’t — then tend to equalize itself back or am I mistaken about that?

Irving Galt:

Well, I don’t know on what frame of reference you’re saying, hence to equalize itself back.

Potter Stewart:

First of all, you divide the total citizen population of the State by 50.

Irving Galt:

Right.

Potter Stewart:

And this generally, that’s step one, isn’t it?

And that — and that gives you — you’re — and then you allocate a senator to each one of those that they called ratios?

Irving Galt:

Ratio (Inaudible)

Potter Stewart:

Ratio, and then you give up — one district has — has more than a full ratio, you’d give him up to three senators, don’t you, depending upon how much they have?

How many is much (Voice Overlap) —

Irving Galt:

That it has three full ratio —

Potter Stewart:

Right.

Irving Galt:

— against three senators or it might even get three senators if it has three second ratios, but it cannot get more than three senators except on full ratio.

Potter Stewart:

Except on a full ratio.

Irving Galt:

That’s right.

Potter Stewart:

You can’t go over three —

Irving Galt:

That’s right.

Potter Stewart:

— except on a full ratio.

Irving Galt:

Yes, Your Honor.

Potter Stewart:

And by — and then the 6% you arrive at by it’s — it’s the relationship of three senators to 50, is that it?

Irving Galt:

That’s right.

And that leaves a remainder when the enlargement rule was applied, additional senate is gained by counting in the three-ratio class over what they had in 1894, that’s added to the total number of senate — senators, that leaves the remainder —

Potter Stewart:

And then the additional senator —

Irving Galt:

— (Voice Overlap) was divided into the remaining population to give you the so-called, second ratio.

Potter Stewart:

The additional senators which the counties might get, by having another full ratio, are allocated then to the less populous counties, is that right?

That is the additional over 50.

Irving Galt:

Well, they — they are used as the — as the divisor to — to get the second ratio.

Actually, what I think, it amounts to in reality and in essence is that, in order to increase the — the senate representation of the heavily populous counties, the idea is not to do so at the expense of the less populous counties and not to take away representative senators which otherwise would have to go to the more populous county.

Potter Stewart:

So you add to the total number of 50?

Irving Galt:

Right, exactly.

Potter Stewart:

And now, you have 58 and then the — the apportionment, you have 57.

Irving Galt:

— this apportionment is 58, and then the next it will be 57.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

I understand.

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Well, in addition to the — to the illustrations which at the outset of the argument Your Honor, may recall, would give —

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

To get it — this is on the accessibility may be —

Arthur J. Goldberg:

Close at hand?

Irving Galt:

Not merely close at hand, although that will of course, bear on the ability of someone to make his views heard and to make his — to register his views with the state senator or assemblyman.

Irving Galt:

But I was thinking of ultimately having no views reached the legislature, rural representatives.

This is the sense in which I use accents — access, which is not mere physical access although of course, the question of physical access may very well bear, when you have a very large (Inaudible), it would be a very important thing.

That — that was why they use the teeming tenement house or high-rise apartment house, section comparison with a county for instance, like St. Lawrence or the senatorial district, like the 40th with St. Lawrence, Clinton and Franklin County.

There is a manifest difference, very obvious difference, but the — the frame of reference in which I was using access was in the ability of interests to be heard, people, voters, can — voters, citizens can be heard, can have their problems considered without being ignored and when you have such things as tremendous physical size, these do make a difference and ways and means must be found to permit that voice to be heard.

Now, —

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Well, the — the three additional criteria that we’ve mentioned, yes, the county relationship of the Government.

Most of these, without re-enumerating them and virtually they were conceded by the Solicitor General to be appropriate and it was these — these were the things to which he did not check back however.

He made no cross-reference back to these when he spoke about farmers and doctors and such.

Well, what we say is that the way these cases are to be judged is to use the standards set down by the Equal Protection Clause cases.

It’s not a matter of mathematical (Inaudible).

The Court has iterated and reiterated that time and again, but whether the legislative act rests upon no reasonable basis.

Arthur J. Goldberg:

Have you seen any difference in the (Inaudible)

Irving Galt:

Political questions in the sense, for instance, of the Republican guarantee clause —

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

You —

Arthur J. Goldberg:

(Inaudible)

Irving Galt:

Well, yes, the — there are, but I would say that McGowan against Maryland certainly dealt with what you call — with what Your Honor called, the civil rights aspects and — and that type of aspect and yet the — the result was made very plain and very clear in that case that you did apply the equal protection standards.

