WESBERRY v. SANDERS

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Argument of Emmet J. Bondurant Ii

Chief Justice Earl Warren: James Wesberry, Jr., et al., Appellants, versus Carl E. Sanders, et al.

Mr. Bondurant.

Mr. Emmet J. Bondurant Ii: Mr. Chief Justice, may it please the Court.

Chief Justice Earl Warren: Go ahead.

Mr. Emmet J. Bondurant Ii: Before proceeding into our case, I would like to respectfully move the Court to permit my associate, Mr. Frank T. Cash to appear pro hac vice for purposes of this case and this case alone.

Chief Justice Earl Warren: Your motion is granted.

Mr. Emmet J. Bondurant Ii: Thank you, sir.

This case, unlike the cases previously before the Court during the preceding week, presents not questions involving legislative apportionments of the States but questions involving profound issues affecting the structure of our National Government for it involves the structure of the House of Representatives.

It was the House of Representatives which was to be in the words of George Mason, the grand depository of democratic principle.

Indeed, here lies the principle upon which all Republican Government is founded for by assuring equality of political participation to its citizens.

The Government secured not only the strength of popular support but it assured to each of its citizens the attentive consideration of his rights by those in power to the end the Government would be responsive to the will of the people.

Yet, this basic principle upon which an important branch of our Federal -- Federal Government is founded has been undermined by the repeated failure of the States to properly apportion their congressional districts.

This case presents in bold relief the very clear question of whether a State may deprive its citizens of more than half their representation in the House of Representatives by their failure to properly apportion congressional districts long after massive shifts and population have deprived these districts of their representativeness.

This case, Your Honors, was filed in the United States District Court for the Northern District of Georgia by two residents of Fulton County, Georgia for practical purposes, Atlanta, who are qualified to vote for representatives in Congress from the Fifth Congressional District of Georgia.

In 1932, Georgia, following the census of 1930, lost two of its delegates in the House of Representatives having its apportionment reduced from 12 to 10 Representatives.

This necessitate of course a reapportionment of the Georgia Congressional Districts which was done under the Act of 1931.

This Act which is quoted at length in the appendix to our brief in which the statistics of which are set forth fully in the brief apportioned Georgia's 10 congressional districts throughout the State.

The largest, Fulton County, was roughly about 80% larger than the smallest district created under the Act of 1930.

It is noteworthy that the District Court seemed to find in this apportionment a not -- unreasonable deviation from popu -- population.

However, in the 30 intervening years since the apportionment of 1931, the Act has lost all contact with reality because of massive population shifts which have occurred in Georgia principally in her Fifth Congressional District, Metropolitan Atlanta which is seen an -- toward growth during that period of time.

In 1960, based on the population figures of the 1960 census, the Fifth Congressional District of Georgia was more than three times the size of the smallest congressional district in Georgia, the Ninth District with the exception of only one possible combination of congressional districts, Georgia's Fifth District, is larger than two -- any other two congressional districts in the entire State.

The 556,000 people residing in the Eighth and Ninth Congressional Districts of Georgia possessed two Representatives.

Yet in more than 823,000 people residing in Metropolitan Atlanta, the Fifth Congressional District, had only one Representative in the House of Representatives.

This, we submit, is the crux of our case.

It sets forth a clear violation not only of equal protection which is applicable to state legislative apportionment but it violates even more fundamentally the standards set forth in Article I, Section 2 of the Constitution and as applied to the States through the Privileges and Immunities Clause of the Fourteenth Amendment.

It is interesting to note that at the time of the decision in the District Court, the Fifth Congressional District of Georgia was the second most underrepresented congressional district in the whole United States out of 435 districts both from the point of view of population and from the point of view of percentage of deviation from statewide average districts.

It was exceeded only by the Fifth Congressional District of Texas, the Dallas District which is since been held unconstitutional, the Texas Districting System by the United States District Court in Texas in Bush v. Martin on October 19, 1963.

This Court, parenthetically, it may be noted, has granted a stay in that proceeding.It is also important to note that the District Court in ruling upon the claims presented by the appellants under the Privileges and Immunities Clause and under the Equal Protection Clause clearly decided the merits of this claim contrary to the suggestion made by the Solicitor General in this case, for the District Court said that it found the facts not in dispute and that the facts were adequate to reach the merits of the case.

The District Court itself felt that it was reaching the merits.

After reviewing ex -- extensively the facts set forth in the case, the District Court concluded that it did not find the proscribed invidiousness either from the point of view of the Equal Protection Clause of the Fourteenth Amendment all from the point of view of the rights asserted under Article I, Section 2.

As an alternative ground to that decision, the majority of the District Court concurred in only by two justices -- judges went on and said that it felt that the relief should be denied for what it called "want of equity".

It is clear that in attaching the want of equity labeled to the case presented by the appellants that it was merely restating the political question doctrine of justiciability set forth by Justice Frankfurter in Colegrove v. Green.

It merely changed the label because it said and quoted at length that portion of Colegrove in which Justice Frankfurter had said, "This matter is exclusively committed to another branch of the Government, Congress under Article I, Section 2 and Article I, Section 4 and Article I, Section 5."

The Court relied on this and relied on what it considered the preservative treatment given this rationale in Colegrove by this Court in Gomillion v. Lightfoot and Baker and Carr is the basis for its alternative holding.

But nevertheless, before reaching this point, the Court decided the merits of the case.

Additionally, it might be pointed out that even if the Government were correct in its assumption that the court really didn't quite decide the merits, they are here with no reasons to send the case back to the District Court.

The facts, as the lower court observed, are undisputed.

There are no factual conflicts to be drawn by this Court or to be left to the District Court.

There are here no real local factors to be considered as to which the expertise of the local court on the scene might be advantageous as might exist in the state legislative apportionment cases because here, we're dealing with a federal standard, the right to equal representation in the House of Representatives, the National Legislature.

It is clear from a consideration of the constitutional history from our country, we submit, that the right to equal popular representation in the National Legislature in the House of Representatives is well established.

It begins with the Declaration of Independence, the declaration that all men are created equal.

It is particularly interesting to note that in the Declaration of Independence itself, one of the prime grievances of which the colonies then complain, was the fact that George III would not provide legislation for large bodies of people unless they would give up the right to representation in the legislature, a right in es -- in (Inaudible) to them and formidable to parents only.

It is clear that the Framers of the Constitution themselves felt that this was a fundamental right of our republic.

The record of the Federal Convention shows it's very clear that while primary attention was directed toward the problem of whether or not in the entire legislature, the entire National Legislature there would be equal popular representation.

The language is strongly appropriate to the House of Representatives for there the large States prevailed and it is their language which is deemed controlling as to the intent of the Framers of the Constitution in apportioning the National Legislature.

The language which stay on top is appropriate for this purpose for it confers representation upon the people, not the city people, not the country people, not those in power, not those not in power but the people of the State.

It is important also to point out at this point that the right which the appellants assert, the right to equal representation in the House of Representatives, the Federal Congress, is one derived solely from Article I, Section 2 which confers representation on the people.

It is not depended upon.

It is not derived from the guarantee clause of Article I, Article IV, Section 4 which relates to the right of state governments to be republican in form.

It is an Article I, Section 2 right.

It is reinforced, of course, by the Equal Protection Clause of the Fourteenth Amendment which continues, as we consider it, the right of equality of political representation and the right to equality of political participation of the people but Equal Protection Clause merely reinforced this right.

It did not create it.

It was antecedent to it in Article I, Section 2.

This, I think, is a major distinguishing factor between the case which is presented by the appellants and that which is presented by the state legislative apportionment cases for it is the Constitution which establishes a right to equal popular representation in the House of Representatives.

It is clear also from the finding of the District Court that the District Court considered under the established standards of constitutional adjudication the apportionment of Georgia Congressional Districts to violate what we would've called the "traditional equal protection test".

The District Court did not so conclude it but for reasons not based on findings of fact.

As a fact, the District Court found that it was clear by any standard that the population of the Fifth District was "grossly out of balance" with that of the Georgia Congressional Districts.

The court later said in its opinion that the plaintiffs, not unlike many other citizens in our republic are being deprived of equal treatment arising from the excess in population of their congressional district as compared with the other congressional districts in Georgia.

And finally and probably, the most pervasive statement of the unconstitutionality and the unconscionability of the Georgia Congressional Districts is the concluding statement that the Georgia Congressional Districts now reflect a system which has become arbitrary through inaction when considered in the light of the present population of the Fifth District and is measured by any conceivable reasonable standard.

No clear violation of equal protection of the laws as defined in the decisions of this Court could be set forth.

As a matter of factual finding in the District Court for reasons that are not apparent, the majority of the District Court concluded that the system was not invidious, whatever invidious meant to them.

It is clear however, that invidious is defined by the decisions of this Court particularly the decision by this Court in Morey v. Doud in which this Court summarizes the standards applicable to invidious discrimination that is clear that if the system is arbitrary, if it is without a reasonable conceivable basis, then it does violate the Equal Protection Clause and that the decision of the District Court is just clearly wrong on that point.

Justice Potter Stewart: Am I right in remembering that the -- a 1911 federal statute required the congressional districts be contiguous, compact and as nearly equal in size as they might be worse to that effect?

Mr. Emmet J. Bondurant Ii: That is correct, Justice Stewart.

Justice Potter Stewart: And that -- that was repealed in when?

1921?

Mr. Emmet J. Bondurant Ii: It was implicitly repealed at this Court's decision in Wood v. Broom is still authoritative in 1929 by the --

Justice Potter Stewart: 1929.

Mr. Emmet J. Bondurant Ii: -- failure of the Congress to include these limitations in the Act of 1929.

Justice Potter Stewart: Now, was the 1911 Legislation that it -- it have any predecessors in -- including that or similar languages -- language?

Mr. Emmet J. Bondurant Ii: In about 18 -- my date is not exactly correct.

It has similar language in about 1872, I think, under the apportionment.

The history of apportionment is traced rather extensively in the opinion with the -- as I recall, there was similar language in an early apportionment act but it -- it had never been enforced by the Congress either through refusal to see or by affirmative districting on its part under Article I, Section 4 or Section 5.

Justice Arthur J. Goldberg: There's no question about the power of Congress' duty (Inaudible).

Mr. Emmet J. Bondurant Ii: Although there was a question raised in 1842, I understand there is no question it seems to me.

It is clear under Article I, Section 4, Congress could provide districts but we would submit although we need not reach this point.

It could only do so consistent with the underlying constitutional standard of the right to equal representation in the popular House of the National Legislature.

Justice Potter Stewart: Was I to understand that your position is, you tell if I'm wrong, is it any such statute is surplusage basically?

Mr. Emmet J. Bondurant Ii: I think that's correct, Justice Stewart.

It would be --

Justice Potter Stewart: To be an act, I mean just a needless act.

Mr. Emmet J. Bondurant Ii: It is a mere restatement of what we conceived to be the underlying fundamental constitutional principles which has been applicable since Article I, Section 2 was put in to the Constitution originally.

It -- up-to-date, we have had no enforcement.

Congress could've enforced it.

It has refused to do so despite widespread violation by the States.

But it's clear that this Court's decision in Wood v. Broom only holds that the requirements of the Act of 1911 would no longer applicable by their omission from the Act of 1929.

This Court did not purport to reach the constitutional questions which do not seem to have been raised in that case.

Justice John M. Harlan: But where do you find in Article I, Section 2 under the relation with standards as to how the States emphasized the manner on which (Inaudible)

Mr. Emmet J. Bondurant Ii: Justice Harlan, we have to read Article I, Section 2 against the context of the Federal Convention -- Convention, the ratifying convention in the federalist.

We see in the language a clear indication and implication of the standard that Representative shall be apportioned among the several States the -- the right --

Justice John M. Harlan: Implied standard (Inaudible)

Mr. Emmet J. Bondurant Ii: That is correct but it is the people who are to be represented.

The Constitution establishes that standard.

And we see no basis in the Federal Convention or in anything else that's happened to justify any departure from a standard of popular representation.

It --

Justice John M. Harlan: You think if they didn't have the Fourteenth Amendment (Inaudible)

Mr. Emmet J. Bondurant Ii: Yes, sir, we do.

We feel very definitely that the Fourteenth Amendment restates the principle of -- of equality which runs from the Declaration of Independence following but even without the Fourteenth Amendment, either the Privileges and Immunities Clause or the Equal Protection Clause, we would have, it seems to me, the same constitutional case under Article I, Section 2 itself.

This, I think, is implicit in this Court's decisions in Saylor, Mosley and Classic in which this Court held that the right to vote included not only the right to mark a ballot, the right to drop it in a box but have that ballot counted in its full weight, undiluted by fraudulent ballots which was the case in Saylor.

It seems to us very clear that unless the right to full representation is protected constitutionally, the right to mark a ballot, to drop it in a ballot box or had it -- have it counted formally is a really little moment that these rights are complimentary.

One supplements the other, each is essential to the fulfillment of the other.

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: Frankly, Mr. Justice Brennan, it could be either, I think without being in conflict with the Constitution.

We have chosen population simply because the population statistics are readily available from a reliable source.

Our -- unfortunately, our figures on registered voters in Georgia include many people who had long since deceased although they sometimes turn up voting in elections and they're not particularly accurate.

I think it would not be inconsistent with this basic principle to have either standard views as the federal standard but in --

Justice William J. Brennan: Is there any relevance on this statute under Article (Inaudible)

Mr. Emmet J. Bondurant Ii: I think it's very difficult to read from that Section alone, a very definite conclusion as to whether or not it should be population vis-à-vis --

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: -- registered voters.

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: I think it very definitely has relevance because it again reinforces what we consider to be the principle already stated in Article I, Section 2 of equal popular representation.

There, of course, they were aiming that prohibition at the racial discrimination which was existed in many States at the time of its enactment in 1868 and it was the purpose, of course, to deny those States should they not permit colored qualified citizens to vote, to deny them representation.

So I don't think though that you can read from its language of male citizens unnecessarily be federal standard which are applicable on Article I, Section 2.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Emmet J. Bondurant Ii: If you read too literally, Mr. Justice Goldberg, of course, you would include your non-citizen population since they are persons res -- resident within the State.

I think I would be hesitant to do so frankly.

I think there is a basis for either population or registered voters.

In Georgia, I think it would make little difference for working with the statistical figures in granting their unreliability in some instances as close correlation seems to follow between population and registered voters so that the distinctions --

Justice William J. Brennan: Registered voters.

Mr. Emmet J. Bondurant Ii: Registered voters.

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: Yes, sir.

There's -- there seems to be a roughly a 4-to-1 ratio, Fulton County 556,000 people has in 1960, roughly 145,000 people registered vote and this follows very consistently throughout the States, smaller counties as well as larger counties, there are rare exceptions.

Chief Justice Earl Warren: On what do you base your conclusion that it might be either voters or persons from the language of Section 2 of Article I?

Mr. Emmet J. Bondurant Ii: Well, basically, Mr. Chief Justice Warren, I would have to say that I think it really is people because the language of Section 2 Article I confers the right to representation upon the people.

It seems to me that is the initial policy determination.

