LUCAS v. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO
Acting on behalf of several voters in the Denver area, Andres Lucas sued various officials connected with Colorado's elections challenging the apportionment of seats in both houses of the Colorado General Assembly. Under Colorado's apportionment plan, the House of Representatives was apportioned on the basis of population but the apportionment of the Senate was based on a combination of population and other factors (geography, compactness and contiguity, accessibility, natural boundaries, and conformity to historical divisions). Consequently, counties with only about one-third of the State's total population would elect a majority of the Senate; the maximum population- variance ratio would be about 3.6-to-1; and the chief metropolitan areas, with over two-thirds of the State's population, could elect only a bare majority of the Senate. When a three-judge District Court upheld the plan, stressing its recent approval by the electorate, the Supreme Court granted Lucas certiorari.
Is a majority-approved state apportionment plan that permits one house of its congress to be largely apportioned on the basis of factors other than population distribution in violation of the Fourteenth Amendment's Equal Protection Clause?
Legal provision: Equal Protection
Yes. In a 6-to-3 opinion, the Court held that the Equal Protection Clause requires all districts to be substantially apportioned on a population bases. While noting that some deviation from strict population considerations may be permitted to offset minor underrepresentations of one group or another, the wholesale neglect of population considerations is unconstitutional. The Court added that although a majority of the Colorado electorate approved its apportionment scheme, this cannot override even a single individual's constitutionally protected right to cast an equally weighted vote. The apportionment of Colorado's Senate rendered population considerations virtually insignificant, and was therefore unconstitutional.
Argument of George Louis Creamer
Chief Justice Earl Warren: Number 508, Andres Lucas et al., Appellants, versus The Forty-Fourth General Assembly of the State of Colorado et al.
Mr. Cramer, you may proceed with your argument.
Mr. George Louis Creamer: Mr. Chief Justice, may it please the Court.
The instinct case is a case which arises with reference to State legislative apportionment in the State of Colorado and follows a succession of some six cases which I believe the Court heard in November this year in a series of arguments then.
In order to explain the problem so that it is coherent, it perhaps would be well to explain briefly the history of apportionment in Colorado and the history of this particular case judicially.
Colorado has the convenience of an almost finite starting point in history which is its starting point in apportionment as well.
It was first, for all practical purposes established in 1859 by the discovery of gold along three creek systems in the near vicinity of Denver.
The backwash of the Colorado, the California gold rush populated it quite rapidly with the allure of that metal.
It existed almost non-governmentally from 1859 to 1861, but in 1861 there was passed a territorial statute, creating a territory of Colorado out of what had previously been the territories or portions of the territories of Kansas, Nebraska, New Mexico and Utah.
When the state or the territory was first created, there was created a legislative council under the territorial act.
The legislative council consisted of two houses.
Those two houses were a council and an assembly, very much in parallel to the present House of Representatives and the present Senate which constitute the general assembly of the state of Colorado.
The first body, the smaller, the council, was described or prescribed to consist of from 9 to 13 members, and the second body from 13 to 26 members to be selected upon the basis of an apportionment on population as nearly equal as maybe, that phrase is nearly as maybe, occurring in the document itself.
The units which were used were a system of divisions which closely approximated to our original county divisions, the state being as a territory identical with the present state boundaries, but being divided into fewer than a dozen county units, each obviously of rather monumental physical size for that particular period.
The Civil War intervened in development of the state further and immediately after the civil war, in 1866 there was enacted by the Congress and steps were taken pursuant to it by the people of Colorado, an Enabling Act to permit the organization of the state of Colorado.
President Johnson vetoed that act for reasons -- the nature of which I do not historically remember, but don't bear particularly on apportionment in any case.
Following the veto of the act and until the year 1874, the state continued in the same territorial fashion.
In 1874 Congress enacted an enabling Act and by 1876 the state was established as a state and obtained its name, a sentential state for that reason.
It continued under a Constitution, legislatively in much the same fashion that it had existed in the territorial scheme of things.
It had House of Representatives and it had the Senate.
These initially were distributed, the Constitution sets out the districts, in roughly or set out the districts, they have been repealed since the first Constitution did, set out the districts essentially in the same manner the old council and house districts had been set out theretofore, established on a population basis primarily.
There were three --
Chief Justice Earl Warren: Does the Constitution require that?
Mr. George Louis Creamer: Yes, the Constitution didn't require it on a population basis.
I am just reaching that point.
The Constitution had in Article 5, Sections 45, 46 and 47, a provision on the method in which there was to be apportionment thereafter if used the initial districts essentially as they have existed territorially and those were population based.
But then in Section 45 it said essentially, page 6 of the memo contains the -- our brief contains the section, that the general assembly provided by law -- shall provide by law an enumeration of inhabitance of the state in the year of our law 1885 and decennially there after.
It provided also that every, at the session next following that enumeration, that is the state decennial enumeration which takes place in the fifth year of the decennium rather than in the first year as the Federal one does, after that enumeration and after each Federal apportionment, Federal enumeration as well, Federal censes, there must be an enumeration of the Senate at the next session following enumeration made by the authority of the United States shall revise and adjust the apportionment for senators and representatives on the basis of such enumeration according to ratios to be fixed by law.
So that we were supposed to have an apportionment in accordance with population every five years according to the scheme the Constitution sets out.
This scheme is rather remarkable among American Constitutional schemes in that it has been entirely ignored from its beginning.
There has never been a state censes in Colorado, nobody ever took one and therefore there has not been an enumeration every five years because the wherewithal every five year enumeration simply did not exist.
There have been gestures towards enumeration or reapportionment made every ten years, when someone didn't forget.
There was one done in 1880 but that was before the 1885 provision was first in effect.
There was one done in 1901, there was one done approximately 1920.
There were two of them done in the 30s.
There was one of them done in approximately 1955.
Those in the 30s led to a miserable (Inaudible).
The legislature viewing the fact that there had been a marked population departure from the mountains towards the plains area did reapportion and had in mind exactly what no one knows but it followed, its reapportionment followed a popularly initiated reapportionment which was violently in conflict with it.
The Supreme Court of the state of Colorado pointed out in that case that the legislative apportionment was almost certainly unconstitutional because it gave to areas not entitled to representatives, representatives entitled on a population basis that was the basis the Court indicated and otherwise it breached the matter generally.
The 1955 reapportionment which was the only one really to attempt to be done after the 1930s did nothing effectively.
It changed Denver by one representative.
It made almost no changes in the Senate and it accomplished no change where they have mentioned except that it possibly was a gesture of good faith towards the principle at least it was attempted to be.
The legislature, before they met only every two years in any kind of plenary session.
It now meets once a year, but it's sessions in the even numbered year are limited to budgetary matters and such matters as the Governor places before it, particularly in his call.
However, following the 1960 census, the legislature was in session.
It was in session at the time 1960 census was prepared and it was in session the following year.
At each of these calls the governor did mention to the assembly the fact of the census and transmitted to it copies of the document which we have filed as an appendix to the brief, the census tracked, but nothing was done about apportionment, absolutely nothing.
Now at this stage, some litigation was instituted by parties other than those now before the Court before the Colorado Supreme Court asking that it take action.
Those decisions have no direct relation to the proceeding here, but should historically be mentioned.
The Colorado Supreme Court recognized that apportionment was in some what historic case within the state.
There was a marked split in the Court on the point.
All of it agreed that some of the apportionment was necessary, portion of it did not mention, the majority, did not mention the Fourteenth Amendment at all.
It overlooked that point rather pronouncedly and it simply said that it would wait and see what the legislature did.
It didn't do anything and then the remainder of the Court in quite vigorous terms denounced the whole situation as a violent departure from the criterion required under the Fourteenth Amendment.
Since nothing had been done action was instituted by a group of some 15 or 16 persons, residents of the counties of Denver, Adams Jefferson, and Arapahoe immediately surrounding Denver which are worst discriminated areas though there are others as we point out that are very bad.
In the District Court, the Court pursuant to request convolved the statutory Court of three Judges and that Court commenced hearings in the matter.
The first of those hearings took place in 1962.
At that time the situation was as we described it.
The last attempted reapportionment had been in 1953, the last actual one in 1930 and the situation existed in the state of distortion such that the smallest county Huerfano, perhaps appropriately named since it means the orphan, but in this case a well treated orphan, Huerfano with population of 7000 persons had one representative in the House of Representatives and Jefferson County with a 127,000 persons had one representative also.
There existed in the Senate a similar kind of situation.
The least populous county was represented, had a Senator representing 18000 persons, a few over 18000 and the most populous county for unit of Senator, one representing a 127,000, again in each case better than nine to one discrimination and singularly unfortunate.
In that case, the Attorney General appeared to represent the assembly of Colorado and then principle offices of state who were the defendants in an injunctive action, the parties have since been changed slightly by the rules on the substitution because other officers have succeeded but that was taken care of simply by administrative order of Court and is not a problem here.
The persons were also allowed to intervene who were at the time sponsoring one of two proposed Constitutional amendments.
One of those proposed Constitutional amendments is known as amendment number seven and is constantly referred to in the briefs here under that name because we have no other method in Colorado of naming them, they are just the numberings or ballot positions in a particular election, but it's the only reference that exists whereby it can be referred to.
There was another measure, amendment number eight proposing a somewhat different mode of reapportionment.
It should be mentioned here that in the Colorado scheme of things on Constitution they referred matters or other referred matters one measure does not run against another measure.
Everyone votes on each measure and each measure must be enacted and become a possible Constitution if it receives the majority of the votes cast upon that measure.
So that if there would be two confliction measures, there is question of considerable intricacy as to what would happen but fortunately that did not happen. It only became a conjecture of question.
At any rate the interventions were allowed on behalf of Mr. Johnson and others who were sponsors of the measure amendment number seven and they participated throughout the trials in the matter.
At the end of the initial hearings the statutory court took the matter under advisement and it rendered a per curiam opinion which we have referred to as the memorandum opinion which is reprinted I believe at the end of the jurisdictional statement in its entirety and which appears in 208 Federal supplement, they referred to in the briefs.
In that opinion the Court held that the Colorado apportionment was completely unconstitutional as it existed that there was no rational basis for it and that the testimony which included the testimony of all of the proponents of amendment number seven did not constitute a basis upon which the existing apportionment could be upheld.
The Court rendered its opinion, however, as I recall it made later part of August of the year and it pointed out with several problems existed.
First there was an impending election; second there was extremely little time before that election, and third, it did not then know what the result of the election might be.
So though it declared the scheme as it existed to be unconstitutional it stated that it would abide the result of the election then hold further conferences and hold further hearings dependent on what might have occurred.
What did occur was that the measure denominated number seven was adopted.
Now, that is set out also fully textually in the introductory portion of the brief particularly on page seven and following.
It amends in their entirety Sections 45, 46, and 47 of the Article 5 of the Constitution, the sections I had referred to before is having existed from 1876 onward.
It amends them in several particulars.
The House of Representatives, as it had existed last before amendment consisted of 65 members.
The Senate consisted of 35 members.
It was provided that these members were to be elected from districts which might be altered from time to time as public convenience might require, but that they must be composed of four counties adjacent physically and that no county might be divided in the creation of senatorial districts or house, there could be a house district, no they couldn't pardon they couldn't be divided at all.
Now this resulted in somewhat an inconvenience which has nothing much to do with the matter before the Court.
In the election from a district such as the city and county of Denver in which there are 17 representatives and the 17 representatives must be elected at large because under the old Constitution that could not be representative districts within the county, so persons have to bear in mind in vote among 34 candidates and this is something of a feat of memory if nothing else, this was altered by the new amendment.
The new amendment added, essentially did this; it left the house at 65 members.
It provided that the 65 members the House of Representatives must be apportioned as nearly on the basis of population as maybe that is from district is nearly equal in population as maybe.
There is no objection obviously Constitutionally capable of being raised to such a situation possibly there was none under the old formulae expect the failure to apportion it, it was not he Constitution that was defective but the practice of not putting it into operation.
Under the old system we used a weighted ratio basis in which we gave 19,000 persons for the first senator and a representative and 8,000 persons for the first senator and then it took a fraction up to 48,000 to get another representative and a monumental fraction to get another senator and so forth.
The whole idea being that as the represented area grew larger the possibility which having representation grew smaller, that being the entire purpose well carried out for many years of the system and it resulted in a rural based legislature entirely.
The new system requires that the house be on a basis of single member districts as nearly equal in population as maybe and it prescribes a method of contiguity of districting, and it is not involved here.
The Senate is quite another problem.
The Senate provides that there be an increase in the number of senators from 35 to 39 for additional ones.
One of these additional senators is given to the county of Boulder, one is given to the county of Adams, one to Jefferson and one to Arapahoe.
The counties of Boulder, Adams, Jefferson and Arapahoe are in the near vicinity of Denver.
Adams, Jefferson, and Arapahoe county form a doughnut as I believe the Solicitor produced a map, shortly before the hearing and I take it, it has been distributed to the Court, it's a very good map and it is perhaps futile to observe some of these things, one tends to assume a greater knowledge of Colorado geography and non-Coloradoans for various reasons and it perhaps is easier to visualize from the map.
But at any rate Adams, Jefferson and Arapahoe are in a doughnut immediately around Denver and Boulder is a county slightly to the north of these, but for all practical purposes because of the highway linkage and the State University situation and the population growth trend it's in the immediate Denver metropolitan area and is so considered in census track designations at the present time.