You did apply a presumption of constitutionality and the McGowan case in that sense is no different than this.

We are on the same footing.

Certainly, it makes no difference to burden a proof or anything else, in a case of this kind.

Potter Stewart:

Suppose in the Ferguson against Skrupa case, the — that the Justice there could’ve argued that the right — the freedom to go into the business, then adjusting the civil right, couldn’t he?

Irving Galt:

If — I’m not sure whether they went that far enough.

Potter Stewart:

But they could have argued that (Voice Overlap) —

Irving Galt:

Possibly, they could have.

But the — but the — they might very well have argued that and certainly, I think that the doctrine of the Ferguson case is perfect application to a situation like this, there’s no more reason to use subjective standards here, than there is in a case like Skrupa and I think that — in — in all respects, in that respect as a part of that.

Now, I have spoken before of what our starting point would be, our starting point would be to look to the responsiveness.

It would be to look to whether a State legislature has done something which was under the Equal Protection Clause, supplemented by all these familiar rules.

I want to now turn more specifically to the New York formula itself.

Let me talk of what was evidently a — a subject of some concern to many of the — to those of the justices who asked questions.

Irving Galt:

What are these three criteria that we use?

One is the guarantee of one assemblyman per county.

I take it especially in view of the Solicitor General’s concession that there is no need to labor that at any length.

It — but the Senate full ratio rule and the Senate enlargement rule were the two that — the Court focused with it particular attention on.

And I gave you as the reason for that was that it meets all three needs, the rules made all three needs of the State, confusion of representation, giving more seats to the less populous counties, promotes the possibility of single county, rather than multicounty districts and constituencies and it also restricts the tendency to overlord sprawling districts and in the essence of the provisions for enlarging the Senate, do very much the same.

And these three rules represent the only departure, the only significant departures from per capita representation in New York State.

Now, we haven’t argued from the federal analogy, but there’s an interesting twist that has been given to that by the appellants and I’d like to refer to that for a moment.

They talk about the one-house situation.

They say, after first saying that it might be alright to have one house on a per capita standard and another using some deviations without expressly indicating what those deviations maybe.

They, first of all, make an assumption which is erroneous.

I think they are assuming that when they talk about the federal analogy in that respect, they are assuming that the House of Representatives which structurally is the model for our Assembly is based on a per capita standard.

And as Your Honors well know, every State is guaranteed at least one representative, whether it’d be Alaska or any other State, just as each county in New York is guaranteed one representative of the Assembly and oddly enough, the greatest source of disparity in — in extremes, in disparity — in extreme disparity occurs in the Assembly rather than in the New York Senate and — which has as I say, the same guarantee.

But the Senate, where the attack has been sent at somewhat more great is actually much closer to a per capita standard than the Assembly which is modeled after the — after the House of Representatives in that respect.

And we think it’s relevant to note that the residence of the 6% counties who are the alleged victims of the urban discrimination do constitute a clear numerical majority capable of affecting a — a change of constitutional formula.

Earl Warren:

Well, is your — is your apportionment of your Assembly based on population?

Irving Galt:

It’s based on population but it ties that in with the guarantee of one assemblyman per county and this is what accounts for the disparity but otherwise its — it’s very well population-oriented.

However, it’s this — it’s only this — primarily this one assemblyman per county standard which — which takes it away to any extent from a population standard, to any significant extent.

There are other rules like districting rules which may play some less significant part, but primarily that is the reason.

With reference to the question of conventions and of the opportunity of the people and this may have particular bearing upon the question of remedy, of any standard to be applied, we had a constitutional convention in a vote back in 1894, as Mr. Justice Goldberg, had occasion to discuss with the appellants’ counsel.

In 1915 and in 1916, votes were had one on say, constitutional convention, one on a proposal as I recall it, to amend the constitutional formula.

We had it again in 1938, a constitutional convention had been voted on, had been called into a conclave and did put before the people a — a formula, a new apportionment formula which was rejected and to come back to a question which was raised earlier by one of the Justices.

At that time, the Democrats were in control, in 1938, of the State legislature and yet the 1938 Convention, the election of delegates were mostly Republicans and the people rejected that proposal for a — a — an alteration of the constitutional formula and I come down to 1957.

Mr. Sand said that the people won’t have an opportunity unless the legislature intervenes to vote upon the question of a constitutional convention until 19 — 1977.