But since other sections of the Constitution limit the right of those who are qualified, I think there is a basis for saying that it -- it is those qualified who really exercise the right to really participate in the governmental choice of electing Representatives in Congress.

I think of it because of this, there is the basis for saying that also could be the foundation.

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: That's correct, sir but Article I, Section 4 delegates to the States the power to prescribe qualifications and this, necessarily, must limit the language of the people in Article I, Section 2.

I suppose none of the Framers would really suggest that a 9-year old citizen could elect Representatives.

We would suggest that --

Justice Arthur J. Goldberg: (Inaudible) literally the question answer that a Representative once elected represents all persons in (Inaudible), is that correct?

Mr. Emmet J. Bondurant Ii: Sir, surely, that is correct.

Justice Arthur J. Goldberg: Is that the basic -- the whole context of your presentation?

Mr. Emmet J. Bondurant Ii: Certainly.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Emmet J. Bondurant Ii: I think that is certainly correct.

There was unfortunate statement, it seems to me, made earlier in the arguments this week that if you were the minority party in election, you really weren't represented by the man but you are.

The principle of democratic government does not entitle you to prevail but only to have an equal opportunity to elect a Representative.

It's the equal participation which it secures and not the right to prevail.

We would suggest very strongly and submit to the Court that the right to vote for Representatives in Congress is a privilege and immunity of national citizenship guaranteed against the invasion by the States for it is derived directly from the Constitution.

It arises out of the essential relationship between the citizen and his National Government.

It -- more than almost any other right that can be conceived really is a privilege and immunity of national citizenship.

What other -- whatever other rights may not be, it is pretty clear that the right to vote certainly should be or if it is not, then the Privileges and Immunities Clause will remain a constitutional dead letter because it cannot have a clearer case for constitutional application than the right to vote for Representatives in our National Congress.

It would also seem with all deference that in a decision under the Privileges and Immunities Clause would have a very definite advantage from the point of view of judicial administration of this very great problem raised by the apportionment cases, state and federal.

For by placing the decision under the Privileges and Immunities Clause, this Court can require a higher standard substantial equality of population which it may be unwilling to require of one or both Houses of the State Legislatures.

Clearly, the Privileges and Immunities Clause has not been held to apply the state legislative apportionment.

It would seem very, very definite advantage to putting the decision on that ground require a high standard of equality of political representation in the House of Representatives, a uniform federal standard which will govern all States equal, Texas as well as Georgia, Washington as well as Maine.

I would now like to address my attention to what has been in the past, a very major area of difficulty for those urgent judicial intervention in this area, this one which we have pitched on previously.

It was relied upon under the law deemed by the court below and that is the question of whether the power of Congress under Article I, Section 4 is exclusive of that as a judiciary.

First, I think we can accept this Court's analysis in Coleman and Miller and look as to whether or not there was a constitutionally demonstrable commitment of this area to the Congress and I think the answer must definitely be no.

Nothing in the power itself, suggest that congressional power should be exclusive nor was there anything in the minutes of the Federal Convention suggesting that the power of Congress over this area was thought by the Framers to be exclusive.

There is no basis for the historical assertion that this power is exclusive.

Furthermore, this Court has repeatedly asserted jurisdiction in areas involving federal voting rights for members of Congress notwithstanding the fact that the States under Article I, Section 4 had also been delegated power and that this power was subject to the revisory power of Congress under that Section.

The typical case is the case of racial discrimination in federal elections.

Clearly, the Congress could have stepped in and prescribed a uniform federal standard for voting qualifications.

It could've conducted the elections itself had it so desired.

It could've completely excluded state participation in establishing this qualification.

Nevertheless, this Court on repeated instances had stepped in and enforced the requirements of the Fourteenth and Fifteenth Amendments to hold that you could not exclude qualified persons from the right of suffrage in federal elections and what's more, in state elections merely because of race.

It seems that that is really the perfect analog to the right which is now asserted here.

We are asserting a different area of the Constitution.

We're asserting a right derived directly from Article I, Section 2 and under the Privileges and Immunities Clause but the supervisory po -- power of Congress is derived from Article I, Section 4.

The power of the States is delegated by Article I, Section 4.

It's clear that unless you're prepared to retreat to the proposition that this Court could not have enforced the constitutional standards in the race cases, it could not hold that -- the power of Congress under Article I, Section 4 with this area is exclusive.

Furthermore, it's pointed out by Judge Tuttle in the District Court, it would seem that in allowing the States to exercise the power to the district and to prescribe qualifications, Congress does so on the assumption that the States will comply with the constitutional standards of the Federal Constitution.

It does not intend that the State can depart from those principles nor could Congress intend if it so desired.

We take the position and we do not need to for purposes of this case but I think its fair to do so to apprise the Court fully of our position on this point that Congress could not if it so desire to legislate the congressional districts which now exist in Georgia because Congress as well as the state governments is subject to the fundamental requirements of equal popular representation under Article I, Section 2.

Furthermore, this Court, again in dealing with the power of Congress under Article I, Section 4 has a long series of decisions, repeatedly rejected the claim that this power was exclusive of that of the federal judiciary.

They only have mentioned a few cases, Smiley and Holm, Wood and Broom and Colegrove and Green.

In each of these cases, the assertion was made that the power was exclusive.

It would in Broom, the District Judge Holmes, dissenting at great length, emphasized repeatedly the exclusivity of what he thought to be the power of Congress under Article I, Section 4.

In Colegrove and Green, Mr. Justice Frankfurter devoted many eloquent lines of his opinion to this proposition, yet, in each instance, this argument was rejected by a majority of this Court.

In Wood and Broom, notwithstanding the assertion by Judge Holmes below, not a single member of this Court accepted that argument.

The majority went off completely on the statutory construction question.

The concurring justices placed their decision for want of equity, a ground plainly unturnable if this Court were without jurisdiction.

Turning to the question of remedy briefly, it is our position that the Court should hold the Georgia apportionment of congressional districts unconstitutional and enjoin its enforcement, enjoin the two defendants from carrying out its provisions.

This relief would not been in conflict with the policy of Congress favoring, in some instances, the election of Congressmen by districts for Congress itself in other instances has sanctioned exceptions to this principle.

For instance, in this last congressional election, Alabama elected all eight of her congressional representatives on an at large basis because of the failure of the States to reapportion her congressional districts following a loss of representation out of the 1960 census.

Thus, this situation is not materially different from that which exist in that situation because it is merely a situation, both are situations of where the old Apportionment Act has become invalid and inadequate to comply with the applicable standards required of it.

Further, it -- it seems to me, a specious argument to suggest that in requiring an at large election that this Court is -- itself moving in conflict with the discretionary power of Congress to require elections by a district.

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: This Court need not to do so, Mr. Justice Brennan, because it has a clear precedent in its own opinions for an at large election in a congressional case.

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: Certainly, there is no reason that we should not leave it to the District Court.

We would not -- we are unhappy to see the District Court decide which remedy should be appropriate.

However, we do submit that really the only clearly appropriate remedy is the at large election.

Under the decision of this Court in Smiley v. Holm, we would be very hesitant to ask either this Court or the District Court to draw congressional districts to congressionally remap the State of Georgia.

The at large election giving the State in its ordinary session of a joint -- General Assembly which convenes in January of this year, an opportunity and orderly manner to enact a new Congressional Districting Act which complies with the constitutional standard set forth by this Court would to us be an eminently desirable way to solve the problem.

Further, it would seem to us also that under this Court's decision in Wood v. Broom, if the congressional districting apportionment in the District Court is held invalid, that it necessarily follows from Article I, Section 2 that the -- that the election must be on an at large basis.

This in effect is what the -- this Court said in Smiley v. Holm, relying upon Article I, Section 2 as the basis for requiring at large elections in that and although a different situation basically involving the same problem.

Justice John M. Harlan: Suppose you would say that the Congress exercised its federal power expressly provided that the district or the States are not based on population, is that on the constitution?

Mr. Emmet J. Bondurant Ii: Yes, Mr. Justice Harlan, very definitely.

I -- it is our position that although we need not reach it in this case that Congress as well as the Court has the overwhelming duty to follow the constitutional standards which are implicit in Article I, Section 2 to apportion Representatives in accord with a uniform federal standard of equality and representation in the House of Representatives.

Justice John M. Harlan: Do you know there's no specific provisions and article to that effect that although the Article does (Inaudible) the Congress (Inaudible)?

Mr. Emmet J. Bondurant Ii: I would again say that the language of the Article is to be read be in the context of the history of the federal convention, the Declaration of Independence and that no one ever supposed that Congress would depart from this basic principle of representation on the basis of the people.

After all, the Constitution says it isn't the people who are represented in the House of Representatives, not political districts, not political subdivisions.

Justice John M. Harlan: Basically, your argument as to the standing population under Article I basically the same with the argument would -- its implicit (Inaudible).

Mr. Emmet J. Bondurant Ii: I would not concede that it's the same, Mr. Justice Harlan, I think read in the context again of the Federal Convention.

After all, they weren't talking about state legislatures in the Federal Convention, they were talking about the House of Representatives.

They were talking about the principles for which only a few years before we had fought a revolution.

They were talking about the principle of which itself resided in the Declaration of Independence, the right to representation in the legislature that it is a much stronger and much clearer standard set forth in Article I, Section 2 than any which can be read into the Equal Protection Clause.

Justice John M. Harlan: Would you say that under Article I there is no permissible deviation on population basis (Inaudible)

Mr. Emmet J. Bondurant Ii: This would be our position.

There is no permissible deviation.

Justice John M. Harlan: (Inaudible)

Mr. Emmet J. Bondurant Ii: Yes, Your Honor, it is -- it would be our position that matters of state policy are paramount in the state legislative apportionment area and this may give the States greater latitude to depart from the principle of the equality than that which exist in the National Legislature because it is the Constitution which -- which dictates the standard.

Justice John M. Harlan: Now, the Constitution leaves to the States in a manner which (Inaudible)

Mr. Emmet J. Bondurant Ii: It would be that -- it would be our suggestion and I completely agree with Mr. Justice Black in Colegrove that -- that which it leaves to the States is not the power to make policy but instead the power to follow the constitutional standards already set forth.

They do not have the power to make a policy determination as to what the basis for representation in the House of Representatives shall be from their State.

Turning again to one other difficult area or --

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: Yes, sir.

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: The primaries -- my friends from the State can really set straight on the date.

I don't think they're really established.

Excuse me, I've been advised they have a second Wednesday on September.

Unknown Speaker: (Inaudible)

Mr. Emmet J. Bondurant Ii: We are fortunate to have a regular session of our General Assembly meeting between now and then so that we can avoid with -- it begins the 3rd of January --

Justice William J. Brennan: (Inaudible)

Mr. Emmet J. Bondurant Ii: Its 40 days.

It's a 40-day session.

Unknown Speaker: (Inaudible)

Mr. Emmet J. Bondurant Ii: No, sir, it could be -- it could then be reconvened into an extraordinary session by the Governor if that should come necessary.

Unknown Speaker: (Inaudible)

Mr. Emmet J. Bondurant Ii: Yes, sir.

The Governor can call an extraordinary session at anytime.

In fact, we had two as a result of Baker v. Carr and then our own state legislative apportionment case.

Turning to the problem with equitable discretion, we submit that this is not a case in which this doctrine is applicable.

Unlike Colegrove v. Green and Wood v. Broom, this Court has ample time to set forth a standard and this will permit the State plenty of time to set forth a new valid apportionment without completely upsetting its entire electoral system.

Colegrove was not decided until June.

Wood v. Broom was decided October 18th before the November elections.

In these cases, it may have been appropriate to invoke equitable discretion.

It is not in this case.

We have plenty of time, the legislature, if it desires to comply with constitutional standards has an opportunity to do so.

I would like also to dispose of as briefly as possible the suggestion by the lower court and by the appellees here that we have had a great change of political climate in Georgia which makes legislative relief likely, this is highly unlikely.

Since the decision of the lower court, we have had one session with the General Assembly, 40 days long.

The appellant here introduced a bill of the reapportionment, the House of Representatives, the congressional districts.

It was referred to our rules committee which is not unlike the rules committee next door.

It never was reported entirely in that session.

A Senate resolution was introduced -- passed the Senate which is popularly based and was voted down in the House.

This was merely a resolution to study the problem.

It was voted down.

The last day of the session, they -- under the general powers given to the Speaker of the House in the present pro tempore of the Senate, they authorized a commitment or creation of any number of committees without definition or rhyme or reason following the grant of the appeal in this case, a Committee from the Senate and a Committee of the House, Joint Committee, 10, I think from each body was appointed and they have been holding hearings in the congressional districts to the State.

But all of this ignores the fact that the Georgia House of Representatives commented on this Court in Sanders v. Gray which follows the same 3-to-1 system which required the County in the system be held invalid is -- so under representative, that a fair apportionment has little chance of passage.

Fulton County toward fourth of the population of the State has 1.46% of the representation in the Georgia House of Representatives.

3.34% of the representation in the House of Representatives is possessed by the Fifth Congressional District which is really the only one, we submit is really grossly overrepresented.

There is no motive in these other areas either inside of our House to do anything about this problem.

The crying need is not there, the power is not here.

We have no initiative.

We have no referendum.

Thus, it is clear that equitable discretion quite the contrary of requiring this Court to abstain, demands that this Court grant relief in order that we may have again our full right to representation in the House of Representatives.

After all in -- I think Harold Laski was probably right that no Government can seriously claim to satisfy the constitutional standards unless it is required by constitutional command that take into account the basic principles, the right of the people to representation in the House of Representatives equally, fully and without discrimination such as those which we have here.

With leave of the Court, I would like to reserve the rest of my time for my associate in the bar.

Chief Justice Earl Warren: Mr. Cash -- oh, you, Mr. Terris, you're going to argue now, are you?

Argument of Bruce J. Terris

Mr. Bruce J. Terris: The Government --

Chief Justice Earl Warren: Very well.

Mr. Bruce J. Terris: -- supporting the appellants.

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: Mr. Chief Justice, may it please the Court.

The Government believes that this Court need only decide two issues in the case now before it, whether the federal courts have the power to consider issues of congressional districting and whether in ordinary circumstances, the federal court should exercise their equitable jurisdiction rather than dismissing for want of equity.

We believe that the Court need not decide whether Georgia's congressional districting actually violates Article I, Section 2 or any of the provisions of the Fourteenth Amendment for the District Court said that Georgia's congressional districting was grossly out of balance and was arbitrary and intermediate that it might possibly violate the Fourteenth Amendment.

We do not believe that to determine this issue either way and therefore, we think that the Court may properly remand the case to the District Court for a determination of the merits.

Justice Arthur J. Goldberg: Mr. Terris (Inaudible)

Mr. Bruce J. Terris: There were no factual disputes in Baker and Carr Your Honor and essentially the same situation was involved.

