REYNOLDS v. SIMS

Print this transcript Transcript: 

Argument of W. McLean Pitts

Chief Justice Earl Warren: Number 23, B.A. Reynolds, etc., et al., Appellants, versus M.O. Sims, et al.

Mr. Pitts, you may proceed with your argument.

Mr. W. McLean Pitts: Mr. Chief Justice Warren, may it please the Court.

It is with great humility that I appear before this Court in view of some of the propositions that we are going to make to this Court in behalf of the appellants in this case.

I will briefly go through some of the -- the points that lead up to the decision in this case.

We'll go in to historically a little of the Alabama history relative to its constitutional convention, the Acts of the legislature that are involved.

On March the 26th, this Court gave the -- handed down the decision of Baker versus Carr which was somewhat a radical departure from the cases from 1803 to 1962.

Baker represents neither the familiar pattern of judicial review and occasional negation of particular governmental policies nor the newer pattern in some of the desegregation cases of impositions of -- it is to act or rather than to desist, but both of these patterns have this much in common.

They leave essentially in fact the distribution and possession of political power by contrast.

It is my position that Baker versus Carr is an invitation to the courts to sit in judgment of the structure of political power even to the effect of a judicial transfer of political power.

Before the ink was drawn on Baker versus Carr decision and on April the 14th, 1962, the three-judge Federal District Court issued its ultimatum to the Alabama Legislature that it must reapportion itself.

On July the 12th, 1962, the Alabama Legislature produced two bills.

One of them was the Sixty Seventh Amendment bill which was a constitutional amendment that was to be submitted to the people of Alabama.

Then they passed the Webb-Crawford Act which was a Savings Act that would have reapportioned the 1966 legislature provided that people of Alabama to hand down the Sixty Seventh Amendment Act as proposed.

On July the 25th, 13 days after the passage of that -- of the Act, of these two Acts, the Federal Judge of the District Court declared both of these Acts unconstitutional.

And in their decision, they took the senatorial provisions of the way of Crawford Act and the House provisions of the Sixty Seventh Amendment Act put the two together and legislated for the State of Alabama.

Now, my propositions to this Court are simply that the legislative reapportionment, there are four propositions I want to make to the Court.

One, legislative reapportionment should be resolved without federal interference.

The Court should reconsult Baker versus Carr or clarify Baker versus Carr and return to the original Constitution, proposition that courts do not interfere with the political structure of states.

Two, the courts should limit themselves under the time honored to constitutional provisions for checks and balances to the function of judicial review of Legislative Acts.

They should not invade the providence of the legislature whether -- whether it is done by exacting new laws or whether it is done by a veto power.

Three, the Court should not have declared in that the proposed amendment to the Constitution of Alabama which by the Acts of a legislature -- by the Act of a legislature was to be submitted to the vote of the people of Alabama on a one man, one vote basis.

Four, even under Baker versus Carr, the District Court should not ever retain -- retained jurisdiction in this case because the factual situation in the case at bar is different from the facts in the Tennessee case.

Now, in order for you gentlemen to understand probably my argument, it is necessary for me to go back a little bit to the Constitutional Convention of 1901.

That convention brought together delegates in Montgomery, Alabama who have been recognized as the greatest minds of political thoughts and lawyers in that state.

They came up and as -- as I heard the argument of the New York case yesterday, it brought me to mind in reading the proceedings of the 1901 Constitutional Convention of Alabama.

That practically, every point that was made before this Court about the distribution of political power and districting was discussed in the 1901 Constitutional Convention of Alabama.

That Constitution was submitted to the people on a one man, one vote basis and was adopted by the people.

Justice Potter Stewart: But then it wasn't followed.

Mr. W. McLean Pitts: Sir?

Justice Potter Stewart: It wasn't followed by the state during the next 60 years.

Mr. W. McLean Pitts: I will -- come on down to that in just a little bit of reason.

I'm getting to that point.

In deciding to -- in -- in arriving at this, these men realized the great geographical distant differences that exist in the State of Alabama.

Alabama is a state of great natural resources.

I'm not talking for the Chamber of Commerce, but I'm just pointing this out to the Court.

Alabama is a state of great natural resources.

Across the center of the state around the Birmingham area, we have steel mills, coal.

You go into the North in the Tennessee Valley, you'd run into the great farming area, of course now you run into the hospitals which has greatly increased in population recently.

Then in the South it was not in this middle part of the state which is known as Blytheville which I am from, you'll run into a farm and in rural area then he should go on down to the Mobile, you run into the waterfronts, the coastal area and again an industrial section.

All of these were kept in mind, what I'm trying to point out to the Court in this 1901 Constitutional Convention.

We of the Blytheville recognize that there was malapportionment in the Alabama Legislature in 1960 and I'm not standing before this Court in saying that there was not malapportionment before in the legislature in 1960, but we said per se that if the legislature of Alabama is to be reapportioned, then it should be reapportioned by the legislature of Alabama and not by a federal court.

Chief Justice Earl Warren: How long should we have to wait from 1901 beyond 1960?

Mr. W. McLean Pitts: We waited from 1901 to 1962, Mr. Justice Warren.

Chief Justice Earl Warren: Yes.

Mr. W. McLean Pitts: But, what I want to point out is -- the point that we want to make is that how we differ in the Tennessee case that although we waited from 1901 to 1962 when the District Court issued its ultimatum to the Alabama legislature, they acted promptly and they did pass a constitutional amendment to be submitted to the people of Alabama and even another Act known as the Webb-Crawford Act which is a Savings Act in Blytheville.

Chief Justice Earl Warren: Do I understand though that you want us to say that the -- that the Court had no -- had no right to the coerce the legislature into doing that although it had -- it had for 60 years failed to follow its own Constitution.

Mr. W. McLean Pitts: Yes.

Chief Justice Earl Warren: You honestly say that that even though it went another 60 years.

Mr. W. McLean Pitts: Yes sir, but I want to point out, it's my position in this was, getting back to the point of Baker versus Carr, which I believe, that under several Declaratory Act, I believe that the Court had jurisdiction to say that it was unconstitutional but I do not believe that the Court has the power to legislate for the people of Alabama.

You again --

Chief Justice Earl Warren: You say that it's justiciable over the question.

Mr. W. McLean Pitts: Yes, yes.

Now, in passed -- in the Constitutional Convention of 1901, the legislature was set up so that that would be as House and a Senate, not more than 35 Senators and not more than 135 -- 105 members of the House.

Then they proceeded that they -- to set up 35 senatorial districts and provided that each Senator was to have a district.

Then, there's another provision of Alabama Constitution that says that the Senate -- Senate shall not consist of less down one-fourth or more than one-third of the House of Representatives.

The House of Representatives should consist of 105 members, each county shall have at least one representative.

No county shall be divided into two senatorial districts and no district shall be made up of two or more districts not contiguous to each other and those are the provisions in the Alabama Constitution that the legislature was confronted with every time it would start to reapportion.

There have been -- been many -- many others bills introduced, but those were the constitutional provisions of the 1901 Constitution and the point is that I'm trying to make this Court that it is not on a population basis.

The Solicitor General in his brief cites percentages and figures but actually, the Alabama Legislature is not based solely on a population basis.

It is based on an area basis and a population basis so that no geographical section of the state would have a stranglehold on the Alabama Legislature.

If you go strictly to a population basis, then the larger are -- for these populated counties would have a stranglehold on the Alabama Legislature on a one man, one vote basis and the people in the rural areas would not have any say so in their own government.

Chief Justice Earl Warren: Mr. Pitts, I was wondering if -- if the Court had the right to declare your apportionment unconstitutional, what remedy could it use --

Mr. W. McLean Pitts: Mr. Chief --

Chief Justice Earl Warren: -- in order to --

Mr. W. McLean Pitts: -- Justice --

Chief Justice Earl Warren: -- to -- to say that people did have their rights?

Mr. W. McLean Pitts: I was anticipating that question, Mr. Chief Justice.

Chief Justice Earl Warren: I'm sure you were.

Mr. W. McLean Pitts: There are times that I see under the Federal Declaratory Judgment Act where the Court could declare the rights but the courts could not provide an adequate remedy.

That's my answer.

I think --

Chief Justice Earl Warren: In other words, it would be a right without a remedy.

Mr. W. McLean Pitts: Yes.

I think it would.

I think that they have a right to declare it but I don't think that they have a right to eventually involve the State of Alabama or the people of Alabama.

As I take it, Baker versus Carr simply said that the federal court where there was invidious discrimination existing that the Court had jurisdiction, but there was so much in Baker versus Carr that was left unsaid in sort of guidelines to the lower courts and what was suggested in -- in the concurring opinion of the justices have thrown the lower courts into the midst of properly a political pick fight.

In other words, and as I understand it, it was suggested there that -- for in -- the -- that one of them was that actually draw new legislative boundaries or threatened to do so if a legislature does not have performed, to retain jurisdiction while waiting for the legislature to act frequently on -- to act frequently.

One of those two things is about the only thing that a court could do to carry out Baker versus Carr as just what you ask me as I see it, one of the two unless they proceed to legislate for the legislature.

