BURNS v. RICHARDSON
Legal provision: Equal Protection
Argument of Bertram T. Kanbara
Chief Justice Earl Warren: Numbers 318, John A. Burns, Governor of the State of Hawaii, appellant, versus William S. Richardson et al., Number 323, Elmer F. Cravalho, et al., appellants, versus William S. Richardson, et al., and Number 409, Kazuhisa Abe et al., Appellants, versus William S. Richardson, et al.
Mr. Bertram T. Kanbara: May it please the Court.
Before proceeding into the statement of the case and my arguments, I think it'll be helpful that I present a brief background discussion as to the geography of the State of Hawaii and as to the constitutional provisions with respect to the apportionment of the state legislature.
I invite the attention of the Court what we have here, the State of Hawaii consists of essentially of four major islands; the Island of Hawaii, the Island of Maui, the Island of Oahu, and the Island of Kauai.
These four major islands also constitute the basis of our four county governments.
Thus, the Island of Hawaii constitutes the county of Hawaii, the Island of Maui with its centralized islands of Molokai and Lanai constitutes Maui County, the Island of Hawaii and its neighboring Island of Ni’ihau constitutes the counties of Kauai.
The Island of Oahu which is officially designated as the City and County of Honolulu, after the capital city in the nearby islands.
We will be variously referring to the Island of Oahu as the city and county of Honolulu or the Island of Oahu.
I might also mention that the Island -- counties of Hawaii, Maui, and Kauai will variously be referred to collectively as the outside islands or this neighbor islands.
The 1960 population of the State was in round figures 600,000.
The registered voter population was about a third of that.
Chief Justice Earl Warren: That is third of that did you say?
Mr. Bertram T. Kanbara: Yes, Your Honor, approximately 200,000.
Chief Justice Earl Warren: Yes.
Mr. Bertram T. Kanbara: The City and County of Honolulu contained roughly 500,000 of the people thus constituting -- thus having roughly 80% of the population of living on that island.
Proceeding now to the apportionment provision of the Constitution, the State Constitution prescribes a setup of --
Chief Justice Earl Warren: I wonder -- I wonder if before that you could tell us about what populations are on the other islands, the other counties, please.
Mr. Bertram T. Kanbara: Yes, Your Honor.
The County of Hawaii has a population of 60,000, the County of Maui, 42,000, and the County of Kauai, 28,000.
The Constitution prescribed the Senate of 25 members apportioned among six districts.
It is apportioned on a basis of geography rather than population and suffice it to say that all parties agree that the Senate is indisputably malapportioned under the decisions of this Court.
Justice William J. Brennan: What are the distances Mr. Kanbara?
Mr. Bertram T. Kanbara: The six districts are --
Justice William J. Brennan: I want the distances of that.
Mr. Bertram T. Kanbara: Oh, the distances.
Justice William J. Brennan: Between the island.
Mr. Bertram T. Kanbara: Roughly around 200 miles of there about, Your Honor.
Under the Senate, these outside islands with 20% of the population elect 60% of the Senators.
Our House, the Constitution prescribed 51 representatives to be apportioned among 18 districts.
The Constitution itself sets out the boundaries of these 18 representative districts and apportions the representatives thereto.
It provides that in 1959 and every 10 years thereafter, the Governor shall reapportion the legislature, but this is a very limited sought of reapportionment.
The -- he cannot touch the existing boundaries as set forth in the Constitution.
He -- what he does is redistribute the representatives in accordance with the relative numbers of registered voters in each district and only as a matter of last resort and it -- in the unlikely situation that the number of registered voters falls below a figure which is one-half of the average number of registered voters represented by a Representative.
Only in that limited instance may he shift a boundary line presumably to include more representatives, more registered voters who have been a neighboring district.
Now such a reapportionment took place in 1959 and it is the one that is in effect today.
Thereunder, we have five districts which are single member districts.
We have two districts that are two-member district.
We have four districts that are three-member districts.
We have six districts that are four-member districts and then we have one district that is a six-member district.
Proceeding now to the --
Chief Justice Earl Warren: Well is that -- that the Senate that you’re speaking of?