The District Court in Baker and Carr had had indicated some doubt as to the constitutionality under the Fourteenth Amendment of Tennessee's legislature and nonetheless, this Court confined itself to the --

Unknown Speaker: (Inaudible)

Mr. Bruce J. Terris: Your -- Your Honor, I don't -- my understanding and I -- and of course I haven't read the -- the record for quite a while when Baker and Carr but my understanding was that -- that all the essential facts were before the District Court and the District Court indicated very strongly that the Tennessee legislature was --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: I'm not sure, Your Honor.

I'm not sure.

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: But in -- in any event, we think that this is a case of first impression in this Court.

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: Yes, right.

Justice William J. Brennan: On both sides.

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: It -- that's right.

It would Your Honor but we still believe that even -- that even if there is this distinction that this -- that this is a situation in -- involving difficult issue which -- and which there were -- has very few precedents in the lower courts or state courts.

It would be properly decided in the first instance by the District Court.

The Government submits that this case is controlled by Baker and Carr in all respects.

We believe that Baker and Carr is controlling as to the power of the federal courts for two reasons.

First, because in Baker and Carr, this Court explicitly stated that this Court does have power to adjudicate the constitutionality of congress -- congressional districting.

And even without this expressed statement, we believe that it logically follows that if the federal courts can adjudicate the constitutionality of state legislative apportionment, they can likewise adjudicate the constitutionality of congressional districting.

And finally, we believe that Baker and Carr is controlling not only on the power of the federal courts but also whether the federal court should exercise their power and refuse to dismiss for want of equity in the ordinary circumstances such as the circumstances which are now before this Court.

As to the power of the federal courts, to hear cases involving congressional districting, this involves three separate issues as this Court recognized to Baker and Carr, subject matter jurisdiction of the federal courts, the standing of the plaintiffs to bring the action and whether the particular question is justiciable.

I will pass over standing and subject matter jurisdiction since we think that these questions are clear beyond doubt and I will leave our discussion to our brief.

We likewise believe that there is little question that the federal courts have the power to adjudicate congressional districting in the sense of justiciability.

In Baker and Carr, this Court citing its earlier decisions in Smiley and Holm, Koenig and Flynn and Carroll and Becker stated and I'm quoting, "That these cases settle the issue in favor of justiciability of questions of congressional redistricting.

The Court followed these precedents in Colegrove."

End of quotation.

All four of these cases which the Court cited actually involved congressional districting within particular States.And in

Addition, this Court assumed justiciability in Wood and Broom by going on to decide the merits of the case.

Therefore, there are six cases decided by this Court culminating in Baker and Carr in which this Court has held or assumed that the questions of congressional districting may be decided by the federal courts.

Quite apart from the explicit statement in Baker and Carr and the earlier decisions of this Court in congressional redistricting cases -- in congressional districting cases, we believe justiciability of congressional districting follows from the holding in Baker and Carr that state legislative apportionment is justiciable.

These two problems are in many respects the same.

The first step in apportioning a state legislature is to decide on the appropriate districts and then to allocate the Representatives among those districts.

Insofar as the two problems, congressional districting and state legislative apportionment are different we believe that the justiciability of congressional districting is more clear for two of the most serious problems in this area concerning justiciability, are whether appropriate subsidy of criteria can be ascertained and whether proper judicial remedies may be found.

And we believe that both of these problems are easy of solution as to congressional districting than is to state legislative apportionment.

As to the substance of criteria, the Solicitor General in the state apportionment cases in arguing last week and today advanced various criteria to be applied to state legislative apportionment.

And we believe that all these criteria would be equally applicable to congressional districting.

For example, if the State districted its Congressman without any with -- so as to discriminate against some people and in favor of others without any rhyme or reason in a crazy quilt pattern, we think that this would violate the Fourteenth Amendment and it would appear that this standard would invalidate Georgia's congressional districting.

Justice Hugo L. Black: But what room is there left in this kind of case to apply the so-called "crazy quilt doctrine"?

Mr. Bruce J. Terris: We -- I was -- I was going on Your Honor.

We think that beyond those standards that there's an even more simple, more precise standard in the area of -- of congressional districting and that is population.

Congressional districting based directly on population without any substantial deviation.

All I was trying to indicate, Your Honor, is that even if that were rejected that at least, the very least, all the standards applying the state legislative apportionment would be equally applicable but we believe that there is an even clearer and more strict standard.

Justice Potter Stewart: Suppose you would permit a state to use existing political boundary line as I -- as I am sure a great many states do, that is to say that the Third Congressional District shall be A, B, C, D and E County.

Mr. Bruce J. Terris: Yes, Your Honor, I -- I think in the case of congressional districting thought that -- that there may be instances in which that would result still in very significant discrimination but in general, yes sir -- yes, Your Honor.

Justice Potter Stewart: I thought -- I think I'm right in the -- in my understanding that it's a quite usual way to do it --

Mr. Bruce J. Terris: Very (Voice Overlap) --

Justice Potter Stewart: -- in cases which are very fairly apportioned by your standing.

Mr. Bruce J. Terris: That's right, that's right.

Nor -- normally, that would work out with substantial equality and we would have no objection to that and I don't think the appellants would either.

Justice Potter Stewart: So that extends you with -- concede that there might be some validity in --

Mr. Bruce J. Terris: There would be so --

Justice Potter Stewart: -- territorial boundary lines existing in a state.

Mr. Bruce J. Terris: Yes.

And there will be -- nobody had that I know of has ever argued for a precise equality either as to state legislative apportionment or as to congressional districting in the sense that each district had to be exactly the same as another.

Justice Arthur J. Goldberg: Mr. Terris, does neither of your -- that oral statement (Inaudible) why as to the case (Inaudible) to the District Court.

(Inaudible)

Mr. Bruce J. Terris: Well, we would -- Your Honor, we would argue against the District Court deviating from that standard if the case then came again to this Court, that's right.

We think that it's a traditional and excellent principle of this Court to only decide the constitutional issues which must be decided at the time.

We do not think this is about --

Justice Hugo L. Black: (Inaudible)

Mr. Bruce J. Terris: Pardon me?

Justice Hugo L. Black: Do you say that that should be applied like an iron rule?

Mr. Bruce J. Terris: No, Your Honor, I'd -- well, in general --

Justice Hugo L. Black: (Inaudible)

Mr. Bruce J. Terris: I don't -- I don't --

Justice Hugo L. Black: (Inaudible)

Mr. Bruce J. Terris: I don't know what -- what exceptions you're -- you're thinking of but that is the general principle.

Justice Hugo L. Black: Yes.

Mr. Bruce J. Terris: And we would think that that would be well applied here.

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: Of course --

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: Yes, the --

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: There -- there -- there is a difference, Your Honor.

And I -- I'm not sure how important the difference is because the trials in this -- in this type of case are not of course the kind of -- when the disputed facts -- essentially all these cases revolve around statistics.

Just point how many people are in the various areas.

And those, of course, were all before the District Court and this Court in Baker and Carr and, of course are here before in this case.

We believe that the standard of equality is implicit in Article I, Section 2 which, of course, apportions members of the House of Representatives among the States on the basis of population.

And we be -- we believe that the history of the Constitution and its ratification, which are set out in our brief in this case, had more fully explored in the appendix to the Government's brief in the Maryland apportionment case.

That these materials demonstrate convincingly that in contrast to the Senate, the House of Representatives was designed to represent people and that therefore, the various districts were to be substantially equal in population.

Madison, Randolph, Mason, James Wilson and the other Framers of the Constitution whose views ultimately resulted in the creation of a House of Representatives elected directly by the people and apportioned among the States in the basis of population believed in the population principle not only among the States but also among the various districts.

For example, Edmund Randolph, in supporting his own proposed amendment, to base apportionment on the decennial census, a proposal which was adopted and is -- and is, of course, included in the present Constitution.

He said if equality between great and small States be inadmissible because in that case, unequal numbers of constituents would be represented by equal numbers of votes was it not equally inadmissible that a larger and more populous district of America should hereafter have less representation than a smaller and less populous district.

If a fair representation of the people be not secured, the injustice of the Government will shake it to its foundations.

And in Federalist Number 45, Madison said that in apportioning members of the House of Representatives, numbers are the only proper scale of representation.

In the -- in Bush and Martin which is the Texas -- the Texas congressional districting case which was decided last month, we believe Judge Ingraham, in concurring in that case, properly stated the principle.

The congressional dis -- that unequal congressional districting is a breach of the great compromise that is at the Constitutional Convention which has served us so long and so well by which representation in the House of Representatives was to be based on population and representation in the Senate to be divided equally among the States.

Justice John M. Harlan: Don't you have to recognize that they stop short of the -- including that specific provision in the Constitution itself?

Mr. Bruce J. Terris: That's right, Your Honor.

With -- it's -- it is only implicit in the original Constitution in Article I, Section 2.

However, I -- it is --

Justice John M. Harlan: One could hardly say this was a -- an inadvertent omission.

You can't account for its submission in terms of Congress not other than the year of the Convention not having --

Mr. Bruce J. Terris: Thought of --

Justice John M. Harlan: -- address itself to this problem.

Mr. Bruce J. Terris: Yes.

I -- I think -- I think that's -- that's fair to say but I don't think that -- on the hand that you -- that you can draw form the materials of the Constitutional Convention a decision to not put it in so as to allow an equal districting.

I --

Unknown Speaker: (Inaudible)

Mr. Bruce J. Terris: In many states, if -- there was the choice.

Unknown Speaker: (Inaudible)

Justice John M. Harlan: The districts, in my representation, are --

Mr. Bruce J. Terris: I think that might be partial reason.

However, the -- at the Constitutional Convention, it seemed to be assumed that they would be elected on the basis of districts.

Madison in the -- in the Federalist papers talks about districts and I -- I think it's fairly clear that they assumed that the election would be on the bases of districts.

We believe that the problem of judicial remedy is also easier if anything as to congressional districting than as to --

Justice Hugo L. Black: (Inaudible) am I wrong to assume -- am I wrong to assume they elected by districts but that it assumed it was a very strong desire to get away from the so-called "Rottenberg" --

Mr. Bruce J. Terris: Oh yes.

Justice Hugo L. Black: -- from -- in England.

Mr. Bruce J. Terris: I -- I should've gone on Your Honor.

I -- I had swallowed that up in my original statements that it was made clear at the Convention as Randolph's statement which I quoted to the Court, makes clear that they was expected that the districts would be equal in population, substantially equal in population.

There are many such statements in the -- at the Convention and in the ratifying Conventions in the States and they're set forth, summarized in our -- in our brief and set out in greater detail in our Maryland -- in the appendix to the Government's brief in the Maryland case.

As to the judicial remedy, both in state apportionment cases and the congressional districting cases, there, it is equally practicable for the District Court -- for Federal District Court to require a judicial reapportionment.

In both instances, the Court could follow local political subdivisions, the boundary lines of local political subdivisions.

However, there is an additional remedy in the case of congressional districting which is far more practicable as to Congress than it is as to the state legislatures and this is an election at large.

Congress itself has suggested that this may be an appropriate remedy by providing in 2 U.S.C. Section 2 (a) that if a State fails to redistrict after losing representation in -- after a decennial census that the state's representation shall be elected at large.

And this Court has itself ordered elections at large in two cases in which it has invalidated congressional districting, the Smiley and Holm which involved nine Representatives and Carroll and Becker which involved 13.

Justice John M. Harlan: (Inaudible) in those cases is not because of any inequality of the apportionment because the districting (Inaudible) by the states do not comply with the congressional statute --

Mr. Bruce J. Terris: Yes, Your Honor, I --

Justice John M. Harlan: -- which is a little different.

Mr. Bruce J. Terris: I'm only suggesting that -- that if the remedies are -- would be the same in both situations and -- and the remedy would be just as practical here, we do not rely on those cases obviously for our -- for the subsidy of criteria and that should be applied.

Justice John M. Harlan: But you do rely on those cases between the cases of Colegrove and Green in this Court then there should (Inaudible)

Mr. Bruce J. Terris: Yes, Your Honor.

We think that Mr. Justice Frankfurter's opinion for three members of the Court in Colegrove is inconsistent with Smile and Holm and the other earlier cases and --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Right

Justice John M. Harlan: -- not apportioned (Inaudible)

Mr. Bruce J. Terris: I -- I -- I agree, Your Honor.

But there was a holding in Colegrove and Green on this issue.

Four out of the seven members of the Court held that congressional apportionment was justiciable.

There was power in the federal courts.

And so we think that Colegrove and Green is squarely in support of the proposition we are arguing.

We submit that the only possible basis for holding the congressional districting is not justiciable whereas state legislative apportionment is -- is that Congress is a coequal branch of the Federal Government and that Congress has the power under Sections 4 and 5 of Article 1 to regulate congressional elections.

However, we emphasize that while Congress is involved in the sense that it can remedy the evil, the actual districting which is before the Court is pursuant to a state statute and it is only a state statute which is under attack.

Congress is not acting and no possible decision of the federal courts in this case could interfere with Congress.

In addition, neither the Constitution nor its history support the proposition that Congress' power over congressional elections was to be intended to be exclusive.

Now, examination of the history of the original Constitution, we have found only one statement bearing on this point and it's by John Steele, a delegate to the North Carolina Ratifying Convention.

He argued that Congress under Article 1, Section 4 could not provide for unequal districts.And the reason -- and he -- and the justification he gave was that if Congress makes laws inconsistent with the Constitution, independent judges will not uphold them.

We submit that at least it was Mr. Steele's view that if Congress itself provided for unequal districting, that the federal courts would have the power to invalidate such a statute.

Unknown Speaker: (Inaudible)

Mr. Bruce J. Terris: Well --

Unknown Speaker: (Inaudible)

Mr. Bruce J. Terris: I -- I'm not sure one can fairly ascribe by the failure to do anything in -- in the field over since 1929 that it is provided for it.

I don't think this Court -- put it this way, this Court would not have to invalidate any -- any action by Congress.

And we don't think that --

Justice John M. Harlan: Well, it is true that (Inaudible) congressional election is something that the statute has provided (Inaudible) --

Mr. Bruce J. Terris: That's right, Your Honor, from --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Well, it is --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: 1872 to 1929.

It was that the requirement of equality was in -- was in the various statutes.

It's now no longer in the statute and was not there before.

I think it might be interesting to note that the 1929 Legislation came following a period when Congress had failed to follow the mandate of the Federal Constitution to reapportion every 10 years.

And almost 20 years had gone by, 19 years to be exact and it may well be that at that time there were considerable numbers of seats held by incumbent Congressmen at which they were -- which the districts were overrepresented and there was no -- and they admittedly no longer provided for equality.

But this Court need not decide in this case whether if a statute were passed allowing unequal districts.

This Court or the federal courts, generally, would have the power to invalidate it.

Mr. Steele's statement went in -- would seem to indicate they -- that this Court would have the power but here we have a situation where Congress has taken no action.

Unknown Speaker: (Inaudible)

Mr. Bruce J. Terris: I don't think that that necessarily follows, Your Honor.

Our -- our view is there where Congress has not acted at all such as in the field of interstate commerce.

What Congress does not act, this Court will invalidate state action which is inconsistent with the Constitution.

There maybe more room for --

Justice John M. Harlan: (Inaudible) Congress intended that?

Mr. Bruce J. Terris: By not doing anything?