In a way, the court sitting, waiting for the legislature to act under what they will see would be a fair apportionment of the statute or redistricting statute would be a veto power in the courts.

Justice Arthur J. Goldberg: Would you think therefore that the proposition was there throughout the plaintiffs in the litigation that the Court should not (Inaudible)?

Mr. W. McLean Pitts: Yes, Your Honor.

Justice Arthur J. Goldberg: And they have no right of apportionment.

Mr. W. McLean Pitts: No sir.

I don't like what the Court did but I think it would be a more -- in order to break in this stranglehold on the legislature if the Court wanted to do it.

I think that in election at large if the Court didn't act but I don't like that because --

Justice Arthur J. Goldberg: Because I said if you know (Inaudible) was concurrent that decisions to him is important.

The election at large is as more consistent if the appropriate initial remedy.

Mr. W. McLean Pitts: Yes, I do.

As I just said I think that the -- that -- that power of veto over legislature transcends the separation of power doctrine of the three branches of government, the Executive, the Legislature and the Judicial.

Justice Arthur J. Goldberg: Mr. Pitts, are you arguing that this Court directly has to reconsider Baker and Carr?

Mr. W. McLean Pitts: Yes, I think they should.

I'm arguing its -- that they should reconsider Baker versus Carr and as I read and I said that that would raise immunity in our argument of this Court at that point, but as I see it, it is.

It should be reconsidered by this Court.

The principle of the separation of powers from the three branches of American Government transcends what equity of power the Court may have had or may claim in order to step in and draw legislative districts, boundaries even if the legislature disregards their responsibility.

This principle as I see it is clear in the study of the notes of the proceedings of the 1901 Alabama Constitution and it is also clear in the notes of the secret debates of 1787 Constitutional Convention and in this first Congress, this point -- these three branches of Government were kept to speak free and equal, a system of checks and balances.

In Government -- in going further and granting relief in the form and borrowing one of the two courses and granting relief, the Court completely notes their separation of facts the duals and the dual system of Government in the United States.

I think it’s out contention that the Court should limit themselves under this time, a lot of the constitutional provisions for checks and balances to the function of judicial review of legislative acts.

They should not invade the legislative functions whether it’d be done by enacting new laws through the use of judicial power or by a veto of the legislature.

I do not see how we can escape that pro -- proposition.

I have carefully read every word in Baker versus Carr and particularly in view of the Alabama case, I think that the Alabama case is entirely different from any of the other apportionment cases that are pending before this Court.

The Alabama case is the extreme that a court can go whereas the New York case that was argued yesterday is the other end of the extreme.

As I see it, it points out these -- what a terrible situation can exist from Baker versus Carr.

Now, I may say to this Court while I have stood here before you and told you that I would argue that you should reconsider Baker versus Carr.

Second, if you don't reconsider or change the rule in Baker versus Carr, you have got to give some guidelines or some limitations that can be put down to the lower courts because the lower courts have taken the decision of Baker versus Carr as an invitation to them to step into the shoes of the legislature of the various states.

That the legislative powers of the people can be organized according to the dictates of a federal judiciary is in there in violation that the Government shall be composed of the Executive and the Legislative and Judicial branches, each of whom exercise separate but equal power.

A federal judiciary that can dictate the authorization of a state legislature can indirectly and I think this is important and it is set out in our brief, that they can indirectly dictate the seats of the House of Representatives or -- or district -- in a redistrict by Act of the state legislature.

Legislative reapportionment should be resolved without federal interference.

Now, the case at bar in illustrating of the confusion that can result and from -- by the federal judiciary barring Baker versus Carr.

The soundness the majority opinion has been questioned by members of the bar, the Courts and students of Government and for reasons we have we urge that you reconsider this decision in that -- and return to the original constitutional proposition.

As I just pointed out to you the range of action in these federal courts and the lower courts has been wide.

Within six months after Baker versus Carr, suits were filed in 31 states, 41 opinions rendered and special sessions had been held at some eight states.

This we see from the Alabama case and the New York case, we can see the wide range of action that Baker versus Carr has called.

As I see the federal court --

Justice John M. Harlan: Wouldn't you agree Mr. Pitts that if the proceedings in all side in the Alabama's reapportionment by our legislative division in the Federal Constitution would be the duty of the Court system?

Mr. W. McLean Pitts: Mr. Justice Harlan that would depend upon whether there can be found anything in the Constitution.

Justice John M. Harlan: My question was, assuming that that could not stated and everybody agreed that the Alabama's apportionment did violate the Federal Constitution.

You certainly wouldn't argue that the federal courts would not have the duty to vindicate your constitutional right.

Mr. W. McLean Pitts: My contention that Baker versus Carr should be reconsidered, yes Your Honor.

Justice John M. Harlan: I probably --

Mr. W. McLean Pitts: Well -- well I'm trying to point out -- what I'm trying to point out in answer to your question sir, I'm trying to answer is, that if there is foundation in the Constitution of the United States and what the federal court dictate judicial -- dictate jurisdiction then if they had malapportionment in the Alabama Legislature and it amounts to invidious discrimination, then the federal court would have jurisdiction.

Justice John M. Harlan: Yes, you should do something about it.

Mr. W. McLean Pitts: And my second proposition to you --

Justice John M. Harlan: Therefore, I would attempt the real essence of your argument should be whether or not the Federal Constitution does (Inaudible)

Mr. W. McLean Pitts: And whether or not what Alabama has done comes under the Equal Protection Clause of the Fourteenth Amendment.

Well Mr. Justice Harlan, I agree with your opinion and I can find nothing in the Fourteenth Amendment but I would say that it would come under it.

Justice John M. Harlan: I think that's the real burden in your -- your argument.

Mr. W. McLean Pitts: Yes sir.

Justice John M. Harlan: (Inaudible)

Mr. W. McLean Pitts: But we also say that even if it does come under it and even if Baker versus Carr stands and if the Court has that the federal judiciary in Montgomery or the District Court exceeded its authority in striking down a constitutional amendment that was to be submitted to the people of Alabama and that is the way their Constitution is amended except unless a constitutional convention is called.

My contention is that if Baker versus Carr does even in view of Baker verus Carr that the federal court did not have the right to go as far as it went in the Alabama case.

Justice Arthur J. Goldberg: Do you -- do you argue that during the discrimination provision (Inaudible) the malapportionment in (Inaudible) or the old apportionment of them both I (Inaudible) do not represent (Inaudible) whether or not equivalent of your Constitution.

Mr. W. McLean Pitts: Yes sir.

Justice Arthur J. Goldberg: As a matter of fact, even though this discrimination was (Inaudible) different distributions (Inaudible)

Mr. W. McLean Pitts: Yes sir.

Alabama's population has changed greatly in the last -- since 1901 but I don't say that there is discrimination.

I think that Alabama has a rational plan.

The legislature of Alabama has just failed to act.

The system that Alabama has which is based not only of -- on population but it is based on area.

So I say that -- that is not discrimination, it's a rational plan that Alabama have but they have just failed to act or the legislature had --

Justice Arthur J. Goldberg: The legislature is asking (Inaudible)

Mr. W. McLean Pitts: I'll be perfectly frank with you, Mr. Goldberg, I meant Mr. Justice Goldberg.

I'm not going in to the mathematics of the situation.

I don't think that that has -- is neither here nor there because of the Alabama system, but I do sir is will state it that if that is true, it's about 25% I would say that maybe more than that, I don't know.

I believe it's 38%, I believe.

Justice Arthur J. Goldberg: Well as I reconsider --

Mr. W. McLean Pitts: Yes.

Justice Arthur J. Goldberg: -- that your argument -- at the start of 1901 is about 40%

Mr. W. McLean Pitts: 44% --

Justice Arthur J. Goldberg: It's about --

Mr. W. McLean Pitts: 44%.

Justice Arthur J. Goldberg: It's about the shifts of population.

Mr. W. McLean Pitts: And it dropped down now. This is -- this act that the federal court has got it -- brought it back up to about 41%.

Justice Arthur J. Goldberg: Have we stored the stipulation on what it was --

Mr. W. McLean Pitts: About 3% back and restored it back to the 1901 Constitutional Convention, I mean the Constitution.

Justice Potter Stewart: Mr. Pitts, going back to Justice Harlan's question of -- a moment ago, go into the basic -- basic question before we get to the matter of remedy, the basic question of constitutional violation here as I -- as I understood him, Justice Harlan suggested that the basic argument on -- for you to make was that there was no constitutional violation but as I read the opinion of the three-judge court of July 21st, 1962.

That argument is -- is not open to you unless I misread it or unless the Court here is misstating the fact and I'm quoting from 144 of the record where the Court says, "It has been generally conceded throughout this litigation by all the parties that the present apportionment for both Houses of the legislature of the State of Alabama constitutes invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.

Is that factually untrue or is it true?

That the statement as to the concession by all the parties.

Mr. W. McLean Pitts: I would like to explain to Mr. Justice Stewart that I did not participate in the trial of this case.