Justice Arthur J. Goldberg: (Inaudible)
Mr. George Louis Creamer: Yes, they are really sort of schizophrenic in character.
About four-and-a-half to five miles in depth of them is typical suburbia, heavily populated and for all purposes indistinguishable from Denver except that an artificial boundary line exists somewhere.
Then the balance of them become very large territorial areas which are agrarian in the case of Adams and Arapahoe and which are mountainous in the case of Jefferson, because Jefferson begins to move over into the mountain ranges themselves.
The population is explosive in those areas.
It should be borne in mind because it's the basic statistical problem here, that Colorado in the decennium 1950 to 1960 increased 33 and a fraction percent in total population, but while it increased 33 and a fraction percent in population, it's rural areas decreased actually by 6% in gross population, it's urban areas increased by 55%.
Now not only did it's urban areas increased by 55%, but the increase was not in the city and county of Denver, the great urban area which increased only 18%, but was primarily in Adams, Jefferson and Arapahoe counties.
Adams has the curious distinction of being next to Tokyo the most rapidly growing area in the world. It increased 199% in the decennium in population and Arapahoe 120 -- no 117% and Jefferson 127%.
So these are very rapidly growing areas indeed.
They have now approximated 350,000 to 360,000 persons in the three counties which is very nearly the population of big city in county of Denver itself.
Boulder is growing quite rapidly as well, but not nearly at the same rate the others are.
There are two other urban areas in the state.
One of them is the area surrounding the city of Colorado Springs in El Paso County to the south, and the other south of that the City of Pueblo which is growing less rapidly but is a major urban area.
As will be noted this pattern of population follows in a line from Boulder on the north to Pueblo on the south and it follows almost directly along the corridor of the mountains along the east footings of the mountains in a very long narrow strip.
Now what has happened in the decennium is typical of what has happened in the century within the state.
The population of the state initially was primarily centered at the confluence of the passing Cherry Creek which is Denver and was one of the gold sites and it developed into a large city rather initially, but then the prime populations were centered in the mountain gold caps, places like George Town, which I suppose nobody has ever heard who doesn't come from Colorado, once had 18,000 people and it's now got population of 600 in an assortment of rather nice summer houses.
Central City of which every has heard because of an opera had the opera because it had something like 15,000 exceedingly affluent minors and it now has a population that's 300.
The county of Las Animas once had a flourishing population because coal was mined there in great quantity and I suppose the coal still obtains in great quantity, but the population doesn't, because nobody mines it anymore and the population has gone away and continues to go away.
The situation is very much like that which typifies the United States generally from the period after World War I to the present time, in that population has tended to migrate into a series of metropolitan centers maybe 30 in number and the statisticians state that 70% or 90% of all American population will be in those 30 centers by 1980, a good part of it is now.
The result is that almost two-thirds of the populations of the state live in the three urban areas and one-third lives in all of the rest of the enormous expanse of the state.
Now getting back to the Senate and trying to relate this matter in some logical sense to it, the Senate as I say was by the amendment frozen in exactly the manner in which the Senate had been districted under the statutes declared invalid by the Court, prior to the amendment except that four senators were added, one being given to Boulder county, one to Adams, one to Jefferson, and one to Arapahoe and except that a tiny county called Elbert which consists of a number of cattle ranches and no habited places at all really, except one with 250 people in it, was the next to a different district for purposes of balance, the Elbert change does not statistically make any difference and it doesn't in any governmental sense, it was a convenience for which some reason might be perhaps announced.
The result -- oh yes then the amendment further provides that these districts and it incorporates the unconstitutional statute, I use the word unconstitutional because the Court said it was unconstitutional, it incorporates it by reference, by specific terms in haec verba and then it says that this statue may not be changed by any general assembly at any time in the future.
It provides that so far as the Senate districts adopted from the old statute are concerned these are fixed, but so far as multi members Senate districts, the multi member Senate districts which will now be Denver, Adams, Jefferson, Arapahoe, Boulder, El Paso, and Pueblo counties, these districts must be redistricted each ten years on the basis of population.
It is difficult to understand why the bifurcation in the Senate areas, but it does provide so. If it's a multimember district it must be redistricted, but otherwise it may not be changed and so if population continues to go away, it goes but the senator remains.
If population is crescent it increases but the Senate remains.
Now this was not a matter idly entered into, it was entered into on the basis of a measure presented under the referendum provisions of the Colorado Constitution and very carefully calculated and very elaborately sold to the electorate and successfully sold to the electorate.
There is no question about that.
The electorate voted for the measure more often than it does for the opposing measure or didn't vote at all.
It's hard, as I say to analyze these things absolutely because of the fact that you may not vote on measure or vote on one you may vote on both of them, do as you please.
They're all independently submitted, but if these did get substantial popular back, it did so for a variety of reasons I would suppose.
I don't know that's it fruitful to try to go into them as a matter of political exegesis among other things the notion of not having single member districts has always distressed people because it's very hard to sort out 34 candidates in an election.
This has nothing to do with the Constitution problem we have before us, but it was no doubt an appealing factor to the electorate.
Many other factors might have entered into the problem but the problem is we have the Senate as it is.
Now the question is whether or not the Colorado Senate as it exists intentionally and permanently divorced from population as a criteria having a history in which population has been really the only basic criteria is rational.
And if rational and not invidiously discriminatory whether it is within the tale of the Fourteenth Amendment or not?
We have submitted that it is not because of several very clear facts.
First all that it did was embody, as a Constitutional provision, a statute which was a declared by the courts to be invidious and which has no change except the (Inaudible) on it of four additional members.
Now even the four additional members don't make any particular sense if I may refer to the Solicitor general's map without the impropriety of invasion of authorship several things do appear rather clearly on it.
Boulder County which is marked on the map as having 74,254 persons, it gets two senators.
This reduces the portion to 37,000 to 127.
Districts 11 and 12, El Paso County, 71,871; it's stays at two senators that is though it has twice as much claim initially to another senator as Boulder had, it doesn't get anything but it stays in the same position it was with no relief of any kind granted to it.
Pueblo remains in a similarly awkward position.
It had two senators this raised it to 59,000 per senator but it gets no relief and Boulder is given an extra senator.
Adams, Jefferson and Arapahoe really aren't helped terribly much because as we have indicated in Appendix C to the briefs filed they come closer to requiring three senators apiece than two, they're given two but they -- even given the two they come out with 60,000, 56,000 and 63,000 persons per senator represented as compared with something like Las Animas which has 19,983 persons represented by a senator.
The same distortion was just popped out but the distortion now is said to become a constitutional rather than the statutory provision, and somehow this mal-assortment of four members is supposed to have satisfied matters.
Now there are curious justifications given for it.
The record, seeking to justify it, has attained a Greek chorus that runs through it.
The Greek chorus is composed of the words topography, geography and history rather (Inaudible).
It doesn't vary at all.
Only that when you examine the geography, the topography and the history as enunciated by the witnesses, it is very hard to ascertain what precisely they meant or how you equate these things with the actuality of the distribution.
The history merely states that there used to be people in the mountain mining counties and when there were people they were represented and that now historically the areas should be represented.
I don't mean to be flippant in any sense, but this is kind of history that is precisely parallel to the Russian borough system which was advocated as history in England in the 1830s.
It was advocated that Old Sarum should continue to have three members of parliament because it had once been a seaport in the Cathedral City though it had been reduced to three persons.
And in the same way you can argue that Gilpin County should continue to be represented because it once had some quite colorful people and a great deal of silver and gold and still possesses an Opera House but it has 600 residents and 300 of them live in one city and it has nothing else.
Once population has gone away there is, we submit, nothing left to represent; a representative system, it does not represent mountains or plains, it doesn't represent water, it doesn't represent cattle, it doesn't represent sheep as opposed to them and that is in the record too that it should, it represents only whoever lives in the area and if no one does, then we submit that the area cannot be represented any longer.
We have some startlingly testimony in this record.
A portion of it, the testimony of Dean Rogers which is contained in an exhibit appended to the appellee's brief, it is a large part of the record, the Court dispensed with the printing of the record but the appellees did print the substantial portion as their exhibit and this appears at Page 81.
Dean Rogers was a principal, historical expert for the state and one of the questions asked to him was, at the bottom of 80, “Yes now as I understand it, one of your statements in examination by counsel was it is a belief with persons advocating population on the Pennsylvania basis as I understand it, that heavily populated areas are dangerous if given equal representation.
May I ask to whom they're dangerous?”
“Dangerous to the welfare of the state,” and editor Root who is the most famous and best knows spokesman of this point of view, setting conferences for the New York Constitution in the 1890s, I think 1894 that the heavily populated area should not be represented as generously as the rural areas because the cities from their very effective population could organize in a way in which they had much greater strength.
They were subject to political machines, subject to the activities of Chambers of Commerce and various other organizations, elements which were not applicable to rural areas and he therefore carried successfully an amendment to the proposed Constitution of New York which limited representation of the big cities.
“Dean Rogers do I understand if -- that there is not in your opinion a possibility of successful rural political organization in a state such as Colorado?”
“Well, I hardly know how to answer the most striking organization of Colorado which is apparent the political organization which is influenced the state that surrounded Denver and the like.”
And then finally just the – a categorical statement that urban populations are dangerous, evil in the much greater sense of the word I take it, and they should not be represented.
Well then of course the polity is in an extraordinary state of danger because 90% of the population is urban and this is not we submit a rational thesis and being an irrational thesis, we suggest that it is perhaps not within the purview of the Fourteenth Amendment.
Now we get into another problem it is alleged that Colorado and the reply briefs make much of this to the Solicitor General's brief that Colorado is a state with great geographical differential and in which communications are exceedingly difficult.
I do not mean to be pejorative, but this is in a sense nonsensical.
In December of this year, if I may use a personal illustration I was required to try a case in Grand Junction which is directly over the mountains from Denver in a straight line during the worst period of the year.
I left after my breakfast by aero plane, I arrived in Grand Junction in time for court, I tried the case in Grand Junction returned by plane and had my dinner in Denver.
Now this traverses the whole of the dangerous Western slope area, the week following I was required to be in Washington, in the Department of Agriculture.
It took me, it being admittedly an unusual week, a larger amount of time to traverse the area from Friendship Airport into Washington than it had taken to traverse the area across the (Inaudible) of the Rockies from Denver to Grand Junction, and it was somewhat a more tiring trip.[Laughter]
The point is that I'm afraid the isolation of the state falls now into the area of mythology.
We read in the newspapers that Aspen, a city who's character would hardly be determinable from the briefs in which it is described as having television only from Kansas I believe and able to receive radio only from Glenwood Springs and perhaps mail only by carrier pigeon or husky in the bad part of the year, but this is not very recognizable when we read in our papers that these three members of the cabinet spend weekends skiing there and seem to be able to attend their duties the following Monday morning with no difficulty at all.
They usually arrive by air and they land, skiing is a major occupation in the state and out of Denver every weekend into the far fastness of each of the so called remote senatorial districts at least 80,000 people make their way usually on Friday evening and get back usually on Sunday night with almost nothing of incident to report except whatever might transpire on the slopes and I suppose it's not of representative interest in that regard.
The state's geographical bifurcations are not as great as stated and they have no basis.
Now the other matters and as the Solicitor has mentioned this with much more potency I think than we did in our briefs, the other matters that are mentioned as justifying the differentia which are imposed upon the state representation, are economic matters into their interest is the way the lower court expressed them.
It is hypothesized that there are many economic facets to the life of Colorado, this is quite true, it is a curious state in that Denver which overwhelmingly contains its population is a city obviously not supportable by the state itself, but acting as a major commercial distribution center and a major economic function for a great group of western states.
The state itself contains a belt of cattle farming, a belt of sheep raising.
It has the great plains area which are an ideal wheat region.
It has an irrigated crops region, which is of great significance and it is still mineralogically quite important part of the mining scheme.
It does have problems resulting from its geography and agriculture connected with water.
This is much mentioned in the briefs and somewhat in the opinions.
We do unusual things with water.
We make it move itself across the mountain range and then we generate some electricity with it and then we move it back under the mountain range, but -- and the result from time to time as the Court no doubt knows, disputes concerning its utilization.
But this is also we submit not a basis for representation.
Only one Constitution of which I have any recollection in recent years has tried to give a legislative representation to specific economic interests.
The Weimar Republic attempted it from 1922 to about 1926 in its upper chamber.
It never succeed in computing the formula on which the several interests might be represented and the upper chamber of all the unfortunate things in that unfortunate experiment proved the most disastrous.
We cannot have a senator for beef or a senator for sheep or a senator for water or a senator for wheat, barley or sugar beets.
That is impossible and frankly it is somewhat (Inaudible) to assume that there is such a thing as a senator from Denver, bad though they are painted who does not have in mind sugar beets, water, wheat, barley, cattle and sheep also, we exist on them.
The entire state does and there is no great urban blackness that is trying to trample them out, that would be foolishness.
All that one can do in a situation of this sort it must be submitted is to submit that Constitution of it, there is some kind of an ethos which underlies representation.
That ethos must be that the representative represents something.
If he represents something then it can only be people, because otherwise there is no criterion for representation other than one so loose as to lead to a latitudinarianism of representation that must prove ultimately fatal.
