WMCA, INC. v. LOMENZO

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Argument of Leonard B. Sand

Chief Justice Earl Warren: Number 20, WMCA Incorporated, et al., Appellants, versus Caroline K. Simon, Secretary of State for the State of New York, et al.

Mr. Leonard B. Sand: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Sand.

Mr. Leonard B. Sand: Mr. Chief Justice, may it please the Court.

Before turning to the specific details of this, the New York legislative apportionment case, a word or two might be appropriate of concerning the relationship which this case bares to the body of cases decided by lower federal courts and by the state courts since this Court's decision in Baker against Carr.

It is fitting that the Court today begins its review of some of these cases with the New York apportionment case because the New York case reflects one extreme of judicial reaction to Baker v. Carr.

In this case, the Federal District Court in the Southern District of New York sustained the constitutionality of the apportionment of a state legislature in which challenge was directed to both houses of that legislature.

And in which both houses of the legislature were seriously malapportioned.

Following Baker against Carr, with surprising speed and near unanimity, a consensus appears to have been reached by the lower Federal District Courts and by the state courts and that consensus is, that regardless of what rule may apply to the second house of a legislature, surely one house must be apportioned primarily on the basis of population.

12 federal and 6 state cases are cited for the proposition that this consensus exists in the joint amicus curiae brief filed by the American Jewish Congress, the American Civil Liberties Union and the National Association for the Advancement of Colored People in this case.

Indeed, the New York case is apparently the only case in which challenge was directed to both houses of the legislature.

Both houses are malapportioned and all forms of relief were denied.

Some evidence of the extent to which the consensus that one house must be based on population exist is found in another amicus curiae brief.

That's filed by the Attorney General of the State of New Jersey and the Attorneys General of some 14 other States, this brief in support of the appellees in the Maryland case.

There, the argument proceeds on the assumption that, of course, the apportionment of one house must be based on population.

Appellants take the position that the Federal Constitution requires that both houses must be apportioned primarily on the basis of population, but although we take this position --

Justice Potter Stewart: So you talk about one house, in both houses as though there is something constitutionally inevitable about a State having a bicameral legislature.

Mr. Leonard B. Sand: Every State except Nebraska --

Justice Potter Stewart: One?

Yes.

Mr. Leonard B. Sand: -- has a bicameral legislature.

Justice Potter Stewart: Of -- is there anything -- any reason why they couldn't have a tricameral legislature?

Mr. Leonard B. Sand: I -- I know of no such reason, Mr. Justice Stewart.

Justice Potter Stewart: Or that any State -- that every State couldn't have a unicameral legislature?

Mr. Leonard B. Sand: Every State could have a -- a legislature consisting of as many houses as it saw fit.

Justice Potter Stewart: Are there any -- any reason why a State couldn't -- need to have any legislature at all?

Mr. Leonard B. Sand: I think the State must have -- must have --

Justice Potter Stewart: Some -- somebody --

Mr. Leonard B. Sand: -- somebody --

Justice Potter Stewart: -- to make the laws.

Mr. Leonard B. Sand: -- somebody to make the laws and some -- somebody to make the laws who is representative of the people.

Justice Potter Stewart: Could be -- could a State have a legislative counsel?

Mr. Leonard B. Sand: It could -- it could have a -- any form of body to enact the laws provided that that body was representative of the people and if it be a unicameral legislature, a bicameral legislature, a tricameral legislature.

The -- the legislature as I hope must be a body which represents the people of that State.

Justice Potter Stewart: Are you suggesting then that it would be completely unconstitutional for any legislative power to exist in a governor's counsel appointed by the governor and not elected by the people?

Mr. Leonard B. Sand: I -- I would think that that would not -- that that would be unconstitutional.

Justice John M. Harlan: Why do you say that?

Mr. Leonard B. Sand: I think there is in -- in --

Justice John M. Harlan: Where do you find that (Inaudible) Constitution?

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: It -- it would -- it would arise there.

I think it would be -- it would be enforceable under the equal protection and due process provisions.

I would like, with reference to the relationship which this case bears to Baker against Carr and its descendants, I would like to emphasize that this differs from the Tennessee case in one -- in one respect.

In the Tennessee case, the Court was confronted with a situation in which the non-representative nature of the legislature resulted from the fact that the legislature had not acted -- had not reapportioned during a period of radical population changes.

There, the discrimination, the malapportionment resulted not from design but from accident.

In the New York case, one finds a different circumstance.

One finds that the -- the discriminations which exist, the disparities which exist between population and representation do not arise from accident but it arises from a deliberate plan, a purposeful and systematic scheme and we submit that that circumstance calls even more impellingly for judicial intervention and thus, the case where the discrimination is the product of accident not the zone.

Justice John M. Harlan: Do the apportionment accord to the provisions of New York Constitution?

Mr. Leonard B. Sand: Yes, it does, Mr. Justice Harlan.

Justice John M. Harlan: So you're claiming that the Constitution agrees with itself that that would be (Inaudible).

Mr. Leonard B. Sand: Our -- our challenge is directed to those provisions of the New York State Constitution which prescribes the formula pursuant to which every 10 years, the State is -- is apportioned.

Justice Arthur J. Goldberg: Does the people of the State ratify (Inaudible)?

Mr. Leonard B. Sand: The people of the State ratified that constitutional provision in 1894 by a small majority and all efforts to change that formula and change that Constitution have been to no avail.

There is no initiative and referendum in the State of New York.

The only mechanism which exists for amending the Constitution without the concurrence of the legislature is by a constitutional convention.

No such convention could be called the New York State without the concurrence of the legislature until 1977.

The delegates to such a constitutional convention are elected on the basis of Senate Districts and the malapportionment which affects the Senate would affect such a constitutional convention.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: They were elected on the basis of the -- of the then -- of the then districts.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: No.

New York State has never been malapportioned to the extent to which it is now malapportioned.

Once the formula was adopted in every succeeding apportionment, the -- the extent of disparity between population and representation increased and --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: What -- what occurred in 1894 was a constitutional convention which viewed with along the rapid population growth which certain areas of the State were then experiencing, adopted a formula.

The consequence of that formula has been to consistently diminish the representation accorded to the most populous areas of the State and -- and there exists in New York State no effective political remedy, no way by which the majority of the people can -- can realistically alter that formula short of --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: Mr. Justice Goldberg, I -- I think that relates to the nature of the restraint.

Of course, we -- Constitutions are constitutional and -- and restraints may be placed upon majorities but I do not believe that it lies within the power of a State to select any minority within that State and to confer upon that minority, majority status --

Justice John M. Harlan: Where do you find that in the Constitution?

Mr. Leonard B. Sand: I find that in the Equal Protection Clause and I --

Justice John M. Harlan: What --

Mr. Leonard B. Sand: -- I --

Justice John M. Harlan: -- section?

What portion?

Mr. Leonard B. Sand: In -- in the -- in the provision which says that no State shall deny to any citizen the equal protection of the laws.

I find it also by strong implication in this Court's decision in Gray against Sanders.

I recognize, the Court drew a distinction in that case between the circumstance which was then before it which was a -- a statewide election and -- and the Court explicitly indicated that that was a different circumstance but the Court also, in that case, said that it does not lie within the power of the State to -- to create preferred classes of voters.

The difference between Gray against Sanders and the legislative apportionment case, it seems to appellants is -- is this.

Where one is dealing with a statewide election, no districting is -- no districting is possible.

The consequent -- a county unit system is a form of districting and when this Court noted that the consequence of a county unit system was that those who voted within a particular unit for the minority candidate, the candidate receiving the minority of the votes, had their votes entirely disregarded and therefore, it was bad.

The Court was saying, "By virtue of the nature of this election, a statewide election, there can be no districting.

" A state legislature is a different body.

There, the members are intended to come from subdivisions of the State, but the State legislature, as a whole, has jurisdiction over the entire State, although elected from a particular district, the legislature has power over the entire State.

Justice Potter Stewart: How was that inevitably true to the full extent of -- in the full sweep of what you say?

It may or may not be true in New York State, I don't know.

I have the impression that New York City has a very great deal of home rule power as contrasted to other areas in the State.

I do know that -- I think I know at least that in many States, many municipalities have a great deal of home rule powers contrasted to the unincorporated areas of the State.

Mr. Leonard B. Sand: They have some home rules, Mr. Justice Stewart.

Justice Potter Stewart: And now, let's -- let's --

Mr. Leonard B. Sand: (Voice Overlap) --

Justice Potter Stewart: -- just assume -- let's assume a case, and I'm -- I'm sure this is a hypothetical case because I don't know of any State where this exists, but let's take a -- a case where a -- a city has a complete home rule power and the legislature has no power over it.

Well, then in that case, it would obviously be wrong to have the city have any representation at all within legislature, would it not?

Mr. Leonard B. Sand: Under -- under that hypothetical, the -- the city would be functioning as an entirely independent governmental unit.

Justice Potter Stewart: Correct.

Mr. Leonard B. Sand: And -- and --

Justice Potter Stewart: So now that you (Voice Overlap) --

Mr. Leonard B. Sand: -- no -- no governmental nexus with the State.

It would be in -- in essence, a separate State.

Justice Potter Stewart: That's right.

And to the extent, to the degree that a large urban municipality interstate has home rule power, couldn't it be argued that there was some rationality about having it -- have less representation in a state legislature which might have complete 100% power over the other areas in the State?

Mr. Leonard B. Sand: I would think only if the extent of that home rule was really to make the city independent of the State and that certainly is not the circumstance in New York in which the -- the city is very much dependent upon the State for revenue, for aid, and where in fact the city is very much shortchanged by the State in -- in the distribution of such things over which the legislature has power.

Chief Justice Earl Warren: Mr. Sand, may I inquire about the constitutional convention that's provided for every 20 years, that is the opportunity of the people to vote on it?

Is there any opportunity for them to vote on the question of whether they will have reapportionment, a new reapportionment under the Constitution or is the whole Constitution subject to amendment than revision if they do have one?

Mr. Leonard B. Sand: It is the latter, Mr. Chief Justice, and into that election are injected many, many issues having no relationship to apportionment whatsoever and it is impossible on the basis of the results of such a -- an election to determine whether the voters rejected a -- a constitutional convention because they approved to the existing apportionment or because they did not want other changes to be made in the Constitution having no relationship whatsoever to apportionment.

Justice John M. Harlan: I mean, where do you assume that that referendum had no (Inaudible)?

Mr. Leonard B. Sand: I think it had no significance with respect to -- with respect to this case, Mr. Justice Harlan.

They were submitted to the -- to the vote.

Perhaps, I misunderstood your question.

The 1894 Referendum was approved by a majority of the -- of the people of the State at that time.

I think that -- I think, however, we're dealing with -- with rights of individuals guaranteed by the Federal Constitution and I do not believe that a majority can vote away the constitutional rights of -- of any individuals.

Certainly, if a State were to hold an election and by initiative and referendum adopt a provision which is violative of the Fifteenth Amendment, this Court would -- would not long hesitate in saying that the fact that the majority of the people approved it and embodiment in the Constitution was irrelevant, the Federal Constitution would -- would go --

Justice Potter Stewart: The existence of such a power in the people might be irrelevant to the substantive question of whether or not a particular system violated the Equal Protection Clause but it might be quite relevant, might it not, to the question of the equitable jurisdiction of the Court to do something about it --

Mr. Leonard B. Sand: It might --

Justice Potter Stewart: -- if there is an adequate remedy elsewhere --

Mr. Leonard B. Sand: If --

Justice Potter Stewart: -- then there's any court of equity might well stay its hand under accepted principles, is that correct?

Mr. Leonard B. Sand: It might, Mr. Justice Stewart and for that reason, we emphasize the following.

There will be no opportunity in the State of New York for the voters to cause a constitution -- constitutional convention to be convened without the concurrence of the legislature until 1977.

On the basis of the present population trends, the -- discriminated against citizens come from counties which will have a minority of the delegates to that convention.

The delegates to that convention are elected on the basis of Senate Districts and the Senate Districts reflect a discrimination against the voters in the most populous counties.

They were submitted to the voters in 1957 the question whether or not a constitutional convention should be convened.

It was submitted in an off year and the -- and the voting returns were light.

More -- more --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: The --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: That the -- the State Constitution requires that every 20 years, there'll be submitted to the people a question, "Shall there be a constitutional Convention?"

And that is the question as it appeared upon the ballot.

A majority of the voters voting rejected that.

They were -- they were injected into that election issue, many other issues totally unrelated to apportionment.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: Well, the -- the issue was whether there should be a revision of the entire Constitution.

One of the -- one of the aspects of that Constitution is apportionment.

One -- one prominent government official urged that the voters reject the constitutional convention because it was an inefficient method of amending the Constitution and suggested that it could be more effectively done by a commission.

A commission was subsequently convened.

It was originally headed by Governor Rockefeller and then subsequently by -- by Judge Peck.