It's in the record, and that is a true statement in the record, I would say that it's true that that was conceded by the parties and of course --

Justice Potter Stewart: Part of the great constitutional issue at this time that concessions of lawyers, concessions of parties, the views of the lower court while there -- of course title of the greatest respect are not the element or the basis in which we have to decide this case on.

Mr. W. McLean Pitts: We --

Justice Potter Stewart: We're not bound by a Court's concessions in constitutional cases but as I -- I'm only suggesting that that issue wasn't even litigated in the --

Mr. W. McLean Pitts: Wasn't even litigated in the whole --

Justice Potter Stewart: In the District Court.

Mr. W. McLean Pitts: Yes.

Justice Potter Stewart: It was -- it seems so clear to everybody that that -- that the issues before the Court required different issues, i.e. as to what the remedy should be.

Mr. W. McLean Pitts: Now the Attorney General held it, who the -- in the lower court, (Inaudible) probate judge of Dallas County was a party defendant.

That is -- we got in the case after the Court had decided the case and we appealed it to this Court.

Justice Hugo L. Black: May I ask, what -- if you were to win your contention, what would be the practical result in Alabama?

Mr. W. McLean Pitts: Mr. Justice Black, it seems to me that if we would carry out, if we would be successful with appeal then the constitutional amendment would be submitted to the people.

Justice Hugo L. Black: What would -- what would be the result with reference to the present members of the State Senate in the legislature?

Mr. W. McLean Pitts: You mean in the Sixty Seventh Amendment Bill?

Justice Hugo L. Black: Those that are now the members of the legislature in the State Senate.

If you win, are they properly elected?

Mr. W. McLean Pitts: Oh, you are talking about the legislature of Alabama --

Justice Hugo L. Black: Yes, it's practical result.

Mr. W. McLean Pitts: -- that --

Justice Hugo L. Black: Practical result.

Mr. W. McLean Pitts: -- has taken the office in the mean time and in -- where I'm in.

Justice Hugo L. Black: Practical result.

Mr. W. McLean Pitts: Under the federal court decree.

Justice Hugo L. Black: Yes, that's --

Mr. W. McLean Pitts: Now in my --

Justice Hugo L. Black: If you win -- if you win your contention, --

Mr. W. McLean Pitts: Yes.

Justice Hugo L. Black: -- what is the result with reference to the present Senate of the legislature of Alabama?

Mr. W. McLean Pitts: I think that was a de facto legislature and I think that the validity of that act would be determined by the Supreme Court of Alabama.

Justice Hugo L. Black: Now, may I ask if -- if you would then return in your elections to their old apportionment –

Mr. W. McLean Pitts: Yes sir.

Justice Hugo L. Black: Would that mean -- as I read this, I'm not sure about this though, that the Senator from Jefferson County where Birmingham is located represents 634,000 while one Senator from Lowndes County represents 7000 or 15,417.

Mr. W. McLean Pitts: If the Apportionment Act stands as it now -- as it was in the 1901 Constitution, what you say would be correct?

Justice Hugo L. Black: Well now, is that -- what -- what would be the result if you win your case?

Mr. W. McLean Pitts: And this amendment will appraise to the people.

In other words --

Justice Hugo L. Black: I'm not talking about -- I'm not talking about what could happen thereafter but what do we return to you if you succeed in -- in validating the judgment of the three-judge court.

Mr. W. McLean Pitts: Alright sir.

I think that you return to the -- to the constitutional amendment, the Sixty Seventh Amendment Bill.

Justice Hugo L. Black: You go to the apportionment as it has been.

Mr. W. McLean Pitts: Yes, in the mean time.

Justice Hugo L. Black: You return to the apportionment has been and then have to wait --

Mr. W. McLean Pitts: Until that 6 --

Justice Hugo L. Black: -- then have to wait it for your contention for action in Alabama about a vote of the people on the amendment to the Constitution.

Mr. W. McLean Pitts: Yes.

Justice Hugo L. Black: But in the mean time, Jefferson County would be entitled of the population of 6 -- 650,000 to one sentence and Lowndes County with 13,000 to a -- to a representation of one sentence.

Mr. W. McLean Pitts: Yes.

Justice Hugo L. Black: Well, that's typical throughout the state, is it?

Mr. W. McLean Pitts: I would -- I would say, yes from that day is malapportionment in Alabama Legislature.

Yes, I see as it exists before the Sixty Seventh Amendment Bill and the Webb-Crawford Act was passed.

Justice Hugo L. Black: So that's the practical situation in which the Court had to meet.

Mr. W. McLean Pitts: Yes.

Justice Hugo L. Black: If it had your used claim, it didn't have jurisdiction and shouldn't have done it.

But that's the practical situation it had to meet if it had jurisdiction.

Mr. W. McLean Pitts: Yes, but now the Sixty Seventh Amendment Bill would have been submitted to the people immediately because of the election coming up.

And if it had passed, you would have had apportionment under the Webb-Crawford Act which boarded back near about to where the 44% that we were just talking.

Justice Arthur J. Goldberg: But I was checking out the record that the point is that directly to ensure that the Senate in Webb-Crawford Act, the present situation would not be empirically changed under the present taking of work modified (Inaudible) under the Webb-Crawford Act would go about 47.6%, (Inaudible)

Mr. W. McLean Pitts: Well now -- Mr. Justice Goldberg, you will read from the Webb-Crawford Act, -- that was the sense of what we say.

Justice Arthur J. Goldberg: I take it from the record --

Mr. W. McLean Pitts: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. W. McLean Pitts: But the court, you were speaking of the Senate.

Now, that the federal District Court took the Senate provisions of the Webb-Crawford Act.

Justice Arthur J. Goldberg: That's what the --

Mr. W. McLean Pitts: And that's one of active point, yes.

I will -- we contend and I want to make this statement before and I see that my time is about up, if this three-judge federal District Court decision and this case is allowed to stand, we say that then Alabama and our sister states have been deprived of the last vestiture of state sovereign.

They are no longer sovereign state.

If the federal judiciary considers all with the legislature of a state, and vetoed acts of that legislature and say that that legislature cannot submit to the people of that state a constitutional amendment to their own Constitution, then I'll say that there's no longer a sovereign state.

I will retain the rest of my time for rebuttal.

Chief Justice Earl Warren: You may.

Attorney General Flowers.

Argument of Richmond M. Flowers

Mr. Richmond M. Flowers: Mr. Chief Justice --

Chief Justice Earl Warren: Attorney General.

Mr. Richmond M. Flowers: -- if it pleases the Court.

The former Attorney General of Alabama was a party to this suit.

As I understand, he was brought in because of some ministerial duty that he had in canvassing votes.

Naturally, he was brought in along with some other public officials in order for this suit to develop to -- for the action and alike.

The former Attorney General did not appeal this decision.

Thus, I am here today as his successor.

I do not believe that there is a citizen or an official of Alabama that could argue under any shadow of fairness or justice that apportionment of the legislature of Alabama under the 1901 Constitution as it is here today or as when this suit started is anything but unfair, unjust and even approaches the ridiculous.

On occasions, the Supreme Court of Alabama has even recognized this fact.

Now, we come to the proposition that the lower court has taken jurisdiction.

Now, as stated in our brief, we argue under the presumption that Baker versus Carr will not be overturned in that event, or in case Baker versus Carr were overturned or were considered, we would want or expect or ask another day in Court, but we argue here today under the presumption that it will not be overturned.

If it pleases the Court, I have served a term in the State Senate of Alabama before -- naturally before I became Attorney General of that state.

I represented and this maybe peculiar in that I represented a two-county district.

My home county which was the most underrepresented county in the House of Representatives; the most -- Houston County, the most underrepresented county in the state.

I also represented an adjoining county as its Senator, Henry County which is the second most overrepresented county in the State of Alabama.

If you gentlemen will admit, that's a good job for one man to do.

Now, in my home county of some 50,000 people slightly over, we have one member of the House.

We share the Senator with Henry County who had something over 13,000 people; they have two members of the House.

Now, they were only surpassed by one other county, Lowndes County and being more overrepresented than they.

Lowndes has slightly over 13,000 people, they had two members of the House but they had a senator to themselves.

So as you can see, the apportionment under the 1901 Constitution at time they started approaches the absolute ridiculous.

I argue not as to the validity or just how just or fair it was in 1901 because in 1901, my home county of Houston did not even exist.

We were born after the adoption of 1901 Constitution.

After the lower court took jurisdiction, then the legislature passed some acts that the three-judge District Court said were not acceptable.

So they then wrote a temporary measure as I understand they said it was as temporary measure that would serve until the legislature had passed a bill that was adequate. Now, the legislature has met and failed to act, I realized.

However, there are reasons for that action and I shall cover that later, but first let me state that I very strongly join the doubts that may exist here, if any, that a call for general standards to be laid down in all cases or in all states, I believe that to be unsound.