If you say that you are giving an area a representative because there are cattle in the area, then as the Solicitor points out this is invidious in itself, the cattle do not have a right to be represented, nor do the people who's wealth is invested in them have any more right of representation than those who are invested in sheep or those who are invested in an oil refinery in an urban area.
There is no more predicate for the one than for the other.
We therefore have in the state presented perhaps the most straightforward situation of representational difficulty within the state legislative field presented in any of the cases to date before the Court, because we have simply the question “May the electorate itself at whatever instance and for whatever reason change the course of its legislative history and create a Senate admittedly not representative of population and intentionally freezing a scheme which ran counter to a required population representation, appeasing that scheme by the grant of for senators to desperate districts peculiarly and inadequately.
It is said that in some manner the sanction of the people grants a peculiar sanction to this matter and that if nothing else, the Court should disregard from point of equity, the problem which is raised in this matter and apply us (Inaudible) doctrine.
We submit that this is hardly true.
Justice Arthur J. Goldberg: (Inaudible)
Mr. George Louis Creamer: Yes the argument was made of course because it is made in each of the so called local Federal schemes.
The argument has a great weakness.
First of course it's historical weakness because it has nothing to do with the states.
We have discussed it in the brief at some length and we have pointed out particularly that it has nothing to do with Colorado.
Justice Arthur J. Goldberg: (Inaudible)
Mr. George Louis Creamer: If you had an upper house which was in some manner selected totally irrespective of population, and if you have a constitutional scheme which pretended to do that, I can at least intellectually think of an argument which might sustain it, but we don't have anything of that kind and never did.
Colorado has always had a bicameral legislature.
It never had a bicameral legislature, the bicameralism which was based on any different criteria in one house than in the other house.
Each was selected on the basis of population and population alone eventually on a weighted aggregate basis, almost if --
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: I'm sorry Mr. Justice White.
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: Yes differently arranged in different sections.
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: Oh no, the interests in a sense are represented.
In fact in a sense they are over represented.
The Senate has been --
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: Very little more than that, we ask --
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: No this --
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: The same interests I think turn up in the both houses, but perhaps weighted slightly different in the two houses --
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: You could.
That would be quite possible.
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: I think that, that occurs in any two house system and its of course the only utility in a two house system at all, that you could get different results at different times, but this doesn't result from the fact that the people come from different places because they don't come from enough difference to do that.
It comes from the fact of the multiple considerations, the double consideration of measures and a double set of procedures and scrutiny and any two houses as any court and a reviewing court will perhaps produce two different results equally dispassionately and candidly viewing the same matter.
I think by bicameralism as by --
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: Yes, both houses were like the Colorado Senate.
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: The Colorado Senate doesn't represent people.
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: No, the Colorado --
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: The Colorado Senate historically has been predicated on the same weighted aggregate formula that now exists or that up to 1962 existed.
The Colorado Senate now doesn't represent anything.
It represents and will progressively represent whatever happened to exist in the year it was frozen 1962 or the year of the formulas were established 1933.
It won't represent anything else because it took the willy-nilly formula completely unconstitutional in itself.
It added four members to it and it said that this may not be changed forever.
That effectively is what I would assume that it was purposed to do and in its essence accomplished.
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: I think if I may phrase it --
Justice Byron R. White: (Inaudible)
Mr. George Louis Creamer: I think there is perhaps reason in the sense of motive Mr. Justice White but being charitable I would rather not attribute those specifics motivations, and the Solicitor General I think has analyzed as one analyzing the surface may do very well indeed the effects of the situation.
I do not quarrel with the Solicitor General basically, except that I should state that much more was involved in the Solicitor General's phrase a reapportionment which preserved each Senate seat that then existed, than might otherwise be stated.
The matter was a matter in a broad sense presented as well as a political matter could be presented, practically every kind of coating that makes delicious to an electorate I think capable of being swallowed, was put around a dosage which isn't exactly swallowable in this and the outside taste was almost as nice as the cherry and a cough syrup to a child.
The result isn't very good.
That's the only way I can state it without being more blunt than I think manners permit.
The problem that exists then is I think well summarized by the Solicitor General when he shows in his blue line, red line differentiation on the map.
The fact that even granting the criteria that exists the whole situation could be very much be iterated by taking only three of the districts and combining them with the joining districts and reaching a much more rational and more sensible basis aside from what could be done by proper basic districting.
I note that my time is almost expired and I had asked and Mr. Ginsberg too that I leave him some little time for rebuttal, I hope that this has not been too confusing and I would ask the Court's permission unless there are further questions to cease at this time and reserve the balance.
Chief Justice Earl Warren: Mr. Solicitor General.
Argument of Archibald Cox
Mr. Archibald Cox: Mr. Chief Justice may it please the Court.
In the view of the government, this is a case in which the issues are very closely balanced and difficult in the sense of being sure about what is the just result.
On balance, the United States joins the appellants in urging reversal.
Although the grounds we take seem to me to be considerably narrower than the appellants and upon one issue, our agreement with them is at least qualified.
As we see it, there are two questions here.
On the merits the question is whether the Colorado apportionment filed in the Senate by taking the legislature as a whole violates the equal protection clause of the Fourteenth Amendment.
We think there is also a question whether the bill should be dismissed for want of equity without deciding the merits, a question which was not in any of the previous cases that were argued during this term, with respect to state legislative apportionment and which is here because of the circumstances under which the present apportionment became law in Colorado.
It was adopted not only by a majority vote of people of Colorado in 1962 after virtually a decade of discussion, referenda consideration by the legislature and other official bodies, but it was adopted by a majority vote in each and every county.
In addition, the initiative and referendum are available and by custom apparently more available than in some places to change it and we think that this does bear on the question of whether the plaintiffs are entitled to equitable relief.
Departing from what would be the customary practice, I would like the Court's indulgence to discuss the merits first and to discuss the question of equitable digression second.
I do think also it's unusual that it'll make argument a little bit clearer if I may.
On the merits as we see it, the issue can be narrowed very rapidly.
We adhere here to the principles advocated in the previous cases in our briefs in the previous cases, including our arguendo assumption that the equal protection clause does not always require per capita equality, but that there maybe some factors that will justify departure from that.
The starting point therefore in our analysis in this case as in the others, is that is per capita representation measured by that test that the plaintiffs have made out a prima facie case of a denial of equal protection.
Second we note that this is not a case in which the pattern can be said to be an obvious crazy quotes such as was involved in Baker and Carr or the Maryland, Delaware and Alabama cases.
We think it does have a conceivable reason behind it.
Nor can it be said we think that the criteria upon which this apportionment is based are contrary to any express Constitutional limitations or are invidious in the sense that race or religion or some consideration of that kind is invidious.
Some of the considerations advanced by the witnesses and taken into account we think by the District Court and apparently referred to in the briefs strike us as irrelevant and impermissible in the sense that we've used that term, but there are other permissible factors also cited which we think at least furnish an intelligible basis that are not irrelevant as we have used the term and this therefore takes the case out of our third rule as we have stated.
Thus in our view the case comes down to the question, a question of degree whether the variations in per capita representation are so severe, so great, as in relation to the permissible justifications alleged, as that they can be called arbitrary and capricious.
Now I think it is fairly possible to narrow the argument down just a little bit further.
The Colorado Constitution under this amendment calls for apportionment of the house in preparation to population and the legislature passed the bill which works out so that it takes and to get a numerical majority of the house, it takes districts containing 45% of the population, which I think we would all have to agree is pretty good, that they have -- it's conceded conform to the constitutional requirement.
I have heard it suggested that whenever one house of the legislature is apportioned in proportion to the population that a state may do as it wishes with the other house. No such claim is made by the appellees as I understand their argument, although I suppose they would be glad to win on that ground, but they don't urge it.
And it seems to me that they are quite right.
The so called federal analogy as we have suggested before, is inappropriate for several reasons.
In the first place history is entirely different and I needn't elaborate that part.
In the second place of course under the Colorado apportionment there is no representation of the counties as such.
There are some counties that have more than one senator, there are some senatorial districts which are made up of more than one county, and I might suggest also in view of a question for Mr. Justice Goldberg earlier, that I think there is as a practical matter another marked difference between the situation of state and the situation of the Federal Government.
The states by and large are large enough so that they contain urban and rural interest, take Colorado as an example, Denver and the rest of the state and this is pretty generally true as you go over the country, so that the Senate is perhaps indeed are strongly representative of the urban interest, whereas you come to break down to the size of senatorial districts in a state like Colorado.
And you get a large number coming from areas that are sheep raising, cattle or something like that and you get a over representation by the per capita standard I think really of territory and not of people at all and I think that a political scientists would note this as another marked difference in addition to the ones I have mentioned.
Thus narrowing the question of why we agree that the per capita equality in the house tempers the inequality in the Senate, we think the question remains whether the overall inequality in representation in the legislature is so out of proportion to the justifications as to be arbitrary and capricious.
I will start there in the morning.
Argument of Archibald Cox
Chief Justice Earl Warren: Number 508, Andres Lucas et al., Appellants versus the Forty-fourth General Assembly of the State of Colorado et al.
Mr. Solicitor General.
Mr. Archibald Cox: Mr. Chief Justice, May it please the Court.
Yesterday, I had outlined our reasons for suggesting that on the merits, this case comes down to the question, whether the per capita inequalities are so severe, so serious in relation to any permissible objective that they might be thought to attain as to constitute a denial of the Equal Protection of the laws.
Let me first say a word about the inequalities themselves.
The basic figures that pertain to the Senate are most conveniently set forth in this case I think in Appendix C to the opinion of the District Court which of course, appears in the back of the jurisdictional statement and they begin on Page 74 run over for a few additional pages.
We attempted to relate them to geography by this map that I asked the clerk to distribute yesterday, which preserves the numbering of the districts as they are in the opinion of the court below and which shows their size and shape and also the average number of people per senator in each district and the population of each county.
Finally, it maybe helpful to point out one-third document, then I think Court will know what they all are, in this blue volume, which is the Appellees' Exhibit D, there is a useful topographical map on the inside of the back cover.
I am not going to ask Your Honors to follow all three at once, but you may find it useful in your study of the case in chambers.
The inequalities run most severely against El Paso County, which appears on our map as Districts 11 and 12 just to the right of the middle.
Now that contains the Colorado Springs area and there you will note that there is one senator for each 71,000 people.
At the other extreme is District 23, Las Animas County, which is down on the right bottom of Colorado, a little to the right of the center, where you will note that there is one senator for 19,000, almost 20,000 people, the ratio versus El Paso County being 3.5:1.
As a matter of fact, there are five counties that have more than three times the per capita representation of a person living in El Paso County.
There are three counties that have three times the representation of a person living in Jefferson County which is in the center of the state right next to Denver and which of course, is a suburb of Denver.
Denver, the little dot, almost in the middle which we've identified by a line as District 28 has only half the per capita representation of the people in seven counties.
The result of these comparisons, and of course, the Court will want to study them is a very striking departure from equality and the principle of majority rule.
A numerical majority of the Colorado senate can be elected from counties containing less that one-third of the people of Colorado.
Denver and the three adjacent counties, those touching upon it, plus Pueblo, and Colorado Springs have in excess of 63% of the population and less than a majority of the Senate.
I would emphasize in addition that these imbalances are getting worse.
Of course, the case must be judged as of today, but nevertheless we are dealing as it were with things in motion, like in airplane.
The imbalance for example on the figures for January 1964 is such that now it takes only a little over 31% of the counties having only a little over 31% of the population to elect a majority of the people.
Denver and its suburbs today have a majority of the population and only 14 out of 39 senators, hardly more than one-third.
With that general picture in mind, I turn to the objectives that are said to justify this lack of per capita equality.
Some of them as Mr. Creamer pointed out yesterday are plainly impermissible.
They are, if they were the basis of the distinctions alone, one could call them invidious discrimination.
For example, the opinion below seems to adopt the view expressed by the witness Rogers and one of the other witnesses, that voters who lived in heavily populated areas aren't worth as much as voters who live in the country.
That it seems is clearly an impermissible ground for differentiation as we've argued in the other cases and as we think Gray and Sanders clearly held.
Again, it seems to us that balancing the economic interests of different parts of the state is a plainly impermissible consideration, for reasons that Mr. Creamer very well stated and that I will attempt to repeat.
I say just word about them.
Appellees say that this is simply a play upon words, that the senators aren't representing economic interest, they are representing people, and of course, that's true, but we submit that they are not entitled to represent people of one economic group, any differently from people of another economic group.
Justice Byron R. White: Isn't that the real point?
Would you say that, this is invalid if State of Colorado decided to give farmers, assume they constitute 20% of the population, to give farmers 20 -- as an economic group 20% of the representation in the legislature?
Mr. Archibald Cox: If Colorado had a legislature, such as that in the Weimar Republic, where the effort was to represent not geographical district but economic classes then provided each economic class were given its per capita weight.
Justice Byron R. White: Right.
Mr. Archibald Cox: We would have no objection.
Justice Byron R. White: So you would think proportional representation is not necessarily invalid?
Mr. Archibald Cox: I certainly wouldn't argue that it is, no principle we are advocating here suggested it is, no.
Justice Byron R. White: Well, your principle that economic interest may not be represented – it's not a rationale --
Mr. Archibald Cox: No, well I suppose --
Justice Byron R. White: It was suggested.
Mr. Archibald Cox: Well, I'm sorry.
I spoke too elliptically.