When the commission proceeded, when it disposed of technical revisions of the Constitution and proceeded to examine the question of revision of the apportionment provisions, its term expired and it was not renewed, which -- which was an unusual circumstance in the State of New York.

I would like --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: It -- its life, there was a -- a report made to it in which there was a complete analysis of the New York apportionment and suggested revisions.

Its life, its tenure ended prior to formal action on that recommendation.

Chief Justice Earl Warren: Mr. Sand, may I ask one more question about that?

How many times have the people exercised their right to have a constitutional revision since 1894 under this 20-year provision?

Mr. Leonard B. Sand: I believe there was one constitutional convention since that -- since that time.

I believe there has been one.

There have -- I was advised there have been two.

Chief Justice Earl Warren: I beg your pardon.

Mr. Leonard B. Sand: I've been advised there have been two since 1894.

I would like to turn, if I may, to the apportionment itself, to the formula which we challenge and the challenge is directed to the formula itself.

Justice John M. Harlan: This is what you're going to say now, I take it.

That all terms of the proposition of the Equal Protection Clause requires a State to apportion or approach apportionment in that way of approach apportionment from a population basis, is that right?

Mr. Leonard B. Sand: It -- it requires something less than that, Mr. Justice Harlan, because our -- our position is that the beginning point, the starting point to measure the validity of a particular apportionment is the extent to which it bears a relationship to the population of the -- of the State.

Justice John M. Harlan: But before you can measure anything though, the exact measure becomes outstanding.

Mr. Leonard B. Sand: Yes, and --

Justice John M. Harlan: And you would agree with that.

Mr. Leonard B. Sand: Yes, and --

Justice John M. Harlan: And I think before you get into the question of the apportionment, you are to address yourself as to what the constitutional standard is, if any --

Mr. Leonard B. Sand: Let me -- let me say that in New York --

Justice John M. Harlan: -- federal constitutional standard.

You have got --

Mr. Leonard B. Sand: I -- I --

Justice John M. Harlan: -- in order to make your argument based on statistical figures, what you thought malapportionment meaningful to the standpoint of this Court, you have got to address yourself to the question of what the federal constitutional standard is against which the apportionment is actually judged.

Mr. Leonard B. Sand: And -- an I say, Mr. Justice Harlan, that that federal standard prohibits a State from selecting a minority group within that State regardless of the nature of that minority whether it be based on race or -- or any other basis.

Justice John M. Harlan: (Voice Overlap) this is a question of the distribution of power on the question of -- of restriction, not individual voting power.

This is a question of the distribution of power, governmental power in the State.

Mr. Leonard B. Sand: This -- this, as appellant see it, this is a question of whether an individual who is a member of a class whose votes are discounted because the legislature has selected some other group and has given to that other group a preferred position, an additional power, where the member of such a class has -- has individual rights enforceable under the Fourteenth Amendment.

Justice John M. Harlan: I understand, but my -- my question (Inaudible) what is there in the Federal Constitution that says that a State cannot apportion its Senate in the same way if it chooses to that the United States apportionment senators are on the various States.

Now, I don't -- don't recognize the arguments that are made as to the federal analogy, not being an analogy, but what is there in the Federal Constitution that in the Fourteenth Amendment, specifically, that says that a State cannot allow senators on the basis of geographic community who distinguish population?

Mr. Leonard B. Sand: The concept of -- of equality of all people within a State and we're dealing here with the most basic civil liberty which those -- which those people have.

Justice John M. Harlan: But I'm worried -- tell me where it is that you find that in the Constitution?

Mr. Leonard B. Sand: I -- I find that in the implications of the Equal Protection Clause of the Fourteenth Amendment as -- as suggested by this Court in Baker against Carr and as exists by -- by analogy in the decision and language of this Court in Gray v. Sanders.

Justice John M. Harlan: But you agree that Baker and Carr furnishes no guidance, no light whatever to the question that you're debating here.

Mr. Leonard B. Sand: Except, Mr. Justice Harlan, the applicability of the Equal Protection Clause, the questions of legislative apportionment and -- and from that flows everything else that -- that I've urged upon the Court.

Justice John M. Harlan: (Inaudible)

Mr. Leonard B. Sand: I think it will be helpful to turn to the Senate formula because it becomes apparent from that formula that precisely what the State has done is discriminated on the basis of criteria which are irrelevant to any function of the State, any purpose of the State other than to diminish the voting rights of certain members of the State.

The Senate is apportioned by what amounts to two entirely different formulae.

One of which applies to those counties having 6% or more of the population, just we referred to as the most populous counties, the other which applies to the balance of the counties.

The senators are apportioned to the most populous counties on the assumption that the total size of the Senate is to be 50 and one senator is apportioned for each 2% of the population.

Next, the number of seats which are given to the populous counties are compared with the number of seats which were apportioned to those counties in 1894 and the total Senate membership is increased by the extent to which there has been any increase in the allotment of senators to those counties as compared to 1894.

For example, if one of the most populous counties had seven senators under the new apportionment and had only two in 1894, the total size of the Senate is increased by five.

After this was done, the balance of the original 50 Senate seats and all of the added seats, all of the added seats are apportioned to the less populous counties.

The less populous counties receive senators on the basis of the actual size of the Senate, not the -- not the 50.

The consequence of which is, senators are apportioned to the less populous counties on the basis of an entirely different smaller ratio.

I like to emphasize what this rule for Senate expansion does and does not do.

There is not now and there has never been in New York, a rule that each county will have one senator.

Counties are combined for the purposes of forming Senate Districts.

Justice Potter Stewart: How many counties are there?

Mr. Leonard B. Sand: There are 62 counties.

Justice Potter Stewart: 62.

And at the present, 57 senators or --

Mr. Leonard B. Sand: There are, at present, 57 senators.

On the basis of the 1960 --

Justice Potter Stewart: 1960 census.

Mr. Leonard B. Sand: -- census, there will be 58 senators.

Justice Potter Stewart: Alright.

Mr. Leonard B. Sand: If -- if it's the other -- there are now 58 there will be 57.

Justice Potter Stewart: 57.

Mr. Leonard B. Sand: This rule goes far beyond, this rule for Senate expansion goes far beyond anything which would be necessary to assure to the less populous counties, a certain minimum amount of representation for a certain absolute representation.

This could be accomplished by saying the less populous county shall never have less than X senators.

And then when there is an increase in the size of the most populous counties -- increase the -- the size of the Senate and distribute that increase proportionately among both -- between both groups of counties.

What happens as a result of this formula is that the larger, the most populous counties become, the larger the Senate becomes.

The larger the Senate becomes, the greater becomes the disparity between the ratio upon which senators are assigned to the most populous counties and the ratio upon which they are assigned to the less populous counties.

There is somewhat startling and paradoxical operation of this formula as such, that the larger, the most populous counties become, the more underrepresented they become.

The larger the most populous counties become, the more overrepresented the less populous counties become.

Justice Potter Stewart: Well, there's nothing very unusual about that.

Let's say you had a simple system of one senator from each county which some States have, one senator from each county.

Well, then, exactly the same thing would happen as you say this ironical amazing, surprising things happening in New York.

The larger -- the larger counties become, there -- the more so-called "malapportionment" there would be.

Mr. Leonard B. Sand: The -- the mathematical operation of this formula is such that the proportion of the disparity becomes greater which -- which does not usually happen.

The proportion of disparity becomes greater because they increase in the size of the most populous counties causes an increase in the total size of the Senate and that increase is not reflect --

Justice Potter Stewart: Those States (Voice Overlap) less populous --

Mr. Leonard B. Sand: -- goes -- goes --

Justice Potter Stewart: (Voice Overlap) --

Mr. Leonard B. Sand: -- entirely to the less populous counties.

Justice Potter Stewart: -- we haven't said it.

Mr. Leonard B. Sand: There are other arbitrary provisions with respect to the Senate formula which -- which are also irrelevant to any purpose other than to discriminate which aggravate the situation.

For example, when one of the most populous counties loses seats, that reduction in size is entirely disregarded in this formula.

In other words -- to take an actual example, New York and Bronx County had 12 Senate seats in 1894.

On the basis of the present census figures, they will be entitled to only eight Senate seats, a reduction of four.

The other foremost populous counties in the same category have seven more seats than in 1894.

There is a net increase of three, but since the increases are taken into account while the decreases are totally disregarded, seven additional seats rather than then the net of three will be assigned to the less populous counties.

Justice John M. Harlan: Suppose in New York said that we think (Inaudible) would that be unconstitutional?

Mr. Leonard B. Sand: I -- I believe it would, Mr. Justice Harlan.

I believe that --

Justice John M. Harlan: Or (Inaudible) or both, you think that would be unconstitutional?

Mr. Leonard B. Sand: I -- I would – I would say this at a minimum.

When the net result of applying whatever formula the State devises is to produce a legislature, the members of which are -- are elected on the basis, which is radically disproportionate to population, the burden then shifts to the State and the State must then come in and say, "We have adopted this method of apportioning our legislature because we feel it more effectively represents the people.

I don't think this Court need forever close the door upon experimentation by States in -- in --

Justice John M. Harlan: I'm putting the question to you, supposing the State of New York had said explicitly, "We'll have one -- we'll have one member of the Senate, allot to the so-called business centers in the State and another member allotted to the so-called labor industries.

Mr. Leonard B. Sand: And if -- and if the net result of that was to cause there to be a legislature, the members of which did not represent population, it would be unconstitutional.

Justice John M. Harlan: By -- by hypothesis I am assuming that neither of those -- neither of those forms would have taken into account the population figure (Inaudible).

Mr. Leonard B. Sand: What -- what I mean to suggest by the form of my reply, Mr. Justice Harlan, is that nobody is -- is saying that because the legislature must be proportioned to population, we throw out the -- the map of the State.

We disregard natural boundaries, we disregard political subdivisions.

The legislature may consider all of this and may consider more, but in apportioning representatives on the basis of these criteria, the net result must be a legislature which proportionately represents population.

And where it does not, when it does not, then at a minimum, the burden is upon the State to come forth and to say, "We have adopted this method because this method achieves greater representativeness of the legislature.

" Now, that is not what New York State had --

Justice Potter Stewart: Well, now, let me -- Mr. Justice Harlan has asked you this unsuccessfully and maybe the answer is -- nobody can successfully answer, but where does this rule of law come from that you've just enunciated?

Mr. Leonard B. Sand: I -- I think it -- it comes from the -- from the basic nature of our -- of our system, the -- the genius of our democratic society.

Justice Potter Stewart: Well, then --

Mr. Leonard B. Sand: From the -- from -- I -- these are words but these are concepts which are very meaningful. These are concepts which are -- which are in the basic traditions of -- of -- our democratic --

Justice Potter Stewart: Well (Inaudible) are -- are you assuming majority -- majority rule in each legislative district that this is constitutionally required for example?

Mr. Leonard B. Sand: In -- I -- I don't understand.

Justice Potter Stewart: Well, let's take -- let's take it --

Mr. Leonard B. Sand: Each --

Justice Potter Stewart: -- let's just take a senatorial district in New York.

Mr. Leonard B. Sand: Yes.

Justice Potter Stewart: And let's say that the candidates are A and B of the -- red party and the green party.

Mr. Leonard B. Sand: Yes.

Justice Potter Stewart: Well, then, A gets 55% of the vote and B gets 45% of the vote.

So the green party all -- those thousands and thousands of green voters are not represented by Mr. A in the state legislature, are they?

Mr. Leonard B. Sand: They are not.

That's correct.

Absent (Voice Overlap) --

Justice Potter Stewart: Now, how -- what now – (Inaudible) -- you keep talking about majority --

Mr. Leonard B. Sand: Yes, sir.

Justice Potter Stewart: -- rule, what happens to this?

And then now, let's say in the very next legislative district, the other party wins, the green party wins by 55%.

Now, those 45% in the contiguous districts of -- red party voters are not represented by Mr. B from that district in the legislature, are they?

Mr. Leonard B. Sand: No.

This is an -- an inherent result --

Justice Potter Stewart: Well, is there some political --

Mr. Leonard B. Sand: -- from a districting –

Justice Potter Stewart: -- is there some political reality in having -- is there some political and subtle reality in having the disenfranchised A voters in district one be more or less represented by the A voters who prevailed in district two?

I'm only suggesting, Mr. Sand, and it's simply a suggestion that the problems we have before us in these cases this week are somewhat more complicated and subtle than has been suggested in the briefs and -- in that they not -- cannot necessarily be solved by simple eighth grade arithmetic.

Mr. Leonard B. Sand: I -- I think -- I think that's -- that's true, Mr. Justice Stewart and I think -- I think particularly with regard to New York State the most significant consequence of the malapportionment doesn't exist in -- in any of these statistics to which I've had reference.

Justice Potter Stewart: Let me just go back and -- and peruse my other question.

Well, let's say a State required that – let's say a State decided to put in some variant of the (Inaudible) system of proportional representation, are you familiar with that?