Now while apologizing for not knowing the workings or the alleged troubles of the other states, I here today represent as I say, the State of Alabama and I strongly feel since I have actually engaged in these legislative facts, I strongly feel that our problem lies on having the one question answered whether the Alabama, whether Alabama can meet the equal protection provisions of the Fourteenth Amendment under the State Constitutional provisions, under our State Constitutional provisions providing for reapportionment.

For instance, as you gentlemen well know, we have one section of our Constitution of States that our House shall be based on a population basis and shall be limited to 105 members giving any new county that's formed after the adoption the Constitution on additional member that's the reason our present House consists of 106 members.

We had one county -- my county, the baby county, Houston to be formed since the 1901 Constitution.

Justice Potter Stewart: Mr. Attorney General, while you're on the subject –

Mr. Richmond M. Flowers: Yes.

Justice Potter Stewart: -- of your State Constitution, I wonder if you can tell me the meaning of the -- I'm now referring to Section 284 of Article 18 of the 1901 Constitution which says as you just told us that representation in a legislature shall be based upon population.

Now, -- now here's my question, “and such basis of representation shall not be changed by constitutional amendments,” is this -- what's this -- what is the effect of this one in your State Constitution?

Mr. Richmond M. Flowers: I think it was well expressed in the New York case yesterday, Mr. Justice.

That allows a handful of people too lock themselves into the legislature and hold control to the legislative body of Alabama.

Justice Potter Stewart: Well, can any Constitution which is subject to amendment provide that this part of the Constitution is not so bad?

Mr. Richmond M. Flowers: As a member of the State Senate, we propounded to the Supreme Court, an opinion of the justice on that particular point and we receive one saying that it could not be changed.

To me it's ridiculous but that's their answer.

Chief Justice Earl Warren: Mr. Attorney General, I thought I read in one of the briefs that your Supreme Court had interpreted that to mean that while the legislature could not submit an amendment to the Constitution, it could be amended through constitutional convention.

Mr. Richmond M. Flowers: Yes sir.

Chief Justice Earl Warren: That is --

Mr. Richmond M. Flowers: Yes sir.

Chief Justice Earl Warren: -- I just want to understand.

Mr. Richmond M. Flowers: Yes sir.

In 1955, we introduced resolutions in both Houses calling for a constitutional convention.

In our 35-man Senate, we mustered 16 votes to cast for a constitutional convention and it frightened that group so badly that when it came up in the House of 106 members, it only got eight votes.

They got more votes in the Senate than they got in the House.

Gentlemen, I have struggled and fought in these legislative battles for reapportionment and I'm going to cover that a little bit in just my last few remaining minutes.

But this question of whether under our Constitution, whether under our Constitution we can meet the provisions, the equal protection provisions of the Fourteenth Amendment.

As -- as for instance I say one section says that our House shall be based on a population basis, shall be limited to 105 members, with one new member for each county, then at the same time, it gives each county at least one House member.

So this should be placed on a population basis and in times right around gives every county 67 we have or House member then in our.

Another section, limits the Senate to 35 members.

The state practices and policies supported by -- even supported by arguments in the Constitutional Convention established the fact that no county shall have more than one senator.

There has been some doubt and some have advanced the arguments that under the section that says no county shall be divided between two districts.

Through the -- through the years, no county has had more than one senator and I think that was the intention of that particular section that they should not.

There have been arguments advanced that this mean you couldn't take part of a county and take it on another one, that's not our decision here today, but some have argued that you could have districts within a county.

Chief Justice Earl Warren: Mr. Attorney General --

Mr. Richmond M. Flowers: Yes.

Chief Justice Earl Warren: -- is it your positions that the legislature could or could not adequately apportion -- reapportion the legislator -- the legislature under the 1901 Constitution?

Mr. Richmond M. Flowers: No sir. I believe it's physically impossible that -- it's politically impossible for the legislature to reapportion itself under the 1901.

Chief Justice Earl Warren: Under the 1901?

Mr. Richmond M. Flowers: Yes sir.

Chief Justice Earl Warren: Yes.

Mr. Richmond M. Flowers: Because they -- there are just a handful of people have gained control of the legislature and naturally it's hard to ask a man to vote himself out that.

Justice Potter Stewart: Aside from political realities, it's your position that even if it were done that the resulting reinforcement would still violate the Fourteenth Amendment?

Mr. Richmond M. Flowers: No, sir.

The three-judge District Court now has intimated and in their language they said that -- that our apportionment could be done on a population basis to some extent.

Of course, now I realize we approached a twilight zone when we say "to some extent," but if you affirm this and I saw, I engaged in the fights and although I was not in the last in the session that actually reapportioned, I was there and I saw men struggling, wanting this question answer, whether even if they did this and so would it answer the Fourteenth Amendment, and they were unable to get that answer.

And under our provisions, if you feel or you affirm or take the attitude of the three-judge District Court in saying yes to some extent you can and I believe the legislature can and will forward under the direction of the lower court it would be you pleasure but I believe they can and will move forward to make -- because otherwise, some of our constitutional provisions have to fall and it's -- it's my opinion that -- my observation that this Court does means backward to keep from knocking down, constitutional -- State Constitutional provisions, and if it be your attitude or your decision that some of our one or more of our provisions have to fall under the direction of the lower court if it be you will let our legislature reapportion and then in that way, let them, our people decide which must fall or what they should resubmit to the people in the place of them.

That -- that would put it back to the State Legislature of Alabama.

Chief Justice Earl Warren: Hasn't the District Court done that?

Hasn't the District Court done that, put it back to the legislature?

Mr. Richmond M. Flowers: Yes sir.

Without -- without their action, but is in -- it is my sincere conviction that this one question was -- what through loggerheads in that pipe because I stood down on the floor and watched them, was whether or not, under the Equal Protection Clause, would our provisions fit under that?

Would they meet it?

Would they answer the Equal Protection Clause?

This division of the House and the division of the Senate, the way we have it.

Even if we put it as the District Court said "To some extent" and I would agree with the counsel before me that Alabama is peculiar and that it is heavily sectionalized and it's an economic thing.

It's not just the geography, it's sectionalized economically and the Tennessee Valley, the industrial area of Birmingham, the Black Belt and the good wild grass are that we call it was ignored by previous council.

The port area of the Mobile, it is heavily sectionalized and I think it could be districted in certain way -- in such a way that we were allowed to say to some extent that it could be done where most everyone would be happy with what we have.

Justice John M. Harlan: You're -- you're here basically in support of the present decree of the District Court, aren't you?

Mr. Richmond M. Flowers: Yes, sir.

Because I cannot see the legislature, I stood five days and nights in the sustained filibuster where the preponderance of the State Senate voting for supporting reapportionment in Alabama to absolutely no avail.

Also, I was a member of the state legislature when the suit was filed and the district refused to take jurisdiction and every bill that was introduced in every way failed.

They absolutely refused the few people have to control they would not vote themselves out.

As our populations grew and as withdrew their strength became more and more and more.

Then when the --

Justice Arthur J. Goldberg: Now, our little theory based on that is therefore the District Court in that way accepted temporary (Inaudible).

Mr. Richmond M. Flowers: Yes sir.

Justice Arthur J. Goldberg: To maintain jurisdiction.

Mr. Richmond M. Flowers: Yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Richmond M. Flowers: Yes sir.

Justice Arthur J. Goldberg: -- to Constitution.

Mr. Richmond M. Flowers: Yes, sir.

Justice Arthur J. Goldberg: And therefore the District Court has been required (Inaudible) can now proceed to issue a permanent theory.

Mr. Richmond M. Flowers: I think that this --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Richmond M. Flowers: Yes sir.

With the exception of this one question and maybe we do not have it in but if you could answer for them, whether or not, Alabama can meet the equal protection provisions of the Fourteenth Amendment under the State Constitution -- constitutional provisions that we have providing reapportionment.

If they can, I think under the court’s, the lower court's guidance, I think the legislature of Alabama could now direct themselves.

Justice Byron R. White: Well Mr. Flowers you've -- you've added this thought over what you have in you brief than I take it.

Mr. Richmond M. Flowers: Yes sir.

Justice Byron R. White: I gather that you thought there was nothing to decide here in your brief but now you suggest that the -- we really should get to whether or not the provisions of in the Alabama Constitution themselves are acceptable under the Fourteenth Amendment, isn't that your point?

Mr. Richmond M. Flowers: Yes sir, whether they meet -- whether they meet the provision.

Justice William J. Brennan: Well, let's see if I understand that.

Mr. Richmond M. Flowers: It was embraced in our brief, on page 5.

Justice William J. Brennan: Do I understand thus far as what you're suggesting is abstractly, with the Alabama constitutional formulation, if executed, if executed, satisfies the requirements needed to Equal Protection Clause, is that it?

Mr. Richmond M. Flowers: Yes sir.

If we can -- you see the three-judge district panel said that they felt they could to some extent.

Justice Byron R. White: Now, even if the -- even if the -- I gather from you that there's some of the mystery about what the Alabama Constitution means.

Mr. Richmond M. Flowers: That could be some questions, there have been.

In fact every time the legislator meets and attempts to put out a constitutional amendment to the people the 67-Senator Bill has been put out and soundly defeated three times.