What I meant to say was that a man because he is a farmer may not be given twice or three times or five times the per capita representation of another man or a woman because she is a suburban householder, anymore than a protestant maybe given more representation than a Jew.
Now, I would distinguish Mr. Justice White and we'll deal with this in a moment, between putting a legislature together so that there are people familiar with the diverse economic interests of the state and I think that that is a legitimate consideration.
It's (Inaudible) of people.
Justice Byron R. White: So you would permit at least districting to make sure the district is --
Mr. Archibald Cox: Oh yes, oh yes.
Not only that but as we tried to suggest in our briefs, we think there are reasons to trying to keep districts small and considerations like that, that cut against it.
And so here, we think there have been mentioned a number of considerations that at least do go in the direction of supporting this apportion.
If I were stating them I would put it this way.
I'd say that among the permissible objectives are to try and keep the Senate a small enough body to be deliberated.
Colorado has always had a small senate.
That another desirable objective and a permissible one is to have the senators familiar with their districts and the people in the districts are readily familiar with the Senators which requires trying to keep them smaller area and it requires bearing in mind considerations of accessibility which sometimes cause strange shapes in a state like Colorado.
Again, I would argue, if I were supporting with saying what can be said here for their side of the case, that there is something to be said for following county lines because they have some political significance independent of the Senatorial district.
And that is a fact which we would say maybe taken account of in the districting and which may compel some divergence from strict per capita representation which we assume for the sake of argument to be permissible.
Our difficulty in this case is that when all that has been said, it seems to us that it won't justify the apportionment for two reasons.
Mr. Creamer dealt with one of them and I simply refer to what he said.
We think that the opinion below greatly overemphasizes the problems of accessibility and shape and size, and greatly underemphasizes the importance of being equally represented in the legislature.
Our second objection is that we think the arguments are insufficient here on the whole because all those objectives which we assume to be permissible can be substantially achieved without creating inequalities anywhere nearest areas as those that exist here.
And we say that to create severe discrimination in a way unnecessary to achieve the only permissible objectives that I've mentioned, plainly unnecessary to achieve it, is arbitrary in this field and capricious and therefore a denial of Equal Protection.
We suggested two ways in which the objectives could be attained in our brief.
The simpler of the two, I'd like to take just a minute to suggest with the help of a map.
Down in this very center at the bottom of the map, is District 30 with one Senator for 22,000 and some people, one of the most overrepresented districts in the state.
Now we can see no reason that that district shouldn't be split along the line of the blue line.
There can be no topographical objection that follows the ridge of the Sangre de Cristo mountain range until it drops south, it follows county lines, and neither of the resulting districts, 31 or 23 as they are now numbered, taking out the line with the blue Z on it, would be excessive either in population or in size.
Indeed there are other districts which are bigger than the other would be and neither would have in access to which (Inaudible).
That would save one Senator.
We point out second right in the middle of the map, that if the line between districts 24 and 25 were removed and those two were added together, you would have a district with 40,000 people, just a little under the theoretically perfect number for a Senator, the area again would not be the biggest in the state.
It's a little large but not out of proportion with the others.
Communications, judging from the roads and the flow of traffic is quite accessible.
The difference between the two most distant points is less than the differences than the distances between the two most distant points, and some other counties of equally rough if not rougher terrain and this too seems to be an obvious simple way of less than inequality.
Now this would free two Senators.
If one were given to El Paso County, the people in that county which are now the most underrepresented, instead of having 60%, 63% of what they should have, would have almost the ideal representation, a little under.
If the other were given to Denver County, the people of Denver County instead of having 73% of what they ought to have would have an excess of 80%.
Appeelles in their reply brief rather pull this and say well, that's just two senators out of a legislature of in excess of 100 members, I suggest that the proper comparison is with the total size of the senate 39 and that a shift of two senators in A 39-man senate may make a very great difference indeed and this I used to -- I hope I used them fairly bear this out.
Instead of having less than a third of the people elective majority of the senate it would take a minimum of 40%, counties having 40% of the people, a much better figure.
Denver and the three adjacent counties plus El Peso and Pueblo now have almost 64% of the population and only 18 out of 39 senators.
This would give them a majority in the senate.
Put still another way are the change of just these two would substantially improve the representation of 37% of the people of Colorado and I submit that it would sacrifice non of the objectives that the appeellees say they're seeking to obtain or certainly not substantially (Inaudible).
Justice Byron R. White: (Inaudible)
Mr. Archibald Cox: A little over 40% would elect the numerical (Inaudible).
The important point of course is not that one of us can draw what we think is a better apportionment.
The important point is that if it is that easy to make so substantial a change in the direction of more equal per capita representation then it shows that these imbalances go way beyond anything that could be deemed reasonably necessary to achieve their objectives and that we submit is arbitrary and capricious in this important area.
Now I would like hurrying on because of the shortage of time to take just a minute on the other issue in the case.
We suggested that there is a real question here as to whether the Bill should be dismissed for want of equity.
We recognize, indeed we urge most strongly that the political picket, the phrase sometimes mentioned in this connection is clearly not a reason alone for dismissing a Bill for want of equity, and that has been clearly decided in the Wesberry case, and we take that as a premise.
This case does have some very unusual circumstances.
This is not an ancient apportionment as in so many cases; the issue was debated for 10 years in Colorado.
This apportionment was approved in each and every county by a majority of the voters.
And the initiative and referendum are also invoked as a political ribbon.
Now, we'd urge first that the mere fact of majority approved of an apportionment, even a current apportionment is not a reason for dismissing a Bill for want of equity automatically and we have two reasons.
In the first place, the Equal Protection Clause is designed to protect the minorities and to take a case like Baker and Carr or a case like the Virginia case to say that a majority of the people like to discriminate grossly against those who live in Arlington County or the City of Norfolk plainly won't justify it, nor would it justify such a (Inaudible).
And our second reason is that a majority vote to approve a particular apportionment must be looked at, must be scrutinized very carefully, because what may have been done is that the people may simply have thought well, this is an awful lot better than what we had before.
Justice Potter Stewart: But wasn't -- they were given here the facts?
Mr. Archibald Cox: No, I am just trying to lay the ground work, and I'm going to indicate that they have a stronger case on two points here and those two points of course Mr. Justice Stewart, are first that this wasn't simply a majority vote of the state as a whole.
This was a majority vote in each county.
Again, I would say that was immaterial in dealing with most individual Constitutional rights.
Your Honors, heard me discuss on this at some length on Monday.
To translate what I said then to the field of voting, I take it that if a majority of the citizens of Mexican descent voted in Colorado, that no Mexican that should be permitted to have a ballot, that still any individual Mexican who wished to complain could complain, but the right to equal representation is a necessity I think, a shared right.
There is no way and quite some of the people of Denver County, some of the people that the appellants represent can have equal representation without all the people of the constituent units have an equal representation.
And I must acknowledge that the result can be said here to be that the plaintiffs, or can be argued to be that the plaintiffs are seeking to force on the class they represent, something that a majority of that class can be argued to have rejected their proposal.
Now I think it's a little harder than that because it isn't quite fair I think to say here that people of each county rejected equal representation in favor of the present apportionment because there were three differences, Justice Stewart, you'll recall between the plans.
One was that difference, another, the second --
Chief Justice Earl Warren: You may take five minutes.
Mr. Archibald Cox: Thank you, Mr. Chief Justice.
The second difference is that the Amendment number 7 which gave rise to this plan did lay out the district line so far as the combination of counties were concerned, whereas Amendment number 8, the rival did not.
And probably more important than that, Amendment number 7 called for districting within the multi-senator counties and multi-representative counties, whereas this district number 8 called for electing them at large subject to some rather complicated machinery for subsequent districting.
So we can't be sure how far the vote especially in the populous counties, turned on one of those other issues and it seems to me that is an important factor to bear in mind.
One of the other elements entering into the question whether equity should exercise its discretion to dismiss the bail without going farther is the initiative in referendum.
I would say again that that certainly cannot be regarded as conclusive in all cases for the reasons I stated with reference to the adoption of a form of apportionment.
On the other hand, here it is freely available, if those who are complaining not only might get their way by testing this issue, but at least to the minimum, they might show whether it is true or not true that the people of each county like it the way it is.
And it seems to me that that is a factor in the scale.
Whether those are enough to overcome the very real bias pressure to decide cases which is ordinarily the court's duty, seems to me a, so nice a question that we have thought that the final outcome turned on still one other far most consideration and that is the theory and the extent of the harm, that the plaintiffs say, that has been done to.
I emphasize both the theory and the extent, if any, of the harm and we would draw here in our brief, as perhaps the Court will recall, a rather nice distinction.
We say that to the extent, the plaintiffs have two possible theories.
One is the one I've discussed, that although there is some room for deviation per capita apportionment, this is arbitrary and capricious and their second theory is that the per capita is required by the -- per capita equality is required by the Fourteenth Amendment without reference to anything else.
Their first theory as a theory, we of course, diverged in other cases and we hope that by the time this case is decided, that will be a clearly established Constitutional principle.
And all it would remain then is the question of degree, the niceness of the question of degree seems to us not a reason sufficient to go ahead and decide the issue.
On the other hand, if the plaintiffs can't make the case out on that theory, we think they can, but if the Court should disagree with this, then we would think that any other theory was sufficiently tenuous and any possible remaining harm, damage if any, was not great enough to overbalance the considerations on the other side and so we urge that the Court should decide the case on the merit only because we are convinced that it is made upon the first theory.
Chief Justice Earl Warren: Mr. Zarlengo.
Argument of Anthony F. Zarlengo
Mr. Anthony F. Zarlengo: Mr. Chief Justice, may it please the Court.
The Solicitor General yesterday stated that he would argue the merits of the case first, and then would get into the equitable considerations later.
Mr. Hart who will follow me and myself have decided on that same procedure.
I will argue the merits of Amendment 7 or as we have referred to it in our briefs, and as we may refer to it in our arguments as the Colorado plan, and Mr. Hart will then discuss the equitable features of the case.
Now, I think perhaps at the very beginning, I would like to clear maybe a misconception with regard to the testimony of Dean Rogers.
It has been stated here and a portion of his testimony has been cited I believe out of context, that the people in the urban areas are not as good as the people in the rural areas.
Well, I would like to state that Dean Rogers was called as a historian, as an expert on government, and I just like to give the Court something of who Dean Rogers is.
He was the Dean of the law school at the University of Denver, University of Colorado, Former Professor at law, Master at Timothy Dwight College at Yale University, Former Assistant Secretary of State, Mayor of Georgetown, Chairman of the Board of Directors of the State Historical Society of Colorado, author of many books, and so forth.
He was giving the history of the Ratio system and as a historian –-
Justice Potter Stewart: Racial system?
Mr. Anthony F. Zarlengo: The Ratio system --
Justice Potter Stewart: Ratio.
Mr. Anthony F. Zarlengo: -- which I will come to in just a few moments in my discussion.
But, he did not base his opinion on the fact that this is a rational plan, because the city voters are better than any other voters, nor did anyone in this case ever take that position, and we certainly do not take it now.
As a matter of fact, the position of Dean Rogers is very clearly set forth in the record when he was asked whether or not he has heard all of these various elements that were considered in this testimony that was presented and whether he thought that the apportionment was on a rational basis, and he testified that it was and that's the very basis of his testimony and that is our position here.
Certainly, we do not take the position that sugar beets or cattle or anything of that kind should be represented, but we do take the position that in a bicameral legislative body that all of the people should be represented not merely the majority or the minority but all of the people in the state.
Now, people have various interests, and in Colorado ordinarily, the interest of the people depends upon where they live.
If you live in an agricultural area, your interests are one way, if you live in a dry area where you have no water, then water becomes the lifeblood of that community and that becomes your pre-dominant interest, and if you're in a mining area, the same thing applies.
And what we are talking about here, what the witnesses testified too in the court, were not economic matters so much but only insofar as they relate to people, people with their interests, and their hopes and their aspirations, people whose very livelihood depends upon certain legislative problems and the whole purpose of the plan is to have the whole of the state represented, so that the interest of these people maybe properly represented by knowledgeful legislators who are familiar with their problems.
Justice Byron R. White: Mr. Zarlengo, certainly it would be true, no matter how you divided the state, that everybody would be represented, and the real question is whether to what extent may you give a certain hundred thousand people more representation than others.
You -- no matter how you put up the state, everybody is going to have a representative.
Mr. Anthony F. Zarlengo: Yes, that is true.
However, if you have it on a strict population basis in both houses, then you simply have a homogeneous body that differs only in name, because the complete representation will be concentrated in certain areas, and other areas will have so little representation as not to be heard at all.
Justice Byron R. White: So your real point is not representation but effective -–
Mr. Anthony F. Zarlengo: Effective representation, I think that is a better --
Justice Byron R. White: A little weighted representation.
Mr. Anthony F. Zarlengo: Little -– better word than what I used.
Justice Byron R. White: Now, why does a particular area need a weighted representation?
Mr. Anthony F. Zarlengo: Well, it isn't so much a matter of weighting because I think when we get down to the statistics here, it's going to become apparent that if we consider the majority and the minority as a difference between the rural areas and the urban areas.
Justice Byron R. White: Is that the way to consider it?
Mr. Anthony F. Zarlengo: I have just taken it from their brief and I say if we consider it that way the urban areas have control not only of the legislature but also of the senate as the figures will very conclusively show.
Justice Byron R. White: Well, is that the way this reapportionment plan was constructed on rural - urban basis --
Mr. Anthony F. Zarlengo: I don't believe it was.