Justice John M. Harlan: Well, by not doing -- by enacting a statute to (Inaudible).

Would you say that constitutional standard provide, of course, in conduct, in which of the previous years, because at the time it was (Inaudible)?

You don't think that anything would be clearer than the fact that Congress rightly or wrongly does not provide anything of the apportionment statute?

Mr. Bruce J. Terris: Your -- your --

Justice John M. Harlan: You're concerned with (Inaudible)

Mr. Bruce J. Terris: I -- I don't think -- respectfully, I do not think that you can judge from what happened in 1929.

The Congress decided the districts would be unequal.

There may -- there -- they may have been unable to form a majority to say that districts must be equal but it may also be so that there is no majority for saying -- permitting them to be unequal.

All that happened in 1929 and all we know is that the old provision was not continued.

There were other changes in the statute at the same time and why the -- the omission occurred, it may -- may be a very complicated thing.

I'd -- I -- it -- it seems to me that -- that --

Justice John M. Harlan: (Inaudible) what I'd like to put you is that of the -- suppose the (Inaudible) if Congress could exercise (Inaudible) and did provide for an -- on equal population districting (Inaudible) --

Mr. Bruce J. Terris: Your Honor, we've -- we have not addressed ourselves to that.

I think -- I think the Government's view would that it -- that it would be unconstitutional.

But I -- but I don't think that -- that my disagreement with Your Honor is that I don't think we have to say that.

I think we could say --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: No, I think that we -- that it could be.

It would not be illogical for this Court to say that where Congress has acted, the Congress has this -- has this discretion.

But in the absence of action, that -- that districts have to be substantially equal in population.

I do not think there would be --

Justice John M. Harlan: It's very hard to see that the constitutional norms would barely depending upon whether the (Inaudible) of the Constitution that it turns on whether if Congress have chose to follow or not follow.

Mr. Bruce J. Terris: We've -- I -- let me see if I can restate it.

I think that Congress has some -- may have discretion here, conferred by the Constitution to decide under Article I, Section 4 as to congressional election.

Now, this is arguendo.

I -- I've indicated before that the Government, I'm quite sure, would be here again saying -- well, I suppose we'll be forced to -- to defend our statute but it would -- so I'm -- I'm -- perhaps, I would --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: I would -- I should hesitate to say them -- exactly what we would do but I -- I think that --

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: Well the -- it has just occurred to me that we might be in somewhat a difficult position because normally, we -- the -- those are the general's offices in the position defending the constitutionality of -- of congressional legislation.

Justice Hugo L. Black: But may I say I have difficulty in this being with Mr. Justice Harlan.

I do not see how you can escape the very question that we're raising.

If Congress could by itself divide some of the voters of right so that by creating districts, 10,000 for one, 100,000 for another, I do not see why Congress hasn't permitted the state to do that?

Mr. Bruce J. Terris: Well, You Honor --

Justice Hugo L. Black: I have no difficulty with the question when I read the history of the debates and the convention --

Mr. Bruce J. Terris: Your Honor, I think you --

Justice Hugo L. Black: -- where this was expressly referred to that the regulators, the Congress should not have the power to decrease the right of the voters which is given by the Constitution each one of them a vote.

They didn't use the word each one --

Mr. Bruce J. Terris: Not --

Justice Hugo L. Black: -- a vote but they said "the people".

Mr. Bruce J. Terris: Your Honor, I agree with you.

I -- I'm only trying to -- to limit the -- the extent to which this Court must go in this case.

Justice William J. Brennan: You do not think (Inaudible)

Mr. Bruce J. Terris: No, I didn't want to (Voice Overlap) --

Justice Hugo L. Black: Well, I would (Voice Overlap) --

Mr. Bruce J. Terris: -- back on that.

I -- the -- the fact -- the fact is that I don't think that that is -- that that must be logically decided in this case.

Justice Hugo L. Black: I was trying (Voice Overlap) --

Mr. Bruce J. Terris: I agree with Your Honor.

Justice Hugo L. Black: -- to agree with you that that does not have to be decided though as if the Congress can do it.I think it can do it by leaving it up to the States and letting those stand.

I do not think that we could construe the Constitution as giving the Congress the right to take away from the people their right to a regular (Voice Overlap) --

Mr. Bruce J. Terris: Your Honor, that's my reading --

Justice Hugo L. Black: But --

Mr. Bruce J. Terris: -- the historical materials too, right?

Justice Hugo L. Black: Believing that the State could do it --

Mr. Bruce J. Terris: Your Honor --

Justice Hugo L. Black: -- or couldn't do it.

Mr. Bruce J. Terris: I agree with your reading of the -- of the constitutional materials.

I -- I hate to make this a major point of -- of disagreement because I don't think that this is a major issue in this case.

Other than, I -- I don't think it need be decided here.

That's all that I've intended --

Justice Hugo L. Black: Well of course --

Mr. Bruce J. Terris: -- to have indicated.

Justice Hugo L. Black: -- there are some times in the history of constitutional development when the general observation, we do not pass on questions because we don't have to read.

It should not be as binding, so binding if we can't act.

Why shouldn't we when we reach this question of this -- this matter?

Where if the Congress -- would -- should we leave it hanging and saying that the States can't do it but we are non-willing to say the Congress couldn't?

Mr. Bruce J. Terris: Your Honor, I think there's very little likelihood the Congress would ever pass such a statute.

I -- I don't see why it has to be adjudicated here.

Justice John M. Harlan: But you have to look, Mr. Terris, where you'd find --

Mr. Bruce J. Terris: Right.

Justice John M. Harlan: -- the statutes --

Mr. Bruce J. Terris: I agree.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: I agree Your Honor.

I only see that --

Justice John M. Harlan: (Voice Overlap) if we follow that in this case the states (Inaudible) apportionment basis that you're arguing, it seems to me (Inaudible) with our eyes open.

Mr. Bruce J. Terris: I agree, Your Honor.

I only say that the logic of our argument does not compel --

Justice John M. Harlan: Yes, (Voice Overlap) --

Mr. Bruce J. Terris: -- one conclusion or another.

Although it tends to -- it tends to -- I -- I would think that it's -- it suggest a conclusion in -- in such a case.

Unknown Speaker: I'm not trying to (Inaudible) under your position that it's (Inaudible)

Mr. Bruce J. Terris: What I --

Chief Justice Earl Warren: The question is, do you have any logic if you -- if it doesn't reach that far?

Mr. Bruce J. Terris: Well, Your Honor, I think there are some areas where Congress does have discretion when it ex -- when it does exercise that discretion.

It's conceivable.

Chief Justice Earl Warren: Well, does this say it -- does the Constitution say it shall have discretion?

Mr. Bruce J. Terris: Your Honor, of course, the Constitution isn't explicit on this point either way.

Either this -- it does give Congress considerable discretion apparently over Congressional elections in Article I, Section 4.

Whether it has this discretion, I think would be in my view, inconsistent with the -- the historical materials underlying the Constitution -- the Constitution itself.

I do -- I don't think, however, that it's a -- it's a clear case, not merely so clear a case, is where Congress has not acted.

That's all that I've intended to imply.

I think where Congress has not acted the situation is plain where it has acted, it may be more difficult.

As to the question of want of equity which is the actual decision of the District Court, it seems to me that the District Court's decision is plainly inconsistent with Baker and Carr.

This Court stated in Baker and Carr, the complainants' allegations of a denial of equal protection present to justiciable constitutional course of action from which appellants are entitled to a trial and decision.

We think that in the ordinary case, it is equally so that plaintiffs are entitled to a trial and decision in a congressional districting case.

There are no unusual circumstances here and therefore we think that it was inappropriate and inconsistent with Baker and Carr to dismiss for want of equity.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: If our view prevails as to the merits, the substantive criteria?

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: I agree, Your Honor.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: We have argued this -- the question of substantive criteria in the same way we argued substantive criteria in Baker and Carr only that there were ascertainable standards.

We have not asked this Court and I have not -- I may have given the -- contrary indication but we did not intend to ask this Court to decide what were the substantive criteria in this case --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: No.

What I'd --

Justice John M. Harlan: Do you -- do you simply say (Inaudible)

Mr. Bruce J. Terris: It would be --

Justice John M. Harlan: (Inaudible) as to how this case should be (Inaudible).

Mr. Bruce J. Terris: Your Honor, we were -- we were suggesting a decision in the congressional districting field which would be parallel to Baker and Carr.

Justice John M. Harlan: (Voice Overlap)

Mr. Bruce J. Terris: That's right, Your Honor --

Justice John M. Harlan: (Voice Overlap)

Mr. Bruce J. Terris: -- deciding the three issues --

Justice John M. Harlan: (Voice Overlap) don't understand why the Government find themselves (Inaudible).

Mr. Bruce J. Terris: Your Honor --

Justice John M. Harlan: (Inaudible) in Baker and Carr referred to us, Baker and Carr (Inaudible) under a strong argument that it made the (Inaudible).

Mr. Bruce J. Terris: Your Honor, I don't believe that was our position.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Your Honor, I respectfully say, I don't believe that was the Government's position in Baker and Carr.

What we suggested as many cases, it would not be necessary for the federal courts to adjudicate the constitutionality of the apportionments and that has turned out to be so.

Now, also, I've -- I respectfully disagree that we believe the federal courts have no business on this field or -- or should be out of this field as much as possible.

Of course, we would be -- the happiest solution is for the state legislatures to themselves act and provide for fair congressional districting as fair legislative apportionment.

However, we believe that in this case, the federal courts, ultimately, Georgia's Legislature does not act, should adjudicate this question and should provide a suitable remedy.

We think only that -- that the substantive standards need not be decided here for the -- essentially the same reasons stated.

We're not required to be decided in Baker and Carr and that this Court should not reach out and decide an issue which has not yet been adjudicated by the lower court.

Justice Byron R. White: But Mr. Terris, what if the court below had mentioned -- don't -- had not dismissed the case, it has retained jurisdiction and -- and had said only, "We think this is a rather arbitrary districting", which it had said.

But said, we think the -- let's use one of its factors, that the State legislature we think, since as we've ordered it be -- to be reapportioned we'll provide an adequate remedy so we will not dismiss, we'll just hold, we'll just hold the case, would you be here saying the same thing or not?

Mr. Bruce J. Terris: We'd be here supporting that --

Justice Byron R. White: Supporting what?

Mr. Bruce J. Terris: Supporting the determination of the District Court to hold the case.

We would not -- we -- we believe that it's an appropriate (Inaudible) --

Justice Byron R. White: So that you would think that if this case -- if -- if your view prevailed, that it would be perfectly adequate for the court below on remand to say by the court's order does not to dismiss since it isn't dismissed, period.

Mr. Bruce J. Terris: Your -- Your Honor, there are two courses that are quite similar to what you said.

One is to just hold the case for the legislature.

The other is to adjudicate the constitutionality of the section then holding.

Justice Byron R. White: I understand but you would be satisfied in the lower court, if the lower court had said, based on our knowledge of this -- of the local situation here, we need not make an adjudication on the merits at this time.

We shall just hold it and wait for the legislature.

Mr. Bruce J. Terris: For -- well, for a reasonable time --

Justice Byron R. White: You would support that.

Mr. Bruce J. Terris: Not -- not for a -- not for an indefinite period, no.

Justice Byron R. White: Oh, of course not.

Mr. Bruce J. Terris: No, for one session --

Justice Byron R. White: Of course not.

You should --

Mr. Bruce J. Terris: -- of the legislature --

Justice Byron R. White: Exactly.

Mr. Bruce J. Terris: -- they'll be (Voice Overlap) --

Justice Byron R. White: You would support that.

Mr. Bruce J. Terris: Yes, Your Honor.

Justice Byron R. White: So the only mistake the court made below in your view is dismissing it.

Mr. Bruce J. Terris: That's right, Your Honor.

I -- I would like to point out that there has been a session of the legislature since that time it did not act.

Now, there may be a justification.

The case after all was on appeal and --

Justice Potter Stewart: And the court didn't do what Mr. Justice White suggested it might have --

Mr. Bruce J. Terris: Well, it said it was arbitrary (Voice Overlap) --

Justice Potter Stewart: That was -- that was Judge Tuttle's idea was that --

Mr. Bruce J. Terris: Yes.

Justice Potter Stewart: -- it's very similar to what --

Mr. Bruce J. Terris: It didn't do -- its right, it didn't do -- it did make the statements --

Justice Potter Stewart: Quite not.

Mr. Bruce J. Terris: -- that the Georgia statute as now applied was arbitrary.

Justice Potter Stewart: Yes.

Mr. Bruce J. Terris: But it did not (Voice Overlap) --

Justice Potter Stewart: But it didn't retain jurisdiction.

Mr. Bruce J. Terris: No, that's right.

Justice Byron R. White: It dismissed -- it dismissed below didn't it?

Mr. Bruce J. Terris: It just --

Justice Byron R. White: You (Voice Overlap) --

Mr. Bruce J. Terris: It dismissed and I may say, unlike the appellants, it clearly dismissed for want of equity.

It's the last sentence which --

Justice Byron R. White: But you're not urging this Court to order the lower court to adjudicate this case on the merits at this time?

Mr. Bruce J. Terris: Immediately, no.

Ultimately -- ultimately -- well, we would think that the Georgia Legislature should have the opportunity in its next session --

Justice Byron R. White: Yes.

Mr. Bruce J. Terris: -- to redistrict --

Justice Byron R. White: Without a -- without an adjudication on the merits --

Mr. Bruce J. Terris: That's right.

Justice Byron R. White: -- by the courts staring it in the federal --

Mr. Bruce J. Terris: That's right, but if -- if it does not act then I would not think that an adjudication of the merits should be followed --

Justice Byron R. White: Oh, yes, I understand.

Mr. Bruce J. Terris: -- by a decree then not --

Justice Byron R. White: I understand but (Voice Overlap) --

Mr. Bruce J. Terris: -- not -- not -- not another delay for new action --

Justice Byron R. White: I understand.

Mr. Bruce J. Terris: -- by the --

Justice Potter Stewart: Just one more thing, you just said, Mr. Terris that that as you read the Court's opinion, they -- it was dismissed for want of equity.

Now, that would be basically the same reason that impelled Mr. Justice Rutledge to his conclusion of Colgrove versus Green, do you think?

Mr. Bruce J. Terris: The words are the same.

I don't really think that the reason is the same.

Mr. Justice Rutledge relied on the imminence of an election.

Justice Potter Stewart: Among other things --

Mr. Bruce J. Terris: It wasn't --

Justice Potter Stewart: Among other things.

Mr. Bruce J. Terris: Well, that's -- yes, yes, there were some other things too.

Justice Potter Stewart: Yes.

Mr. Bruce J. Terris: There's certainly no problem of the imminence --

Justice Potter Stewart: No, that factor is missing but --

Mr. Bruce J. Terris: In election, that's right.

We think that there are no -- there are no circumstances in this case.

They are really different than any other congressional districting case.

To call it want of equity rather than lack of justiciability it seems to me is really a play on words.