Justice Byron R. White: So, you really do believe this could be somewhat of a problem, I suppose.

Mr. Richmond M. Flowers: Yes sir.

I fought those fights through the night.

Alabama needs reapportionment, Alabama doesn't have reapportionment.

And Alabama --

Justice Byron R. White: But you think you know fairly that that's what Alabama Constitution means to say that the apportionment that existed before the Court took action violated the Alabama Constitution.

Mr. Richmond M. Flowers: Before they took action, no sir, I don't think it violated the Alabama Constitution.

Justice Byron R. White: Oh, you don't?

Mr. Richmond M. Flowers: The 1901 Constitution, the apportionment that they had.

Justice Byron R. White: Do you think that -- do you think that the --

Mr. Richmond M. Flowers: Oh you mean the 10-year refusal?

Well, of course yes sir, yes sir absolutely, I do.

That they're refusing, they're refusing to act -- I don't know that that negates the Constitution but they certainly didn't follow the Constitution and continually refused to follow it.

It wasn't an oversight --

Justice Byron R. White: And the constitutional, in the Crawford Bill, you think that violates the existing Constitution?

Mr. Richmond M. Flowers: I think it's just a poor substitute.

It wasn't to my liking, better than what we have, but if you would allow it to move on. Excuse me gentlemen, I see my time is up.

Chief Justice Earl Warren: Mr. Morgan.

Argument of Charles Morgan, Jr.

Mr. Charles Morgan, Jr.: Chief Justice, may it please the Court.

We have entered in the arguments during the last day, today and yesterday, I think the political picket and we've done this generally by adhering to standards of apportionment for questionings about standards of apportionment and comments on them, which vary from the shipping interest and their representation in the legislatures, the interest of labor and business, to mathematics and formula and really it seems to me that in the argument that if one fact becomes true, it is that the easiest judicially and most -- most easily judicially maintainable standard of apportionment can certainly be population.

Regardless of all the problems that may develop and all the problems that may exist in many states, and may exist in many different counties and different districts, it would seem that surely, the one standard that is measurable in each instance leaving the less room for doubt and the less room for question insofar as each of the state legislatures of this nation are concerned, is the ascertainable standard of how many people are there in a legislative district or how many people are there in a representative seat.

Now in Alabama, the facts have been adequately noted with respect to the existing apportionment of the legislature.

They have had no reapportion since 1901 and the people of Alabama have no place to go in order to seek redress for their grievances other than the United States Courts.

The state courts of Alabama have refused to take jurisdiction; there is no initiative and referendum in the state; the legislature for 60 years refused to reapportion and there is of course no conception that they would change their minds except under a court order.

And the constitutional convention provisions that are provided in our Constitution allow the state legislature, and provide for the state legislature to establish the method of representation of conventions.

And it is inconceivable to me that over -- especially there might have been long lapse in apportionment that where we have or to have another constitutional convention, that the legislature of Alabama would alter in its default with respect to apportionment by selecting delegates for that convention who would apportion them out of their seats.

The state -- the United States District Court action in the Montgomery in enjoining the 67-Senator Amendment was to us quite proper and quite reasonable.

The State Constitution says that population is the ascertainable standard and that it cannot be changed and that the Alabama Supreme Court has advisory opinions which are not binding upon the Court and do not have the force of law which binds only those justices and state their preferences, as who do state their preferences.

The Court has held that provision cannot be taken from the Constitution from Section 284.

Now, that provision quite clearly says, that in Alabama at least, population is the goal for which we're working in legislative apportionment and representation shall be based on population and that provision should not be deleted from the Constitution even by constitutional amendment.

The -- the --

Justice Hugo L. Black: Well, you wouldn't -- do you think that would bind the people of State of Alabama if they wanted to adopt the provision of the Constitution which was acquired differently?

Mr. Charles Morgan, Jr.: I don't see how it could but the Supreme Court of Alabama has.

Justice Hugo L. Black: Do you mean they have said that the Constitution as supposing the situation in the state, so that the people cannot of their own choice, adopt the new constitutional provision contrary to the 1901 provision?

Mr. Charles Morgan, Jr.: The --

Justice Hugo L. Black: Is that in the -- do you have that opinion and in what part of the record?

Mr. Charles Morgan, Jr.: Yes, sir.

I'm sure it's in -- I'm not sure it is in --

Justice Arthur J. Goldberg: Page 147.

Mr. Charles Morgan, Jr.: 147.

Justice Arthur J. Goldberg: (Inaudible)

Justice Hugo L. Black: That's says to withhold from the legislature the power.

Mr. Charles Morgan, Jr.: Yes, sir that's right.

Now, the people of course in the Constitutional Convention could change it, but they can't have a constitutional convention unless the legislature called the convention.

Justice Potter Stewart: The provision itself said that it simply shall not be changed by constitutional amendments?

Mr. Charles Morgan, Jr.: Right.

Justice Potter Stewart: Or anybody.

I assume that's what it purports to say.

That was the basis of my question to the Attorney General.

Mr. Charles Morgan, Jr.: Well, I -- I hold no brief for the proposition that -- those are mentioned though.

Now, the 67-Senator Amendment also of course, in our judgment was complete nullity.

The -- on its face, it purported to provide each county a little federal sort of plan with representation in the State Senate.

In the House of the 106 members of our House of Representatives, 67 of them are also allocated on the basis of political units or on the basis of some sort of little federal plan.

Now, we look at the -- the county argument and the use of -- and the use of counties and in the allocation of some weight for counties for representation purposes and it seems to me that -- as it has been stated by others that there is no comparison with the Federal Government, no proper comparison.

There was no federal compromise with respect to counties, there is no and has never been any so-called sovereignty in the counties that are created by the states.

The counties are have only such right that are granted by the state legislature and by the State Constitution and the effect of the utilization of these political units, it seems to me would be rather disastrous as far as the Government of our state legislature is concerned.

It would seem to me that over a period of history, as America has developed, the United States Senate has been an effective instrumentality of Government, but is extremely doubtful to me that if the United States Senate were totally fragmented with fractional interest.

If the Senators did not run statewide, if they did not -- in a state like Alabama for instance, have to take into consideration the industrial interest of Birmingham and shipping interest of Mobile, the farm interest, the plantation and perhaps the Black Belt, the Tennessee Valley authority area and the Alabama Power Company area, it would seem to me that the representation that we might get in the Senate of the United States might well be a mere blocking rather than a useful sort of representation.

But in most states in the union, there is divergence inside of the senatorial districts, a divergence of interest that molds itself and measures into the senator who comes -- who comes forward.

Now inside of the state, the principal usage for representative districts is to break down into smaller and smaller units the area of representation and the place and the people have representation so that one representative may at least know the will of the people whom he represents.

Now to me, if you go into any sense of area representation or any sense of political unit representation, you quite naturally have in it a rural bias because it just seems implicit to me that there is more farmland than there are city lands and in this nation, there are fewer farmers than are the city people and if you use land, or if you use political units without population being the guiding factor, then we must of necessity with representative – reach a representative standard which would be non-responsive to the people.

And the function of the Government, of course, should be the -- its response to the people whom it governs.

The difference -- it seems to me boils down to the question of trust in people.

If there's -- if in this country as I think the country's (Inaudible) says "if we assumed that power of self-government is the power of people to think and to reason and to vote and to properly represent them, to get their own representatives, then the Courts it would seem would be standard to protect the minority from the majority" but the majority surely should have the right to elect representatives in both Houses of the legislature.

For if that right doesn't exist in both Houses then they only have equal protection of one-half of the law.

Now in the Alabama case, the -- of course Baker v. Carr was decided on March 26, on a March 30th the District Court issued an order setting a hearing in a motion for preliminary injunction we filed.

The case moves rapidly.

On April 14th there was a hearing and on July 16th, therefore a special session of the legislature there was reapportionment.

I am quite convinced in my own mind that -- that in the middle district of Alabama, the Court viewed the would-be reapportionment case there and found an effective remedy and under Court order had an election held.

Fashioned a remedy, perhaps better than we could dream could be fashioned from far away.

I am quite certain from the opinion of the District Court, that in its mind at the moment before your decisions on future cases, that in its mind at the moment, population is the standard which must be met as far as an the apportionment is concerned.

Chief Justice Earl Warren: Mr. Morgan, is it possible under your constitutional provision of 1901 to beat that standard?

Mr. Charles Morgan, Jr.: I think it's possible in a sense.

It's possible in the Senate if you interpret the provision which says that no county shall be divided into two districts.

If you -- if you interpret that as a pure gerrymander -- any gerrymander provision, and I should think that there is some presumption in favor for constitutionality of course of the State Constitution, if you read it that way and say it doesn't mean that a county, the county may not be divided into districts, it means it can be divided between districts and split down the center or chopped up.

Now, under that assumption, your Senate could be apportioned on the basis of seven senators for Jefferson County, three for Mobile and so forth which would be on the basis of pure population.

In the House of Representatives, there is no way under this Constitution to have an absolute population apportionment that the -- because of the one per county provision there.