I think it was simply constructed on the basis as set forth in our Constitution has originally adopted that the representation of a legislative body should be to represent the state as a whole and to have everyone have effective representation in that body, that, that is one of the purposes of bicameralism, and we'll get down to those statistics in –- pardon me.
Chief Justice Earl Warren: (Inaudible) population?
Mr. Anthony F. Zarlengo: Maybe, I better come down to the Constitutional questions because I think that there was probably a little confusion on that yesterday Mr. Chief Justice Warren.
So I will refer back to the Colorado Constitution as it was adopted in 1876.
Now under that Constitutional provision, we have this provision, it wasn't by population at all, reading from Section 45, the General Assembly shall provide by law for an enumeration of the inhabitants of the state in the year of our Lord 1885 and every tenth year thereafter, and at the session next following such enumeration, and also at the session next following enumeration made by the authority of the United States shall revise and adjust the apportionment for senators and representatives on the basis of such enumeration according to ratios to be fixed by law and that's what I meant a moment ago by the Ratio system.
In other words, in 1876, there was a ratio system adopted where the legislature would fix certain ratios not according to population, not according to one of the each county, but by certain ratios that they would adopt.
Chief Justice Earl Warren: What if it was then population instead of enumeration, what would you say?
Mr. Anthony F. Zarlengo: If it stated that it should be done according to populations --
Chief Justice Earl Warren: Instead of according to enumeration –
Mr. Anthony F. Zarlengo: Instead of enumeration according to ratios to be fixed by laws what it said.
If it had said population, then the State Constitution providing for an apportionment according to population, I don't believe that the legislature could adopt a law contrary to the provisions of the Constitution.
Chief Justice Earl Warren: What is the difference between enumeration and population in this context?
Mr. Anthony F. Zarlengo: Well, the context here Mr. Chief Justice is enumeration, and we've got to take the entire provision, enumeration according to ratios to be fixed by law, which means that the legislature may fix certain ratios which they did.
In other words, they would say that first 19,000 would elect one and then every additional 25,000 would elect another which I think is far different than a matter of strictly population.
Chief Justice Earl Warren: Had it been so interpreted by your courts?
Mr. Anthony F. Zarlengo: It's been so interpreted down through the years.
As a matter of fact there have been many such apportionments.
I think there have been at least five or six down through the years where they would fix different ratios.
Chief Justice Earl Warren: Yes, but did your court, did Supreme Court – enunciated the theory you have just --
Mr. Anthony F. Zarlengo: In effect, they have recognized that theory in several cases, one of them is them is the Armstrong case which I'll refer to in just a few moments that that is the theory that had been followed, but that Ratio System was abolished by the people in Amendment Number 7.
In other words, when they passed this Amendment they did away with the Ratio System and I believe it might clarify things just a little, if I would go into the history of this matter a little bit.
Our Bill of Rights which is Article 2, Section 1 provides that all political powers vested --
Chief Justice Earl Warren: Where are you reading from if we could see --
Mr. Anthony F. Zarlengo: I'm reading from Article 2, Section 1 of the Bill of Rights, it's one of our briefs.
Chief Justice Earl Warren: Where?
Mr. Anthony F. Zarlengo: Do you have the -- I can't put my finger right on at the moment, maybe counsel can find it.
It's a very short provision.
So all political power is vested in and derived from the people that all governmental right originates from the people, is founded upon their will only, and is instituted solely for good of the whole.
So there we have the first enunciation in our Bill of Rights that first of all the people are supreme and secondly that the government is to operate for the good of the whole.
Chief Justice Earl Warren: That abolishes the ratio --
Mr. Anthony F. Zarlengo: Oh no, this was the original Constitutional provision, I'm back now to--
Chief Justice Earl Warren: And what point is this silent?
Mr. Anthony F. Zarlengo: Well, I was just going into the Constitutional history to show that in Colorado the people have always reserved their sovereignty.
Right from the time of the Bill of Rights to the time that they passed their first -- their Initiative and Referendum Act in 1910 where they reserved to themselves, the Right to Initiate Constitutional amendments, to initiate laws and they had a right to revoke any law that was passed by the legislature and as a matter of fact, in the initiative they had a provision that even the governor could not veto any act that was initiated and passed upon by the people.
So they have always reserved the right under the Constitution, under the amendment of the Constitution, and the initiative and referendum to pass upon these matters.
As a matter of fact in 1932, when the people initiated a measure and passed it and the legislature then instead of adapting the initiated measure attempted to pass a different measure then the people had voted upon, and the matter got to the Supreme Court.
The Supreme Court upheld the initiated measure adopted by the people and struck down the one that was passed by the legislature and Justice Butler in a very strong decision set for that the General Assembly was the creature of the people and that final sovereignty resided in the people, and that they had the ultimate right.
Justice Hugo L. Black: May I ask you --
Mr. Anthony F. Zarlengo: Yes, Justice Black.
Justice Hugo L. Black: May I ask you, (Inaudible) on this particular comment?
Mr. Anthony F. Zarlengo: Is there any difference of opinion?
Justice Hugo L. Black: That the State of Colorado has reserved its people's referendum and so forth, the right to decide how they elaborate the state, is there any difference (Inaudible)?
Mr. Anthony F. Zarlengo: I don't think there is any difference between our position and the Solicitor General, Justice Black, but I'm not so sure --
Justice Hugo L. Black: But as far as we are concerned, we have to take one step further to -- and I was told that the people (Inaudible), assuming that the people of Colorado (Inaudible) as far as the people are concerned pass any law that is not the against Colorado Constitution, the question is here whether they passed one against the Federal Constitution --
Mr. Anthony F. Zarlengo: That's right, that's right.
Justice Hugo L. Black: That's my only question --
Mr. Anthony F. Zarlengo: They certainly cannot pass a law that is contrary to the Federal Constitution.
As a matter of fact, our Constitution expressly so provides, and it would be the law whether it provided so or not.
And I think that --
Justice Hugo L. Black: But right there we finally get to (Inaudible) you complain that the people could buy referendums, do something in connection with – representative would violate the Federal Constitution I am sure –
Mr. Anthony F. Zarlengo: Oh, I am sure we do not take that position.
We say that there is nothing.
We say that it does not.
We say that whatever they did, they did pursuant to their sovereign power and without violating either the State Constitution or the Federal Constitution.
Justice Hugo L. Black: Now the last cause of what you said is the only one we are interested in it, whether it violates the Federal Constitution?
Mr. Anthony F. Zarlengo: That's correct.
Justice Hugo L. Black: So it seems to me, if I may say so that (Inaudible) involved unnecessary though to talk about the referendum and so forth, the people knew more to violate the Constitution by referendum and they can't do without a referendum can they?
Mr. Anthony F. Zarlengo: They cannot we agree with that --
Justice Hugo L. Black: That's our issue.
Mr. Anthony F. Zarlengo: That is our issue and the only reason I have mentioned it is that a statement has been made here, that certain things were frozen into the Constitution and when Amendment 7 was passed that certain things were frozen into the Constitution and we say that under the liberal, initiative provisions that we have, you cannot freeze anything into the Constitution, because the people reserve the right at anytime to change the Constitution, and as a matter of fact, in Colorado, the initiative and referendum has been used very freely.
With regard to reapportionment, there have been 8 major reapportionments after Colorado become a state, and I think there were three –- it was still a territory and if we get into the history of reapportionment just a little bit to show how often it has been used, in 1954 there was a measure that was referred to the people with regard to a provision where by the House would be elected according to population and the Senate would remain the same as it was under the old ratio system.
That matter was voted upon and it was rejected and then in 1950 --
Justice Hugo L. Black: May I ask again?
Why do we have to go in to that to decide whether or not what they've done?
I assume with you that Colorado can do all that.
I rather like it if I may say (Inaudible), it gives the people a better chance to have strong (Inaudible) government, assuming all of that and we get down to the question, that rather the way they have apportioned violates the Federal Constitution and it is so argument they that some how depends on the people's right to have referendum?
Mr. Anthony F. Zarlengo: No, I was only going into that from the standpoint of clearing up something that has been raised here as to whether or not in the election, there might have been some conclusion as to the people when they voted upon Amendment number 7 and --
Justice Hugo L. Black: But that's not our business.
Mr. Anthony F. Zarlengo: No.
Justice Hugo L. Black: We don't know who raised it but that's not our business it, is it?
Mr. Anthony F. Zarlengo: No it isn't --
Justice Hugo L. Black: That's the state's business.
Mr. Anthony F. Zarlengo: The motive of the people or the motive of a legislature certainly isn't subject to review by the courts.
So then I'll get down right down to the very point Justice Black that is involved here as to whether or not what we did in passing Amendment number 7, violated the Federal Constitution, I'm sure that it did not violate the state, so we get down to the federal.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Anthony F. Zarlengo: Now the reason is, I don't think they would want to be less solicitors, but in order to recognize the many problems that exist in the state, a legislature must be thoroughly familiar with those problems with the constituents in that particular area.
Justice Arthur J. Goldberg: (Inaudible) rural areas and about the problems in the urban areas and about the problems in the other areas (Inaudible)
Mr. Anthony F. Zarlengo: If this was designed so that the rural areas would have control of the General Assembly, then I think that would be true.
How could we assume that if they had control of the General Assembly that they would be more solicitous at the city, than if the city had control, they would be solicitous of the rural, but that isn't our situation here.
In other words, if both Houses were so apportioned so that the rural area would have more votes than they were entitled to than the city, now that would be a correct assumption, but here we've got to consider the General Assembly as a whole.
We've got to consider both Houses and when we do that, we have a situation where the House of Representatives is strictly on a population basis.
And therefore, the urban areas have 72% control of the House.
Now we get down to the Senate and in the Senate, we have considered population, but we have considered factors in addition to population.
Population was a factor, but it wasn't the only factor.
There were other factors considered and in considering those factors, in the Senate the urban areas still have control, I believe, of 59% of the Senate.
Justice Hugo L. Black: And what's the comparative population in the rural areas?
Mr. Anthony F. Zarlengo: The comparative population?
Justice Hugo L. Black: I am just wondering if that is out of (Inaudible)
Justice Byron R. White: The House is 70%
Mr. Anthony F. Zarlengo: Yes, the House is 72.
Justice Byron R. White: (Inaudible)
Mr. Anthony F. Zarlengo: That reflects population.
Therefore, the Senate is something, -- no, it's something less than population because as I said, Justice White, we did consider not only population but elements in addition to population.
In other words, the minorities are entitled – pardon –
Justice Hugo L. Black: The House –
Mr. Anthony F. Zarlengo: The House -- They get their proper percentage in the House.
Justice Hugo L. Black: They have their proper percentage.
Mr. Anthony F. Zarlengo: Yes.
Justice Hugo L. Black: And the Senate doesn't.
Mr. Anthony F. Zarlengo: And the Senate has somewhat less, but they still -- the urban the areas still have control.
Justice Hugo L. Black: The Senate does and the other doesn't.
So the Senate has veto power over what one –- the law passes –- that's where the people are represented on equal basis.
Justice Byron R. White: You say the Senate is still – in your position it is the urban votes still controls the Senate, a majority of 59%.
Mr. Anthony F. Zarlengo: Yes.
If you take the east slope area which is predominantly urban, 86.7% urban, they still have control of both Houses.
This is not a range so that the urban area has -- doesn't have control of one of the Houses.
No matter how –
Justice Hugo L. Black: It is a range that is not – on that difference -- I don't know, it is range that does not –- so the small percentage, much smaller than 50% of the people elect the members of the Senate.
Mr. Anthony F. Zarlengo: The majority of the Senate.
Justice Hugo L. Black: Yes.
Mr. Anthony F. Zarlengo: In order to arrive at that figure --
Justice Hugo L. Black: I am not talking about country and city now, I'm talking about people.
Mr. Anthony F. Zarlengo: Yes, in order to arrive at that, you need to take the people of the whole state.
Justice Hugo L. Black: The people of the whole state.
If your Senate elected by a minority, if a majority of your Senate elected by minority of the people of the state.
Mr. Anthony F. Zarlengo: Well, we would have to take it by senatorial district you see, because we do not elect the senators at large, but if we take --
Justice Hugo L. Black: Not the senate, but when you finally get through in there, does it turn out if a number of your senatorial district have a much larger percentage according to population than do -– large number of the other senatorial district.
Mr. Anthony F. Zarlengo: I know it does not.
In other words, in order to get down to this 33.2% that they are speaking about, it is necessary to have not only the entire rural area, but they have got to take some of the representation from the urban areas.
Justice William J. Brennan: That means the total population of Colorado, 33.2% of the total population can elect 20 senators.
Mr. Anthony F. Zarlengo: That is true if they --
Justice William J. Brennan: Well, however they take it.
Mr. Anthony F. Zarlengo: If they yeah.
Justice William J. Brennan: That's the fact.
You can get a combination of 33.2% of the aggregate population that selects 20 senators, which is the majority of the senate.
Mr. Anthony F. Zarlengo: 20 would be a majority, but in order to do that as I stated, it's got to be some imponderables that are almost --
Justice William J. Brennan: Then what you are saying is to get 33 – to test the fact necessarily you must include some people who live in suburban or urban areas.
Mr. Anthony F. Zarlengo: That's right.