Mr. Leonard B. Sand: I'm familiar with proportionate representation.

Justice Potter Stewart: I -- well, Cambridge, Massachusetts have that such as -- such a variant.

Now, would this be constitutional or -- or would it violate the equal protection?

Mr. Leonard B. Sand: I think it would be constitutional.

Justice Potter Stewart: Let's say it decide – a State decided to experiment with something like the list system which was used under the Weimar Republic and their republican trans and in Belgium today, would this be -- would -- would this involve a violation of the --

Mr. Leonard B. Sand: I -- I confess that I'm not familiar enough with that -- with that form of -- with that form of (Inaudible).

I think the State can devise whatever election techniques it will, provided that there are -- that there are certain -- there are certain essential ingredients to it.

One of which must be that it does not represent a conscious discrimination by the State against any particular class or group within the State and -- and none of --

Justice Potter Stewart: (Inaudible) wouldn't they -- wouldn't the 45% of the red party in that district who didn't have representative in the legislature, couldn't pay -- say that they're unrepresented entirely in that legislature under your theory?

Mr. Leonard B. Sand: The -- the -- no, they could not, Mr. Justice Stewart, because for one thing there would not be a purposeful systematic discrimination against -- against that minority.

It would not be the inevitable consequence that in every election, they would be the minority.

What New York State has done is adopted a rule pursuant to which in every apportionment, the same citizens are discriminated against in both the Senate and the assembly and -- and whatever theories may exist as to the nature of representation, no theory that we know of is constitutionally permissible which would enable a State to say, "We do not think that this group of people, that these voters should have as much power as much influence in the State as some other group of voters."

Justice Potter Stewart: What if there were quid pro quo for that?

Let's say that the people from New York City, met with the people from the representatives of the people from and fair -- fairly representatives of the people from the other parts of the State.

And New York City said, "We will give up some of our -- what -- what otherwise be our representation, full representation in the state legislature, if you will give us a considerable amount of -- of local autonomous self government" and if that kind of a bargain was struck as a deliberate thing, would that -- would that violate the Equal Protection Clause of the Constitution?

Mr. Leonard B. Sand: Yes, Mr. Justice Stewart, because we're dealing with the rights of individual citizens and individuals -- which is what this Court said in Baker against Carr and the constitutional rights of individual citizens, isn't -- are -- are not subject to -- to (Inaudible) --

Justice Potter Stewart: Well --

Mr. Leonard B. Sand: -- with the (Inaudible) -- with -- with the voting rights of -- of individuals, not of -- not of troops.

Justice Potter Stewart: So I'm -- and I'm talking about the same thing, the citizens and the voters of New York City, who said, "If you -- if you will give us autonomy in this area and that area and the other areas, so we're completely immune from any action of the legislature whatsoever in this, that and the other area and we will have 100% self-government over that, we will give up certain representation in the state legislature, which has full power over the rest of the State."

Mr. Leonard B. Sand: When -- when the hypothetical supposes the creation of a governmental subdivision which is truly autonomous --

Justice Potter Stewart: No, I didn't --

Mr. Leonard B. Sand: Well --

Justice Potter Stewart: -- it's truly autonomous but not completely autonomous, that's my argument.

Mr. Leonard B. Sand: Well, to -- to the -- to the extent (Voice Overlap) --

Justice Potter Stewart: If it were truly and completely autonomous --

Mr. Leonard B. Sand: -- through (Voice Overlap) --

Justice Potter Stewart: -- then it should have no representation of the state legislature --

Mr. Leonard B. Sand: Yes.

Justice Potter Stewart: -- isn't that right?

Mr. Leonard B. Sand: To -- to the --

Justice Potter Stewart: Any more than New Jersey citizens should have any representation of the New York legislature.

Mr. Leonard B. Sand: To the extent to which the legislature will have jurisdiction over that political subdivision the -- the individual citizens residing in that subdivision have a right to have their vote counted equally with the votes of persons residing in -- in other areas of the State.

And --

Justice Potter Stewart: Well, now, you're -- we're not talking about counting a vote equally.

Within each one of these districts, there's no claim that anyone of these people has not had his vote counted at the ballot box, is it?

Mr. Leonard B. Sand: With what you --

Justice Potter Stewart: That's quite a different concept, that's Gray against Sanders and that's entirely a different concept.

Mr. Leonard B. Sand: I -- I think it is not entirely a different concept because I read Gray against Sanders to -- to imply that -- well, Gray against Sanders to hold that with respect to statewide election, there can be no districting because -- because 50 -- the 45% of the voters who vote for the -- can -- unsuccessful candidate, votes are disregarded.

The state legislature is a different -- is a different body.

Justice Potter Stewart: Representative body.

Mr. Leonard B. Sand: It is -- it is a representative body but it doesn't -- it -- it is two things.

It both represents the particular areas and it has comprehensive jurisdiction over the entire state.

We're not talking about election for mayor.

Nobody would care then what the size of the particular city would be because the mayor would have jurisdiction over that city.

To the extent under your hypothetical, Mr. Justice Stewart, to the extent to which the political subdivision was -- was subject to the jurisdiction and power of the state legislature, to that extent, as long as there is a meaningful jurisdiction in this -- in the state body over that subdivision, it seems to me that -- that there cannot be a discrimination against any -- any particular one of those subdivisions in the election of the -- of the statewide body.

Justice John M. Harlan: I might agree with what you pose in the New York legislature but what is there in the Constitution that would come back to that that prevents that kind of a debate going on in New York legislature?

Mr. Leonard B. Sand: Well, I -- I --

Justice John M. Harlan: And your theory is that that kind of a debate would be beside the point because anything other than the side of the debate that you're arguing before would be unconstitutional.

Mr. Leonard B. Sand: I -- I would say that the Equal Protection Clause would -- would make meaningless a debate over the -- the question whether the State should adopt an apportionment formula which discriminates against any group with -- within the -- within the State.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: That --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: -- that is exactly the position, Mr. Justice Goldberg and -- and interestingly enough, the State itself apparently agrees in its reading of the Federal Constitution with the appellants that the State asserts at page 13 of the -- of the State's brief, "To be sure our democratic tradition demands that all men have an equal voice in the councils of Government" and the State repeats this.

This -- its reading of the requirements of the Federal Constitution, at page 24 of its brief and it -- it states, "We share appellants' concern that all men should have an equal voice in the counsels of Government.

Our democratic tradition demands no less of us, Cf. Gray v. Sanders.

" This is the way the State reads the mandate of the Federal Constitution and one final reference to the State's interpretation of what the Federal Constitution requires, State asserts at -- at page 32 of its brief, "The important value is that each citizen, no matter whether he lives in the district spanning a large area or one that is relatively compact, whether he lives in a highly populous county or in a county with a small electorate, whether he lives in a thickly populated area or a thinly populated area should have equal access to the legislative process, so that the legislature maybe responsive to his needs.

" I -- I emphasize that this comes from the brief of the State of New York.

The State of New York construes the Federal Constitution to require that each citizen have an equal voice in the Government, but the State says, "In measuring that equal voice, we -- we don't even begin with a population basis.

" The State says, "To achieve equality, we -- we create disparities.

" What -- what the State says in essence is that in New York, all -- all citizens are equal but some citizens are more equal than others.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: I -- I can --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: If -- if the consequence of not doing that is to cause the legislature to be grossly disproportionate to population, then it cannot, but it is -- it is certainly possible for the State to apportion with respect to political subdivisions and giving minimum representation to political subdivisions and -- and still have, as a net result, a legislature which is proportionate to population.

I -- I would like --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: It -- it would but it could not impose a size limitation and then also impose other rules such as a one per county rule, which would -- the net effect of -- of both rules being to produce a -- a legislature which can be elected by a -- by a small minority.

I -- I would like --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: I -- I --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard B. Sand: Depending on the -- the total number of counties and the total size of the -- of the legislative body.

Justice Potter Stewart: That's right and it depends on --

Mr. Leonard B. Sand: Yes, yes.

Justice Potter Stewart: -- there are 50 States, are there not?

You're arguing the case in New York.

Mr. Leonard B. Sand: Yes.

Justice Potter Stewart: But you're asking us, I suppose to enunciate a -- some guidelines or boundaries here that would apply it in each of the 50 States, necessarily if -- because the Fourteenth Amendment applies to each of the 50 States, does it not?

Mr. Leonard B. Sand: Yes, sir.

Justice Potter Stewart: And you see and one of the things that troubles me about your argument, as I suggested at the beginning is all these assumptions, the assumption that it was one exception every State has a bicameral legislature or does in fact now, but there's no reason to unearth that it -- I can't imagine why a State couldn't have a tricameral or an -- or --

Mr. Leonard B. Sand: Nor is there anything --

Justice Potter Stewart: -- (Voice Overlap) --

Mr. Leonard B. Sand: -- nor is there anything which appellants have been suggesting which would -- which would preclude (Voice Overlap) --

Justice Potter Stewart: Well, your argument is talking -- I'm talking about one house but you talk about the -- basically about both houses but let's say --

Mr. Leonard B. Sand: I -- I think --

Justice Potter Stewart: -- a State had a dozen houses in its legislature, would it -- would six be enough to represent population or would 11 have to or would only one?

Mr. Leonard B. Sand: But I think -- I think --

Justice Potter Stewart: Well, let's say State had only two counties in the whole State.

Mr. Leonard B. Sand: I think those are questions which would have to be resolved after there were created such a legislature.

Justice Potter Stewart: Well, but you're asking --

Mr. Leonard B. Sand: And -- and then such a legislature would have to be measured and -- and judged in terms of the extent to which it was represented above the people.

I -- if I might pursue for a moment about the significance, as we see it, of the -- of the State's position because the State or States that other criteria maybe considered only insofar as they achieve greater equality.

The State does not purport to say that we can have a -- a waiting system or we can have a preferred class.

The State agrees that under the Federal Constitution, each citizen must have an equal voice in the legislature and any other criteria must be justified by the State.

We say then, in terms of the extent to which it -- it achieves that criteria, I -- I would like to -- to emphasize one -- one other fact with respect to the necessary scope of the Court's decision in this case.

Because both houses are malapportioned and because challenge is directed to both houses and -- if the rule adopted by this Court is an acceptance of the consensus which has been reached by the lower courts that at least one house must be proportionate to population, that is all that need be decided in this case for a determination that one house must be proportionate to population, in New York, would lead to an invalidation of the apportionment of both houses.

The State -- it is impossible in New York to determine which house would be selected as the body to represent population if the rule enunciated by this Court is that at least one house must -- must represent population or that there is at least a presumption that one house must be proportionate to population.

Justice Potter Stewart: It's on the assumption that there are a total of two?

Mr. Leonard B. Sand: Dealing with the specific facts in the New York case and -- and --

Justice Potter Stewart: We're dealing with the Fourteenth Amendment though.

Mr. Leonard B. Sand: Dealing with the Fourteenth Amendment.

Justice Potter Stewart: It's applicable to 49 other States.

Mr. Leonard B. Sand: Yes, sir.

My -- my -- the thrust of my argument at this point, Mr. Justice Stewart, is that it is unnecessary in the -- for the disposition of this case for the Court to determine whether the Fourteenth Amendment requires that the apportionment of both houses be based on population --

Justice Potter Stewart: But --

Mr. Leonard B. Sand: -- for the State has conceded at -- at page 61 of its brief that it is impossible in New York to determine whether it would be the Senate or whether it would be the Assembly which would be the house which must be proportionate to population.

There is no -- there is nothing in the structure of the State Government which would lead to a choice as to either the Senate or the Assembly, since both provisions, the apportionment provisions with respect to both houses, are contained in the State Constitution, the only way in which the legislature can choose which of its houses would be proportionate to population would be if this -- if the Court were to declare that the apportionment provisions with respect to both are invalid.

Otherwise, the legislature could proceed by a statute with respect to one house but could proceed only by constitutional amendment with respect to the other house and that would -- that would take many, many years.

Therefore, a conclusion reached by this Court that the consensus of the state court decisions and of the lower federal court decisions that at a minimum one house must be proportionate to population if accepted by this Court, would lead to the result that the decision below should be reversed and the decision remanded to the District Court with instructions to declare the apportionments of both the New York Senate and Assembly, violative of the Federal Constitution.

With the leave of the Court, I would reserve the balance of my time.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Archibald Cox

Mr. Archibald Cox: Mr. Chief Justice, may it please the Court.

This case is one of four arising from New York, Alabama, Maryland and Virginia that require the Court to rule for the first time upon the constitutionality of the apportionment of seats in a state legislature.

The ultimate question to which all four of cases point is what is the meaning, in the field of legislative apportionment, of the constitutional guarantee of equal protection of the laws or to put in a little differently, by what standards, by what criteria giving meaning to the phrase "equal protection" is the constitutionality of a legislative apportionment to be judged.

Neither these cases nor any other single case or group of cases can supply the complete answers to the ultimate question.