Chief Justice Earl Warren: But it could be done without -- without gross inequalities.

Mr. Charles Morgan, Jr.: Yes.

I think so and equalities in the House.

Well, in some instances they are -- they approached what I would consider gross to support but I think as far as a temporary measure or a measure with respect to the usage of the state for the next few years it could be --

Chief Justice Earl Warren: No, I'm speaking about it permanently because that's the question that Attorney General posed to us whether he would like to have us say whether or not under that constitutional provision in 1901, it is possible for the legislature to meet the standards of the Federal Constitution.

Mr. Charles Morgan, Jr.: I would say now and of course I assume it has gone through varying stages you'll understand as we progress why did we changed our mind with respect to what we think the law is.

I would say that quite probably not.

The provision requiring one per county in the House of Representatives, it would seem to me would deprive again people of their vote on a population standard, if there's to any deviation from population in either House of the Representatives if that were the Court's ruling, then it could go under the State Constitution.

Justice Byron R. White: (Inaudible) conclude then that both Houses have to be on a state population basis.

Mr. Charles Morgan, Jr.: Correct.

Justice Byron R. White: As you said a moment ago.

Mr. Charles Morgan, Jr.: Yes.

Justice Byron R. White: One House, one way or another is only (Inaudible)?

Mr. Charles Morgan, Jr.: I should think so, yes.

We --

Justice Potter Stewart: Of course the difficulty with the first branch of your answer to the Chief Justice’s question with respect to the 1901 constitutional provision affecting the State Senate is that the State of Alabama has construed the constitutional provision to mean something other than what you're saying.

Mr. Charles Morgan, Jr.: Well, there are other factors to --

Justice Potter Stewart: It's construed to mean as I understand it that there should be one -- no more than one senator in any county.

Mr. Charles Morgan, Jr.: Right.

The -- I might add this --

Justice Potter Stewart: Now, we bound by that as a matter of accepting the --

Mr. Charles Morgan, Jr.: Well I'm -- I -- I don't think so when you have -- when you have a state legislature that hasn't abided by anything else in the same provisions or anything else to Constitution.

Because --

Justice Potter Stewart: Aren't we -- this at least as I understand it, you tell me if I'm wrong, this has been clearly construed to mean what I say, this could -- this rather ambiguous language of your constitution has been construed in your state to mean, no more that one senator from any counties.

Is that right or not as a matter of fact?

Mr. Charles Morgan, Jr.: I would say as far as common parlance is concerned, and legislator is talking and that's --

Justice Potter Stewart: The judiciary has spoken --

Mr. Charles Morgan, Jr.: No.

No, and the only construction, I think of course of law would be the failure of the legislature to utilize the provisions into -- and to bring about more than one senator.

I must say in all candor that in history of Alabama there has not been any Senatorial District which has had more than one senator.

Justice Potter Stewart: Though in practice as well as in talk, that's the way it's been construed.

Mr. Charles Morgan, Jr.: In practice and prior to this suit, I would say that there was commonly accepted that Jefferson County could only have one senator.

Justice Potter Stewart: No county could have more than one.

Mr. Charles Morgan, Jr.: That's right.

Justice Arthur J. Goldberg: Didn't the District Court understand it that in fact this legislature that the opinion which is made by the legislature have to be unconstitutional (Inaudible).

Mr. Charles Morgan, Jr.: That's correct.

Justice Arthur J. Goldberg: Based on the District Court's opinion that it has to whether relieve (Voice Overlap) --

Mr. Charles Morgan, Jr.: Yes. Yes.

Justice Arthur J. Goldberg: -- requires a judicial (Inaudible).

Mr. Charles Morgan, Jr.: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Charles Morgan, Jr.: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Charles Morgan, Jr.: Yes (Voice Overlap) -- and we are joined in this by the interveners as far and others who --

Justice Arthur J. Goldberg: In other words you are saying that so far as this statement satisfies (Inaudible)

Mr. Charles Morgan, Jr.: I'm satisfied to leave this matter to this District Court, yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Charles Morgan, Jr.: Yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Charles Morgan, Jr.: No sir.

I do not.

Gentlemen, in conclusion I would --

Justice Hugo L. Black: May I ask you of this (Voice Overlap) --

Mr. Charles Morgan, Jr.: Yes sir.

Justice Hugo L. Black: -- constitutional provision has been interpreted by the Court in a regular lawsuit --

Mr. Charles Morgan, Jr.: -- Section 2.

Justice Hugo L. Black: -- or only by statement by the judges.

Mr. Charles Morgan, Jr.: Only by the -- there's been no adversary proceeding involved it all. Statements by the judges except in a -- I would say probably in the case of Waid v. Pool where they did say that the legislature was malapportioned but they weren't going to take jurisdiction that was -- there was not specific interpretation of this provision at all.

Justice Hugo L. Black: As I recall statements by the judges in answer to inquiry under the statute are not binding as Court decisions.

Mr. Charles Morgan, Jr.: They are not.

They're purely advisory opinions.

Justice Hugo L. Black: Purely voluntary.

Mr. Charles Morgan, Jr.: And each of the justices could change their mind on the next --

Justice Hugo L. Black: That is the way, isn't it?

Mr. Charles Morgan, Jr.: -- on the next group.

Justice Hugo L. Black: That is the way, isn't it, that the Court originally sustain the constitutionality of the state act which had authorized the inquiries to be made on the Court?

They sustained it, did they not, on the basis that it would not be binding decision?

Mr. Charles Morgan, Jr.: Yes, sir.

And they are not binding.

Justice Hugo L. Black: As in the controversial case but merely the individual views of the judges would voluntarily gave them.

Mr. Charles Morgan, Jr.: Yes, sir.

That's correct.

In conclusion with, I simply state that we do think the District Court is competent to handle the matter and has exhibited a great deal of speed in doing so and we feel that the rights of all Alabamans and all Americans rest upon the decision of this Court with respect to whether on people do have on the basis this country was founded for each man one vote.

Chief Justice Earl Warren: Mr. Vann.

Argument of David J. Vann

Mr. David J. Vann: Mr. Chief Justice, may it please the Court.

We are intervenors in the case below and in the court below, we join with the plaintiffs and I believe all of the intervenors in proposing to the court below that this case had reached a stage where the remedy of provisional reapportionment, as we proposed it, was the only effective way to which the Court could deal with the matter.

They had previously, there were three remedies considered by the court below.

One was election -- requiring an election at large after the legislature had failed to act.

There was a remedy proposed of proportional voting of existing legislators, and there was the remedy of provisional reapportionment, all of which, we felt, were within the discretion of equity.

However, in practical impact, it was our contention that for the Court to set up a temporary plan which the legislature itself could change either before a legislature was elected under that plan or after a legislature was elected in that plan, gave to the state and to legislature the full range of discretion and at the same time gave the litigants a full opportunity and full protection for their constitutional standards.

However, as you have noted from our appeal, we are here, in this Court, unlike Mr. Morgan, to say that we feel that action by this Court at this time is necessary in this case, and that is the subject that I want to discuss with you.

We come from a state that has 10% of the natural resources of America, mainland America.

This state has been locked in an impasse for the expression of the popular will of the people for over 60 years.

In this case, while this case was pending, we attempted to utilize every single way that was opened to us.

We backed the Jefferson County Democratic Campaign Committee and others.

We backed to proposals in the legislature, and we petitioned the legislature.

When the legislature passed the Crawford-Webb Bill, we even ask that the Government to veto and then use his power of amendment.

Chief Justice Earl Warren: We'll recess now Mr. Vann.

Print this transcript Transcript: 

Argument of David J. Vann

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

Justice Potter Stewart: Just a -- just before we recessed to the lunch, you said that you were made various efforts of -- in the Legislature of Alabama?

Mr. David J. Vann: That is correct.

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

Mr. David J. Vann: Well we have, one of the Alabama Constitution, a procedure of executive amendment.

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

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

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

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

Justice Potter Stewart: But it's a -- it's a -- it's a talking veto, speaking veto.

Mr. David J. Vann: A talking veto.

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

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

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

Justice Potter Stewart: You mean a negative kind of protection (Voice Overlap).

Mr. David J. Vann: That's right, I say the -- let's say the majority doesn't even -- can't -- doesn't -- it can't even effectively utilize normal minority protection.

Justice Arthur J. Goldberg: Then (Inaudible)

Mr. David J. Vann: In our judgment, no.

And that is one of the -- I pointed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That was another thing we did.

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

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

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

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

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

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

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

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

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

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

Now, let's --

Unknown Speaker: (Inaudible)

Mr. David J. Vann: Alright, that's what I want to tell you sir.

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

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

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

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

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

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

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

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

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

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

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

Chief Justice Earl Warren: When and why did they change that 1814 provision you just read?

Mr. David J. Vann: Well, I believe it was first changed in the period during the Civil War.

We had quite a series of constitutional conventions.

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

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

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

And during this time, this thing does not change.

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

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

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

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

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

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

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

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

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

Chief Justice Earl Warren: When -- when did the Supreme Court give its advisory opinion with the -- this meant that it couldn't have two counties in one --

Mr. David J. Vann: It never had.