We had one only as recently as 1957, a vote put before the people.

Governor Harriman made as one of the issues on which that vote should be determined, he stressed it and we have indicated it in our brief.

He emphasized the fact that he wanted to have a constitutional convention in order among other things to alter the apportionment formula.

He was very emphatic about that.

So the people do and the majority, using a pure majoritarian theory, the majority voting in a single-member constituency, whether or not, to hold a constitutional convention, have got the power if they so desire, to have a constitutional convention and thus far, they have never exercised it to the end that New York’s apportionment formula, presently existing apportionment formula —

In the 1957 election —

Irving Galt:

Yes, sir.

— was there an apportionment question on the ballot itself?

Irving Galt:

1957, no, I think only the question of a constitutional convention.

And there’s (Voice Overlap) —

Irving Galt:

That wasn’t as the Court.

— Governor Harriman’s recommendation that you referred to, that did not appear as separate question on the ballot?

Irving Galt:

No, I don’t believe it did appear.

I — I think just the question of a constitutional convention but no doubt —

Earl Warren:

Can you put — can you put an individual measure like that on the ballot?

Irving Galt:

Through the — if the legislature wishes to do so, it can do so between the 20-year period.

Earl Warren:

Yes.

Irving Galt:

The 20 — the 20-year —

Earl Warren:

In connection with the constitutional convention, can it submit the one issue of apportionment calls the other, as to the others.

Irving Galt:

I’m not certain Your Honor.

So far as I know to the best of my knowledge, the question is put whether they shall be a constitutional convention.

Earl Warren:

That’s — that’s what I understood counsel in the other side (Voice Overlap) —

Irving Galt:

I think that’s so.

Potter Stewart:

Well, if — if that —

Irving Galt:

I’m not certain so but I think (Voice Overlap) —

William J. Brennan, Jr.:

(Inaudible) vote for a convention, I take it that a — an agenda would have been formulated for the convention.

Now, who would have formulated that agenda?

Irving Galt:

The constitutional convention, itself.

William J. Brennan, Jr.:

Itself.

Irving Galt:

And of course, if the issue as of 1957, if they were elected, following emphasis, extreme emphasis or any — any emphasis on an issue like that that naturally that would be —

William J. Brennan, Jr.:

But the delegates to that convention as I understood Mr. Sand’s, perhaps, I didn’t understand it correctly, would have been chosen the same way that the legislature of course concludes.

Irving Galt:

Plus 15 delegates at large and if Your Honor will refer to the end of appellants’ brief, it’s before their appendix, I think Your Honor will find a concession that they do have the power.

I can get it for you explicitly out your brief.

I think its page 71 of the brief.

Can I borrow yours, Mr. Sand, for a moment, thank you?

Byron R. White:

But Mr. Galt, would you contend that if they — if — if they did have — the people did have an opportunity to vote, to have a choice between the present system and one based on state population and they chose the present system, that would be the end of matter?

Irving Galt:

The end of the — no, I say that that’s a — a very relevant test that might well be the end of the matter.

Irving Galt:

If I know other question on the question of remedy, the court of equity would have a very difficult time.

The court of equity does not want certainly, normally to be doing the work of apportionment than reapportionment.

Certainly, this would be a very important consideration but it’s a — a very relevant consideration to that whole question we have been discussing of the —

Byron R. White:

In all — in all —

Irving Galt:

Legislature being responsive to the people.

Byron R. White:

In all probability, it would be your view that such a vote would — should end the court inquiry into the matter.

Irving Galt:

It might very well end the court inquiry, yes, but — but it would certainly — certainly dispose of any question of application of an equitable remedy.

Now, talking about remedy, there are a great many reasons why we feel that there is no possible basis, no possible standard on which this Court could, if it ever came to that point or on which a court could fashion it proper and effective remedy.

First of all, there are no compelling circumstances to warrant the intervention of equity and of course, the compelling circumstance in doctrine is the one which was spoken about so much in Colegrove and the situation of the four out of seven justice votes, where Mr. Justice Rutledge made that the basis of refusal in this particular instance to accord relief and that factor is very, very applicable here.

New York as I have said, is close to the per capita standard and the dominance of the urban counties, the built-in opportunities for urban change, the adherence to our principal standard in a state constitution, all of these I think, adds up to a situation where there’s nothing to suggest the existence of compelling circumstances.

Earl Warren:

We’ll recess now.