We need to keep the ultimate question in mind, however, because whatever is decided here must fit a coherent analysis, as has been suggested in the argument, and must be susceptible of being reduced to generalizations that are good across the board.

But at the same time, this can be made a manageable problem, I think, only by adhering to the traditional process of deciding the cases before the Court and leaving other questions that logically don't have to be decided to the future, provided they can genuinely be left open and nothing is said that necessarily determines it.

In an effort to steer that kind of little course, I shall not confine myself to the present New York case, but will try to give an answer that is comprehensive enough to cover these four cases and to make a start on the problem as one might put it of implementing Baker and Carr, but I shall go no farther.

There are clearly some questions that I leave to the future.

We propose four general principles which I would like to state first summarily then I'm going to come back to each in an effort to clarify its meaning and indicate the reasoning that lies behind it.

First, we say that the starting point and this hardly says anything, that the starting point in adjudicating the constitutionality of a legislative apportionment is the representation accorded qualified voters' per capita.

I'm simply asserting a measuring stick.

I'm not asserting anything about its constitutional validity or invalidity in that proposition.

Justice Potter Stewart: In that case, I don't understand it.

What --

Mr. Archibald Cox: I -- I'm simply suggesting that in order to determine whether two voters are treated alike or whether they're treated differently or whether the voters in Cayuga County are treated differently from the voters in New York County, that one must use numbers.

Now, whether their Constitution requires them to be treated alike or differently, I come to in a subsequent proposition.

Justice Potter Stewart: Numbers of voters or numbers of people.

Mr. Archibald Cox: Either one.

Justice Potter Stewart: Because you're -- the (Inaudible) the preceding counsel talked only about population, I (Inaudible) voters.

Mr. Archibald Cox: Actually, it's -- what -- when I say voters, I mean eligible voters, citizen population which is --

Justice Potter Stewart: Not -- not --

Mr. Archibald Cox: -- what he must be talking about.

Justice Potter Stewart: -- not children?

I'm just trying to find out what you're talking about.

Mr. Archibald Cox: Citizen -- citizen population.

I'm not sure which way they define it in New York for purposes of my argument or if it makes any difference.

Justice Potter Stewart: You think either one would be rational?

Mr. Archibald Cox: Yes.

Justice Potter Stewart: Citizen population or registered voters?

Mr. Archibald Cox: I would think so.

At -- in any event, here, we're dealing with the citizen population.

Our second general proposition is that the Equal Protection Clause is violated by an apportionment that is crazy quilt because it creates substantial inequalities in per capita representation without any rhyme or reason.

This principle in our view, as I'll -- when -- I can't say when I come to explain it, invalidates the Virginia and Maryland apportionments.

It's unimportant on one aspect of the Alabama case.

It does not apply to New York, at least in the apportionment of the seats between the counties.

Our third proposition is that --

Justice John M. Harlan: Can I ask you a question about that?

Mr. Archibald Cox: Yes, sir.

Justice John M. Harlan: The crazy quilt theory presupposes the basic population standard defined as you (Inaudible).

Mr. Archibald Cox: I think not.

I'm going to deal with Your Honor's problem when I come to explain each of these and I think I know what you're thinking and I'm planning to meet it head on.

The third proposition, we assert, is that the Equal Protection Clause is violated by an apportionment that does have some systematic, some intelligible rule if the criteria incorporated in the rules are either one contrary to express constitutional limitations, two, invidious under our traditional standards or three, irrelevant to any permissible purpose of legislative apportionment.

Specifically, I will argue that this standard forbids the singling out of some groups of voters, rural voters, labor union members, management or others for preferred treatment and the others for oppressive treatment.

This is the principle, we think, which invalidates the New York apportionment as applied to the Senate.

And our fourth proposition, and we think it has some relevance too in the Maryland and Alabama cases, our fourth proposition is that the Equal Protection Clause is violated by an apportionment which subordinates the principle of popular representation to the representation of political subdivisions or some other principle or objective of representation to such a degree as to create gross inequalities in per capita representation and give control of the legislature to small minorities of the people.

The Maryland apportionment, we think, and two of the apportionments under discussion in the Alabama case are invalidated or invalid under that rule.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Archibald Cox: Yes, I shall.

Yes, I shall.

I'm going to try to define the obviously vague phrase that legitimate or permissible purposes of a legislative apportionment on the principles (Inaudible) important as something that tack all these problems into it and clearly, each of the things I've said requires a great deal of explanation or definition.

May I note two specific questions that we lay aside because none of the present cases raised them?

None of our four propositions espouses the view that the concept of equal protection always requires equal representation per capita.

In other words, our analysis does not assert, although it is wholly consistent with the view that the Fourteenth Amendment leaves some room for sacrifice of equal representation per capita in order to achieve what I have called to have a short phrase, permissible objectives of legislative apportionment.

Indeed, in order to demonstrate the consistency of that, I may seem at times to be arguing in favor of these other permissible objectives.

I do it only arguendo so as to show that it's genuinely a different problem and to leave it for the future, rather than have it decided here. Similarly, though we may want to apply our generalizations to it, there's no question here as to whether a State may follow the analogy of the Federal Government and have one house apportioned by area or political subdivision or provided the other is apportioned equally per capita because none of these cases involves a legislature in which is of either house is apportioned per capita.

As I said --

Justice Potter Stewart: I still want to be sure I understand you when you talk about apportioned per capita.

Are you talking about total citizen population or are you talking about total eligible voters or are you talking about total registered voters?

Mr. Archibald Cox: I'm talking --

Justice Potter Stewart: Or you're about -- are you talking about any (Inaudible) principally?

Mr. Archibald Cox: I'm not.

I'm talking about them loosely altogether.

Justice Potter Stewart: Alternative.

Mr. Archibald Cox: I'm not distinguishing between --

Justice Potter Stewart: Well, let's say -- let's say, the State of New York that, historically, over the years, up in St. Lawrence County, it's cold, snowy in November and -- and just historically, you can show that only 10% of the eligible voters have voted up there ever.

And in Buffalo County, let's say, you can show that 60% of the eligible voters have always voted there within a percentage point or two, could New York say, "We're going to measure our legislative districts by registered voters or those who voted the last election and give six times as much per capita representation at Buffalo County as they do to St. Lawrence County?

Mr. Archibald Cox: If -- if such evidence were forthcoming, I would think, requested here, but I would think that perhaps one -- that was one of the permissible purposes of legislative apportionment.

In fact, Mr. Justice, all the studies indicate that that is not true.

I -- I don't about New York.

Justice Potter Stewart: I'm not suggesting it's true about St. Lawrence Country and Buffalo County, I just invented that case.

Mr. Archibald Cox: No, no, I didn't mean -- nor did I mean to address myself specifically to that.

I meant that all the information I have been able to get and I have had some, indicates that the rural voters voted larger numbers than the urban voters.

Justice Potter Stewart: Well, that'll reverse my case, could -- could they give six times the per capita representation to St. Lawrence as they do to Buffalo County?

Mr. Archibald Cox: As I say, I would think that if such a consistent pattern were to be established, that there would be room for arguing that that would be --

Justice Potter Stewart: It's kind of socially desirable to encourage people to vote and the more voters you got, the more representation you get?

Mr. Archibald Cox: I would think that this was a way of getting the number of representatives proportionate to the number of people whose interest were to be represented, but we don't have any such a case.

I think that the answer either way is consistent with anything I'm saying.

It violates (Inaudible).

Justice Potter Stewart: I suggest -- it seems to me that if you have six times the per capita representation in one districts that that you do on the other, it's inconsistent with what you're saying.

Mr. Archibald Cox: No, because -- alright, I submit not, Your Honor.

Justice Potter Stewart: Well, then, you better change per capita to some other phrase because per capita means per person, per head.

Mr. Archibald Cox: But I haven't yet asserted that you may not have six times the representation in one district per capita that you have in other.

Justice Potter Stewart: I misunderstood you.

Mr. Archibald Cox: I -- I have to --

Justice John M. Harlan: (Inaudible)

Mr. Archibald Cox: Indeed, this is --

Justice Potter Stewart: Four propositions-wise that you had to have -- that you began with the assumption of rough equality per capita.

Mr. Archibald Cox: No, all -- no, I literally meant.

There's nothing cut two-way in my first proposition.

I simply mean to say and perhaps, it's so simple that I should've left it out, sometimes I think I should.

I simply mean to say that since the Fourteenth Amendment guarantees that individual people or groups of people shall be treated equally, unless there is something to explain the differentiation that the way you would determine the first part of that is by per capita representation.

Then you go on to the unless part, is there some justification for this differentiation and there may be a lot of them.

That's what I try to take up in the next three propositions of what and I do it by stating not what differentiations are permissible but which ones are forbidden, so as to leave the rest to the universe undecided, but I think my standards are susceptible of general application.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Archibald Cox: Might -- might I postpone -- I'm -- I'm going to deal with --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Archibald Cox: -- that.

Might I postpone, I am going to dealing with that, might I just postpone in dealing with that for just a moment.

I'd -- I'd -- I think that if I can do it with my slow way, which it maybe a little bit clearer.

Justice Potter Stewart: A little too fast for me here.

[Luaghter]

Mr. Archibald Cox: Well, I -- I don't think that -- be flipped, as I say it, I think my first proposition perhaps, could be skipped entirely and since we've only gone through it, you won't be left behind.

Our second proposition and the one with which we do come to define when differentiation is impermissible, is that an apportionment that results in substantial inequalities in per capita representation, without rhyme or reason, violates the Equal Protection Clause of the Fourteenth Amendment.

Now that I think, is nothing more than a -- than an application of the long established and familiar principle that Equal Protection Clause precludes irrational discrimination as between persons or groups of persons, the application of the law and as the Court said in Baker and Carr, it's long been open to courts to invalidate discriminations that are based on no policy.

That's the only kind of case, Mr. Justice Stewart, that I'm addressing myself to now.

By each of these propositions, it's really quite limited by a crazy quilt or substantial inequalities with neither rhyme nor reason, I apparently mean something different than a number of the appellants or appellees in these cases.

If a State has one senator for each county, as proposed in Alabama's 67th senator amendment or one representative from each town and the lower houses in Vermont, there are gross inequalities in the per capita representation, but as I use the words, those could not be called a crazy quilt.

They do lend themselves to some intelligible reason.

Similarly, New York's apportionment of the assemblymen here is based upon a combination of two coherent policies.

One, that each county should be represented, the other, that the rest should be distributed according to population.

In the Senate, too, there is a rule.

We think it's more discriminatory as well as more complicated, but it cannot, the apportionment of senators among counties, cannot under our sense of the term, be attacked as a crazy quilt.

What do we mean by a crazy quilt?

The best example of an apportionment, lacking any intelligible foundation, is, of course, Baker and Carr.

Among the cases here, the prize example is the apportionment, in effect, in Alabama at the time the Alabama case was instituted because there, the seats were apportioned according to a rule like New York's in the 1901.

During the ensuing 60 years, there were tremendous changes in population and one finds today inequalities in per capita representation that no one attempts to explain, much less to justify.

You find counties -- the smaller county having three senators and the bigger county having two and this sort of differentiation all over the State.

The Virginia case, we submit --

Justice Potter Stewart: But the case you've just talked about was New York, no?

Mr. Archibald Cox: No, Alabama.

Justice Potter Stewart: Alabama.

Mr. Archibald Cox: The apportionment in effect in Alabama when the suit was started.

Justice Potter Stewart: None --

Mr. Archibald Cox: The Virginia --

Justice Potter Stewart: -- in New York, just so I can be clear.

Mr. Archibald Cox: New York has a --

Justice Potter Stewart: There has --

Mr. Archibald Cox: -- (Voice Overlap) --

Justice Potter Stewart: -- been a periodic -- a periodic reapportionment --

Mr. Archibald Cox: Oh, yes.

Justice Potter Stewart: -- under the Constitution every 10 years, does it not?

Mr. Archibald Cox: That's right.

That's --

Justice Potter Stewart: There's going to be another one under the present Constitution --

Mr. Archibald Cox: Correct, correct.

Justice Potter Stewart: -- by 1966?

Mr. Archibald Cox: But I'm not arguing that it's condemned by the crazy quilt rule.

We do say that Alabama is, we say that the Virginia case is condemned by the crazy quilt rule, but it does raise another question or another problem in the application of the crazy quilt rule to with who has the burden of proof and I want to advert to that for just a moment.

The Virginia Senate is apportioned pretty much according to population, although the State Constitution doesn't supply any rule.

Arlington, however, has only one senator instead of the two to which people would be entitled under per capita apportionment.

Fairfax and Norfolk have only two for the three to which they would be entitled.

And in the House of Delegates, there is even worst discrimination measured by per capita equality against those counties.

So far as we could see, there's no explanation for this.

No -- none of the normal basis of apportionment apply to it, none other that we can deserve.