If --

Justice Potter Stewart: But do you think it's an inaccurate use of -- of -- of -- of --

Mr. Bruce J. Terris: In this --

Justice Potter Stewart: -- the meaning of those phrases?

Mr. Bruce J. Terris: In -- in -- to be applied in this case, it really means that the federal courts will not hear cases of congressional districting.

Justice Potter Stewart: (Voice Overlap)

Mr. Bruce J. Terris: They -- they're already here on their way, they'll have to hear it -- this case, it seems to me.

Justice Arthur J. Goldberg: Mr. Terris, what you're really saying I think it is that this Court ostracized the (Inaudible) want of equity in the case several considerations.

Mr. Bruce J. Terris: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: Precisely -- precisely Your Honor.

Change all -- that's only the possibility of the change of the law, isn't it?

It's never been a ground that --

Justice Arthur J. Goldberg: (Inaudible) one of the reasons the court gave for want of equity.

Mr. Bruce J. Terris: That's right, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Justice John M. Harlan: They've been assured -- ostracized (Inaudible) --

Justice Arthur J. Goldberg: As I understand Baker and Carr, that was not the decision of -- of this Court that -- that the complaint stated a case on which relief maybe granted that --

Unknown Speaker: They were not --

Justice John M. Harlan: Well, that was (Inaudible) --

Mr. Bruce J. Terris: That was --

Justice John M. Harlan: -- but I was told I was wrong.

Mr. Bruce J. Terris: I think the Court did adjudicate that the Fourteenth Amendment applied to state legislative apportionment.

As I read Baker and Carr --

Justice William J. Brennan: (Inaudible)

Justice Potter Stewart: The Court expressly held that (Voice Overlap) --

Mr. Bruce J. Terris: That's my -- that's my reading of the decision, Your Honor.

What -- I can find no -- I can find no language in the opinion that's --

Unknown Speaker: (Inaudible)

Mr. Bruce J. Terris: Well, I would -- I'd be happy to take -- to claim that that was adjudicated but I can't find any -- any language in the opinion that does decide that.

Argument of Paul Rodgers

Mr. Paul Rodgers: Mr. Chief Justice, may it please the Court.

Chief Justice Earl Warren: Mr. Rodgers.

Mr. Paul Rodgers: To begin with Your Honors, I'll attempt to clarify and simplify our position by beginning with -- giving the vague contours of the position that we take in this case.

First, we concede the jurisdiction of the federal court over the subject matter of this litigation.

Secondly, we concede the justiciability as the merits of this case.

And third, we concede the standing of the appellants in this case.

Our position is, is that because primarily of the likelihood of an available political remedy, which has not yet had a chance to operate, that there is a lack of equity in the complaint and as the District Court was proper in dismissing for that point.

We consider this question about whether or not the Court should retain jurisdiction by leaving the complaint on file or else from the other hand to dismiss the complaint, possibly with the idea of a suit being brought after reasonable lapse of time.

We say that does not go to the substance, it goes to the form.

We are concerned with the form of.

We say that's not a matter of substance.

Now, the brief is divided into two parts.

First, we say, that the Court should affirm the judgment of the lower court for want of equity.

And that right there, it's subdivided into two elements that a political question doctrine which we judge is a wholly -- as long as did not wholly an abstention doctrine to perform itself and of course the conventionable -- conventional equitable abstention doctrine.

The second part of our brief goes upon the thesis that the case is moot as the last general election and that is -- and the case is premature as the next general election.

For the point of prematurity, we cite Remmey versus Smith which in itself is an application of the equitable abstention doctrine.

So we won't argue both points.

We think that just arguing the doctrine of equi -- equitable abstention will take care of our position fully.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: No, sir.

We say in our point -- in our prematurity point that we rely on Remmey versus Smith and -- and the Court in Remmey versus Smith said that the suit is premature in that case because there's an available political remedy.

In other words, the state legislature just been reapportioned.

And for that reason, we want to give the state legislature an opportunity to act before we grant relief if then.

In other words --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: That was after the reapportionment but the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: That's right on -- as to last legislature, Your Honor, the Senate had just been reapportioned.

And of course, this question of redistricting the congressional district of a State is a matter of great seriousness and a bulk of consideration had to be taken into account.

There was no time for any committee work to be done.

There has been and there is being now, I believe, I hope sufficient committee work to where a good bill can be -- can be produced for consideration by the legislature.

Justice Arthur J. Goldberg: Would you (Inaudible)

Mr. Paul Rodgers: Well, we don't -- we say that it's not necessary for the Court to decide the ultimate issue in this area, that it should be reserved for future consideration.

Now, we believe that with the elimination of the county unit system and with the restructuring of the state legislature, that the power of political persuasion in Georgia is now in the hands of the majority.

As the majority will use the power that has been conferred upon it in the wake of Baker versus Carr, that they can bring about the legislation that they desire an area of congressional district.

And our point is that the court, the federal courts should give the power of the majority time to operate through the conventional political remedy and then if that is not successful then that may present a different question.

Now, whether or not ones --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: Well, frankly, Your Honor, I'm not sure.

I think that, of course, is a judicial question.

We feel that additional time is required.

I couldn't stand here and tell you just how much time it would take for the majority to -- someone force its strength and to try to get the legislation it desires.

I don't know whether one session would be enough or whether it would take two or just how much time it would require, Your Honor.

Justice William J. Brennan: (Inaudible)

Mr. Paul Rodgers: That's correct, sir.

Justice William J. Brennan: (Inaudible)

Mr. Paul Rodgers: February or -- or early March.

I'm not sure when it expires.

Justice William J. Brennan: (Inaudible)

Mr. Paul Rodgers: That's correct, sir.

Justice William J. Brennan: (Inaudible)

Mr. Paul Rodgers: About -- until such time as the majority has had a chance and arouse and alert citizenry has had the chance to bring its desires to bear on a legislative body.

Now, we -- we an -- anticipate and we feel that it's likely that the next General Assembly is going to reapportion the congressional districts.

Justice William J. Brennan: (Inaudible) so I suppose that apportionment (Inaudible) --

Mr. Paul Rodgers: Yes, sir.

Justice William J. Brennan: -- something that has to be done before (Inaudible).

Mr. Paul Rodgers: Yes, sir, if it's to be done.

Justice William J. Brennan: (Inaudible)

Mr. Paul Rodgers: Yes, sir.

Justice William J. Brennan: (Inaudible)

Mr. Paul Rodgers: That's correct, sir.

Justice Byron R. White: (Inaudible)

Mr. Paul Rodgers: That's correct, sir.

Justice Byron R. White: (Inaudible)

Mr. Paul Rodgers: Yes, sir, at that time, Senator Wesberry --

Unknown Speaker: (Inaudible)

Mr. Paul Rodgers: At that time Senator Wesberry introduced the bill, which we will consider the merits after the -- the bill did not pass.

But after the session was over with, the Senate has publicly in his power with the Committee, certain disparage remarks about this bill and those remarks were true and obvious the bill should not have passed.

He -- he admitted that it was a bad bill in many respects.

But there has been one session of the newly reapportioned legislature.

Now, one point there that I think it is significant, the three-judge court in Georgia in Toombs versus Fortson, applied the federal analogy.

In other words, our State Senate is apportioned strictly according to population.

Our House of Representatives apportion on a geographic basis that we help some tilt toward the majority in this 3-to-1 here that we have, which you saw a result of a little different application of in the Koenig case.

Now, if as a result of these cases, that this Court has just heard, if this Court determines that both houses of the legislature must reflect to some extent population, that the fair analogy does not apply to State legislature then of course that means that Georgia would then have to reconstitute the House of Representatives.

And that way, they make it even with that much easier for the majority to act in the game the kind of legislature they desired.

We say the majority --

Justice Byron R. White: (Inaudible)

Mr. Paul Rodgers: Sir?

Justice Byron R. White: (Inaudible)

Mr. Paul Rodgers: No, sir.

The bill did not get out of the Committee.

Unknown Speaker: (Inaudible)

Mr. Paul Rodgers: No -- that's right.

Unknown Speaker: (Inaudible)

Mr. Paul Rodgers: That's right.

Unknown Speaker: Seniority (Inaudible)?

Mr. Paul Rodgers: No, sir, we don't have any seniority system but the -- but the Senate is apportioned strictly on population.

The Senate, it is much responsive to the majority will as -- as -- as a legislative body can be.

I don't think anyone has any criticism about it, I say, not being apportioned with population but we claim that or rather we can show that even Senator Wesberry himself felt that it was bad bill by statements made out from legislature.

Justice Byron R. White: (Inaudible)

Mr. Paul Rodgers: Well, I assume that 51% -- roughly 51% of the people will elect -- roughly 51% of the Senators.

Unknown Speaker: (Inaudible)

Mr. Paul Rodgers: Oh, well, I don't have -- I -- for me, I -- I have not run the ratio.

I'm -- would imagine the ratio.

In fact, I'm sure the ratio would run quite high because very clearly, our House is based on geography and of course, the rural areas control our House of Representatives.

But that's the position that we take in (Inaudible) fashion.

We feel the ultimate decision in this area, is -- is not now unnecessary for that decision to be made and it should be reserved for future consideration.

I like to begin with the decision of the District Court.

Now, I thoroughly agree with the appellant that the decision of the District Court is entirely clear and I disagree with the Solicitor General when he makes a point that the case ought to be remanded for trial in the merits.

I feel that that is completely unnecessary because I think the decision is quite clear.

The case starts off with a review of the historical -- with the history of Congressional District in Georgia and it goes on to say the facts are not in dispute and now ample for final decision on the merits.

And I think that they are significant.

That was the opinion of the District Court and apparently both of the parties in this matter.

The Court goes on to say that the position, it goes on to comment upon the posture of redistricting nationally.

Said it is the position of the plaintiff that the population of each district should be within the range of 10% to 15% of the average district population based on division on the number of districts into the total population of the State.

The Court goes on to say there are 435 congressional districts in the United States.22 Congressmen will be elected state at large in 1962.

Of the remaining 413, the Fifth District of Texas has the largest population of 951,527.

There are 22 districts with populations exceeding 600,000.

Eight districts having population of more than 15% above the state average while the nine, they have populations of more than 15% below the state district average.

Using 10% of the variants for tolerance, 108 districts are above and 125 are below the average, a total of 233 or more than one-half of the -- of all the congressional districts.

So that (Inaudible) which had borne out by the record, it indicates that the congressional districts of the nation by and large are malapportioned if he use population as the standard.

And of course, this is just purely as directed to the figures of population.

It does not include the problem, related problem of gerrymander and of course that this Court would get involved in this area.

I would assume the gerrymander in equities, so to speak, arise from the gerrymander would be just offensive as a -- as the variation of population stand if this Court would get involved in that area.

But we can see briefly and from the record and from the opinion, that this whole country is maldistricted congressionally.

And there we say, it's another reason why this apportionment is reapportioned from the congressional districts in the first instance, should be left to the state legislatures.

Because if this Court were to in it's -- in it's remand to say Georgia's Congressional Districts are malapportioned, maybe, you come up -- maybe with come forth with some criterion about all the districts have to be substantially equal.

If this Court was to come forth with that criterion in this case, then of course, that would inject the District Court all across the nation into the area, into the field of congressional districting.

And we've seen a recent case of that in Baker versus Carr.

In fact, I would imagine in Baker versus Carr that this Court has -- has a great deal of pride in the alacrity that the District Courts have acted in because across the nation in Baker versus Carr did not give I think quite properly so, the District Court no criteria to follow.

But yet the District Courts have -- have approached this job with an eagerness and I would imagine this Court is well satisfied with it but you're going to see the same thing with congressional districting.

And -- but yet, you've already put in to play -- you've advised which is going to soon correct any dissatisfaction with congressional districting to reapportion state legislatures.

And so I think that in viewing this situation, it's important for this Court to look at the national situation.

And we're not just concerned here with Georgia because the whole nation is watching the decision of this case.

The District Court went on to say in commenting among present system.

It says it now reflects the system which has become arbitrary through inaction when consider in the light of the present population to Fifth District and as measured by any conceivable reasonable standard.

Now, I don't know what much -- what more anyone could want whether it's the Solicitor General or the appellant.

That's a very strong statement.

The Court goes on to say, our view is practiced by due regard for the admonition in Baker versus Carr that a judicially manageable standard must be adopted.

This dictates that a reasonable time be afforded for the State for the normal state government processes where there is a substantial chance of relief as we believe there is to run their course.

The Court goes on to review Colegrove.

And of course, as this Court pointed out, I think properly so, the Colegrove decision, itself, four of the Justices there, recognized that the Court had jurisdiction in justiciabilty.

But -- and for those as Justice Rutledge though felt there was not sufficient equity in the petition and because he joined with Justice Frankfurter and read in Burton, the petition was dismissed but at the same time, I think that is as significance in Colegrove.

The District Court attach to it.

That was -- that has clearly been pointed out in Baker versus Carr as of the treatment to be received, to be accorded to Colegrove versus Green in the future.

Now, the Court goes on to say, and this they're -- next to the final paragraph, it said, "We do not deem it to be present for dismissal based on the non-justiciability of a political question involving the Congress here but we do deem to be strong authority for dismissal, for want of equity when the following factors are involved.

Here involved are considered on balance, a political question involving the coordinate branch of the Federal Government, a political question posing a delicate problem difficult of solution without depriving the others of the right to vote by district unless we are to redistrict for the State.

Relief maybe forthcoming from a properly apportioned state legislature and relief maybe afforded by Congress.

Now, I think that is quite clear that the Court, the District Court, all the three judges of the District Court, recognized that there was justiciability, that this did not fall entirely within the political question doctrine which is fully insulated from judicial review.

There were some elements of it.

I think its reference to the congressional remedy and that involving a coequal branch of Government, exerted some reluctance upon the District Court to act but it by no means equated that with a perpetual refusal -- refusal not to ever act.

And now, to save the point, Justice Tuttle, filed a concurring and dissenting opinion.

And there seems to be -- as I analyze the opinion, very little difference between their views.

The question that seems to divide them was whether or not petition should be dismissed.

Now, this Court has frequently applying the doctrine of equitable abstention, has frequently permitted the petition to be dismissed with the understanding, sometimes implied that if things were not corrected or if the State did not afford a remedy, the suit could be reinstituted after the expiration of a reasonable time.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: I -- I agree there's a difference.

I would not refer to that as a big difference because the Court in the last -- the majority connected up several of these things and then put them together with an end.

And so I would think that if after the expiration of a reasonable period of time, if the State did not afford remedy, then -- then they would -- the appellants would be entitled to return and would probably give relief from a full court.

I do not interpret at all that the two judges who formed the majority opinion felt that there should never be any relief granted.

Justice Arthur J. Goldberg: Can I ask you this, if the State (Inaudible) Judge Tuttle's opinion?

Mr. Paul Rodgers: Well, we would prefer, Your Honor, that the petition be dismissed.

We feel Your Honor, that the dismissal of the petition is primarily a matter of form but the only difference between dismissing the petition and retaining the petition is it will involve some additional court calls which won't amount much.

They won't involve much time because in this case, they've already got a decision of the merit in two months.