Now if we look at their plan and maybe one of the best ways to test whether or not a plan is rational, has a rational basis or not, is not only to take it from the standpoint of the way it was presented at the three-judge court.
And by the way, in the presentation of this plan, we presented a lot of evidence to show the rationale of the plan, the reason for the plan.
We have this report prepared by the University of Denver, we had expert witnesses on Colorado and its history and so forth, but the appellants presented no evidence at all.
All they presented were some statistics, but no testimony.
Now to get down to some of the -- because that seems to be the crucial point here, I think maybe the best way to get at this is to kind of analyze the plan that was submitted by the government and then to analyze our plan and also the plan that was submitted by the appellants.
Now if we get down to an analysis of their plan as shown by their map, I would like to analyze this for just a moment.
Chief Justice Earl Warren: (Inaudible) you concede the issue to be not whether the rural or the urban areas of the state are to control your legislature, that isn't the issue in this case, is it?
Mr. Anthony F. Zarlengo: No, it isn't really a matter of --
Chief Justice Earl Warren: Will you just state what is the issue?
Mr. Anthony F. Zarlengo: As I can conceive it, the issue here is whether or not when the people of the State of Colorado have adopted a Constitutional amendment, one that provides that the whole of the state is to be represented in a bicameral body, consisting of a Senate and the legislature where they have complied with the Constitutional provisions of their state, whether or not the plan that they have adopted is violative of any provision of the Federal Constitution.
Now we say that --
Chief Justice Earl Warren: Isn't the basic issue, whether these appellants and all other people in the State of Colorado have proper representation as individuals regardless of whether they live in the city or whether they live in the country, regardless of whether they are so-called liberals or so-called conservatives, regardless of whether they are working people or business people, isn't that the basic question in the case, are these appellants and everyone so situated in the state, entitled to the same kind of representation in your legislature which makes the laws under which they must live.
Now, if that isn't the issue, tell me why?
Mr. Anthony F. Zarlengo: Well, that is the issue, but in resolving that issue, we get down to a proposition as to what right does each individual have.
In other words, are we going to get down to the point where the Fourteenth Amendment requires that every person in a voting for a state legislative office is entitled to the same vote as everybody else in the state.
If we are down, then it's down to the proposition as to whether or not there should be strict equality in electing a State Legislative body on a strict per capita basis.
Chief Justice Earl Warren: If that is not to be the issue, and if that is not to be the result who has the power to say that one shall have more than the other and the other shall have less?
Mr. Anthony F. Zarlengo: Then we get down to getting some standards.
In other words, first we --
Chief Justice Earl Warren: No, I said who?
I'm talking about who has the right now to weigh this thing so that one person will have less apportionment representation than other?
Mr. Anthony F. Zarlengo: Well, I say that the people of each individual state have the right to adopt the form of representative government that they see fit, provided it does not violate the Federal Constitution.
Chief Justice Earl Warren: And if the Federal Constitution is interpreted to me that the representation means equal representation, then who has the power to change that?
Mr. Anthony F. Zarlengo: Well, if this Court construes the Federal Constitution to mean that in electing a state legislative body, that it has to be on a strict per capita basis, then of course, that becomes the interpretation.
Justice Potter Stewart: Then nobody has the power to change it?
Mr. Anthony F. Zarlengo: No, nobody has --
Justice Potter Stewart: This Court has never held anything like it?
Mr. Anthony F. Zarlengo: This Court has never held that.
Nobody has the power to change it, but our position is that this Court has never held.
As a matter of fact, as I read Baker v. Carr, most of the decisions there, that have touched these statements here -– that touch upon that point are to the affect, that it is not to be on a strict per capita basis.
That there is some room not only for waiting, but some room for the individual states to exercise their judgment as to what type of government is best suited for their needs and their demands.
Chief Justice Earl Warren: (Inaudible)
Mr. Anthony F. Zarlengo: That is the problem, but as I've read the decisions in so far, I am not -– not so far as ratio matters and all that sort of things, I think the law there is rather clear.
But when we come down to what proposition of state apportionment, I'm not familiar with any decision of this Court to the effect that it has to be on a strict per capita basis.
As a matter of fact, as I read some of the statements of the justices in Baker v. Carr, it is very much to the contrary in this type of controversy because the Fourteenth Amendment doesn't require absolute equality.
As a matter of fact in Baker v. Carr, we have a statement that it's a well-known and familiar principles of the Equal Protection Clause.
Justice John M. Harlan: (Inaudible)
Mr. Anthony F. Zarlengo: That's correct, Justice Harlan, as I read it.
And I think that is the basic --
Justice John M. Harlan: (Inaudible)
Mr. Anthony F. Zarlengo: Now that --
Justice John M. Harlan: (Inaudible) the Fourteenth Amendment does require the representation (Inaudible)
Mr. Anthony F. Zarlengo: Justice Harlan, if that is the law of this Court then as I say –
Justice John M. Harlan: (Inaudible)
Mr. Anthony F. Zarlengo: -- that our argument is over because our position is that not -- has not been enunciated as yet as a law of this Court.
Justice John M. Harlan: (Inaudible)
Mr. Anthony F. Zarlengo: Yes.
Justice John M. Harlan: (Inaudible)
Mr. Anthony F. Zarlengo: As to whether or not there has been any invidious discrimination or whether or not --
Justice John M. Harlan: (Inaudible)
Mr. Anthony F. Zarlengo: Well, I believe that's –-
Justice John M. Harlan: (Inaudible)
Mr. Anthony F. Zarlengo: I believe that's true.
I think the Solicitor General at least has taken the position that there are certain considerations that maybe considered.
I won't take the time to go into those now; I would say that on the whole, we agree with those, that you may take into consideration the compactness and all the things that he has outlined, but we are down to what are the requirements and the only requirements that we have and in our brief we set them forth, we say that the only requirements, the only guideposts that we have is, the well known and familiar standards of the Equal Protection which doesn't require absolute equality but does require first of all, that it'd be in pursuance of a state objective, something that's within the proper objectives of the state and here of course the representation of the whole bicameralism, these are all proper objectives for a state and if you do that and if there is no discrimination, then I believe we have complied and if the classes are --
Justice Potter Stewart: Then you have to have a rationally justifiable justification.
Mr. Anthony F. Zarlengo: It would have to be a rationally justifiable justification and there must be no discrimination among the classes which is the point that the Solicitor General raised and I think that we have complied with all of their standards and our position is that the only standard that we know at this time are the equal, are the well known standards of equal protection and we believe that Amendment No. 7 does comply with those standards because if we look at these various districts we find that the rural districts are all treated exactly alike and so are the urban.
Justice Potter Stewart: According to the evidence and the study of the Denver Research Institute, the University of Denver, (Inaudible) it's an oversimplification to talk about rural and urban districts in Colorado.
Your state is divided into three of the four basic areas.
The western area which is part of the Great Plains, the south central area which is largely Spanish-American and it is impoverished and it is a depressed area, the urban area along the eastern slope going from Boulder South to (Inaudible) and the western area which is not (Inaudible) businesses, key businesses and so on.
I think a rational justification of your actual apportionment is what you ought to direct yourself to, one of the Equal Protection clause.
It's not a matter of control of the legislature by one group or another.
It's a matter of bringing to the senate, representatives of these areas who understand the particular problems of those areas.
Isn't that right?
Mr. Anthony F. Zarlengo: Yes, that is exactly right and that was the very purpose of having that report made and presented and that was a very thrust of the testimony that was presented in the Three-Judge court.
Justice Byron R. White: Well, Mr. Zarlengo (Inaudible) why for example, if you put the (Inaudible) would this be (Inaudible) why did you feel for example, that Cannon City and Cannon City areas, is there a senator?
Chief Justice Earl Warren: Which District?
Mr. Anthony F. Zarlengo: You are in the free (Inaudible)
Justice Byron R. White: Well, is there an -- the District 9 and 10.
So is District 25, (Inaudible)?
Mr. Anthony F. Zarlengo: Oh, yeah.
Justice Byron R. White: (Inaudible) they have got in one business, and then just down the line (Inaudible) and all through South Park up to Fairplay (Inaudible).
Now this is one of the point that the District General for example takes (Inaudible).
Now what is the rational, excuse or the justification for thinking that the Cannon City area deserved a separate representative?
Your point is that you are trying to make sure that all the state is represented, all the interest groups are represented. Now tell me what the interest is, if it is the Cannon City that (Inaudible)
Justice Potter Stewart: And a city according to your evidence is very special because it has far and away the highest percentage of people in public administration in the state business.
Mr. Anthony F. Zarlengo: And the public administration and -- has been a district for a long time.
Maybe what we ought to do at this point, if I may, would be simply to comment upon this.
We are talking about whether or not this apportionment has a rational basis.
Justice Byron R. White: Rational, exactly.
Mr. Anthony F. Zarlengo: All right!
Now, may I do this?
The Solicitor General has made a study of this plan and has made certain recommendations.
Now if I may comment upon the suggested plan --
Justice Byron R. White: Well, let's take that this was one of the --
Mr. Anthony F. Zarlengo: This was one of the suggestions that they --
Justice Byron R. White: I would like to hear on that is if it doesn't take a big study to ask that question --
Mr. Anthony F. Zarlengo: No.
Justice Byron R. White: And to talk about that district.
It doesn't take a big study.
They wondered why you put (Inaudible) in the same district.
Mr. Anthony F. Zarlengo: Well, I am directing my attention to -- you mean Walsenburg and Huerfano County in the San Luis valley?
Justice Byron R. White: Yeah, how (Inaudible) Walsenberg (Inaudible) now if they -- if you have rational basis for the disparity in these districts and you are going to explain (Inaudible) and take that --
Mr. Anthony F. Zarlengo: Well, I will get down to your Walsenburg, Cannon City is in Fremont that area and there it was recommended, very well Justice White, Pardon me.
Justice Byron R. White: What district it is, I will go by District --
Mr. Anthony F. Zarlengo: By the district well, let's see, Fremont County, Cannon city is in Fremont County which is District 25.
It's a combination of Fremont and Custer counties.
Justice Byron R. White: (Inaudible)
Mr. Anthony F. Zarlengo: Now the other one is, when we come down to Los Animas County which is -
Justice Byron R. White: Huerfano has got –
Mr. Anthony F. Zarlengo: Huerfano and then we have District 23.
Chief Justice Earl Warren: What number is Huerfano, I don't find it.
Justice Potter Stewart: 23.
Mr. Anthony F. Zarlengo: That's district 30.
Chief Justice Earl Warren: 25 and 30.
Mr. Anthony F. Zarlengo: All right!
Now, as far as Huerfano County, we had Huerfano County joined with Costilla County and Los Animas County to form one district.
Justice Byron R. White: Yes, but not (Inaudible)
Mr. Anthony F. Zarlengo: Yes, but in doing that we have to consider the plan and well, if the Los Animas County was a separate county -- now, in considering the history of Los Animas County we find that it has been a separate senatorial district from the time that Colorado became a state in 1876.
Justice Byron R. White: (Inaudible)
Mr. Anthony F. Zarlengo: There have been some changes but it has been an old established senatorial district.
Justice Byron R. White: The population has gone down.
Mr. Anthony F. Zarlengo: The population has gone down because of the depressed condition of the coal mines down in the general area and that whole general area, the whole area.
Justice Byron R. White: (Inaudible)
Mr. Anthony F. Zarlengo: Well, on the basis that they have certain -– if you see this, whole Southwest area only has three representatives for the whole area.
Now, we can combine those anyway we want to combine them but they only wind up with three anyway.
As I say, there maybe other arrangements that can be made.
We say that our plan has a rational basis for it, but you may rearrange some of these counties in different ways.
As a matter of fact, the arrangements maybe numerous and still have some rational basis.
Justice Byron R. White: Well if you put Walsenburg and Trinidad together, and put (Inaudible) in the same district (Inaudible) --
Mr. Anthony F. Zarlengo: Well, if you give each of them a Senator, you would have two and then you may eliminate the other Senators.
Well, I would say that that arrangement would not be an illogical arrangement to combine Pueblo and Las Animas.
Justice Byron R. White: Well, why would this -- this way it comes out like, you give three Senators in that southern district, that southern, we can give three Senators.
The question is why is it that, what's rightful about it when the, why did they justify three Senators when their population doesn't?
Mr. Anthony F. Zarlengo: Well, they get three senators because we have an area here that is a greatly depressed area that has many peculiar problems of its own.
Justice Byron R. White: Very true, absolutely the same is true for Walsenburg, isn't it?
Mr. Anthony F. Zarlengo: Yes, the whole south central area is a depressed area.
Justice Byron R. White: Would you say that's true to San Luis Valley?
Mr. Anthony F. Zarlengo: No, the San Luis Valley is --
Justice Byron R. White: Well, why is (Inaudible) a depressed area?
Mr. Anthony F. Zarlengo: Well, there again we get down to the historical grouping of the county.
Some of these counties have been grouped in that fashion for many, many years.
And as I say, you may have other groupings but there's been a lot of experimenting over the years in grouping the counties one way and then grouping them another way trying to get a community of interest.
Chief Justice Earl Warren: Let me take two other districts, both very small districts, both in the neighborhood that's been one touching Denver and the other almost touching it.
Numbers 13 to 14 Boulder County and districts 21 to 22 Jefferson County; one of the -- each of them has two Senatorial districts, but one of them has a Senator for every 37,000 people and the other one has a Senator for every 63,000 people.