Mr. Bertram T. Kanbara: That's the House of Representative, Your Honor.
Chief Justice Earl Warren: That’s the House of Representative.
Mr. Bertram T. Kanbara: Yes, sir.
Chief Justice Earl Warren: How do all those districts come out to population wise?
Mr. Bertram T. Kanbara: They vary of course from -- depending on the size of the district.
The six-member district, for example, which is the fifteenth district of Oahu, has a population of 60,000 and the smallest in terms of population is the first district on the Island of Hawaii with a population of approximately 5,000.
However, we would concede that generally speaking, the apportionment is in proportion to the number of registered voters in their respective districts.
Chief Justice Earl Warren: You mean there is 12 -- there is 12 to 1 ratio between the largest and the smallest?
Mr. Bertram T. Kanbara: Yes, Your Honor.
Chief Justice Earl Warren: Right.
Justice Tom C. Clark: It is not 12 in Hawaii?
Mr. Bertram T. Kanbara: I beg your --
Justice Tom C. Clark: [Inaudible] 10,000 each in a sixth district in 5,000 within one district.
Chief Justice Earl Warren: I understood -- I understood him to say 60,000 in one and five in the other.
Mr. Bertram T. Kanbara: Mr. Chief Justice, that's correct.
Chief Justice Earl Warren: Right.
Justice Tom C. Clark: The largest of 60,000 with the six members so that's 10,000 each and the other only has one member and that's 5,000, isn't that right?
Mr. Bertram T. Kanbara: Yes, but the reason for that is that the apportionment is on the basis of registered voters rather than population.
On a registered voter basis, the fifteenth representative district has roughly 28,000 registered voters.
The first district on Hawaii has some from 2,300 registered voters.
Justice Tom C. Clark: That you [Inaudible]
Chief Justice Earl Warren: 28,000 did you say in one and 2,300 in another?
Mr. Bertram T. Kanbara: Yes, Your Honor.
Chief Justice Earl Warren: And that's six; one is a one representative district and the other is a six representative district, is that right?
Mr. Bertram T. Kanbara: Yes.
What would be the method of equal proportions which is a -- is a rather involved mathematical formula is used in this case and there is a certain amount of leeway under that formula which produces this divergence in the proportion of registered voters to the number of representatives.
Chief Justice Earl Warren: But do you -- do you attack the apportionment of the House as being not according to population or do you do it merely because it's inseparable from the -- the apportionment of the Senate?
Mr. Bertram T. Kanbara: We attack it primarily undergoing that is inseparable from the apportionment of the Senate, but we do proceed further and say, that registered voters which is the measure used here in and of itself is not a permissible measure.
Chief Justice Earl Warren: Yes, but -- but if we -- if we should determine that it could be on a -- on a voters -- registered voters basis, would there be a malapportionment in the House of Representatives?
Mr. Bertram T. Kanbara: We are not pushing that contention, Your Honor, because of the -- we believe that the -- assuming that the method of equal proportions is a valid method that by the way is method used in the House -- House of Representatives of the Congress unless one of the provisions in the Constitution as if -- is that (A) the number of registered voters in a district can go below a figure which is less than one-half the average number of registered voters per representative.
By that I mean, we take the total number of registered voters in the State, divide that by 51, you get the average number of representatives -- represented -- average number of registered voters represented by one representative.
Now, the Constitution provides that if the registered voter of population in any district is less than one-half of that average.
Then, there is to be redistricting.
Now, the fault in the Constitution -- in the formula of Constitution maybe that this one-half is actually too large and it may well be that because of the disparities produced thereby, that system cannot be -- may not stand constitutional muster, but as far as our briefs and orals are concerned, we are not pressing that point this morning.
Justice Tom C. Clark: Is there any qualifications on the registration?
Mr. Bertram T. Kanbara: Qualifications for registering to vote?
Justice Tom C. Clark: And less than [Inaudible]
Mr. Bertram T. Kanbara: No there are no property qualifications but we do have a problem with as far as the military are concerned as to their eligibility to register.
Justice Tom C. Clark: With that the -- a citizen may have which is a register [Inaudible] can register without adding to the -- take an attempt?