Virginia came in and we would say at that State that the plaintiffs had carried their burden unless the defendants came in and showed some reason, some explanation for the apportionment.

The Court --

Justice Potter Stewart: Under your theory, would this have to be a -- an explanation of the -- of just any conceivable rational recent reason?

Mr. Archibald Cox: So far as the rule --

Justice Potter Stewart: Or it has to be a -- had to be proved of what actually motivated the -- the apportionment?

Mr. Archibald Cox: No, I think you can think of it after the event, just as -- to answer you more completely, all I'm saying now is that if they come in with a reason, and I think it's up to them to come in with the extraordinary reason, that you're not required to make your case to disprove every possible explanation however fantastic.

The courts never required that even in economic cases.

If they do come in and I think they can come in --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Archibald Cox: I should suppose -- I should suppose that if that's a good reason and all I said was this -- that it might be a good reason, we didn't have the case, if they could come in and show that and it would fit the facts, then they would be entitled to have that policy considered, yes.

Just as Virginia comes in here and says, "Why, our policy is to discriminate in representation against members of the armed forces and their families, we don't think they're worthy of being counted when you're apportioning a seat.

" I doubt very much whether that was in the Virginia legislature's mind but I suppose if they can show that it fits the fact, we can't psychoanalyze the legislature and find out whether it had it mind or not.

What we will seek to show when we come to that case, is that it doesn't fit the facts and it wouldn't fit the facts, Mr. Justice, in your assumption about the New York rural counties because I've had a checkmate.

So rough, it's a sample check and I believe that it indicates that.

Justice John M. Harlan: You said it was impressible even the (Inaudible) urban -- urban-rural.

Mr. Archibald Cox: Oh, but he was talking about the number of people who voted, not the urban-rural.

I would say urban-rural was impermissible.

Justice John M. Harlan: But I'm -- it -- it -- that's impermissible.

Mr. Archibald Cox: That's impermissible.

I've counted our gifts, just --

Justice Potter Stewart: For one --

Mr. Archibald Cox: -- one breath more and I will be to the determination of what's permissible and impermissible.

The Maryland case really introduces that problem.

The Maryland apportionment, it seems to us, to be a crazy quilt because there, the State has given less representation per capita to the people of three suburban counties than it gives to the people of Baltimore City, the urban center, or to the rural counties and we -- we say that there's, on the face of it, no justification for that.

Now, the state authorities come in and say, "Oh, yes, there is a justification.

" They say that Baltimore is a port city with shipping interest.

It's got a steel-making industry, iron, steel working industries and it's a financial center.

And we think that the financial center and the shipping industry and the steel industry and the people in connection with them are more important and so are the farmers more important than the people that live in the rural suburbs and therefore, we are going to give each of them greater representation.

Now, obviously, our case is not complete unless we go ahead and apply something in addition to the crazy quilt test.

To answer them, we have to show that this basis of differentiation is not permissible.

Indeed, and I come -- I have to direct myself to that and I will in just a moment, but I want to go just a step further.

Indeed, the crazy quilt test of necessity requires some other test to go with it, I think, either by implication or explicitly because if there is no limit to the things that a State can take into account in apportioning seats in the legislature, if it may prefer farmers over storekeepers, bankers over wage earners, port cities over manufacturing establishment, cities with a population, say, between 20,000 to 35,000, over bigger cities or littler towns and so forth and if the rationalization can be supplied after the event, then I suppose anyone with sufficient time and sufficient imagination could supply some rule that would explain the crazy quilt.

Justice Potter Stewart: What bothers me, Mr. Solicitor General, is in -- it's bothered me all morning.

You say, if a State can do this, if a State can give more heavier representational weight to a seaport than to other places and so on, well, now, isn't it conceivable that perhaps one State in the particular context of the social, economic and political conditions of that State might and another State might not be able to constitutionally -- I mean, what is North Dakota got in common with New York, what does New Mexico have in common with Maine, I don't know the answer --

Mr. Archibald Cox: I'm --

Justice Potter Stewart: -- I would suggest this Court may not know the answer and that you may not know the answer with -- of all the local problems in these various States.

Mr. Archibald Cox: That's quite true, but all I was attempting to say, Mr. Justice, is that the crazy quilt rule won't supply a complete answer to the cases unless there are some limits on what interest the State may prefer over other interest.

Now, it's perfectly free so far as anything I've yet said goes to say, well, that's the trouble with the crazy quilt test.

That's what Mr. Justice Harlan said, the same thing in Baker and Carr and all I was saying, I -- I don't think there's any disagreement between us at this point.

I'm afraid my mind is operating too slowly but I think the foundation is important.

I -- the next thing I have to go on and do, as you suggest, is to deal with the problem, may Maryland -- may Maryland, quite apart from the other States, may Maryland prefer the shipping interest over the banking interest, the labor unions over management or the reverse in manner's representation? Does the Constitution permit it?

It's the critical question, isn't it?

And it's that question --

Justice Potter Stewart: Well, I suggest that some States, Maryland is one, Virginia is another, New Jersey is another, have large areas which are dormitory counties whose population, most of whose social, economic, occupational life is -- lived in another jurisdiction, other States don't have such counties at all.

I don't know about the -- about Iowa but I would presume it doesn't have much of the -- in that way of counties and that various of -- of -- quite different factors might be applicable in the -- in the differing States in that you -- you can't just say in the vacuum, in the air, may a State do this? We have to -- we have to tie it down to the particular facts in a particular State.

Mr. Archibald Cox: Well, I -- I was attempting to direct myself to the point that you emphasized earlier and that was that we have to have some general rules here and that we couldn't direct ourselves just to the particular case.

Now, let me --

Justice Potter Stewart: I didn't say we had to have them, I didn't say we had to have them. I suggested that they may not be possible to -- to formulate.

Mr. Archibald Cox: Perhaps so.

Let me -- let me come to my third proposition, let's see if we can, in addition to the crazy quilt rule, formulate some others that will answer the problem that I used Maryland to epitomize.

Our third proposition is that the Equal Protection Clause is violated by discriminatory apportionment, and I simply mean per capita differentiation, based upon criteria that are contrary to express constitutional limitations or otherwise invidious or irrelevant to any permissible purpose of legislative apportionment.

I have addressed myself to each of those three, taking to -- beginning with the easiest case.

Certainly, an apportionment based upon the number of white voters or white citizens in a district or the number of women or the number of men would violate the Equal Protection Clause because it's contrary to the express policy of the Fifteenth and Eighteenth Amendments.

Similarly, I should suppose it was clear that equal protection bars differentiation and per capita representation.

Justice Potter Stewart: Why does your -- in here, your enemy, I don't see why necessarily measuring your per capita test by the number of men would be -- would violate the Constitution at all --

Mr. Archibald Cox: I think that the --

Justice Potter Stewart: -- if it were shown that the number of men and the number of women were roughly equal, 50% to each.

Mr. Archibald Cox: Well, then, it doesn't match.

Then there would be no inequality.

You would apply my first judge stick, you would find there was no inequality and that would be the end of it.

Justice Potter Stewart: And so it wouldn't violate the Constitution.

Mr. Archibald Cox: As -- no, I'm assuming when I refer to women that there is, for some reason, made big difference between the counties, the number of women in one county relatively and the number in another.

In that event, I would think that it violated the postulate of the Eighteenth Amendment which is that when it comes to voting, that men and women are to be treated equally.

And I would think that was a postulate that carried over from voting to waiting their votes and counting for -- electing a governor to apportioning representatives.

I suggest that invidious discriminations were forbidden by the Equal Protection Clause.

An apportionment that was based on population, for example, but excluded Roman Catholics or persons of Italian descent or second generation immigrants would seem to me plainly to violate the Fourteenth Amendment as introducing a differentiation between people or groups of people that is quite contrary to our traditional heritage of equality in matters of voting.

Again, it would seem to me that purely whimsical criteria will not furnish a rational basis for differentiation.

For example, if a State were to apportion to each county the number of senators that there were letters in the name of the State would, I think, violate the Fourteenth Amendment.

Justice Potter Stewart: Well, any of the counties get the same number.

Mr. Archibald Cox: What?

Justice Potter Stewart: Every county will get the same -- I don't understand it.

Mr. Archibald Cox: Oh, I'm -- I'm sorry, I misspoke myself, in the name of the county.

A long named county would get a lot, a short named county would get a few.

Excuse me, I -- it was simply a slip of the tongue or suppose that the State gave people who lived in the western counties twice the representatives per capita of those in the east because they lived nearer the setting sun.

I take it that that would be a differentiation forbidden by the Fourteenth Amendment.

Justice Arthur J. Goldberg: Suppose that --

Mr. Archibald Cox: Now --

Justice Arthur J. Goldberg: -- suppose that (Inaudible)

Mr. Archibald Cox: No, I would say that -- I would exclude that and I -- these extreme examples I put only because they seem to me to suggest one seeks to generalize from them and it seems to me that the reason they are impermissible is that they are not relevant to any proper purpose of legislative apportionment.

In the Maryland case, for example, we say that an apportionment which discriminates against the bedroom towns, as Mr. Justice Stewart called them, in favor of the cities or in favor of the rural areas is an impermissible apportionment.

In New York, we say that a discrimination in the Senate against the people who live in counties having more than 6% of State's population, in favor of those who live in any county having less, is based on an impermissible step.

Justice Arthur J. Goldberg: Why?

Why?

Mr. Archibald Cox: Yes, well, I'd -- and I'd say that they're just as impermissible as discriminating or betraying naturalized citizens, other citizens, Roman Catholics or Protestants and the like.

Justice Arthur J. Goldberg: And the State would probably deliberate (Inaudible)

Mr. Archibald Cox: I think it may do that in some -- by some means and not others.

In other words, Mr. Justice, I fully recognize that in enacting tax laws and regulatory laws, granting appropriations or other benefits that a State may encourage one industry or discourage another or protect the wage earner or the management and so forth.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Archibald Cox: No, I'd -- I've -- I would -- I'd exclude that.

I would say that it's -- and coming again quite slowly, that there's nothing novel in my suggestion, the basis of classification that will do in one area of state action maybe impermissible in another.

For example -- let me come back to your case.

Justice Arthur J. Goldberg: If I may reference a moment for (Inaudible)?

If the -- if the State of Virginia did all these things (Inaudible) districts can only be done (Inaudible) objection?

Mr. Archibald Cox: That -- that's what I'm trying to address myself to.

I want, first, if I may, to come to Your Honor's question about encouraging movement to the west.

I replied that a State could not give them more representatives in order to encourage people to move out there.

Also it's quite clear that tax advantages and regulatory laws might be directed in that direction.

Now, if I may, before I come to defy, may I simply suggest that there's nothing novel in the suggestion that discriminations that are permissible in one context maybe impermissible in another.

I suppose, for example, that if a State wished to encourage people to go into the steel industry that the various tax benefits and other things might do, but I don't think it would be a permissible way to encourage them to say that no one outside the steel industry may have trial by jury, that only those in the steel industry may have trial by a jury.

Nor do I think if the aim is to encourage the farming regions that a State should say or could constitutionally say, "We won't supply education to farmers' children because then they must stay on the land but we will supply an education to bankers' children," and there are other cases which suggest that there is room for differences of this kind.

In the matters of apportionment, I suggest that the critical difference is between rules which serve the purpose of making representative government work better, the operation of which may have collateral consequence of creating discriminations per capita and rules whose only function is to create classes of voters with preferred political rights, disproportionate to their number, which we say is impermissible.

Now, let me explain first what I mean by making the legislature more representative and then go to the question, where do I find the rule that prohibits creating the preferred classes of voters, just to give one more political right than the other?

Justice John M. Harlan: I think there's also another question to address yourself to is to whether the Equal Protection Clause of the Fourteenth Amendment has anything to do whatever with apportionment, as distinguished from the racial discrimination cases of exercising civil rights?

Mr. Archibald Cox: Well, I will -- I will try to -- by making representative government work better, the kind of thing to which I suggest maybe a permissible purpose of apportionment.

I have it in mind that a legislature is not simply a mirror to public opinion like a (Inaudible).

It's a deliberative body and deliberation requires knowledge.

For that reason, it would seem to me that it might be thought desirable to take steps to ensure that the representatives in one house of the legislature came from geographical districts small enough, so that the -- there would be no part of the State which didn't have someone there who knew its people and their needs and the individual conditions in the individual locality.

An admirable example, I think certainly in the past, would've been Martha's Vineyard and Nantucket Gulf in Massachusetts Coast where their problems where distinct and they're ought to be -- could be thought there'd be -- ought to be somebody in the legislature to know that.

I've told the Red Lake area in Minnesota way up in the northern part of the State is another, separate in area of this kind.

Again, geographically, small districts might be sought to enable people to know their representative better and him to know all the people in the district.

It might be thought that a legislature was better informed and more representative if it -- it this Government recognized -- the apportionment recognized the political subdivisions that have a historic coherence and identity of their own.