This question has never been submitted.

Chief Justice Earl Warren: That -- that wasn't submitted (Voice Overlap) --

Mr. David J. Vann: We asked -- that we asked the Governor to submit it.

Chief Justice Earl Warren: I see, yes.

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

Justice Arthur J. Goldberg: Then why do you -- why do (Inaudible)

Mr. David J. Vann: Well, you might say it leaned --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Vann: You might say it leaned heavily and I've read it that way.

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

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

Justice Arthur J. Goldberg: (Inaudible) doesn't before, to follow it (Inaudible) constitution.

Mr. David J. Vann: That's right, they say if (Voice Overlap), if we do this we would have to rule this but we're not satisfied we should do so.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Vann: Well now, this is the point that the Solicitor General makes, so this is a temporary order.

This is not a temporary order in my estimation.

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

Justice Arthur J. Goldberg: How can you say that (Inaudible)

Mr. David J. Vann: Well, as I said it is a provisional order.

Justice Arthur J. Goldberg: Well, why is it a provisional (Inaudible)

Mr. David J. Vann: Well, provisional order is one which remains in effect until a changed.

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

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

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

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

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

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

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

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

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

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

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

They're not -- and they're not just a little unconstitutional.

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

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible) that's precisely what the District Court has said.

District Court (Inaudible)

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

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

Mr. David J. Vann: Correct.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Vann: Correct.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Vann: That's right.

But here --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Vann: Now I -- I've said this and -- and let me emphasize.

The Legislature has many tools to deal with reinforcement.

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

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

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

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

Justice Arthur J. Goldberg: What was your -- what was your (Inaudible) of the court?

What would you have (Inaudible) court to do?

Mr. David J. Vann: I'll have the court -- the court below I think would have one of several choices and I think the discretion of that court should be recognized.

Justice Arthur J. Goldberg: But the court order from election is derived (Voice Overlap) --

Mr. David J. Vann: The Court -- the Court needs to order no election.

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

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

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

They could use -- they could modify this.

We have a special election procedure.

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

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

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

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

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

This was a remedy suggested by amicus brief below.

Justice Potter Stewart: To multiply its committee assignment 0.70?

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

Justice Potter Stewart: May I ask you?

An election was held in 1952.

Mr. David J. Vann: That's Correct.

Justice Potter Stewart: Under this court order.

I mean, in conformity with the -- with the --

Mr. David J. Vann: (Voice Overlap) with special Primary Act and just (Inaudible) general election.

Justice Potter Stewart: But the apportionment as to -- as decree by this -- by this District Court's decree, wasn't it?

Mr. David J. Vann: That's correct.

Justice Potter Stewart: An election made conformity with that.

Now, what are the terms of the legislature?

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

Mr. David J. Vann: All members served for four years --

Justice Potter Stewart: Four years and both House and --

Mr. David J. Vann: So they have three more years to serve.

This is a long time.

Justice Potter Stewart: Both House and Senate.

Mr. David J. Vann: That's right.

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

Chief Justice Earl Warren: Very well.

Mr. McConnell.

Argument of John W. Mcconnell, Jr.

Mr. John W. Mcconnell, Jr.: Mr. Chief Justice, may it please this Court.

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

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

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

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

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

We believe that it needs guidelines and standards.

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

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

First, we are here as individual citizens.

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

I am first a citizen of the State of Alabama.

I am second a lawyer.

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

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

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

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

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

We are talking about here governmental processes.

We are asking for equality in the governmental process.

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

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

Justice Potter Stewart: Well are there -- are there any states which in fact have Governors' counsels which are appointive rather than elective and which have -- a considerable legislative power?

Mr. John W. Mcconnell, Jr.: I recall that question yesterday Mr. Justice Stewart and I'm not aware or familiar with one that does and has any legislative power.

But again, --

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

Mr. John W. Mcconnell, Jr.: Well again now, we -- we would not say that that would be unconstitutional.

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

You say that the vote must count equal.

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

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

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

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

The other half he had no participation.

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

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

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

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

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

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

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

Mr. John W. Mcconnell, Jr.: Your Honor, that -- that's our point and that's the reason that we are not even satisfied.

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

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

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

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

We say you start with population.

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

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

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

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

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

You will look it why the leeway.

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

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

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

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

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

You mentioned management and labor.

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

Justice Potter Stewart: Could a state -- could a state under the Constitution under the Fourteenth Amendment, you say we're not going to have any -- any -- any legislative Assembly.

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

Mr. John W. Mcconnell, Jr.: It gets then and that's also an important question, you have these checks and balances.

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

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

Justice Potter Stewart: But presumably under -- under Gray against Sanders, it would be a statewide general election for the Governor.

Mr. John W. Mcconnell, Jr.: Yes sir.

Justice Potter Stewart: Every persons vote counting equally, every qualified voter's vote counting equally.

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

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

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

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

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

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

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

You will find a discussion under the Guarantee Clause there.

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Arthur J. Goldberg: In this Court, with the argument of the fact that (Inaudible) is that right?

Mr. John W. Mcconnell, Jr.: Yes, sir.

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

It's certainly a denial of equal protection.

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

Chief Justice Earl Warren: Could you have equality under the 1901 provision, Mr. Mc Connell?

Mr. John W. Mcconnell, Jr.: You mean if we followed the -- the wording of the 1901 Constitution?

Chief Justice Earl Warren: Yes, yes sir and --

Mr. John W. Mcconnell, Jr.: We maintain that you could not, Your Honor, in the house.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If you break that down into two districts --

Justice Potter Stewart: Are you suggesting that that would be the perfect setup for a -- for a legislative assembly all of them to be elected at large?

Mr. John W. Mcconnell, Jr.: No sir, I -- I didn't mean that in applying to -- I agree with the others that we would have chaos if you had to elect 106 members of the house and 35 members of the State.

Justice Potter Stewart: Unless you'd probably have (Voice Overlap) all of them -- all of them representing a couple of big counties.

Mr. John W. Mcconnell, Jr.: Well, of course then -- and this is another reason that we emphasize and it run through the thread of the New York case, I only speak for Alabama.

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

So we're not unanimous in this.

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

Mr. John W. Mcconnell, Jr.: Well, I say most truly Republican.

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

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

You've got into proportional representation that you mentioned.

If there might be some way.

I say that you can experiment there.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice John M. Harlan: If I get it, is that your argument -- in what you're really saying (Inaudible) determine to this case?

Mr. John W. Mcconnell, Jr.: No, sir, I don't see.

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

Justice John M. Harlan: Naturally.

Mr. John W. Mcconnell, Jr.: I won't say it determines it but I certainly think that if you start with the proposition the -- there that in a statewide office that each vote should count as one, I think that it end in one.

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

Justice Potter Stewart: A legislature, a -- an individual's legislator has a constituency which is not statewide.

Mr. John W. Mcconnell, Jr.: That's right, sir.

Justice Potter Stewart: So he's not a -- a statewide officer.

Mr. John W. Mcconnell, Jr.: But we start and Gray versus Sanders said that you must give each constituent in that --

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

Mr. John W. Mcconnell, Jr.: But as I said, I am a citizen of the State of Alabama.

I may live in the County of Mobile.

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

Now, if my voice --

Justice Potter Stewart: But you have one or more representatives and they -- they -- who are responsible to your constituency.

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

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

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

I believe my time up -- yes.

Justice Byron R. White: (Inaudible)

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

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: Yes, sir.

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: No sir, I would -- I would -- I don't think it went far enough.

But I think that as Mr. Vann said earlier --

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: Not to go back to the one part of that but to go far with the one that would comply with a guideline that this Court would set out, namely they both --

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: Yes, sir.

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

Now --

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: Population equal.

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: As to both houses, yes sir.

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: I certainly do Your Honor.

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: I do because in a house, it would still give only 40%.

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

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: Oh yes, sir.

Yes, sir.

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. John W. Mcconnell, Jr.: Yes sir, to this extent under the law that Mr. Vann mentioned in his interstate.

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

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

But if --

Justice Arthur J. Goldberg: If the special election (Voice Overlap) --

Mr. John W. Mcconnell, Jr.: Special election.

Justice Arthur J. Goldberg: -- certainly would not.

Mr. John W. Mcconnell, Jr.: Though it's --

Justice Arthur J. Goldberg: (Inaudible)

Mr. John W. Mcconnell, Jr.: That's right sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. John W. Mcconnell, Jr.: Subsequent to the meeting of the Legislature, no Your Honor.

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

Justice Byron R. White: (Inaudible)

Mr. John W. Mcconnell, Jr.: I --

Justice Byron R. White: The court (Inaudible) determines to affirm these solutions.

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

Mr. John W. Mcconnell, Jr.: That is what troubled us Your Honor in --

Justice Byron R. White: (Voice Overlap) that you are (Inaudible) --

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

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

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

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

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

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

Justice Tom C. Clark: It'd be a floterial districts.