Mr. Bertram T. Kanbara: No.
There is no requirement of a test, Your Honor.
Proceeding now to the complainant in this case, shortly after the historic decisions of this Court of June 15, 1964, several taxpayers, voters and private citizens brought action in the federal district court for the district of Hawaii, this was in April of 1964.
They alleged that the apportionment provisions of the Constitution of the State of Hawaii violated the Equal Protection Clause.
They sought to enjoin the Lieutenant Governor, who is the election officer in the state, similar to the Secretary of State in most other States from proceeding with the conduct of the elections until a validly reapportioned legislature was setup.
A three-judge court was convened and the Court allowed the intervention by the Governor and by -- intervention by the Governor on the plaintiff's side and intervention by certain Senators and Representatives on the defendant's side.
One of the requests of the plaintiffs was that the 1964 elections be enjoined until and unless a valid apportionment scheme was developed.
The Court declined -- declined to grant the injunction because of the eminence of the 1964 elections.
Thereafter in January, 1965, the hearings were held and on February 17, 1965, the day that the 1965 session of the state legislature convened, the Court issued its first decision and order.
I might also mention that prior to the filing of the complaint and during part of the earlier proceedings, the Governor had called a special session of the legislature to consider reapportionment legislation in light of and in accordance with the decisions of this Court.
The February order of the Court invalidated those provisions fixing the number of Senators for senatorial districts.
However, it validated and held constitutional all of the remaining provisions respecting the apportionment of the legislature.
It held, for example, that the number of Senators, 25, was severable and constitutional.
It held that the apportionment of the House of Representatives was severable from that of the Senate.
It held that the House was properly apportioned including the -- validating the use of registered voters as a measure and also validating the districting system employed in the House.
It went further -- further to hold that the legislature had no part to enact provisional plan pending the adoption of a permanent constitutional amendment.
It ordered that a convention be called to amend the Constitution in time for 1966 elections.
Shortly thereafter in early March, 1965, the legislators petitioned to the Court to modify its February order to allow the legislature to prepare and submit to the Court for its approval a provisional plan for the apportionment of the Senate, also, a constitutional amendment embodying those provisions of the provisional plan, and thirdly, a bill for the submission to the electorate of the question, shall there be a constitutional convention?
These were all to be submitted to the Court for its review and approval.
The Court granted the motion and according -- accordingly modified the February order.
In mid March, the Court was informed that the legislature was considering a plan to reapportion the Senate, retaining the six existing Senate districts that is the two on the Island of Hawaii, two on the Island of Oahu, and the remaining two on the Island of Counties of Hawaii and Maui.
This would have given Oahu a nine-member district and a ten-member district and given the other islands, one member and two-member districts.
The Court informally advised the legislature that such a -- an imbalanced districting plan would not be acceptable.
It also advice the legislature that in view of the multi-member districting in the House, any districting in the Senate other than single member districting would have to be explained and justified to the Court.
Thereafter, in mid April of 1965, the legislature did pass a Senate provisional plan and submitted it to the Court for its review.
Under this plan, 25 Senators were to be apportioned among eight senatorial districts.
The first senatorial district was the Island of Hawaii, apportioned three Senators.
The second senatorial district was the County of Maui, apportioned two Senators.
Oahu was divided into five senatorial districts.
Essentially, they encompass the house districts already existing.
The first senatorial district was covered the same area covered by the eight representative districts.
The fourth senatorial district covered the area of the ninth and tenth representative districts as well as a portion of the eleventh.
The sixth senatorial district or rather the fifth senatorial district covered the remaining portion of the eleventh, all of the twelfth, all of the thirteenth, and the apportions of the fourteenth representative district.
The sixth senatorial district covered the same area as the fifteenth representative district sought a portion of the fourteenth district.
The seventh senatorial district covered all of the sixteenth and seventeenth representative districts.
The eighth senatorial district was the County of Hawaii with one Senator.
A hearing was held upon the provisional Senate plan and on April 28, 1965, the Court issued its second decision and order disapproving the plan and reinstating the provisions of the February order which required the convening of the convention.