Indeed, anyone who's participated in town or county government knows that the town hall or the county courthouse is in a sense, say, nerve center for political organism and that it is more in tune with the all the county, all the people in the county than the sheer numbers might indicate.

Again, I suppose a measure of continuity or stability or maybe thought a desirable purpose in the workings of the legislature or it might be thought desirable to minimize the number of political organizations that had to be created for representative districts so as to have effective organization.

This is what I mean by the permissible purposes.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Archibald Cox

Chief Justice Earl Warren: Mr. Solicitor General, you may continue.

Mr. 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 --

Unknown Speaker: (Inaudible)

Mr. 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.

Justice 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.

Mr. Archibald Cox: As I recognize (Voice Overlap) --

Justice Potter Stewart: There are apples and oranges.

Mr. 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.

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.

Justice Potter Stewart: Would follow then --

Mr. Archibald Cox: Well, now why, shouldn't make any sense --

Justice 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.

Mr. Archibald Cox: I don't know the list system, proportional representation.

Justice Potter Stewart: You know that it's in Cambridge, Massachusetts, a variant of it.

Mr. Archibald Cox: Well, I -- I live out a little town where we just voted by counting noses.

Justice Potter Stewart: And you've -- well --

Mr. Archibald Cox: I should think you could have proportional representation, yes.

It doesn't seem to me that anything --

Justice 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?

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

Justice Potter Stewart: Yes, by class.

Mr. Archibald Cox: You mean by laborers?

Justice Potter Stewart: Assuming -- assuming people vote by class, yes.

Mr. Archibald Cox: I don't well --

Justice Potter Stewart: As -- assuming that (Voice Overlap) --

Mr. Archibald Cox: If they vote by class, but the legislature --

Justice Potter Stewart: -- generally speaking, assuming generally speaking, labor union people, generally speaking both are the same kind of a candidate, yes it does.

Mr. Archibald Cox: They may or may not, but isn't phrased in terms of class.

Justice Potter Stewart: Well, the whole purpose of it is, if you read Professor Harris' book is to do it precisely that.

Mr. 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.

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.

Justice 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?

Mr. 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 --

Justice Potter Stewart: Let's just assume this was a fact and that you couldn't show that that there was any purpose in it.

Mr. 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.

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.

Justice William J. Brennan: (Inaudible)

Mr. 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.

Justice William J. Brennan: (Inaudible)

Mr. 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.

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.

Chief Justice Earl Warren: Very well.

Mr. Galt.

Argument of Irving Galt

Mr. 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 --

Justice John M. Harlan: 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?

Mr. 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 --

Justice John M. Harlan: Well, of course there is --

Mr. Irving Galt: -- is applicable to Fourteenth Amendment.

Justice John M. Harlan: There is room for Baker to operate even though you rejected that proposition.

You recognize that, don't you?

Mr. Irving Galt: I'm -- I'm sorry, I didn't get the question.

Justice John M. Harlan: 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.

Mr. Irving Galt: Without accepting the proposition of the Equal Protection --

Justice John M. Harlan: Yes.

Mr. 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 --

Justice John M. Harlan: Oh, that's the question I'm putting to you.

Mr. Irving Galt: Pardon?

Justice John M. Harlan: That's the question I'm putting to you whether --

Mr. Irving Galt: We say --

Justice John M. Harlan: -- 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.

Mr. 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 --

Justice John M. Harlan: Well, that's alright.

I just want to get the premises of your argument.

Mr. 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.

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.

Justice Arthur J. Goldberg: Mr. Galt, is your argument run against (Inaudible)

Mr. Irving Galt: No.

Justice 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)

Mr. 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.

Justice John M. Harlan: Have you read the debates of the constitutional convention in New York of 1894?

Mr. Irving Galt: Yes, I did when we had the case right on the statute (Voice Overlap) --

Justice John M. Harlan: There are quite a group of distinguished lawyers who were delegates of that convention, are they not?

Mr. Irving Galt: Yes (Inaudible)

Justice John M. Harlan: Roehr is one of them I think.

Mr. Irving Galt: Yes, Your Honor.

Justice John M. Harlan: 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?

Mr. Irving Galt: I can honestly say that I found nothing in the debates that so indicate and now Your Honors, I wanted to say --

Chief Justice Earl Warren: Did they go into that of the hearing?

Mr. Irving Galt: Pardon?

Chief Justice Earl Warren: Did they go into that at the hearing?

Mr. 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.

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) --

Justice John M. Harlan: There is liable debate, wasn't there as to different measures?

Mr. 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) --

Justice John M. Harlan: 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) --

Mr. 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.

Chief Justice Earl Warren: I thought -- I thought in the court below that counsel tried to show what was in the minds of the --

Mr. Irving Galt: Oh yes and now with constitution.

Chief Justice Earl Warren: -- constitution makers and they were denied that right.

Mr. 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.

Chief Justice Earl Warren: I thought that was your position here --

Mr. Irving Galt: Yes.

Chief Justice Earl Warren: -- before you answered Mr. Justice Harlan.

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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 --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

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 --

Justice 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?

Mr. Irving Galt: Well --

Justice Potter Stewart: The Mayor and his representatives in New York City.

Mr. Irving Galt: Well, undoubtedly the Mayor has a legislative representative up there in Albany.

But the --

Justice Potter Stewart: I'm talking now about the representation of the -- of the City of New York as an --

Mr. Irving Galt: Well, you mean institution (Voice overlap) --

Justice Potter Stewart: -- in a way -- had the way, which it carries as an institution more rapidly.

Mr. 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.

Justice 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?

Mr. Irving Galt: Someone had what?

Justice Potter Stewart: Some of the municipalities in New York have a considerable amount of home rule.

Mr. 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.

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

Mr. 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 --

Justice John M. Harlan: Do you live in New York?

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Well --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Well, there --

Justice Arthur J. Goldberg: (Inaudible) part of New York.

Mr. 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.

Justice 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?

Mr. Irving Galt: Well, those involved so many concepts that I can't say that I can answer that category. But I would think --

Justice Potter Stewart: But at least suggest some of the complexities of this case, doesn't it?

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Make no --

Justice Arthur J. Goldberg: -- he may not get the vote.

Mr. 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.

Justice 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?

Mr. Irving Galt: Yes, we -- we can give it to you on the brief Your Honor or in the record.

Justice Hugo L. Black: But I do not want you to (Voice Overlap) --

Mr. 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 --

Justice Hugo L. Black: Do they have -- do they have a representative?

Mr. 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 --

Justice Hugo L. Black: And what's your argument?

Mr. 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.

Justice Hugo L. Black: As I understand it, you do not deny that the -- compared to population has something to do with it.

Mr. Irving Galt: Now, what -- we -- we thought --

Justice Hugo L. Black: May I ask you a fairly straight question, what's the population of New York City?

Mr. Irving Galt: We don't deny that that could be taken as a candidate, yeah.

Justice Hugo L. Black: What's the population of New York City?

Mr. Irving Galt: New York City's present population would be about 8,000,000.

I don't know the exact figures --

Justice Hugo L. Black: The Chamber of Commerce --

Mr. 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)

Justice Hugo L. Black: What's the -- what's the population of the rest of the State?

Mr. 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.

Justice Hugo L. Black: That does a test of figures.

Mr. Irving Galt: Yes.

Justice 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?

Mr. 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.

Justice Hugo L. Black: What are those -- what are those?

Mr. Irving Galt: The --

Justice Hugo L. Black: You say well-defined?

Mr. Irving Galt: The -- the ones referred to in the Baker opinion, I have reference of course to --

Justice John M. Harlan: How do you define them in the Constitution and to that effect?

Mr. 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.

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.

Unknown Speaker: But surely --

Justice 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.

Mr. Irving Galt: Yes.

Justice 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.

Mr. 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 --

Justice Hugo L. Black: And so do you go far enough to say some that would to reject it?

Mr. Irving Galt: Pardon?

Justice Hugo L. Black: Do you go far enough to say some that would also reject it?

Mr. Irving Galt: Some what that would also reject it.

I don't follow you.

Justice 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?

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

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.

Justice Hugo L. Black: Were you reading it from the brief?

Mr. Irving Galt: I'm not reading it from the brief, but we do have that in the brief, Your Honor.

Justice Hugo L. Black: Well, I thought you are reading it.

Mr. Irving Galt: I'm not giving the Court anything which is either not in the record or in the brief.

Justice Hugo L. Black: Well, I understood, I had simply – if you were reading it from the brief, I want to see --

Mr. Irving Galt: Oh, I -- I'm -- very sorry Your Honor, we'd get to that point.

Justice Hugo L. Black: Don't bother that.

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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)

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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 --

Chief Justice Earl Warren: To what -- to what extent this population important in this field?

Mr. Irving Galt: To -- important to?

Chief Justice Earl Warren: In the -- in reapportionment?

Mr. 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.

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.

Chief Justice Earl Warren: We learned about that formula and what I want to know is what part should population play?

Mr. 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.

Justice John M. Harlan: 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.

Mr. 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 --

Justice John M. Harlan: I think that --

Mr. Irving Galt: Then they're likely to have --

Justice John M. Harlan: I think that that situation hereby everybody has agreed with.

Mr. Irving Galt: That's right.

We do not have that situation.

Justice John M. Harlan: 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)

Mr. Irving Galt: We sought it, it's not -- oh, I'm sorry.

Justice John M. Harlan: In fact, you take population out, you still -- what -- what's left to the equal protection argument?

Mr. 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.

Unknown Speaker: But there isn't --

Mr. 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 --

Chief Justice Earl Warren: He contends it's arbitrary, doesn't he?

Mr. Irving Galt: He contends that --

Chief Justice Earl Warren: It is arbitrary.

Mr. 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.

Justice 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?

Mr. 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.

Justice Potter Stewart: That's -- that's (Inaudible)

Mr. 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.

Justice 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?

Mr. Irving Galt: Well, yes, if it's arbitrary.

Justice 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 --

Mr. Irving Galt: Do we not --

Justice Byron R. White: -- discrimination, which you admit it is a discrimination?

Mr. Irving Galt: The answer to that I believe, Mr. Justice White, is that --

Justice Byron R. White: Certainly, it has been in terms of -- of access to the legislature or anything like that --

Mr. Irving Galt: No.

Justice Byron R. White: -- because these are urbanized counties.

Mr. 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 --

Justice Byron R. White: Well, don't you --

Mr. Irving Galt: There was a rationale behind that.

Justice 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 --

Mr. Irving Galt: As compared with New York County?

Justice Byron R. White: Yes.

Mr. 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 --

Justice Byron R. White: Or Suffolk?

Mr. Irving Galt: Nassau and New York County about --

Justice Byron R. White: Suffolk.

Mr. Irving Galt: Suffolk, yes.

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

Justice Byron R. White: Well, how about Suffolk?

You called Suffolk as one of the urbanized counties?

Mr. Irving Galt: Yes, it's 72% urbanized.

Justice Byron R. White: Yes.

Mr. Irving Galt: And it's growing rapidly --

Justice Byron R. White: But it has a -- it has a measurable difference in the --

Mr. Irving Galt: Yes.

Justice Byron R. White: Per capita representation substitutes compared to New York City.

Mr. Irving Galt: Yes and the reason --

Justice Byron R. White: Now, what's the reason for that?

Mr. 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 --

Justice 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?

Mr. 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 --

Justice 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.

Mr. Irving Galt: There are all kinds of diffusion --

Justice Byron R. White: Well, I mean, isn't that so or not?

Mr. Irving Galt: Are you asking that my --

Justice 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) --

Mr. 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 --

Justice 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 --

Mr. 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 --

Justice 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.

Mr. Irving Galt: That -- that counties with less than 6% of the representation -- 6% of the population have more representation?

Justice Byron R. White: Per thousand.

Mr. Irving Galt: They're not -- oh, per thousand, yes.

Justice Byron R. White: Sure.

Mr. Irving Galt: Yes, I misunderstood Your Honor.

Justice Byron R. White: Sure.

Mr. Irving Galt: Yes, the second ratio --

Justice 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.

Mr. 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 --

Justice Byron R. White: Keeping down the size of districts?

Mr. 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 --

Justice 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.

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

Mr. Irving Galt: I would prefer no tyranny at all but I see that --

Justice Byron R. White: Well, certainly.

Mr. Irving Galt: I see that there is --

Justice 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?

Mr. 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 --

Justice Byron R. White: Like -- like in Suffolk County.

Mr. Irving Galt: Well, Suffolk County -- Your Honor mentioned Suffolk County, Suffolk County is going to get --

Justice Byron R. White: Well, if we can pick anyone and several others?

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: No, not at all.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: No, I don't think so.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Not --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Not --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Sure, it does not.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

That's the purpose of -- of a representation system.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: No, but --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Chief Justice 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?

Mr. 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 --

Chief Justice Earl Warren: Well, well, let's put it that way, (Voice Overlap) --

Mr. 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.