And you've only got two months time and a small amount of court calls, then we feel that because of comity between the United States and the state governments.

Between this Court that this Court has traditionally shown the state governments.

And because of the -- because of the sovereignty and because of the deference that this Court has traditionally shown the States for the -- since farther working to the healthy federalism that the petition should not be overhanging.

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

Mr. Paul Rodgers: Well, not entirely.

Justice Arthur J. Goldberg: How do we (Inaudible)?

Mr. Paul Rodgers: Well, what I -- what -- what we say this Court should decide is, we say that it should not re -- resolve the ultimate issue.

What we say this Court should decide there, is that we have reconstituted that pursuant to Baker versus Carr, we reconstituted the state legislature and we have eliminated the county unit system.

It may be necessary to reconstitute the half, we don't know.

But after all of that's been accomplished and we have a constitutional legislature, then we say to this Court, you say to the appellant, "You should then try to get your relief from their unconventional political remedies.

And if you fail that, then we will decide this ultimate issue."

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: Well, I mean as --

Unknown Speaker: At least on the merits.

Mr. Paul Rodgers: That's right.

As to the extent of the -- as to finding that the population variations in Georgia were unreasonable and arbitrary, that's when we say they have decided the merits.

Unknown Speaker: It was unconstitutional.

Mr. Paul Rodgers: Well, they didn't say it was unconstitutional.

You see -- the District Court did not go that far.

The District Court found and in fact, I don't think the District Court had to go to the extent of saying that the congressional districts were arbitrary and unreasonable.

I think the District Court could have said, "Well, you got a state remedy that's not yet been tried, it's available", and for that reason, it was going to dismiss the want of equity if you failed and comeback and -- and we may -- and we will consider that.

Unknown Speaker: (Inaudible) what would be the effect of the decision (Inaudible)

Mr. Paul Rodgers: Well, I don't think it would be a res judicata.

I don't think we could argue with res judicata because the condition --

Unknown Speaker: (Inaudible)

Mr. Paul Rodgers: Sir?

Oh, I see what you mean.

When I was thinking I mean I -- I don't think the State to take the position that the -- that three-judge District Court's decision or it was res judicata (Inaudible) for filing a new suit because one of the conditions --

Justice William J. Brennan: (Inaudible)

Mr. Paul Rodgers: Yes, sir.

Justice William J. Brennan: They're acting (Inaudible) maybe by the rule.

Mr. Paul Rodgers: That's right.

After the --

Justice William J. Brennan: (Inaudible) what is the effect -- the conclusion of it?

Would it be res judicata in favor of the plaintiff?

Mr. Paul Rodgers: Well -- well, I think in the new case, they would have already established by virtue of this and there was redistricting.

I think they've relied upon this case the holding that the present that Congressional Districting at that time was arbitrary and unreasonable.

Then it will present the cause a legal consideration of whether or -- or just how much this area is insulated with congressional power from judicial review.

In other words, at that time this Court determined whether or not it's going to get involved in this area to require strict population standard or not.

Of course we say that question should be reserved for future consideration because of the -- of the availability of the state remedy.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: Well, we denied our answer by -- the court found against us so -- and of course we're not -- we're not complaining about the opinion but -- but we deny in our answer but the court found against us is -- is -- had it obvious.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: Well, we're not appealing from it.

Justice Arthur J. Goldberg: You're not (Inaudible)?

I assume you're (Inaudible).

Mr. Paul Rodgers: We say -- we reserve that question for future consideration.

Now, what we say this Court should not try to resolve such question there this time because of the availability of the state remedy.

We say -- this Court should say, "Now, go try your conventional state remedy."

If that fails, it come back.

In other words, we say this Court should defer for future consideration questions of that nature.

In other words, we say to this Court does not have to decide the ultimate issues presented in the field of congressional districting.

Justice Arthur J. Goldberg: And it refers to whom?

To the State?

Mr. Paul Rodgers: That's -- yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: Or to Congress so that -- if Congress will mind that.

Justice Arthur J. Goldberg: That's what I'm asking.

Mr. Paul Rodgers: Yes.

Justice Arthur J. Goldberg: Who -- who should (Voice Overlap) --

Mr. Paul Rodgers: Well, I think the State should defer to both.

Justice Arthur J. Goldberg: In fact the rule is in the majority opinion, is that correct?

Mr. Paul Rodgers: Well, I think that is the majority opinion.

I think the major -- though, as I think that all three justices felt like that the issue was justiciable.

I think they all -- three agreed there was want of equity in the petition that time but Judge Tuttle did not want to dismiss it because he wanted to retain it, to retain jurisdiction and the other two felt that the petition should be dismissed.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: That's -- in other words, I -- we think that this Court should afford no relief until the conventional political remedy has been tried and has found insufficient.

Now, as we say there should be no decision as to the legal issues present in this case at this time that the Court at this time should equitably abstain until the conventional process had a chance to operate.

If it -- if for some reason, the operation or the mechanism is defective, then this Court can then take the case and can then resolve the ultimately legal issues.

Justice Arthur J. Goldberg: Mr. Terris has (Inaudible)

Mr. Paul Rodgers: Well, we say -- we don't anticipate that Congress is going to redo it.

The Georgia legislature had just been reconstituted.

And the -- the county -- and the county unit system has just been abolished.

And we -- we say that it -- that it dates from there.

Now, of course, we'd be -- we -- we wouldn't have a leg to stand on.

I would think on the equitable extension doctrine if the county unit system was still in effect and if to say, that I have been reconstituted.

What -- we say that right there, is a -- is what supports that equitable extension, these recent events in Georgia -- Georgia's political climate.

Justice Arthur J. Goldberg: What about the (Inaudible)?

Mr. Paul Rodgers: Well, we say that with the influence of the Governor exerts over the legislature and also with the plan they have for congressional redistricting, we feel that a satisfactory congressional reapportionment bill can be passed in legislature.

This is a statement here copied which had been large in the Court and this is by appellant Wesberry to the joint congressional redistricting committee.

And he says the method of drawing the district lines without the remainder of the State, outside the Metropolitan Atlanta area, is a question which addresses itself primarily to the members of the legislature in those areas.

It would appear to me the most satisfactory result to be achieved by changing the existing district lines to districts outside Metropolitan Atlanta area as little as possible so the voters will not be confused and so that incumbent Congressmen will not be placed to this advantage.

They would be grouped (Inaudible) both citizen voters as well as Congressmen to change their districts drastically.

So obviously what appellant Wesberry -- what the appellant aims to stand is reducing the population of the Fifth District which is Metropolitan Atlanta.

Now, if they can call that up satisfactorily and I think they can, then, of course, some of these districting rural areas will not be affected except maybe to smaller extent.

Then of course, I would then think the count support of the those rural congressmen to join with the metropolitan representatives, the majority representatives, both the Senate and the House to -- to push through legislation.

Of course that's not county influence that the Governor has over the workings of the General Assembly.

Unknown Speaker: (Inaudible)

Mr. Paul Rodgers: That's right.

Returning to the argument, Your Honor, we begin with the court's -- the constitutional provisions which had been the best primary responsibility of this matter in the Congress.

Article I, Section 4, Clause 1 of the Federal Constitution provides the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof.

Such regulation except there's a place for the choosing of Senators and commenting (Inaudible), Hamilton stated it was intended to best primarily in the state legislatures then ultimately in the Congress a discretionary power over congressional elections.

And this Court held in Smiley versus Holm that it cannot be doubted this comprehensive words and brace authority provide a complete code of congressional elections.

In Article I, Section 5, Clause 1 of the Federal Constitution provided for each House should be the judge of the election return and qualification of its own members.

And we feel those two provisions together give the Congress ample authority and undisputed authority to correct situations of this kind that exist in Georgia.

Justice John M. Harlan: Do you think it's exclusive?

Mr. Paul Rodgers: Well, Your Honor, I would think frankly that this Court has ruled -- has already ruled if not entirely exclusive because of its opinion in Koenig, Smiley and Carol.

But the difference is the distinction in those cases were that those were just in the interpretation of whether or not the -- the gubernatorial veto was for display in the legislative function within the constitutional sense.

Now, there's a difference with degree there between that and in a thoroughgoing redistricting or requirement as to thoroughgoing redistricting of the -- of the congressional district within a State.

Now, that's another question which we ask this Court reserve for future consideration and that is the degree of penetration to this area which this Court feels to be appropriate under the Constitution.

I would not say it was wholly exclusive but on the other hand, I would not say that -- that we will not concede the Supreme Court had the authority -- the federal court had the authority to a holding, redistrict a state.

Justice John M. Harlan: Your -- your position is very, very much the same as to the Solicitor General's (Inaudible) under the circumstance.

Mr. Paul Rodgers: That's correct, Your Honor.

They're -- but I think, frankly, I'm somewhat surprised the Solicitor General is not -- our amicus instead of theirs.

The only difference that we disagree with the Solicitor General is -- is that we feel that the complaint should be dismissed.

I think we both agreed that the legislature should be given a reasonable amount of time to act.

The appellants who want immediate -- I mean the appellants are the only ones who feel they should have immediate relief from the federal court.

Justice John M. Harlan: (Inaudible) I mean on the legislature which has now (Inaudible) conclusive -- concluded piece of paper is (Inaudible) from the District Court.

Mr. Paul Rodgers: That's correct, sir.

We've --

Justice John M. Harlan: (Inaudible)

Mr. Paul Rodgers: That's correct, sir.

It -- it goes to the matter of fall, we're concerned with that matter of form but the appeal is not really a matter of subsidy.

(Inaudible)

Justice John M. Harlan: Very close together (Inaudible)

Mr. Paul Rodgers: Georgia's present congressional districting statute was enacted in August 25, 1931.

The Federal Act on November 15, 1941, concerning the apportionment of the House of Representatives following decennial census provides in quartet.

And this we feel that the Court did this -- the statute is not -- thus far been brought to the Court's attention in argument or in the brief, except in our brief.

But we view of the statute right here is an effect or ratification by Congress of the state congressional districts because it begun, it says -- see and this is the decennial reapportionment statute of Congress.

Until a State is redistricted in the manner provided by the law thereof as to any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner.

One, if there is no change in the number of Representatives which has none has not been for 30 years in Georgia, they shall be elected from the districts then prescribed by the law of such State.

And if any of them were elected from the State at large, they shall continue to be so elected.

Then the statute goes on with several other alternatives.

But we feel that it's clear that this right here is a congressional ratification which we feel is another element that should be considered in the scale to whether or not this Court should equitably abstain at the present time.

Now, Wood versus Broom, which involved the 1911 Federal Congressional Reapportionment Act, this Court held that the requirements of equality among of -- of population among the congressional districts, no longer apply.

Justices Brandeis, Stone, Roberts, Cardozo's concurring result but felt that the complaint should be dismissed from want of equity.

And it's obvious that the Wood case has coincided with congressional intent because there has been no effort in the part of Congress to alter the courts there.

And Colegrove versus Green, this Court was confronted with a much more -- with a much greater ratio than is in the Georgia case.

In Georgia, the ratio between the least populated district and the most populated one of 3-to-1.

In Colegrove, the ratio was 9-to-1.

And I think there's one passage in here that while we can fence about the -- the legalisms involved, in -- in concerning required congressional redistricting.

I think that Justice Frankfurter addressed himself to practical consideration involved in Colgrove when he makes the statement.

To sustain this action would cut very deep into the very being of Congress.

Courts ought not to enter this political thicket.

Remedy for unfairness in districting is to secure state legislature that will apportion properly or to invoke the ample power of Congress and so forth.

But I think that while we may talk about status of the Indian tribe and so forth and of foreign affairs and the Court -- the Court is quite correct in applying the political question to those issues.

But I don't know of any issue that would have so much effect on the Congress then for a nationwide requirement invoked immediately that all congressional districts must sustain substantial equal population.

Because obviously, that's going to result in substantially a strike from the changes in the constituencies of the various Congressmen.

And obviously is going to produce to varying extents new faces in the Congress.

We call this, as Justice Frankfurter said, strike to the very being of Congress itself, the membership itself.

Now, one thing about the dissent of Justice Black which was incurred in by Justices Douglas and Murphy and we may be wrong, of course there are those here on the bench of course who know much more about that than I do.

But it will look like to me that one of the significant attributes of that, the same one -- of the significant elements of that dissent was -- was a realization that if this Court did not grant relief that they could get relief from no other source.

The dissent says, the dissent was clearly predicated, but this is my claim, the dissent was clearly predicated upon the assumption, there was no likelihood in Illinois would afford relief to the appellants because the state legislature was apportioned in such a manner that the state legislator had an interest in perpetuating the complained of congressional districting.

And furthermore, because a series of suits previously instituted in the state courts challenging the valid -- the validity of such districting had proved ineffective.

And to me, that is insignificant element of the dissent, was because that there was no available relief that the appellants could gain from any other source.

I see my time is up, I'll --

Chief Justice Earl Warren: (Inaudible) -- we'll recess now.

Print this transcript Transcript: 

Argument of Paul Rodgers

Chief Justice Earl Warren: James P. Wesberry, Jr., et al. versus Carl E. Sanders, et al.

Mr. Paul Rodgers: Mr. Chief Justice and may it please the Court.

Chief Justice Earl Warren: Mr. Rodgers.

Mr. Paul Rodgers: I believe yesterday, to summarized briefly yesterday the position that we could've sometime state to the Court was that we believe that the decision of the District Court should be affirmed on the ground of -- on the grounds of equitable abstention and that the decisions, the legal issues in this area should be reserved for future consideration to be decided after state legislatures, had a full opportunity to redistrict congressional districts along population lines and it only until such time should this Court at that time of endeavor to determine the legal issues within that area.

In other words, whether or not this Court is going to continue to abstain from requiring congressional redistricting or at such time require the congressional redistricting to be performed.

Now --

Chief Justice Earl Warren: Mr. Rodgers, one thing about me is your -- you don't help us very much in indicating how long that abstention should be, whether it should be for one session of the legislature after they've already had one session in which they could do it or whether we ought to go farther or whether we ought to leave those loose ends.

Can you help us on that?

Mr. Paul Rodgers: Well, it's rather difficult to tell this time for this reason, that you take a three-judge District Court in Georgia in Toombs versus Fortson has applied the federal analogy to our state legislature that said that if you reconstitute one House of the state legislature according to population, that would satisfy constitutional criteria.

Now, Georgia had done that.

We still have one House, the House of Representatives, largely apportioned according to geography.

Now, if this Court should decide in the decisions in the cases that's recently heard in both Houses to some extent should reflect population then of course that would mean that Georgia would again have to reconstitute the House of its legislature.

We feel that -- that we've -- that there cannot be a full opportunity for the state legislature to reapportion until after we are certain that the Georgia General Assembly had been reconstituted along constitutional lines, we cannot be certain of that until after this Court renders decisions in the cases it's just heard.

So we'll say -- of course we feel that the General Assembly is going to redistrict in its January session but we'll say, we'll assume for the purposes of further consideration that the General Assembly redistricted but that the appellants were not still satisfied but that soon after, we'll say that the session closed, this Court should then require that both Houses of a legislature be reconstituted along population lines or more closely to population lines.