What is the rational basis for that discrimination?
Mr. Anthony F. Zarlengo: Now let's see we had Jefferson County --
Chief Justice Earl Warren: And Boulder.
Mr. Anthony F. Zarlengo: And Boulder County.
Chief Justice Earl Warren: Yes.
One, you have a Senator for every 37,000 people in Boulder County and a Senator for every 63,000 in Jefferson County immediately next door to it.
Both small and compact in the area, both consisting of one county each.
Why that differentiation?
Mr. Anthony F. Zarlengo: Well, both of these are rapidly growing counties.
Of course, Boulder is becoming a –- but that's a home of the state university up there, and it's becoming one of the scientific centers of the country, rapidly growing, lot of industry moving in.
Chief Justice Earl Warren: In one instance, you tell us that you give them overrepresentation because it's a fastly growing community and then another situation down here in (Inaudible), you say you give them overrepresentation because it's a dying area and because of the coal industry and people are moving out.
We can't have both of those --
Mr. Anthony F. Zarlengo: No, that is true.
In Boulder County, they were faced with a problem of either leaving it down to one which would not give them enough.
You can't them one in the half, you see.
We'd either have to get them say at 74,254 with one or give them one more.
Chief Justice Earl Warren: Why couldn't we give them another county?
You give a lot of other places counties and that's a very small district, indeed one of the smallest in the state if not the smallest outside of Denver.
Mr. Anthony F. Zarlengo: I might say Chief Justice that I believe all of the parties in this case have agreed that none of the counties on the east slope maybe properly joined with another county, just because of the complexity of the various problems.
I think that has been agreed by all.
I believe my time is up.
Chief Justice Earl Warren: Mr. Hart.
Argument of Stephen H. Hart
Mr. Stephen H. Hart: Cold I ask the marshal, how much time I have left?
43, thank you!
Mr. Chief Justice, may it please the Court.
Conscious of the value of this court's time in the limits of mine, I'd like to take a moment still place the case in focus.
There are lots of details and they are confusing at least to me, not as confusing happily as the Georgia School Board case yesterday because they are all in the record here.
But, referring to yesterday's argument at least, I'd like to make it clear that this Colorado case starts afresh with the constitutional amendment adapted by the people in 1962.
Prior to that time there was a different apportionment system in Colorado.
A system based not on per capita ratios, not on -- I mean not on per capita population, but on ratios in which for instance, a district for the senate was given one senator for the first 19000 people and one senator for subsequent 50000 people.
Each house district was given one member for the first 8000 people and the second member for the first 20500 people.
It was this ratio system which Dean Rogers was testifying about which was so called the Elihu Root system advocated by Elihu Root New York Convention of 1894 and it was Elihu Root's theories, not Dean Rogers's theories which he was quoting in support of the New York proposal which was the Colorado law until the people spoke in 1962.
Since 1962, we have had a completely new provision initiated and approved by the people.
I would like to --
Chief Justice Earl Warren: Would you mind telling us just what difference that made in the Constitution, what does the new Constitution provide?
Mr. Stephen H. Hart: It makes a --
Chief Justice Earl Warren: Not as a district but --
Mr. Stephen H. Hart: It makes a tremendous difference.
First, it got rid completely of the ratio principle in the house.
It provided that a legislature must district the house purely in accordance with population and not in accordance with these ancient ratios.
Second, it puts sanctions on the house, on the legislature so that they had to comply with this constitutional provision which they had rather avoided in the past.
It put those sanctions on by providing that if they didn't immediately redistrict the house and if they didn't do so every ten years, they'd lose their pay from then on and they weren't able to be reelected.
They couldn't run for reelection.
That was effective.
In the third place, they moved closer to a per capita representation in the senate than they had ever been before.
They added four new senators, those to the four most rapidly growing areas in the state, the suburbs of Denver, giving each of those four counties surrounding Denver two senators in all.
Third or fourth, they provided for sub-districting the multi-senator, multi-representative districts so that the individual voters could know who they were voting for and would be able to choose between two candidates instead of as it was in Denver, 34 candidates.
The case has been ably argued.
We have presented briefs, which I think are good, but the best thing of all in this case is the transcript of testimony.
The evidence here supplied completely by our appellees is from very distinguished and very able men.
Senator Edwin C. Johnson, probably Colorado's most distinguished and most experienced office holder testified at length.
James Grafton Rogers, certainly one of Colorado's most distinguished educators and public servant, testified at length.
The Denver Research Institute, a Branch of Denver University supplied a study which was impartial objective, and supports the rationality of the scheme.
If the appellants are to prevail here, they must upset all of the testimony, they must upset the findings of the lower court, they must upset the vote of the people, they must upset all of the presumptions.
Justice Potter Stewart: On the other hand if the Equal Protection Clause of the Constitution requires a strict numerical representation, all -- everything you've mentioned just goes down the drain and you lose.
Mr. Stephen H. Hart: That's right.
Justice Potter Stewart: It requires out of both houses of the bicameral legislature.
Mr. Stephen H. Hart: If the holding of this Court following through from Baker v. Carr requires an absolutely arithmetical apportionment of both houses of a bicameral legislature, there is nothing to it.
Justice Hugo L. Black: I don't think any of the indications will require absolutely arithmetic provisions.
As a matter of fact I think, we all recognize that that cannot be done.
It is our suggestion that -– so nearly if that must be the goal and must be followed, so nearly as practicable.
Justice Potter Stewart: If it requires that thing you lose, don't you?
Mr. Stephen H. Hart: I would say that it would be possible to apportion both houses more nearly according to population than has been done by this plan, but if what you require under Equal Protection is what -- has always been required under Equal Protection and Due Process, something more arithmetical equality or as near arithmetically -- arithmetical equality as you can get rationality, reasonableness, reasonable classifications, fairness, lack of arbitrary classifications we submit that this plan meets that test.
We submit that this plan is rational; all the evidence so indicates.
The findings of the court are to that affect and I recommend those findings it's a very clear statement of the case.
Justice William J. Brennan: Well, would you mind, is there an explanation for putting (Inaudible) together?
Mr. Stephen H. Hart: There is very definite explanation for the questions that Mr. Justice White asked.
The Geography of Colorado is very complex.
It's a rectangle put upon the most complex and diverse and differentiated geography in the whole United States outside of Alaska.
This central area is an area of tremendous mountains.
There are 53 peaks, over 14,000 feet high in this area.
California has 12; Washington has one.
Justice William J. Brennan: I am looking at this map here.
Mr. Stephen H. Hart: Yes sir.
Justice William J. Brennan: And I don't know you place that well, but it does strike me that most of it seems to be in the plain there, isn't it, and the valley of some kind on the other side, there are all mountains.
There are lots of verges on this map.
What exactly is the justification for combining those two?
Mr. Stephen H. Hart: For combining Huerfano with Alamosa was a matter chiefly of attempting to balance population.
If Huerfano is put with Los Alamos, as the Solicitor General would suggest, that's a fairly reasonable classification, but then in order to balance population and make an additional Senator, you have to put Alamosa and Costilla County with Rio Grande, Conejos and Mineral Counties.
Conejos has something in common with Alamosa but --
Justice William J. Brennan: Well, does that suggest that whatever combination you made up, you wanted to be sure to continue three Senators down there?
Mr. Stephen H. Hart: I think that nothing is perfect.
I think that had the people of Colorado voted on the plan as suggested by the Solicitor --
Justice William J. Brennan: What's the real reason for doing it this way, whatever the combinations were, that you wanted to perpetuate three Senators in that area?
Mr. Stephen H. Hart: I don't think it was at all, I think it was a balancing of the various interests.
Justice William J. Brennan: Balancing of what interest, that's what I don't get?
Mr. Stephen H. Hart: The interests on the West side of District 31 are largely timber, mining, tourists, recreation, agriculture, that is livestock.
The interests of Alamosa, Costilla and Huerfano County are largely irrigated farming, coal mining, depressed coal mining, and similar interests.
One very, very important factor, and one which is in support of this particular districting is the heavy unemployment in this area.
This is a continuously depressed and an increasingly depressed area in Colorado.
The Central Southern area is the most depressed; the heaviest load of public welfare, the heaviest load of unemployment, the heaviest load of aid to dependent children in the whole state.
They have special problems.
These welfare problems, these unemployment problems in rural areas are different than they are even in the city.
They require representation.
I admit that you could conceivably cut their representation from three Senators to two Senators, and if the people felt that was fair, that would be all right; nothing is perfect.
This is the most debatable area of the Colorado Plan, but I submit if after all the examination that has gone into this Colorado Plan, all the opposition, all of the legal talent, all of the research, the only thing that the Solicitor General can come up with to object to is this little area of persistent unemployment in Colorado, if all they want to do is to take one Senator from this little area and give it to El Paso County, known as little London in Colorado, because it's the richest, I say that's de minimis.
Justice William J. Brennan: Well, is that the only one to which the --
Mr. Stephen H. Hart: The second is this District Z above, and I think that that is even less defensible.
Chief Justice Earl Warren: What district?
Mr. Stephen H. Hart: Directly above, it's a combination of District 25 with District 24, it's exactly in the center of the map.
Justice William J. Brennan: What, the plan is applied here --
Mr. Stephen H. Hart: The Solicitor General's scheme of combining those two districts is even less defensible than his plan of combining the two depressed areas on the border of New Mexico.
Justice White quite properly asked about the combination of Canyon City and Salida.
Canyon City and Salida are as different as any two cities in Colorado; one contains the state penitentiary and a high level of state employees, who are interested in civil service.
It contains a great area of coal mines, which are closed down and high unemployment.
Salida, the capital -- the County seat of Chaffee County is a rapidly growing tourist center.
It's a hub of highways, it's prosperous, it's growing.
There is every reason in the world why the one Senator would find it difficult to represent both cities.
In the same way --
Chief Justice Earl Warren: May I ask you about Districts 13 to 14 and 21 to 22, as I did your colleague, those are both in the vicinity of Denver, they are both small districts, they both represent one county, yet you give a Senator for every 37,000 people, and in the other county one Senator for every 63,000.
Why should that be?
Mr. Stephen H. Hart: Because it bears on the balancing of the whole.
If you gave Boulder an extra Senator, then the three -- the four suburban Counties of Denver, which are Boulder, Adams, Arapahoe and Jefferson, would have more Senators than Denver itself, and yet the four counties together have less population than Denver.
There the -- if there are conflicts in Colorado, and it's a very peaceful state generally, but if there are conflicts, the worst is the conflict between the City of Denver and the surrounding suburbs in the field of annexation.
And if you overweigh the suburb and counties which have less population than Denver, with more Senators than Denver, you are going to put Denver in a vice.
This plan --
Chief Justice Earl Warren: But haven't you done that with Districts 13 to 14, 37,127 people per Senator and then in Denver 61,736 per Senator.
Mr. Stephen H. Hart: You have done it on a per Senator basis, but you haven't done it on the total of Senators, because Boulder, the one that you refer to, is a suburb of Denver, so listed by the United States census, and the four suburban counties under the Colorado Plan have 8 Senators, Denver has 8 Senators.
Their population is almost even, they balance each other.
They can't, either of them, ram anything down in each other's throat; they can't rule or ruin.
Justice Hugo L. Black: What's the difference between Boulder and Denver?
You surprised me when you say it's a suburb?
Mr. Stephen H. Hart: It's about 35 miles by a 70-mile an hour highway.
A third of my partners live in Boulder and practice in Denver.
Justice Hugo L. Black: That's not considered a suburb.
Mr. Stephen H. Hart: It's a suburb by the census and in fact, it's practically growing up all the way.
So I would like, again, trying to put this in perspective to state my position.
I am here representing the interveners.
Mr. Zarlengo is representing the State of Colorado.
Our position before this Court is identical.
We are supporting the Colorado Plan.
In the beginnings, however, our position was quite different.
The Attorney General from the prosecutor's office was required to support the Colorado Law and the Colorado Constitution.
We differed with the Colorado Law and the Colorado Constitution prior to the amendment in 1962 and we proposed this amendment, which accomplished those things which I stated at the beginning of my remarks.
We proposed, initiated, and passed through -- by the elected the Amendment number 7.
Having passed it, we are here to defend it.
I would like to distinguish this case from the other cases that you have heard on the state apportionment matter.
In the first place, this scheme was initiated by the people and at the same time as they initiated this plan, they repudiated a contrary plan, which was along the lines of that proposed by the appellant, and they did it overwhelmingly.
The vote of the people for the Colorado Plan, for number 7, was 305,000:172,000, almost 2:1 and those against the per capita plan in both Houses, was 311,000:149,000, more than double.
More than twice as many people voted for the Colorado Plan as voted for the Per Capita Plan.
What's more --
Chief Justice Earl Warren: Is there any constitutional distinction between a vote of that kind by the people and the same proportionate vote by your legislature in a state where they don't have the referendum or initiatives?
Mr. Stephen H. Hart: Only this that the vote by the people is that much more direct, the vote by the people can be counted per capita, it can't be hidden behind the personal opinions of a representative who may depart from the views of his constituents.
This plan was not only adopted overwhelmingly by all the people at large throughout the state, it was adopted by the people in every single county of the state, including those that are alleged to be discriminated against and the opposing plan was defeated by the people in every single county of the state, including those who are alleged to have been discriminated against.
Justice Potter Stewart: How many counties are there?