In disapproving the plan, the Court noted that the apportionment did conform to the equal population principle assuming registered voters to be a valid measure of population, but it went on to say that the plan nonetheless did not provide equality of representation.
The Court noted the -- that the eighth representative district was quite expensive with the third senatorial district that the fifteenth representative district was virtually quite expensive with the sixth senatorial district.
Now under the house plan, there are six representatives elected from the fifteenth senatorial district.
Under the Senate plan, the sixth senatorial district which would constitute the -- which would include within its borders the fifteenth representative districts with the elect four Senators making a total of 10 Senators and Representatives, who would be elected from this one area.
The Court noted that this sort of concentration of political power in these two districts, created what it turned political monoliths giving undue power to these two areas.
It held that the majority within these large areas had disproportionate power and there was submergence of the minorities entrapped as it -- as it termed it within the -- these large areas.
The Court noted that the legislature had considered such factors as compactness, contiguity, and proportionate, that apportionment of -- on the basis of registered voters, but that the legislature had utterly failed to consider this other -- other matters such as the diversity of the population in the various districts.
It had also failed to consider the interrelationship of one district to another and the interrelationship of the apportionment of one House to the apportionment of the other House.
Justice John M. Harlan: The basis of the -- the basis of registered voters is the Senate [Inaudible] population, registered voters basis.
Mr. Bertram T. Kanbara: Yes, the apportionment of the Senate was based on the 1964 registered voters.
The Court noted in passing that the fifteenth -- speaking of the diversity of population business, fifteen representative districts elects six representatives was composed of an extremely conglomerate population.
For example, the southern portion is the -- essentially, the Waikiki tourist area where you have a middle, middle income, upper middle, and upper income groups with a predominantly from aging population groups.
In the central area, we have a long established residential consisting primarily on skilled, semi-skilled clerical workers in the lower middle, and middle in come group, predominantly of Japanese extractions.
Of course, we have the campus of the University of Hawaii and the surrounding areas which might be characterized as the university community.
And further north top into the valleys and the hillsides, you find the upper middle income and upper income professional managerial like population.
The Court noted that a system in which such large -- having such large multi-member representation, would tend to submerge and not get chance for a voicing of the divergent points of view of the people within the area.
The Court went on to note that in its view, the Senate provisional plan was a result of gerrymandering to protect the interests of incumbent Senators, for all of these reasons have disapproved plan.
In May -- early May, the Governor filed notice of appeal to this Court appealing essentially from the provisions of the February order upholding the validity of the House of Representatives.
Certain Senators and Representatives also filed notices of appeal dealing essentially from the April order which had disapproved the plan.
On October 11, 1965, this Court noted probable jurisdiction and consolidated the three appeals.
Before proceeding to the argument, I like to mention that Mr. Dennis Lyons will -- and I will share the arguments, I will speak to the question of the invalidity of the districting of the House of Representatives and the invalidity of the districting of the Senate.
Mr. Lyons will speak to the matter of the invalidity of registered voters as a measure and the non-separability of the constitutional provisions affecting the House from those provisions affecting the Senate from the State of Hawaii.
Turning now to the districting of the House, we submit that the districting plan of the house is arbitrary, has no rationality that it over represents the larger district and tends to submerge minorities within those large districts and therefore violates the Equal Protection Clause.
As this Court has stated in Reynolds versus Sims, the concept of Equal Protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action question or challenged.
With respect to the allocation of legislative representation, all those as citizens of a State, stand in the same relation regardless of where they live.
In this case, there is a differentiation in treatment of citizens and unless such differentiation and treatment can be justified on a rational basis that is relevant to the purpose of providing equality and legis -- and representation, such differentiation cannot stand.
In this case, we -- we note that of the 18 representative districts, five are single member districts.
Two are two-member, four are three-member, six are four-member, and one is a six-member district.
We submit that there is no rational basis for this random distribution of districts and as we will point out later, there are different consequences flowing from whether a constituent is in a single member district or in a multi-member district.
We have different -- differing representation for different people defending solely on where they happen to live.
There is no pattern or consistent policy which explains the random distribution of single member districts, small multi-member districts, and large multi-member districts.