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

Mr. Irving Galt: On per capital standard, yes, but the point is that --

Chief Justice Earl Warren: And that's a matter of necessity under the formula.

It just has to go that way.

Mr. Irving Galt: And I would --

Chief Justice Earl Warren: Always.

Mr. 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 --

Justice 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.

It's -- isn't that correct?

Mr. Irving Galt: That's right.

That's their frame of reference.

Justice Potter Stewart: That's there frame or that's there definition of most populous counties.

Mr. Irving Galt: Not my definition.

Justice 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?

Mr. Irving Galt: That's right.

Justice 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?

Mr. Irving Galt: If you -- I -- I didn't follow that last --

Justice Potter Stewart: It's just this full ratio rule, isn't it?

Mr. Irving Galt: Yes.

Justice Potter Stewart: And you have to have -- you have to have a full fraction in order to get another senator.

Mr. Irving Galt: Yes, full ratio.

Justice Potter Stewart: In order to get another senator.

Mr. Irving Galt: The ratio of let's say a 100,000, 150,000, whatever it might be, you have to have that in full.

Justice Potter Stewart: In full in order to get another senator.

Mr. Irving Galt: Get -- getting over three senators, not all --

Justice Potter Stewart: And -- and in order -- and if you do have that --

Mr. Irving Galt: Yes.

Justice Potter Stewart: And no less and not -- and no more, then you do get another senator?

Mr. Irving Galt: That's right.

Justice Potter Stewart: That attempt doesn't -- then tend to equalize itself back or am I mistaken about that?

Mr. Irving Galt: Well, I don't know on what frame of reference you're saying, hence to equalize itself back.

Justice Potter Stewart: First of all, you divide the total citizen population of the State by 50.

Mr. Irving Galt: Right.

Justice 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?

Mr. Irving Galt: Ratio (Inaudible)

Justice 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) --

Mr. Irving Galt: That it has three full ratio --

Justice Potter Stewart: Right.

Mr. 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.

Justice Potter Stewart: Except on a full ratio.

Mr. Irving Galt: That's right.

Justice Potter Stewart: You can't go over three --

Mr. Irving Galt: That's right.

Justice Potter Stewart: -- except on a full ratio.

Mr. Irving Galt: Yes, Your Honor.

Justice 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?

Mr. 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 --

Justice Potter Stewart: And then the additional senator --

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

Justice 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.

Mr. 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.

Justice Potter Stewart: So you add to the total number of 50?

Mr. Irving Galt: Right, exactly.

Justice Potter Stewart: And now, you have 58 and then the -- the apportionment, you have 57.

Mr. Irving Galt: -- this apportionment is 58, and then the next it will be 57.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: I understand.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Well, in addition to the -- to the illustrations which at the outset of the argument Your Honor, may recall, would give --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: To get it -- this is on the accessibility may be --

Justice Arthur J. Goldberg: Close at hand?

Mr. 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.

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, --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: Have you seen any difference in the (Inaudible)

Mr. Irving Galt: Political questions in the sense, for instance, of the Republican guarantee clause --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: You --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice 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?

Mr. Irving Galt: If -- I'm not sure whether they went that far enough.

Justice Potter Stewart: But they could have argued that (Voice Overlap) --

Mr. 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.

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.

Chief Justice Earl Warren: Well, is your -- is your apportionment of your Assembly based on population?

Mr. 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 --

Justice John M. Harlan: In the 1957 election --

Mr. Irving Galt: Yes, sir.

Justice John M. Harlan: -- was there an apportionment question on the ballot itself?

Mr. Irving Galt: 1957, no, I think only the question of a constitutional convention.

Justice John M. Harlan: And there's (Voice Overlap) --

Mr. Irving Galt: That wasn't as the Court.

Justice John M. Harlan: -- Governor Harriman's recommendation that you referred to, that did not appear as separate question on the ballot?

Mr. Irving Galt: No, I don't believe it did appear.

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

Chief Justice Earl Warren: Can you put -- can you put an individual measure like that on the ballot?

Mr. Irving Galt: Through the -- if the legislature wishes to do so, it can do so between the 20-year period.

Chief Justice Earl Warren: Yes.

Mr. Irving Galt: The 20 -- the 20-year --

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

Mr. 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.

Chief Justice Earl Warren: That's -- that's what I understood counsel in the other side (Voice Overlap) --

Mr. Irving Galt: I think that's so.

Justice Potter Stewart: Well, if -- if that --

Mr. Irving Galt: I'm not certain so but I think (Voice Overlap) --

Justice William J. Brennan: (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?

Mr. Irving Galt: The constitutional convention, itself.

Justice William J. Brennan: Itself.

Mr. 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 --

Justice William J. Brennan: 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.

Mr. 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?

Justice 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?

Mr. 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.

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 --

Justice Byron R. White: In all -- in all --

Mr. Irving Galt: Legislature being responsive to the people.

Justice Byron R. White: In all probability, it would be your view that such a vote would -- should end the court inquiry into the matter.

Mr. 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.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Irving Galt

Chief Justice Earl Warren: WMCA Incorporated et al., Appellants, versus Caroline K. Simon, Secretary of state of the State of New York, et al.

Mr. Galt, you may continue your argument.

Mr. Irving Galt: Mr. Chief Justice, and may it please the Court.

Yesterday when Court adjourned, I had been pointing out at least four factors which we were able to discern relative to the problem of securing equal representation among residence of different constituency and I want to touch on them just rapidly for a moment.

First of course and the most obvious is the much discussed per capita representation, which is an important factor although by no means they seen a -- well, none nor to the starting point of inquiry.

But there is a second, third, and fourth -- there are second, third, and fourth factors.

There should be some kind of minimum representation for voters of each county, that's an important ingredient.

I suggest that also that it might be relevant in securing equal representation to impose some limit on the physical size of districts to prevent all the large sprawling districts, that's important.

And finally, that it was important to ensure proper diffusion of political power, so that no one small group of counties can ignore the needs of voters in the other counties.

And I had started to suggest at the time of yesterday's recess that each of these is an important component in any concept of a truly viable apportionment system but ---

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Equality of political rights?

Justice Arthur J. Goldberg: Yes.

Mr. Irving Galt: If I understand the sense in which Your Honor had used in political rights -- in the broader sense of political rights that that ties in exactly with the argument we were stressing yesterday of -- of the equality of access for this -- this matter of equalizing the rights of voters in different districts, of different nature, of different population, in this sense, yes.

Justice Arthur J. Goldberg: Well, if I understand you correctly, you're placing high (Inaudible) categories of consideration and just the Government (Inaudible)

Mr. Irving Galt: Well I'm not -- I'm not -- I'm not placing a premium in the sense of giving a specific weight to any factor.

And as matter of fact Mr. Justice Goldberg, I would say this, that if we take anyone of these components, we have been discussing, anyone of them conceivably, a constitutional standpoint might be selected as the basis upon which a state, in exercise of it's own discretion as to what it state requires may use as a sole standard if it desires to do so.

That would not necessarily and probably would -- that would not render it unconstitutional per se.

But I would say that it's specious to suggest that any one factor should be used to the exclusion of others or be given a specific weight or you'd be used a starting point.

I would think that on the most circumstances, a state would have regard to a combination possibly, all of the factors which I have mentioned.

But no one stands out predominant, no one subordinates another.

It might for example be, you might have a situation of the state relying solely on the population standard, that in itself would not be unconstitutional nor would it be unconstitutional if a state relied let's say on the minimum guarantee of one -- of one representative for the voters of each county.

Justice Arthur J. Goldberg: As I understand you correct me yesterday to your answer of Mr. Justice Black, if you would (Inaudible) that the other principle of accessibility, quite support the -- the reapportionment in -- in New York City for example, one donor legislative on the ground of New York City with the compact (Inaudible) with voluntary that having one legislator that you have accessed to the legislator who can make (Inaudible) involved in.

Mr. Irving Galt: I had not carried it Mr. Justice Goldberg to that extreme as I recall that I think it was at that point in the argument that I pointed out that there are situations in which concepts reach a breaking point where you can carry a notion to such an extreme that you -- you carry it to almost an absurd indeed to an absurd extent.

And while -- we would not go that far, there are these situations of extremes.

This breaking point is an important concept but I would say that if it is not carried to that extreme length which is used for purposes of illustration, I suppose, along those lines, yes, but not to the extreme where rationality disappears.

Justice John M. Harlan: Do you accept the propagation that equality of individual political rights is the same thing as equality of representation in a State Legislature?

Mr. Irving Galt: The quality of individual political right.

Justice John M. Harlan: It's a right to vote, the right to cast your ballot, the right to have your -- your --

Mr. Irving Galt: Ballot.

Justice John M. Harlan: -- ballot, yeah --

Mr. Irving Galt: I'm sure Mr. Justice Harlan that I fully understand your use of that term if it has reference to equating the ray against standards concept, single constituency concept of one man one vote, then I don't equate it if that was -- would be precisely the opposite of the points I was making yesterday.

If that is what you meant, then I would say that this is not the equivalent.

Now, I would like to point out too that I see no warrant whatever for an argument such as the appellants and the Solicitor General made yesterday in their briefs to the effect that per capita representation should be the starting point of inquiry and the burden of justifying any variations from per capita representation should evolved on the state whenever the plaintiffs are able to show some disparity from a per capita standing and no more warrant for that approach than for making any -- any other ingredient, minimum guarantee of one representative per county for instance, the touchstone starting point of inquiry for determining whether an -- any -- whether an apportionment furnishes equal representation.

Now, in most states beyond any doubt, certainly in the fairly large and fairly populous -- heavily populous states, even apportionment in those states where to rely solely on per capita representation.

I suggest to the Court that if anything, it might be reason to suspect its efficiency as a vehicle for equal representation because of the problems of equality which were suggested in the argument yesterday.

And the state experience, in this field furnishes any guide, I think it would be most unusual or certainly more unusual to find sole adherence to per capita representation that defined for example, a guarantee of one representative per county.

And the critical thing is this, a very plain fact it seems to me is this, if the appellants are correct that the starting point of inquiry is per capita representation, then there is no doubt that they would succeed in making a prima facie case against virtually every state of the union simply on filing a complaint with statistic showing the disparities which inevitably are there, and I do not think that this can possibly accord with any known concept that what constitutes a prima facie case.

Take the case of New York for instance.

If simply to tear a sheep out of some political scientist's textbook or to take a page from the legislative manual of New York with its recitation of figures will show that this State, 12th in the order of ranking on a per capita basis in the United States is prima facie and unconstitutional apportionment then indeed it squares with no concepts either of them as it come across --

Justice Arthur J. Goldberg: (Inaudible) of this matter is concept of a publicly informed the government, (Inaudible) basic underlying concept of republican concept and the equal -- equal for example after have to have an equal number of representatives equality of that type?

Mr. Irving Galt: In a single constituency, yes.

Justice Arthur J. Goldberg: Alright, it looks not(Inaudible) technically.

You do have the basis and the (Inaudible) of Government and particularly representatives (Inaudible)

Mr. Irving Galt: Certainly with the -- with the underscoring Mr. Justice Goldberg that there are sharp clashes of opinion minimized in this case is to what constitutes equality?

Justice Arthur J. Goldberg: I understand.

Mr. Irving Galt: That makes all the difference in the world.

Justice Arthur J. Goldberg: But (Inaudible) in the question that you have to deal with (Inaudible) to political terms, the Government the (Voice Overlap) --

Mr. Irving Galt: Yes, statistics.

Justice Arthur J. Goldberg: (Inaudible) you found its appendix or statistic attended in the Maryland case in general?

Mr. Irving Galt: I -- I can't say that I was able to examine it with sufficient care to recall it.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: I -- I did read that.

I recall it now Mr. Justice Goldberg, yes.

Justice Arthur J. Goldberg: (Inaudible) whatever our history either and with recognition to everything about this basic principle of equality, of a Republican Government.

Mr. Irving Galt: Yes.

Justice Arthur J. Goldberg: (Inaudible) necessary, we have to (Inaudible) basic principle or give rather consideration perhaps overwriting with this?

Mr. Irving Galt: We -- we have given our analysis beginning in yesterday's argument on the premise that there must be equality and we have shown that these four factors achieve very well that equality.

If you go to New York State for example, the second, third, and fourth factors which I mentioned are shown by our one assemblyman per county which guarantees representation to the citizens of each county that certainly tends to achieve equality and real political equality, the provisions for enlarging the senate which was to prevent the more populous districts from securing so larger representation that you would have to have oversized sprawling districts elsewhere and prevent multi-county districts.

And in that connection yesterday, I might note that I failed to stress one thing.

I talked yesterday of the need for accessibility between constituent and representative, and I did not stress at all that which is equally important and that is the converse situation of representative to constituent that is just as necessary for a representative in order to be adequately informed to go to the constituents of his district and ascertain what maybe their needs.