And Georgia would like -- and have to reconstitute the House of Representatives.

That might take another year or several more months so it's difficult to tell, we ask is -- is that a -- a -- that the state legislature, when it -- when we're certain that it has been constitutionally constituted and had a full opportunity to act and solve this problem in the traditional American fashion, then after that time had expired and if the appellants are still not satisfied with how the congressional districts have been reconstituted, then they can come back to Court.

It's difficult to pinpoint any particular amount of time Your Honor, at this stage of -- at -- at this stage of proceeding.

This morning I would first like to address myself to what we consider to be the undesirability of elections at large.

Now, the requirement of elections at large is the course of mechanical device is very easy to apply but we feel that the inequity resulting from elections at large are probably worse than the present circumstances.

I think one of the best descriptions as to the disadvantages of elections at large was stated by Judge Knowles who was the dissenting judge in the case of Bush versus Martin which was a Texas case where two of the judges in the three-judge court found against Texas' program for redistricting.

Of course, the Court -- Justice Black have to confirm with the other member -- other members of the Court that stayed the application of their judgment but Judge Knowles stating, “We think its particularly appropriate to the Georgia case as well, although we don't have as many cards but we think the same principle would apply.”

Judge Knowles stated, “All districts are presently served by a Congressman even if at large elections were held, there's reason to assume many people in those districts that want at least the opportunity to re-elect there in the Government, Congressman in the at large elections.

But it is highly unlikely that Congressman from the thinly populated region far removed from the metropolitan area and known only in that district to get re-nominated or re-elected in at large elections.

If this experienced Congressman should be swept out of office in an avalanche of statewide vote, it would probably be done none to their lack of statewide, it's more to their lack of statewide reputation than to their qualifications or lack of them.

The consequences, the inherent unfairness to the people living in the present districts from not having a reason or opportunity to have their own Congressman reelected is disturbing.

And the consequences to the entire State of Texas when the removal of these Congressmen is threatened not by the expressed will of the people of Texas through normal political action but by the politic but -- but by the practical operation of an unfortunate intervention and untimely order of a federal court is likewise disturbing.

The election of Congressman at large would call a far more serious discrimination and consequences for people living outside the great metropolitan areas and is even alleged to exist presently, or today every region has substantial representation by districts, hence, only claimed present serious under representation in a few areas.

At large elections would leave many of the regions of the State of Texas and the people practically speaking without representation at all.

And we fear Your Honor that that would apply not only in Georgia but in every other state that would have to suffer elections at large with congressional representation.

And of course the ratio in your congressional districting case is a no or nowhere near to the series ratio presented by state legislature.

In other words, I understand that the worst -- alleges that the worst ratio in your state legislatures as I believe in New Hampshire was -- in New Hampshire was approximately 750-to-1.

I think the worst ratio in your congressional district throughout the nation is 4-to-1 but nevertheless if you require a strict population standard in the apportionment of these congressional districts, then you can -- the Court can quickly tell from the record that the vast majority of the states of this nation allow this if -- if you use the population standard, these standards.

We move on to equitable abstention doctrines to the origin with -- in a more fuller sense.

I think the first thing we must take into consideration is -- is the significant political changes coming to Georgia.

Now, the call for Georgia's political structure in the past, its historic structure in the past, Georgia was subject to the grasp of the rural areas, probably more so in any other state and union for this reason.

We have the county unit system that this Court is well aware of and the county unit system applies of course in the democratic primary, if we call the strength and power of Democratic Party of Georgia as the cliché go, the -- the democratic primary of successful nominees there are tantamount to election.

Well consequently, the Governor and the Chief Officers of the State, the Chief Executive Office of the State when nominated by the rural areas of the State of Georgia and consequently they were elected.

So of course in Georgia, we have the Governor and the Chief Official of the state government under the control and nomination of rural areas.

Now, after this -- and now whenever the Court in Sanders versus Gray overturned that in this decision in large one was affirmed.

Of course that's true that many county unit systems in the primary, the last primary in Georgia, the last democratic primary, when the government -- when the nominees ran statewide, every person's vote counted equally and of course that gave full weight to the metropolitan areas.

So we say in the courts, by virtue of that, we've had a modern elected as Governor of Georgia, this Court knows Governor Carl Sanders which of course is the significant and substantial political difference between Governor Carl Sanders and one of our past Governors Marvin Griffin.

They present two different approaches in polity and I think the Court can really recognize the contrast.

But the overwhelming defeat of Governor Marvin Griffin by Governor Carl Sanders indicates, we think dramatically, the change has come to Georgia politics just by the elimination of the county unit system.

It's also quite clear in Georgia that the Governor as it is in many states has a tremendous amount of influence and power over the workings of the state legislature.

He exert substantial power there and we have that now, a Governor who is of course it has to be amenable and of course is susceptible to where -- to the popular feelings of the metropolitan areas of the state.

And of course we also have the case of Toombs versus Fortson which required the reapportionment of our State's Senate.

That case is still pending.

I do not know why the plaintiff in that case did not appeal to this Court but they asked in their -- in their complaint that both Houses with state legislature be reapportioned according to population.

The Court only granted their complaint halfway.

That case is still pending and of course if this Court requires to both Houses' legislature be reconstituted at large along population lines, then of course the District Court can move very quickly on that.

So we may yet have to -- we don't know what the courts want to determine but it's quite possible, the majority voice in Georgia which we think is already strong is even going to get stronger in the near future.

Now, we believe that these considerations are important and if they call for the application of the equitable abstention doctrine called just before a year -- a year and a half ago, Georgia had the -- the majority control in Georgia had no practical opportunities for exerting their will, as far as state government is concerned.

Now, in this apparent session of the legislature and of course the appellants made quite some reference to this in their brief.

The appellant Wesberry, who is a State Senator, introduced Senate Bill No. 101 for the redistricting of Georgia's congressional districts.

But either the gravity of the major coupled with insufficient time of appropriate study, the bill did not pass that session but was referred to the rule Committee of the Senate where it's still pending for further action.

The bill is not dead, it did not die in the last session, it's still pending.

Now, I doubt here that the bill is going to pass and I will -- will come to that in the next few minutes.

Next, Senator Julian Webb introduced Senate Resolution No. 56 for the creation of a Joint Center House Committee to study congressional redistricting which was passed by the Senate but was reported -- unfavored by the House, that bill was not passed.

However, this should not end all attempts that reapportioned that session of the General Assembly, stated by the appellants in their brief because Senator Webb then introduced Senate Resolution No. 129 for the authorization of Interim Senate Committee to study congressional redistricting and reported recommendation and study the 1964 regular session of the General Assembly.

This resolution was adopted March 15th, 1963.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Rodgers: Not yet.

Now, in July 1963, the Joint Congressional Redistricting Study Committee was created by the President, and was then appointing -- appointing ten Senators, one from each congressional district and a Speaker of the House appointed ten Representatives, one from each congressional district.

Now of course, that was done sooner after this Court noted probable jurisdiction which I believe was in June of 1963.

Senator Julian Webb was made Chairman of this Committee.

Now we think that's significant because Senator Webb who was working to get reapportioned congressional districts before this Court noted probable jurisdiction, he -- he at that time was working for as the chairman of that Committee so I think that right there is an element which demonstrates the good faith that the General Assembly of Georgia is putting into this effort.

Now, it's a matter of common knowledge that the Committee is working in good faith and the Governor of the State is going to support any fair and equitable redistricting plan that's presented.

Now, it's interesting to note that appellant Wesberry, now of course he introduced Senate Bill 101.

However, he admitted in his statement of September 17, 1963, following the Joint Congressional Redistricting Study Committee.

And this is what he had to say about his own bill.

He says, “I made it clear and I do not think that Senate Bill 101 should be passed as introduced but that it should undoubtedly drastically changed to meet with the approval of all citizens of Georgia.”

And he goes on to say, “I believe it includes some good suggestions and I know it includes some bad ones, so even if the author of the bill admits that the bill was not good, that he'd be drastically and meant it weren't to be passed.”

The point is, we do not believe that Georgia -- the General Assembly in Georgia yet have an adequate bill to set or a fair opportunity to redistrict its congressional districts.

Now --

Justice Arthur J. Goldberg: Doesn't the grip of this argument leads to the conclusion that (Inaudible)

Mr. Paul Rodgers: The only difference we had have with Judge Tuttle's decision on the claim was, first, we believe that just out of considerations of comity, the complaint should be dismissed.

Also Judge Tuttle would probably felt like they should go ahead and resolve the ultimate considerations as errors, legal considerations.

We feel the consideration of legal issues should be deferred until Georgia has failed to redistrict.

In other words, we feel that nothing more should be done at this time than to apply the doctrine of equitable abstention, that the decision of the District Court be affirmed and after a reasonable time, if they're not satisfied they can re-file their case which we feel is required out of considerations of the comity for the workings of our federalism.

Now, of course, we won't go into these cases extensively.

They are cited in the brief.

Of course, this Court long held in its -- and it's frequently applied the doctrine of stating Great Lakes Dredge & Dock Company versus Hoffman which construed and considered the Federal Declaratory Judgments Act which held that the same considerations of equitable abstention applied and appropriate cases applied elsewhere in the area of federal adjudication.

And of course we feel the same thing applies here.

Now, in one of the previous cases, the -- the Solicitor General as he pointed, “There's no room for the doctrine of equitable abstention in the -- in enforcing rights under the Civil Rights Act.”

We feel that that position is fatally fallacious because we feel I would think that any member of this Court can conjure up circumstances where equitable abstention should be applied in the -- in the construction of constitutional rights or in the construction of any federal statute.

Also, the Court has recently applied in 1959 in -- in the case of Martin versus Creasy and Harrison versus NAACP, all of which is cited in the brief.

It's given other examples there over the application of doctrine of equitable abstention.

Now, a valid conception of Baker versus Carr, that Baker versus Carr was an emergency measure that it was -- that Baker versus Carr was an effort to -- to restore the democratic workings of the state legislature that would take and after a great deal of consideration, I believe the case pending here for two years.

It was taken after it seemed to me obvious reluctant but as the Court felt that it was faced with no other alternative but intervene this area in order to rescue the workings of democracy in the state legislature.

And we think that Justice Clark in his concurring opinion in Baker versus Carr put his finger upon the fundamental point of Baker versus Carr when he stated, “Although I find the Tennessee of apportionment statute offend the Equal Protection Clause, I would not consider intervention by this Court in a so delicate appeal, if there were any other relief available to the people of Tennessee.”

But the majority of the people of Tennessee have no practical opportunity for exerting their political way of the problems to correct the existing invidious discrimination.

Tennessee has no initiative in referendum.

I have searched diligently for other practical opinions present under law, I find none other than through the federal courts.

And we think that this case here which involves the second stage area of congression.

This should be involved second stage is the far cry from that presented by the first state which is the state legislature.

We call to think it's quite clear that the state legislature when they are -- are -- are -- are switched to the control of majority are going to provide the relief that many seek in the area of congressional districting.

But we think the restoration of the democratic process has placed Georgia's political destiny in the hands of the majority.

Now, the appellants made one allegation there, complained with paragraph 14.

We think it was a necessary allegation to their complaint but it's -- it's in fact a -- a very important one to their complaint but which is by virtue of the restructuring of Georgia's political system, has lost all vitality.

This is what paragraph 14 of the appellant's complaint state.

It's -- and these -- these words right here were written prior to the political restructuring of Georgia, I think in April of 1962.

Today, all attempts by the informed civically and militant electorate and arouse public to have the General Assembly to reapportion the congressional election districts so as to move -- so as to more nearly equalize the population has been without itself a contributing, if not be called of this situation is the fact that state legislature has chosen on the basis of state election subdivision inequitably apportioned in a way similar to those with congressional districts.

That the issues stating congressional apportionment, thus, so interdependent and interrelated that it is to -- that it is to the interest of the state legislature to perpetuate in equitable apportionment of both state and congressional election districts.

Consequently, there are no practical opportunities that the plaintiff and the people of Georgia for exerting their political way proposed.

Georgia has no initiative and referendum, so therefore, we say another, a -- a recognition of the point made by Justice Clark and the Court there showed right in the complaint that the solution to this problem is related to the -- to the structure of the state legislature.

Now, one other point that we think is particularly good and --

Justice Arthur J. Goldberg: The strength of your argument therefore (Inaudible)

Mr. Paul Rodgers: No sir, not at all.

Justice Arthur J. Goldberg: How can you get (Inaudible)

Mr. Paul Rodgers: Well, that gets back to the statement we read yesterday from the Senator Wesberry, the papers he filed when the election law -- I mean with the Joint Congressional Study Committee.

Senator Wesberry's decision, I think it's a practical one of is, is that the way to solve this redistricting problem as far as he's concerned is to redraw the districting lines around Metropolitan Atlanta, the fifth district.

And that if you do that, that would solve the situation.

Now, but you see, in -- in redrawing the district lines in that way, that would leave many of your rural districts, either not changed or only slightly altered.

And of course with such a system as that, you could I think depend not only upon your -- your metropolitan support in the House of Representatives which is not controlling but it's abstention because of 321 tier and also I think they could stand upon the support of many rural representatives who would I think would have a built-in in Senate to support the plan because they feel like that they could preserve their districting unimpaired or salvages substantial part of -- so I think it's worth serving to your trial on the Court.

On top of that, as an overlay on top of that, you have got the prestige and influence of the Governor operating on the House of Representatives.

So we feel like that there's a very good chance that the General Assembly is presently constituted going to redistrict.

Certainly, it should be tried and of course this Court should certainly assume that a state legislature is in good faith going to perform its duty.

And of course, if -- if we should have to reconstitute the House according to our contention is that the General Assembly of Georgia, I believe would constitute now, but if we should have to reconstitute it would make it that much easier.

Now, in the -- in the first brief, in the first amicus curiae brief found in Baker versus Carr, the Solicitor General we thought made some very fine comments.

This is from the Solicitor General's amicus brief of May 14, 1961, found in Baker versus Carr.

And we think the Solicitor General then gave a much better perspective to this situation than he -- than he gave in his present brief.

On page 15 of his brief, he state, “Congressional malapportionment is clearly related to reappointment of state legislatures or legislature with full urban representation is unlikely to challenge malapportionment of congressional districts, discriminating against urban vote.”

Now, he wanted to emphasize that statement so much, he put it again on page 58 of his brief.

On page 51 of his brief, the Solicitor General stated, “In addition, malapportionment state legislatures to the basic calls of congressional malapportionment.

Since urban voters are unrepresented in the state legislature, there is little likelihood the legislature will reapportion congressional districts to give urban voters their fair represent -- their fair proportion of representation to Congress.

As a result, urban voters are discriminated against both from the Federal House of Representatives and in their own state legislature not have -- and have no remedy in either body.”

Now, on page 68, the Solicitor General made a particularly good statement, which I think juxtaposed to this case.

It -- the -- there, Solicitor General addressed to himself to the question of whether the state or for the people and other reasonable remedy here would effect that would have upon the action of this Court say in Baker versus Carr, and I assume to any reapportionment case.