The proponents of the House plan have advanced various and sundry rationalizations for the plan.
We submit that the very number and variety of these rationalizations suggest that there is in fact no solid rational basis for this kind of distribution and that these are in fact, mere after thoughts to justify a preexisting plan.
Chief Justice Earl Warren: Is there any alleged gerrymandering as between the islands?
Mr. Bertram T. Kanbara: I would say, no, Your Honor.
Some of these rationalizations have been that this type of districting promotes broad outlook as distinguished from localized outlook on the part of the legislators.
That -- it would promote a strong two-party system as supposedly weak system that there are advantages in Edward Juniors Constitution -- constituencies which could be more readily obtained in large multi-member districts.
It is also claimed that large districts would insulate legislators from pressure groups.
Now, if -- if these advantages would exist in multi-member districting, they may -- they may support a districting in which you would have the same or substantially the same number of representatives in each district throughout the State, but it cannot in any way explain or justify the random distribution of single-member districts and small multi-member districts as well as large multi-member districts that we have before you.
Other justifications have been advanced namely that fixing of boundaries of legislative districts and apportioning representatives thereto discourages gerrymandering.
Whether or not this is so it still does not explain the random type of distribution that we have.
Now, there are a number of consequences arising from the having a multi-member as against single-member districting.
I dare to say that a unified purposive six-man delegation from a six-member district has considerably more weight than a solitary representative from a single-member district.
This is particularly true in a State such as Hawaii where we have a highly centralized form of Government.
Education for example, in most of the jurisdictions is on a local basis.
In Hawaii on the other hand, the entire educational system is at the stage level and the legislature provides a raising of -- provides for the raising of revenues and makes appropriations for the entire school system and it certainly makes a great deal of difference, we submit, as to the quality and amount of facilities -- educational facilities that a constituent gets depending on whether he is on a large multi-member district or from a small multi-member district.
Turning now to the Senate apportionment plan; as I have mention, there are a number of problems inherent in the random multi-member districting in the House.
In facing the Senate plan on the house districts, the Senate plan compounds and intensified these problems and we submit that the court below was entirely correct in rejecting the Senate provisional plan.
As the Court pointed out notwithstanding the great diversity in the populations of these various districts, the legislature had considered other factors, but had failed to consider these factors relevant to a composition of the – relevant to giving voice to the divergent views of the disparate population.
With respect to burden of proof and the discretionary power of the court below in approving or disapproving the plan, we note that in the sense -- since the legislature itself had requested permission to draw of the plan subject to the court's approval.
Before the Court had -- before the legislature had submitted that its plan the Court had admonished the legislature that it would have to justify its plan.
Under the circumstances, the Court was entirely right in placing on this -- on the legislature the burden of justifying its plan and further more, under its broad discretion -- discretionary powers, assuming arguendo that the plans were not unconstitutional, we submit to the Court couldn't in its discretion decline to approval plan which had genuinely felt to be a lead by and would not provide effective representation.
Justice John M. Harlan: Even though there is Constitution?
Mr. Bertram T. Kanbara: Yes, Your Honor.
But in any event, we submit that the evidence amply supports the Court's decision that the plan in fact was contrary to the Equal Protection Clause and on that basis, the April decision of the court below should be affirmed.
Chief Justice Earl Warren: Mr. Kanbara, may I ask you if -- if there is any claim that gerrymandering so far as the district lines are concerned in the senate in order to exclude minority groups or anyone else from -- from proper representation?
Mr. Bertram T. Kanbara: No, we -- we do not contend that there was a drawing of district lines to exclude any particular racial group nor do we contend that the district lines should be drawn to one say enclaves for various racial groups.
What we do say is that the legislature should have considered the population as a whole and provided a system which would have maximized the opportunity for divergent use to be express and in this context, we submit that the single member district would have effectively provided a vehicle for the divergence of views to find representation in the legislative chambers of the State.
Chief Justice Earl Warren: Now do -- do you make -- do you make any contention that any particular group in your State has been prejudiced by reason of this districting and then so what -- what groups have been prejudiced?