And very obviously that's a great difference in doing that in New York County and doing that in a place like St. Lawrence County or the 40th Senatorial District which is larger than the State of Connecticut.

And finally because it leads to something which I --

Justice Tom C. Clark: Would you accept accessibility as sufficient alone -- accessibility?

Mr. Irving Galt: As of -- as sufficient for what Mr. Justice Clark?

To sustain an apportionment?

Justice Tom C. Clark: Do you mean unconstitutional requirement?

Mr. Irving Galt: No, it isn't -- it isn't a question of that.

There is no one factor alone which is required to make it constitutional.

I -- I say that the factor of accessibility enters into the picture in determining whether you have representation in the Legislature, whether the voters of the State are equally represented taking into consideration all of these problems of which we spoke yesterday.

Accessibility is one of the things in a state like New York certainly which bears upon those problems.

Justice Tom C. Clark: You emphasized it so I rather thought you were putting that number one.

Mr. Irving Galt: Perhaps.

Justice Tom C. Clark: What if the -- it has to be some effective accessibility, doesn't it?

Mr. Irving Galt: Yes.

Justice Tom C. Clark: On the part of the -- on the part of the -- the voter or the --

Mr. Irving Galt: We try in New York so much as possible with all this tremendous variety of situations, with all these differences, with all these complications to secure that accessibility to the greatest possible degree.

And that is why we say we have in this apportionment formula of ours, tended very reasonably to equalize voters, these are the one district and another considering the differences of the problems.

Now, --

Justice John M. Harlan: You -- you don't do that in the Senate.

The Senate has deliberately refused to recognize that principle it.

Mr. Irving Galt: The --

Justice John M. Harlan: You got -- you got to recognize that if your case stands or fall on the question of numbers, the arithmetic of this problem, you're in a very difficult position.

Mr. Irving Galt: I say -- oh I'm sorry.

I say that our -- our case does not at all stand on numbers, numerical nice that if he is not --

Justice John M. Harlan: You keep on arguing numbers all the time.

Mr. Irving Galt: Pardon?

Justice John M. Harlan: You keep arguing numbers --

Mr. Irving Galt: No, I'm not arguing numbers.

Justice John M. Harlan: -- and you can't get away from it.

Mr. Irving Galt: I -- I suggest Mr. Justice Harlan that when I point up an example like St. Lawrence County and the larger 40th Senatorial District, I -- I do so to show as Mr. Justice Goldberg indicated yesterday that we're trying to prevent posing greater problems that already necessarily exist with all the well-directed efforts towards achieving equally.

We do not want to have this characterize our system.

Now, there is a third respect in which New York deviates somewhat from a per capita standard and that's the senate full-ratio rule which has the obvious purpose of ensuring proper diffusion of political power.

And I mentioned that specifically because Mr. Justice White, I would like if I might to answer more fully a question which you imposed yesterday and that was the question of "Why New York draws a line at a 6% figure?"

And I want to say to begin with, that there is no magic whatever in a figure of 6% itself.

In fact and this is very important, I think in answering that question, no such figure appears in our State Constitution.

What our State Constitution does say and does provide is that any county having more than three senators shall obtain an additional Senator only on a full ratio.

Now, since a full ratio obviously is -- is 1/50th of the citizen population, 50 being the basic number of senators and of course a county with more than three senators has more than 3/50th, so it's over 6% of the State's citizen population.

And getting back then to your question Mr. Justice White, "Why draw the line at counties having more than three senators?"

I suppose that when it comes to a drawing line to -- to a drawing of lines, there is no fixed answer.

But if we are correct in saying that it's permissible to place some limitation on per capita representation for the sake of other value, it does become necessary to draw a line.

And I say that it is surely as reasonable to draw a line at three senators as it would be the draw line at four or to draw a line at two.

Or as it is as it surely is, the tax income at $600 or to tax it at $700 or to tax it at $500.

Now, if I may turn, there's one thing I want to try rapidly to do in the time remaining.

We spoke yesterday of a constitutional convention and I just want to bring out one of two specifics on that.

Every 20 years, there are put -- there is put to the people a specific question, "Shall there be a convention to revise the Constitution?"

And if a majority vote is cast in favor of holding a constitutional convention later, delegates or elected at a separate election, they are elected on the basis, number one, of three delegates per -- on the basis of senatorial districts, three times the amount of the senators from each district.

In other words, each district has one senator, so there are three delegates.

That would be three times 58 in the present apportionment, 174.

Plus 15 delegates elected at large, statewide which makes I think a total of 189.

Now, this 189 under the current apportionment, 81 would be elected from districts, from legislative districts contained within the five so-called full ratio counties and then of course the 15 at large delegates by the entire state and that would mean this.

If the five full-ratio counties elect, they can control 81 plus the 15 at large because they are a majority of the voters of the State and they have a majority of the total of 189.

That is why I cannot understand what I regard as the erroneous contention made yesterday by the appellants that the counties pictured as the victims of discrimination were powerless to change the constitutional formula.

Justice Potter Stewart: Is there anyway to hold a constitutional convention in the interval between these 20-year automatic submission?

Mr. Irving Galt: Yes, the Legislature itself can initiate it.

Justice Potter Stewart: At any time?

Mr. Irving Galt: Yes, and I -- I --

Justice Potter Stewart: And if there is then, there's no way to change the existing legislative apportionment formula except by constitutional amendment I suppose --

Mr. Irving Galt: Yes, because we must comply --

Justice Potter Stewart: -- it's in the Constitution.

Mr. Irving Galt: -- with the Constitution, State Constitution and whatever formula we have.

But Mr. Justice Stewart, I emphasize this because very recently, let's not think of 1977.

Let's think of what is more contemporaneous, the 1957 situation in which such a vote was had and in which Governor Harriman indubitably made that an issue.

We emphasize that.

We had referred to it in our brief.

He very vigorously urged it.

Justice Arthur J. Goldberg: I presume there are others (Inaudible)

Mr. Irving Galt: There may have been.

I don't know -- I'm not going to weigh the degree to which they had been involved, but I think I can fairly say to you Mr. Justice Goldberg, that Governor Harriman did make an emphatic point of this and that a majority of the citizens voting in a statewide vote rejected a constitutional convention.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: I -- I suppose, though I can't answer you with certainty Mr. Justice Goldberg.

In the natural cause of events, I would assume so.

But very decidedly, this was an emphasized issue, very clearly so.

Now, I'd like to advert in the short time remaining to one or two other things.

We were talking yesterday.

I started to talk yesterday about the reasons why federal equity power should not be used to intervene and no compelling circumstances, and the very same factors which in our view bear on the validity of the New York formula on its merits.

I've also suggested, there's no reason for intervention of federal equity power without repeating them in detail, close adherence to per capita representation, the clear control of the Legislature by urban counties, a built-in opportunity for the majority to change, to convene a constitutional convention and the consistent adherence by the Legislature to principle standards embodied in its Constitution.

All of these suggested, there's absolutely no warranty here for federal equity intervention, and that you have to look to the governmental processes of New York as a whole since the question of legislative apportionment after all is only one facet of the problem of giving citizens of the State an adequate voice in State Government.

And I'll touch only on one aspect of this.

The Governor of the State of New York, not only as a chief executive as an -- the chief executive and administrative officer to the head of the State, but I would say without exaggeration, he is probably the most important element in the state legislative process and that's obvious because he prepares the budget.

He recommends legislation.

He has veto power which I cannot recall having been overwritten in New York.

It's very rare.

And he's elected in the -- and of course on a statewide per capita basis where the majority have the opportunity to express their voice and concern on matters affecting State Government and I --

Justice Potter Stewart: As a matter of political history, is it true that the Governor of the State, do you tell us has a considerable amount of legislative power that has come from New York City in recent years or not?

Mr. Irving Galt: Considerable amount of legislative power that has what?

Justice Potter Stewart: You just told us that the Governor of the State has a good deal of legislative power.

Mr. Irving Galt: Correct.

Justice Potter Stewart: As a matter of political history, is it true or is it not that in recent years the Governor of the State has come from the City of New York?

Mr. Irving Galt: Has come from the City of New York in many instances, yes certainly.

The present Governor comes --

Justice Potter Stewart: And his predecessor -- and his predecessors, is that correct?

Mr. Irving Galt: His predecessor, I think was a residence and certainly Governor Leeman was a resident --

Justice Potter Stewart: And Governor Dewey?

Mr. Irving Galt: Governor Dewey --

Justice Potter Stewart: Governor Harriman?

Governor Rockefeller, Governor Leeman?

Mr. Irving Galt: I believe Governor Harriman, Governor Rockefeller is -- lives on Fifth Avenue, that's right but the --

Justice Arthur J. Goldberg: Is that the -- is that the (Inaudible)

Justice Potter Stewart: That's the answer to this whole problem.

Mr. Irving Galt: But at any rate --

Chief Justice Earl Warren: Mr. Galt, may I ask you this -- this question if -- if using this formula, that is used by New York and using the criteria that you have raised here.

If the result was to give 25% to the people from New York control the both Houses of the Legislature, would you say it was constitutional?

Mr. Irving Galt: If the -- if it worked out so that New York City --

Chief Justice Earl Warren: Yes -- no.

If it worked out instead of being for 40 in one House and 41 point something in the other House, it was reduced to 25% in each House, would you say it was still constitutional?

Mr. Irving Galt: It might be.

It would not necessarily -- it would by no means render it unconstitutional because the constitutional touchstone is not going to be a question of purely applied mathematics.

There would very probably be other statute ingredients involved there, but of course New York does not present that picture.

Justice Arthur J. Goldberg: Then of course (Inaudible) I believe in the controversy of the power (Inaudible)

Mr. Irving Galt: Well, the -- the answer to that is that if we discuss it in the abstract this way without regard to all the surrounding facts and circumstances, there maybe other elements appropriately to be considered there which would tend to give that equality that is required and that would be the important consideration.

The -- the responsiveness to the popular will is not to be measured by giving anyone element, any particular specific weight.

It's to be measured by the realities of the situation with regard to all the factors or with regards to all of the factors which we do have in the State of New York.

I see that my time has expired and unfortunately I must leave the rest of my remarks.

Chief Justice Earl Warren: Mr. Sand?

Argument of Leonard B. Sand

Mr. Leonard B. Sand: Mr. Chief Justice, may it please the Court.

We -- we have appeared before the Court on behalf, not only of the appellants, but also on behalf of the City of New York and the County of Nassau at the least in this case but who have supported the -- the positions of the appellants and we file briefs in that support and are represented by -- by counsel together with my co-counsel, Mr. Max Gross.

The principal point which I would like -- I would like to make in the brief time remaining is that, even if it be assumed solely for purposes of argument that accessibility is a valid criterion, the senate rule was not designed with that criterion in mind.

The operation of the senate rule is not such as to limit the geographical size of the senate districts.

The State's own examples of the large senate districts which exist under the formula indicate that fact in comparison of present senate districts with those in 1894 will show that in fact geography has been disregarded.

What the senate rule does is precisely what it was designed and intended to do to discriminate against the residence of the most populous areas with respect to their representation in the Legislature.

The formula operates in such a way as I -- as I urged yesterday as to cause a disproportionate increase in the extent of overrepresentation of the rural areas as the most populous areas increase in size.

There are two rules with respect to the senate formula.

One is the full -- the senate expansion rule to which I have referenced yesterday.

There is another totally independent rule which is the full ratio rule which also discriminates against the residence of the most populous counties.

It was suggested yesterday in response to a question of Mr. Justice Stewart, that the -- that the inequities caused by the full ratio rule are corrected when a particular county achieves a full ratio.

That maybe true but the basic inequity which causes the growing disproportion arises by virtue of a solely independent rule, the senate expansion rule.

Justice Potter Stewart: Mr. Sand, as I understand that you got roughly in your argument in illustrating the -- the report of inequity, constitutional violations you've equated, have you not pretty much in Nassau County and Suffolk County or not?

Mr. Leonard B. Sand: A comparison has been made between Nassau and Suffolk County.

Justice Potter Stewart: Now, I noticed there the representatives of those different counties take these adverse positions in this litigation which suggest to me that there maybe a -- a factors or some suddenly here, quite apart from what it characterized yesterday as a sixth grade arithmetic or even eight grade arithmetic.

I noticed that the -- the representatives of Suffolk County says at his -- the difference in the -- in the form of his County's Governments, he points that out between his County and Nassau County, these are things that haven't been briefed at all and only suggestively.

Mr. Leonard B. Sand: May I -- may I -- may I suggest that the difference between Suffolk County and Nassau County is -- is very significant here.

Nassau County is a -- is a 6% county.

It is discriminated against by virtue of the senate apportionment rule.

Suffolk County is not a 6% county.

It is not discriminated against.

And therefore, although they are contiguous and although their circumstances are very similar, they are treated very differently by the Legislature simply because one falls in for the category of counties discriminated against and the other is not within that County -- not within that category.

I see that my time has expired.