Mr. John W. Mcconnell, Jr.: It would have to be floterial district and so it would be over half of the counties.

Justice Tom C. Clark: Would not have a representative.

Mr. John W. Mcconnell, Jr.: Would not have a single --

Justice Tom C. Clark: I mean a single one.

Mr. John W. Mcconnell, Jr.: They would have a representative but not elected by them solely.

Chief Justice Earl Warren: Thank you Mr. McConnell.

Mr. John W. Mcconnell, Jr.: Thank you.

Chief Justice Earl Warren: Mr. Solicitor General?

Argument of Cox

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

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

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

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

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

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

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

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

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

Justice Byron R. White: Did you say harder --

Mr. Cox: But this --

Justice Byron R. White: -- harder case?

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

Justice Byron R. White: But why is that?

Mr. Cox: I have to read it the way they do because --

Justice Byron R. White: (Inaudible) you said -- that you say that one county that you assumed that needed one county per senator or one senator per county.

Mr. Cox: Yes.

Justice Byron R. White: That's the way you read it.

Mr. Cox: Well in that event --

Justice Byron R. White: (Inaudible)

Mr. Cox: Well I didn't think so but maybe I'm wrong.

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

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

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

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

Justice Potter Stewart: You -- it does seem to be though Mr. Solicitor General.

I should change it.

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

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

Mr. Cox: Well that was --

Justice Potter Stewart: And you claim they're controlling now, if you change that view as to which -- as to how the status (Voice Overlap) --

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: Does this mean that does not violate the crazy quilt doctrine?

Mr. Cox: I think it does not violate the crazy quilt doctrine.

Justice Potter Stewart: In argument.

Mr. Cox: Yes, that doesn't mean it's good.

Justice Potter Stewart: No, I did not --

Mr. Cox: It's not meant on that ground.

Justice Potter Stewart: It does not violate the crazy quilt doctrine.

Mr. Cox: Right.

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

Justice Potter Stewart: The no rhyme or reason doctrine?

Mr. Cox: No that's the crazy quilt doctrine.

Justice Potter Stewart: They are -- they are synonymous, are they --

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

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

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

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

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

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

The county -- the districts were getting bigger.

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

And that we say is a denial of equal protection.

It is not related to any permissible legislative purpose.

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

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

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

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

So the question arises at this point --

Justice Potter Stewart: And with respect to the Senate, that's -- that's the limit of what it propose --

Mr. Cox: That's all -- that's --

Justice Potter Stewart: -- more or less, one senator for each counties.

Mr. Cox: Yes, and the House, it really combines two things, --

Justice Potter Stewart: Right.

Mr. Cox: -- it's population and one free.

Justice Potter Stewart: But in a house, it gives one member to each county than the overflow --

Mr. Cox: Than the overflowing population.

Justice Potter Stewart: -- population.

Mr. Cox: That's correct.

Justice Potter Stewart: And the -- the limit is on the total size of, what 135 or?

Mr. Cox: 105.

Justice Potter Stewart: 105.

Mr. Cox: That's correct.

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

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

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

The Senate is less than 20%.

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

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

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

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

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

Justice Arthur J. Goldberg: Yes, but --

Mr. Cox: That's quite clear.

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

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

Justice Arthur J. Goldberg: What too far?

Mr. Cox: Well, I think that is something without sound suspicious.

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

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

Unknown Speaker: (Inaudible) your population, the rule of (Inaudible)

Mr. Cox: I would think there was no denial of equal protection.

Unknown Speaker: -- of both houses?

Mr. Cox: Of equal protection, I don't -- I don't -- I haven't thought of case before but it -- it seems to me that all voters, all the populations are being treated alike.

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

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

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

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

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

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

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

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

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

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

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

That's, again, not more precise.

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

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

Justice Potter Stewart: In New York -- in New York, you told us we have --

Mr. Cox: In New York I don't have to reach this proposition.

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

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

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

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

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

The counties have been getting bigger.

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

The county is having the senator, the senate district.

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

It has no rational tendency to accomplish any permissible purpose.

You don't have to consider this burden.

Justice William J. Brennan: Mr. Solicitor, may I get back to the moment to the 67 --

Mr. Cox: Yes.

Justice William J. Brennan: -- Senator Amendment.

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

Mr. Cox: Yes, yes.

Justice William J. Brennan: Are you suggesting that -- but let me put the question this way.

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

Mr. Cox: Yes.

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

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

Justice William J. Brennan: But would I still get in trouble?

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

I am under no necessity of arguing that --

Justice William J. Brennan: But there had to be some kind of population basis --

Mr. Cox: Yes --

Justice William J. Brennan: -- even in the choice of Senate.

Mr. Cox: But to -- to illustrate the principle and not to just lay any emphasis on the figure.

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

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

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

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

Justice William J. Brennan: But I -- but I would suppose that it might also follow that if in the upper house, it took say 55% to elect the majority of the senator.

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

Mr. Cox: I don't (Inaudible)

Justice William J. Brennan: Well, alright, 50 or whatever it is, it kept the very high figure anyway.

Mr. Cox: Yes.

Justice William J. Brennan: And you might still say that the requirement of a single senator -- of -- the assurance of one assembly man in the lower house might still be --

Mr. Cox: Oh no.

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

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

Justice William J. Brennan: Well, how's --

Mr. Cox: -- will drops down to around 0.5.

Justice William J. Brennan: -- suppose the remainder instead -- supposed to -- as supposed we -- we assumed in the upper house with 50% --

Mr. Cox: Yes.

Justice William J. Brennan: -- like the majority.

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

Mr. Cox: I -- then I think you'd come out would very nearly substantial per capita equality in both houses.

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

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

I don't want to emphasize again.

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

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

Mr. Cox: Oh I think those are absolutely irrelevant, --

Justice Byron R. White: Yes.

Mr. Cox: -- that they may not enter into this scale at all.

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

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

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

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Cox: Well, I -- I would say -- no.

I -- I don't think so.

I've -- I think that some of these things are very real.

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

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

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

I think it's a real argument.

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

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

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

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

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

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

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

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

May I say just one sentence Mr. Chief Justice?

Chief Justice Earl Warren: Yes.

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

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

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

Chief Justice Earl Warren: Mr. Pitts.

Argument of W. McLean Pitts

Mr. W. McLean Pitts: Mr. Chief Justice, may it please the Court.

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

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

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

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

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

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

Justice John M. Harlan: (Inaudible)

Mr. W. McLean Pitts: Yes that's right.

I believe you Mr. Justice Harlan.

But I want to get back to this proposition.

I wish that was in the majority.

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Byron R. White: Is the -- is the Crawford-Webb Act now in -- is in effect, isn't it?

Mr. W. McLean Pitts: The way of the Crawford bill?

Justice Byron R. White: Yes.

Mr. W. McLean Pitts: Well, it's not in effect because the Federal District Court has knocked it out.

Justice Byron R. White: I know but the -- there was nothing -- there was nothing left to do, nothing left to happen to it in some of the effect.

Mr. W. McLean Pitts: No sir.

It became in effect in 1966.

Justice Byron R. White: If the Court has enacted it, it would -- I guess --

Mr. W. McLean Pitts: If the Court had enacted it, the way of Crawford to be able -- it would be gone into low in 1960.

Justice Byron R. White: But the only and the only apportion of system that is in effect -- that would be in effect is the court's order does not stand is the old system.

Mr. W. McLean Pitts: Would be the old system, yes, sir.

Justice Byron R. White: Yes.

Mr. W. McLean Pitts: But --

Justice Byron R. White: Without either the constitutional amendment or the (Inaudible)?

Mr. W. McLean Pitts: You mean if -- if this Court should reverse the decision?

Justice Byron R. White: (Inaudible)

Mr. W. McLean Pitts: I would say that the 67 --

Justice Byron R. White: There were just an out -- there were just an out effect outright to the person --

Mr. W. McLean Pitts: I will say that --

Justice Byron R. White: -- outside the court's order, the only apportionment system would be in effect is --

Mr. W. McLean Pitts: Within the 67-Senator Amendment bill (Voice Overlap) --

Justice Byron R. White: Well, it's in effect.

It's in effect.

Mr. W. McLean Pitts: Sir?

Justice Byron R. White: People have never voted them.

Mr. W. McLean Pitts: Yes, sir but it would've been resubmitted to the people by --

Justice Byron R. White: I know but -- as of now -- as of now, they wouldn't be --

Mr. W. McLean Pitts: As of now, yes.

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

Justice Byron R. White: I understand, I understand but not in the 1966.

Mr. W. McLean Pitts: I understand -- that's right.

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

Justice Byron R. White: If the -- actually the legislature that's been elected wasn't there -- if the current legislature wasn't elected with the old apportionment of it.

Mr. W. McLean Pitts: No, sir.

It was the current legislature was elected under this Court.

Justice Byron R. White: Interim order, into the interim order.

Mr. W. McLean Pitts: Yes in the Court's approval.

The two bills would put together.

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

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

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

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

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

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

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

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

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

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

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

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

Chief Justice Earl Warren: Mr. Scanlan.

This is --