Mr. Bertram T. Kanbara: It is interesting to note in that direction Your Honor that they made the thoroughfare known as King Street, it cuts across the fifteenth representative district.
In the 1964 elections, over 45% of the registered voters in this district resided below King Street.
Yet, it is no secret that there has never been a person from below King Street who has been elected to fifteenth district in the House of Representatives.
We submit that in that kind of situation, Your Honor, single-member districting would have provided a vehicle for representations of the views of the people living in these areas.
Chief Justice Earl Warren: You mean they should have broken up the -- the districts below the highway so that they would be attached to other districts where people were elected from?
Mr. Bertram T. Kanbara: Well, Your Honor, this district is large enough to warrant six representatives.
We submit that if this district were broken up into six single-member districts, for example, there would have been a better opportunity for a person of these views or views of these people in the state legislature.
Chief Justice Earl Warren: I -- I see your point.
Justice Tom C. Clark: Why do you say that they never had in their representation from down there?
Mr. Bertram T. Kanbara: What I said was that no one resident from that area has been elected to the fifteenth representative.
Justice Tom C. Clark: So what's the response to that in effect you say?
Mr. Bertram T. Kanbara: It maybe that the weight of the majority here maybe sufficient to -- to defeat a Representative from the low apportion of the district.
Justice Tom C. Clark: In contest?
Mr. Bertram T. Kanbara: Yes, Your Honor.
Justice Tom C. Clark: Below -- the ones below run ones also.
Mr. Bertram T. Kanbara: There have been a number of candidates from below the area but this is of so the chicken and egg situation, I submit that if we had single member districts that their life there would have been great more candidates running from that area.
It is rather -- it is a rather large district so people here may not be focus on the problems of this area but may not extend sufficiently to these areas so that we would have enough people to feel it -- with the worth their time or effort for that prospects of election are not such that as to encourage more people to run from the area.
Whereas, if this were a single-member district, there would be much more of an incentive because of the community of peculiar problems within this white [Inaudible] there would be a greater likelihood of people running from and being elected to a district of that type.
Chief Justice Earl Warren: Had there been any voting restrictions or -- or any kind of prejudice exercised to prevent the people in that area from being elected to public office?
Mr. Bertram T. Kanbara: I'm not sure I understand your question, Your Honor.
Chief Justice Earl Warren: Have there been any voting restrictions applied to the class of people of live below that highway that you pointed out to us that contributed to their failure to have any representation or have the voting -- voting laws been fairly administered in your State?
Mr. Bertram T. Kanbara: There have been no affording restrictions of such, Your Honor.
Chief Justice Earl Warren: They have been fairly administered laws.
Mr. Bertram T. Kanbara: Yes, Your Honor.
Chief Justice Earl Warren: May I ask just one more question, how many people live below that line that you mentioned?
Mr. Bertram T. Kanbara: As far as registered voters are concerned, there are about 9000 registered voters below the -- below King Street.
Chief Justice Earl Warren: I see.
Justice Tom C. Clark: How many were there?
Mr. Bertram T. Kanbara: Be about 10,000, Your Honor.
Justice Tom C. Clark: Tend to have more than, I thought they had less than they are.
Mr. Bertram T. Kanbara: But there are more people living north of King Street than there are in South King Street.
As I mentioned about 45% of the registered voters live below King Street, about 55% live north.
Justice Tom C. Clark: And the successful candidates have come from the north?
Mr. Bertram T. Kanbara: Right, Your Honor.
Justice Tom C. Clark: What's the distance in miles of that district -- where is the mark?
Mr. Bertram T. Kanbara: Roughly from approximately about five miles, Your Honor.
Justice Tom C. Clark: That [Inaudible]
Mr. Bertram T. Kanbara: About two miles.
It is a rather compact area in which there's quite a few people live.
I have no further -- if there are no further questions, I'll turn rest over to Mr. Lyons.
Chief Justice Earl Warren: Very well.
Argument of Dennis G. Lyons
Mr. Dennis G. Lyons: Mr. Chief Justice, may it please the Court.
We contend that the provision as expressly engraved in the Hawaii Constitution to the effect that the measure of apportionment in the House of Representatives shall be on the basis of registered voters.