Mr. Stephen H. Hart: There are 63 counties and the votes in Denver and suburbs and El Paso and every other county that is supposed to have been discriminated against were against per capita representation and in favor of this plan.
The reasonable inference from that is that they felt that it was reasonable.
They felt that it represented the needs of the people of Colorado and that the other plan did not.
Chief Justice Earl Warren: Mr. Hart the sentiments of the public change very rapidly some times.
Suppose you had in your state a wave of, let's say, liberalism, or a wave of conservatism, it makes no difference and those who are in the majority of that way of thinking put a major on the ballot and did exactly what you have done here for the purpose of perpetuating that particular philosophy of theirs.
Would that be acceptable?
Would that be constitutional?
And if it is, could another group coming along a few years later that felt the other way say, well, we will do it just the opposite of that and we will keep these people who are not of our political persuasion from having a full weight in the legislature?
Mr. Stephen H. Hart: The people have -- there are two phases of that, sir.
The people have the full right by initiative to come in every two years, any two years, and amend this plan or any other plan.
The assertion that this is frozen in the Constitution is absolutely contrary to fact.
The people and the people alone in Colorado amend the legislature.
There is no provision for amendment by the General Assembly whatsoever.
The people alone do it.
So that any two years, any General Election, the people can come in and amend, but any amendment that they may choose obviously cannot be in contravention of the Constitution of the United States.
Chief Justice Earl Warren: Well, then don't we get down to the fair question of whether this is in conflict and not whether a majority of your people voted to -- for this program because they liked it?
Mr. Stephen H. Hart: We do get to that point and --
Chief Justice Earl Warren: Isn't that the only point that we have?
Mr. Stephen H. Hart: The only point is the constitutionality of this plan, but the essence of my argument is, if this plan were unconstitutional, it would be on the basis that it's a discrimination against the minority, against some minority.
The only right that is alleged here is the right to vote.
The only vote involved is the vote by senatorial districts.
The vote by senatorial districts is a vote by the majority.
One person's vote, unless he is in the majority, doesn't count in the United States.
If you have a county of 50,000 voters and 26,000 vote one way and 24,000 vote another, the 24,000's vote doesn't count, the 26,000's vote does.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Stephen H. Hart: That's right.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Stephen H. Hart: Appellants are bringing the lawsuit.
Presumably, appellants voted in the last -- in this initiative.
Appellants presumably voted in Denver.
Appellants' right to vote was not discriminated against.
They went into the polling place just like everybody else.
Their vote was counted, but their vote didn't win.
The majority of the voters in Denver, the majority of the voters in each one of these counties, expressed the opinion of that county.
In the majority rule system that we have, an individual's vote does not count unless it's part of a majority.
Justice Arthur J. Goldberg: What's the majority vote (Inaudible)
Mr. Stephen H. Hart: That would be absolutely invidious.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Stephen H. Hart: That would be invidious.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Stephen H. Hart: That's right.
The vote -- the point is whether the provision adopted offends the Constitution, but philosophically, philosophically, as long as the United States sticks to the principle of the majority vote, then an individual's vote is significant only when it's on the side of the majority, and the majority here have spoken in each one of the areas that's under consideration.
Justice Potter Stewart: I think going to different view.
Mr. Stephen H. Hart: If you had proportionate voting of some kind, it would be different, and the individual's vote would be of some significance if he lost, but in this country if a senatorial district carries by only one, the majority prevails.
Justice Arthur J. Goldberg: Assuming majority is that, that's the real assumption in the court, (Inaudible) that's representative of government, but the whole theme of our Constitution is that there are certain things that a majority may not do.
Mr. Stephen H. Hart: Here all the majority did was impose temporarily, until the majority again should say otherwise, a restraint upon itself.
The majority acted with full knowledge, well-informed, and with two alternatives ahead of it.
Justice Potter Stewart: You would agree though that so far as the basic merits of this case goes, so far as the constitutionality of this plan goes, it doesn't make any real difference if you get to the merits, whether this plan was adopted by a majority of the voters in every county of Colorado or by the legislature or as required by the State Constitution or however, but what the -- I gather that the two points you are trying to make in emphasizing that this was adopted by the people, by a majority of the voters in every county are two, two points.
First, that a plan so adopted is presumptively rational -- is presumably rational and secondly, the existence of the referendum and the initiative in your state means that there is an adequate alternative remedy and that therefore possibly a court need not intervene.
That was the view expressed by one of the members of this Court in various concurrences in Baker against Carr, and it was basically the same view expressed by Mr. Justice Rutledge in Colegrove against Green.
So the vote of the people bears, I suppose, on those two points, but not on the basic constitutionality of this plan, doesn't it?
Mr. Stephen H. Hart: This Court can overthrow the constitutionality of this plan if it so holds, but the majority vote of the people does, as you well-express, bear on the thing.
I would say that it bears in four ways.
One, the vote of the people are well-informed after an intensive campaign and after ten years of study and debate, after two prior referred measures, certainly indicates their view of the reasonableness of the plan.
In the second place, the existence of the initiative stands like a good angel, shall we say, over the acts of this legislature, who is apportioning your considering, because everything that this legislature does is -- can be subjected to the initiative.
It's the most liberal initiative of any state in the United States, except North Dakota.
It's more liberal even then California, in that the number to initiate a measure is 8% of the vote for Secretary of State, which is a small vote, as compared to 8 for Governor, which is a larger vote.
In the third place, the presence of the initiative in this case provides a remedy whereby the people at any time they are dissatisfied can come in and change the picture.
Even this November, there is plenty of time; an initiative doesn't have to be filed until July 30.
Four months before the election appellants can go in there with any plan they want, put it up to the people, and the people can vote.
That is Mr. Cox's point when he says that there is no need for equity to intervene here.
In the third place, there is the matter of integrity of the vote, but this whole series of cases, beginning with Baker against Carr, proves is -- or is aiming at, is the right to vote.
What use is the right to vote --
Chief Justice Earl Warren: We will recess now.
Mr. Stephen H. Hart: Thank you!
Continuing, I would like to turn afresh to the plan proposed by the Solicitor General and outlined in blue on the map which he furnished you, as being an alternative to the plan adopted by the people, and of course in addition to the fact that this is his plan, revised in Washington, 2,000 miles from Denver, as opposed to the plan adopted by the people.
I would like to point out, not just the inconsistencies in the plan, which I tried to develop with respect to Huerfano County and Canyon City, but also the fact that it doesn't achieve, to any substantial degree, any improvement in what he would consider the discrepancies.
He argues now that 33.2 of the people can elect a majority of the Senate.
Under his plan 39% of the people could elect the majority of the Senate.
The ratio of the least populous district under our plan to the most populous would be 3.6:1; under his it would be 3.3:1.
It would change only 2% of the seats in the whole legislature, 2 out of 104, or in the Senate itself, it would change only 5% of the seats in the Senate, just over, 2 out of 39.
We feel that this is de minimis and not substantial enough to upset the vote of the people of Colorado.
I would like in the same vein to refer to some other statistics, the ratios of population to Senators under the Colorado Plan.
There may be the impression before the Court, and I think Mr. Justice Goldberg had that impression, that the Colorado Plan gives control to the rural areas; it does not.
There are four different areas in the state; the Western, the Eastern, the South Central, and the Eastern slope.
The Eastern slope is the metropolitan area involved in any discrimination, if there were one.
Under the Colorado Plan, the eastern Slope has 75% of the people.
It would have 23 Senators as against 15 Senators for the rest of the state.
It would have 47 Senators as against 26 -- 47 members of the House as against 26 for the rest of the state.
Even the three metropolitan areas of Colorado Springs, Denver, and Pueblo, would still have 42 out of 63 in the House and 20 out of 39 in the Senate.
The three metropolitan areas, excluding the rest of the urban Eastern slope, would still control both Houses.
If you take urban areas as a whole as against rural areas, and there are urban areas in other parts of the state, senatorial districts electing -- representing predominantly urban population would have 24 Senators as against 15 Senators from districts representing predominantly rural populations.
One other point with respect to Mr. Goldberg's question, we are not here concerned with property rights or with discrimination against religious groups.
We are here concerned with the right to vote, and with respect to the right to vote, I submit that the vote of the people is peculiarly persuasive.
The vote of the people in the very districts involved in any alleged discrimination should be given, particularly weight in this instance, and I quote from the Solicitor's brief on Page 27.
“Any relief granted to those who requested in the courts will unavoidably be forced upon those who rejected it at the polls.
Under such circumstances the will of those similarly situated and necessarily affected, which seemed to be a factor, that equity should take into account in deciding whether to intervene or to stay its hand.”
I say more than in just deciding whether to intervene or to stay its hand, it should be taken into consideration in considering whether or not this is rational or whether or not it's invidious.
I might also mention that the relief which the people of the State of Maryland, in the case that you heard in November, which they asked for is exactly the relief which the people of Colorado have already exercised.
In the Maryland case, the petitioners in that case, the complainants, asked that the court enjoin the defendants from performing their election duties until such time as the General Assembly should submit for referendum vote by eligible state voters an amendment to their constitution which would reapportion the membership of the General Assembly on the basis of population.
That's exactly the referendum which was submitted to the people in Colorado and exactly what they turned down in favor of this plan, which was submitted at the same time.
In conclusion, I would like to state what I was about to say just before the intermission, that with the case of Baker against Carr, this court initiated a very far-reaching inquiry into the problem of the right to vote for state legislatures.
That case was a milestone in the protection of the right to vote.
Both the briefs of the appellants and of the Solicitor General are paeans of praise in favor of the right to vote.
Here we have a plan which is the result of that vote.
It's the result of a vote statewide in which every man had an equal vote and it can be broken down by counties, and in ever county a man had an equal vote.
We submit that the protection of the right to vote is of very little avail if the integrity of the vote, where no discrimination against the minority is involved, is abridged.
Are there any questions?
Chief Justice Earl Warren: I beg your pardon?
Mr. Stephen H. Hart: I wondered if there were any questions?
Chief Justice Earl Warren: I think not Mr. Hart, thank you.
Argument of Charles Ginsberg
Mr. Charles Ginsberg: Honorable Chief Justice and Justices of the Court.
I have listened with interest to the various arguments presented.
While reference has been made to the plan advocated by our opposition and the plan of the Solicitor General, that to me is not the choice here to be made, the choice is a plan compatible with the Constitution.
The plan here to be tested falls short of any constitutional requirements.
Constitution tries to give weight and your decisions have tried to give weight of equal value to all voters.
That's a very vital and important right.
It's not dependent upon discrimination, directed at any group.
It's never to give a same weight to the vote of each citizen, upon every issue involving the Federal Constitution, most certainly, and extending to the question of state rights also.
Gauged by that test, there is an admitted failure in the State of Colorado to any measure abide by the requirements of the Federal Constitution.
We have a lot of language purporting to justify that violation.
In one case, it's impoverished territory, coal mining sections that have been abandoned.
In another case it's the fact that some other interest must be represented.
Now, it's rather silly to me to content, for one to do justice to another or to another's interest in the legislature he must come from that neck of the wood from which the other lives.
Justice Potter Stewart: Inaudible) couldn't you agree that it might be a matter of understanding?
I know for example that -- I know that no matter how much justice I might want to do to the impoverished areas of South Central Colorado, involving largely Spanish-American population, that I wouldn't have any understanding of their problems?
Mr. Charles Ginsberg: Well, I certainly wouldn't want to do discourtesy to the Court.
I would assume that Court's knowledge of varying interests of the people of country is not determined upon the basis of the judgment acquired in any given territory or amongst any given group.
I am sure that that is not the basis for your considered debate on this Court.
Our communications are not so limited that one living in New York is not conversant of the needs of Colorado, nor for that matter are our view is so limited by environment or habitation that we are not conversant with the needs of the world today.
So I say it's putting a rather narrower limitation upon the ability of a legislature to function in the interests of all its people, because they are not divided upon the basis of respective trades.
I think that question was suggested by Honorable Justice Goldberg in one of his questions.
Is a legislature made up of urban individuals who ignore the rights of their neighbor who happens to be located in the farming community?
Neither (Inaudible) is the interest of the other.
There hasn't been any effort to justify this plan upon the basis that it in any way approaches the requirements of the Constitution.
It flagrantly does not.
I do not propose to measure by the yardstick proposed by the Solicitor General.
I don't think it approaches the just application of a constitutional requirement.
Justice Potter Stewart: Where do you find these constitutional requirements, these are in the constitution or in the cases --
Mr. Charles Ginsberg: No, in the cases declared, as I understand them, by this Court.
Justice Potter Stewart: Which one?
Mr. Charles Ginsberg: Well, the Carr case.
Justice Potter Stewart: Didn't say a word about them.
Mr. Charles Ginsberg: Well, you laid down -- your recent Georgia case lays down, certainly the principle as nearly as possible, a man to vote, nearly as possible and certainly when there is a discrepancy, where in one locality 19,000 people can elect a Senator to the State Senate.
Another locality it is 60,000 or more.
That certainly cannot be claimed to be any approach to my understanding of Baker versus Carr case.
Certainly it does not meet the requirements of the Fourteenth Amendment it gives to each individual.
(Inaudible) on the most basic right possessed by man, the right to vote, and that is the purpose, I take it, of this Court on this vital right, to find as nearly as possible in method through which each individual's vote is equivalent of another.
That is my understanding of the purpose of this Court.
Justice Potter Stewart: Thank you.