The Solicitor General answered that question this way, “Even if the malapportionment is gross, it may well not violate the Fourteenth Amendment if the state unlike Tennessee afford its people an alternative remedy.

For example, the majority cannot complain too seriously about the underrepresentation of the state legislature in a state which provides for referenda initiated by a reasonable number of voters.

Under such a system, the majority can reapportion the legislature itself.”

And he goes on to state, “But if the state provides a feasible political remedy, it might be concluded the state has not been so arbitrary as to violate the Fourteenth Amendment.”

And I think that brings us to basic philosophic consideration to this Court, although it's unnecessary for this Court to reach that day on these cases but that courts will have to reach eventually, and that is what this Court is going to do in the case that whether majority has control of the state legislature to state political process but through less -- but through lethargy is not exercised in their control.

If the Court then you won't go a step further and carry the majority towards its goal or that this Court won't require the majority in the traditional American fashion to carry itself, fall on its own momentum and not stand up on a federal court.

That's another consideration which I believe this Court should keep in mind, although it doesn't have to be decided this time.

Now, we say we believe it has been restored of the power of political persuasion had been restored to minor -- to the majority in Georgia.

And also, we -- we think the record demonstrates very clear that the whole nation is now districted.And this Court would render decision like the appellant Wan.

It would come down at early part of next year.

You can depend upon the District Courts to quickly apply that decisions in Baker versus Carr and you're going to have redistricting suits across the nation, at large election.

It's going to create a traumatic shock on Congress unparalleled in history, whereas to this Court it will abstain to this time the leave their work to reapportioned state legislatures, the correction of congressional districting will come from the position it sought.

And of course, this -- it -- it will -- will not be -- it will be a little more gradual, we don't think unduly so than it would be to bring it about by federal or judicial decree.

Now, we think that -- that as we -- as we pointed that the remedy is political, we think that the words of Justice Douglas.

And (Inaudible) -- the judges on particularly I propose.

On page 56, Justice Douglas stated, “Political actions and other method of deciding certain controversies, not all the victories for Human Rights have been won in the courts.

In the Western World, more such victories have probably been won in Constitutional Conventions, on legislative halls than in courts of law.

The remedy for unwise improvident legislation is I suppose political action is indeed a birth to a remedy for the correction of injustices.”

And then Justice Douglas goes on to state on page 56, “Litigation is not the cure or the solution for every conflict.

If all our disputes and differences had to go to the courts, we would indeed be bulked down in time-consuming wasteful procedures.

The importance of the courts are necessarily low as litigation serves only a limited function.

Rule must be left for the workings of other conciliatory, mediating and directive influences.”

And then of course that was reechoed, those sentiments were reechoed to a largely inspiring in principle by Justice Douglas in his -- when he wrote to majority's any of the opinion of the court in Williamson versus Lee Optical of Oklahoma.

And we feel that in Minersville School District versus Gobitis that Justice Frankfurter also states the principle very well when he said, “Judicial review itself, a limitation on popular government is a fundamental part of our constitutional scheme.

But to the legislature, no less than to the court is committed to guardianship of deeply cherished American liberty.

Where all of the effective means of inducing political changes left free from interference, education and the abandonment of foolish legislation is itself a training in liberty to fight out the wide use of legislative authority in the form of public opinion and before legislative assembly rather than to transfer of such a contest to the -- to the judicial arena, serve to vindicate the self-confidence of a free people.”

So Your Honors, in conclusion, we say that we believe that the appellant misconceived Baker versus Carr.

We believe that Baker versus Carr was right in a time of great internal crisis to American Democracy.

It was rendered in time where there was no other remedy in Tennessee and the Tennessee Court.

Of course the -- in Georgia, the Court -- the state court have not, yet can try.

We feel that the legislative remedy is more likely.

However, the state courts could afford the remedy because they have Baker versus Carr to guide them.

But it was right in the time where in Tennessee, there was no other remedy as it was in the vast majority of the state to this nation.

It was an emergency measure, and we feel it meant to be used sparingly.

I think that the Court's intention in Baker versus Carr was not try to takeover basically, a classic political or legislative decisions, it was the -- the intention of this court in Baker versus Carr, to try and to get the democratic process restored so that at least that the legislatures themselves could make these decisions.

And I don't think the court has any desire to make these decisions.

It was designed, we believe, Baker versus Carr was to strengthen the state legislatures and not to weaken it, but it was designed to restore the democratic process, not to impair it.

And it was designed to repair the main spring of representative government not to operate it, designed to make the state legislatures and the citizenry of this nation more responsible, not less responsible by casting their obligations on the federal court.

I think the appellants -- the appellants, we get as the Declaration of Independence, the Constitution and the Bill of Rights were brought forth by the liberty of bodies and not by a court.

They were brought forward by liberty of bodies by militants and arouse citizenry, and that is of course is what kept this country going thus far in its history.

And if we're going to preserve this country, we've got to depend to that kind of citizenry and not an advocation to the federal court.

We believe that when the government has accepted the majority rules, it is in Georgia and it's clearly as it will be, and if it's not already that -- it's -- that the situation or the solution must be brought about by the citizenry, by letter writing campaigns, by demonstrations, by delegations, by petitions and by other forms of public protests.

Otherwise, if you do not leave and otherwise it is implied to clear implication that -- it is that the citizenry is definite on appeal.

And we believe that under such circumstances, citizens and particularly State Senators are under a plain obligation to work toward solving their problem to the state legislative process rather than attempt to advocate their responsibility to the federal courts.

In Baker versus Carr, this Court slashed the Gordian knot of American politics.

This Court guaranteed the majority's rightful place in the state legislatures.

In Georgia, the power of political persuasion has been restored to the hands of the majority and we say it's not up to the majority in Georgia to accomplish its goals through conventional political means.

In conclusion, Your Honor, we believe that the judgment of the District Court should be affirmed on the grounds of equitable abstention.

Thank you for your attention.

Chief Justice Earl Warren: Mr. Cash.

Argument of Frank T. Cash

Mr. Frank T. Cash: Mr. Chief Justice, Mr. Associate Justices, may I please the Court.

Even though we alleged in -- in our notice for appeal, we set forth in our briefs jurisdictional statement and we've argued before this Court that the appellants have been denied their constitutional rights, the state is yet to offer any argument to support the finding of the District Court that the appellants have not been denied their constitutional rights.

We would like to assume that we have set forth our case that the appellants have been denied the constitutional rights and will proceed to counter some of the defenses raised by the state in this matter.

In the area of the abstention doctrine, certainly it has never been held by this Court that the powers of this Court will be restrained or abstained until such time a law has been enacted.

If a person's constitutional rights have been denied, they're entitled to relief here and now.

In the case that was before this Court and decision was passed down from this Court in the case of McNeese where Justice Douglas says that the application of the abstention to this suit under the Civil Rights Act would deplete the purpose of Congress to make the federal courts that primary tribunal to grant the relief set forth under that particular case.

And we contend that our case is also brought to this Court under the Civil Rights Act, we have been denied Civil Rights as set forth under that Act.

I believe counsel for the state was being less than frank to this Court in making statements that the appellants of our suits are the -- the residents of the Fifth Congressional District of Georgia have a powerful voice in their General Assembly.

The facts dispute their statement.

The people of the Fifth District have 3.4% influence or the vote in the State House, and have approximately 14% in the State Senate.

Gentlemen of the Court, this question differs from the cases you've been hearing for the past week.

In most of those cases, the question was, “Could a minority control a majority by failing to apportion on an equal population basis?”

This case presents somewhat different facts.

Here is the case where a -- there's a presumption of course that the minority controls this General Assembly of Georgia.

But even if majority controlled it, the people of the Fifth District are a disadvantaged minority.

The appellants want relief so that the majority may be represented in the House of Representatives of Congress, but the majority of the State Houses could, in fact the -- but I think the facts show -- present themselves in our brief that the only district in Georgia that is grossly disproportioned to the other districts is the Fifth District.

The other nine districts, the other representatives in the State Houses of the other districts have no reason to change this present system.

Only the Fifth District has a crying need for relief.

So we would suggest that the relief is not available to us in the General Assembly.

Certainly, and I -- disadvantaged minority and the voting case has no difference than a disadvantaged minority in a racial or segregation case.

And the question of whether they have adequate opportunity to act, in our record, we have shown that the -- a bill was presented in the state legislature in 1952.

It was introduced by Representative Albertson from the Fulton County, delegation in that bill of course was defeated without any committee being appointed to study the matter of congressional districting.

The Baker versus Carr was decided in May -- excuse me -- in March of 1962.

The suit was filed and this case in April 1962.

There was no effort by the state legislative body to take any action in the matter at that time, nor did take any action when the decision was handed down.

There was a special session of the state legislature to consider the question of state reapportionment.

And gentlemen of Court, again, let me emphasize to you that the question of state reapportionment is a much more difficult problem, yet the state body reapportioned the State Senate.

54 senatorial districts, much more difficult problem than the question here of having 10 congressional districts and yet they did it in -- within a -- a month's time.

They met -- enacted the law within -- actually within a week, and they had election other that law within a month.

There was a, I quote, Reapportioned General Assembly in January of this year.

It was a 40-day session, split by 15 days interim between the two sessions, given sufficient opportunity again for the General Assembly to act in this matter.

Justice Potter Stewart: Mr. Cash, under that reapportioned Senate that was done in January this year, was it?

Mr. Frank T. Cash: Yes, Your Honor.

Justice Potter Stewart: The State Senate.

Does -- does the county in which Atlanta is located, that's Fulton County have representation in the State Senate proportionate to the population of the county?

Mr. Frank T. Cash: Yes Your Honor, it does.

Justice Potter Stewart: I wonder --

Mr. Frank T. Cash: It has seven Senators based on population in the Senate.

Justice Potter Stewart: And to that extent, paragraph 14 of your complaint in this case is that it should -- should be -- should be modified -- should and I don't mean that there wasn't?

Mr. Frank T. Cash: Was that the paragraph --

Justice Potter Stewart: That's the one that --

Mr. Frank T. Cash: -- of our brief body.

Justice Potter Stewart: -- was quoted by Mr. Rodgers.

Mr. Frank T. Cash: If that -- you recall in that we said that a controlling reason, if not, we did not allege -- absolutely, that was the only reason.

Justice Potter Stewart: You say contributing if not just the cause of this issue.

Mr. Frank T. Cash: So it's certainly a contributing cause but it's not the only cause.

Justice Potter Stewart: And then as -- as of the existing reapportioned state legislature that's been attacked in the lawsuit or the -- or the old one -- or the old one before the action of -- of this January that's been attacked in the other lawsuit?

Mr. Frank T. Cash: Mr. Justice Stewart, we did not attack the legislature.

We attacked a law that's still in effect.

We're asking that it would be declared unconstitutional and asking for equitable relief to retrain the enforcement of that law.

We're not attacking a -- a -- either the old legislature or the reapportioned, which is alleged and it's in our petition to indicate that as I have said today that the reasons why we couldn't expect relief from “political remedy” that's been suggested.

Justice Potter Stewart: I'm talking now about the other lawsuit in Georgia.

Mr. Frank T. Cash: Oh, the Toombs case?

Justice Potter Stewart: That's right.

Mr. Frank T. Cash: Yes, that's the same case and in fact, it was filed prior to the reapportion just the judges in the three-judge court in the Toombs cases have been holding pending and I think the final decision of this Court, whether the two Houses have to be reapportioned on the basis of population.

But they did require one House under the counsel for the state has stated that the fact that they applied the federal analogy.

Justice Potter Stewart: And then that was done by the Georgia General Assembly.

Mr. Frank T. Cash: That was done by the --

Justice Potter Stewart: But it was (Voice Overlap)

Mr. Frank T. Cash: Let me emphasize the state assembly has never took the initiative.

They did not act at all in the Sanders versus Gray case on the county used them until the decision of this -- not this Court but the lower court.

They did not act in the Toombs case until the decision of the Toombs case.

They will not act in this case until the decision of this Court.

Justice Arthur J. Goldberg: That though (Inaudible) is that correct?

Mr. Frank T. Cash: I think it is.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frank T. Cash: I'm not aware of any -- I think I believe the -- it's closed to maybe the -- the segregation cases of this Court, I think the apportionment cases are met with very favorable response upon the people because after all, we're trying to sustain the rights of the majority.

Justice Arthur J. Goldberg: (Inaudible) within the district or between -- to consider the apportionment of the upper house.

Mr. Frank T. Cash: Yes.

Justice Arthur J. Goldberg: You think there are any exceptions to the decision?

Mr. Frank T. Cash: In my opinion and I think that's based -- I think the counsel for state would -- would see that, and I think it actually did.

I'd like to direct myself to the question of whether this Court ought to go ahead and act in the premises now and not wait until a fuller time has been given to the state to act.

It seems that the best reason that the appellants can set forth, why they're entitle to a decision now, has been set forth by Judge Bell in both the Sanders versus Gray case and also in -- in the lower court of this -- in this -- in the court's opinion below in this matter.

First is that in the Sanders versus Gray case, he said, “Due consideration has been given to delaying the entry of an injunction until the next regular session of the General Assembly in January.

But having recognized that the constitutional right of plaintiff, we cannot fail to protect it, nor do we believe the state would want to deny it.

And any -- in the lower court of in this matter he said, “The defendants are entitled to their due, a final decision.”

We submit that we too are entitled to a final decision.

The question presents itself if the present apportionment statute is declared unconstitutional, what is the remedy?Your Honors, the remedy as suggested by this Court in earlier cases, one that would be suggested by the Article I, Section 2 itself would be the at large election.

The -- in fact, the judicial remedy of congressional district cases is of course very clear, simple and moderately, namely, that of course the election at large and that the reason for this could be certainly justified and that the ordering of an election at large of defendant state's congressional delegation, can be resolved, it can be at any time that the defendant state chooses to apportion, the state on constitutional -- on a constitutional basis then there would no longer be any reason for an at large election.

The Congress -- that would be based upon if -- if every state was required to have an election at large, Congress would still be Congress formed according to Constitution.

It would be able to function normally no matter how many Congressmen at large.

And the most important, the people of all the states and all of the people of each state would be fully represented.

The bylaws, that is the interstate local representation, of course, we don't feel it is the first order importance, certainly not when it's in direct conflict with constitutional rights.

And of course, as I said before, it can be regained by -- at the bargain price of redistrict -- redistricting.

The most convincing and persuasive argument for this remedy of course is that it is an opportunity to afford everyone equality of representation.

The state has raised the question and I think it's a very good question that is, if the relief that we ask for this Court -- of this Court, what would be the result with the make up of Congress?

Of course the figure cited by the state demonstrate that the problem of grossly unrepresentative congressional district is national in scope and threatens to undermine the basic principle of equal popular representation which the House of Representation was originally founded.

It emphasizes the need for immediate, uniform and a final solution, which only this Court is capable of granting.

Your Honors, we respectfully submit that we have set forth a cause of action, we have set forth the facts at the trial, we have had our day in court, we now would like an adjudication of our rights.