We contend that that provision cannot be squared with this Court's decisions of June 1964 and with the Equal Protection Clause.
We also say that the use of that measure, the registered voters' measure in the provisional Senate plan that was put forward and rejected by the District Court is an alternative ground for affirming the District Court's judgment with respect to the Senate.
Our position is that a registered voter is not in and of itself a permissible measure of legislative apportionment under the Equal Protection Clause.
We contend that the only measures that the Equal Protection Clause permits are measures which are based on population or some reasonable adjustment thereof.
Justice Hugo L. Black: How can you address?
Mr. Dennis G. Lyons: They do not have permanent personal registration as I understand this.
There -- there is permanent personal registration, yes.
The requirements are that the registrant, be 20 years of age that he'd be literate either in English or Hawaiian tongues, that he have lived in the State for one year, that he not be resident in a military area but your area is under the concurrent jurisdiction of the State and the federal government, that he -- that if he is a military member who is not resident on a military area or dependent thereof, that he go through certain other tests.
Justice John M. Harlan: What proportion of the total eligible voters [Inaudible]
Mr. Dennis G. Lyons: The population -- that varies.
The statewide average is in the mid 80s.
There are areas where it is as low as 80%.
There are other areas where it is about 90%.
The basis of our contention --
Chief Justice Earl Warren: That's a rather high registration, is it not compared with other States?
Mr. Dennis G. Lyons: I think it is in terms -- in terms of the -- of the states generally.
That's in terms however of the -- of these eligibility figures that I give you.
The denominator of that fraction excludes the military entirely.
Justice Potter Stewart: It excludes I suppose people under 20 years old?
Mr. Dennis G. Lyons: Right.
It excludes people under 20 and people who are towards on confidence part of the population in any event.
It also includes the -- excludes the institutional population and there is some figures to exclude the people who have not been stayed for a year.
The basis of our contention is the language that this Court used in Reynolds v. Sims. Population is of necessity, the starting point for consideration and of controlling the criterion for judgment in all legislative apportionment and controversies and the Court's basic holding at pages 5 -- page 577, “We hold that as a basic constitutional standard.
The Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”
We contend that population is the starting point that what is involved here is basically the question of equality of representation under the Equal Protection Clause.
That the question is whether all the people in the State are equally represented within the terms of that clause.
We submit that this is what the Court meant in the Reynolds case when it stated that the Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens.
And of course --
Justice Potter Stewart: Do you think this -- do you think that language would make it unconstitutional for a State to apportion his legislature based on the population over 20 years old?
Mr. Dennis G. Lyons: I think it would, Your Honor.
Because I think the entire theory under which people may vote and the theory under which they're entitled to representation are two different things.
You have a certain amount of human need that's reflected by all the people in the state.
Well, that's part of the human need that the State is designed to serve and that is the basis for representation we contend.
Now of course on the voting, it's time honored that the vote is to be restricted to people who are mature enough to exercise it, but you might well and I think the situation of Hawaii makes this vivid where you have no school boards and where all of the educations administered by the State, you might well have various where there are retired people or people who are in the older age groups where the children have moved away.
You have other areas where you have the younger people, people starting out, and people who have raised many children.
And the question essentially is in viewing the human needs of the various areas of the State.
However, the people who have the greatest -- how is the area which has the greatest number of people and which presumably represents the greatest aggregate of human need which is what the State is supposed to serve.
Chief Justice Earl Warren: You take the position with all military people must be included?
Mr. Dennis G. Lyons: Your Honor, I suggest that the -- that is not necessary that the State could say, though, it has not here, the State has never made any judgment base on military versus civilian.
The origins of this registered voters test in the 1950 constitutional convention are not related to that issue.
But a State could say that, that a State could say that, we believe there are certain classes of transients who are not part of the permanent population of the State who do not represent part of the human needs that our state has set up to serve, we will exclude them but I say that the State has to tailor the measure that it uses to produce that result.
It tends to start with a measure which is not in its essence addressed to that and the registered voter's measure is not as we point out in our brief even an adequate measure of the civilian population of Hawaii.
Chief Justice Earl Warren: Oh, what -- what aspect of the military the personnel comes into this case?
It's been mentioned several times by you and by -- and by your associate, I just wonder what part it plays here?
Mr. Dennis G. Lyons: It plays this part, Your Honor, that the appellees and the District Court sought to uphold the registered voter's test on the theory that it excluded the military population in substantial part.
We contend that it was not the justification put forward by the reg -- for the registered voters test in the 1950 constitutional convention.
We contend that that justification is an after thought, that grossly made as it is that it goes too far that there are elements of the military, who might well be constitutionally required to be included in the population measure.
That in effect there is a distinction made under this justification between civilian transients and military transients, and by transients I mean, it's like people who were assigned to the State for three years.
There's no reason why a person who comes into the State to say working for a commercial concern assigned to the sales manager for three years and then go back to the mainland, that person -- there's no basis and theory to say that that person is -- should be represented and another person who was told by his commanding officer to come into the State for three years and bring his dependents, why that person is to be excluded.
Justice Hugo L. Black: Who is that citizen?
Who is really a citizen of Hawaii?
Happens to work at the military on the military base and [Inaudible] does that disqualified from both?
Mr. Dennis G. Lyons: I should have said that that person who is a native of Hawaii does not loose his right to register by moving on to the base.
What should I have said is that no person living on a base who was not born in Hawaii or not previously established Hawaii resident can be considered under Hawaii's law to form a domiciliary intent as long as he's living on a military base and accordingly he will not be permitted to register.
Justice William J. Brennan: And whether a civilian or a military?
Mr. Dennis G. Lyons: I believe if he's a civilian attached to the military service.
Justice William J. Brennan: He may not.
Mr. Dennis G. Lyons: If he comes in, I'm not -- I'm not entirely sure but that is my impression.
Justice Hugo L. Black: I didn't [Inaudible] misunderstood your associate.
I understood him to say that this excluded people from voting who lived on certain area there that it was controlled by the military or jointly controlled by the military in the State.
Mr. Dennis G. Lyons: It only excludes them if they had not previously qualified as citizens of Hawaii, but there is a distinction in treatment as far as qualifying to vote as to when a military person comes in, as to whether he lives on the base or off the base.
One can qualify much easier than they – not qualify at all.
Justice Potter Stewart: I understand it Mr. Lyons, you -- it's your position that the Equal Protection Clause as construed in Reynolds against Sims in these companion cases requires apportionment to be -- a legislative apportionment to be upon the basis of the resident population.
But I rather understand that you would allow the State that leeway again under if the Equal Protection Clause to define residence, is that about it?
Mr. Dennis G. Lyons: Or to -- there might be other classes who could be excluded.
The State might exclude resident --
Justice Potter Stewart: Or to define generally the qualifications of --
Mr. Dennis G. Lyons: Resident voters.
What I --
Justice Potter Stewart: But it has to be a (Voice Overlap) population --
Mr. Dennis G. Lyons: What we -- yes, and we say that there are however two separate tests involved here that have to be look at separately.
We have to look at what the State might do constitutionally in permitting people to have the franchise and we have to say look at what the State can do in saying whether or not people shall be entitled to be counted for the purposes of representation.
I think it's interesting to observe that the Hawaii system is definitely out of line with the predominant trends in this country as we know the House of Representatives uses a population based measure, not a registered voters within that's, of course, invalid in the federal Constitution.
Justice William J. Brennan: Were there any other States?
Mr. Dennis G. Lyons: There are eight other States that used registered voters are qualified for this.
There are only eight out of the fifty that we're able to find that either uses a qualified voter's test or a registered voter's test --
Justice Potter Stewart: Hawaii is quite different in many other ways, isn't it?
For one thing it's several hundred thousand miles away from the mainland, it's unique in that respect?
Mr. Dennis G. Lyons: Unique in that respect; of course, it's not unique in terms of the concentration of military basis.
There are States like Virginia and (Voice Overlap) --
Justice Potter Stewart: Another State is made up of several islands.
I suppose there's no other States like that quite --
Mr. Dennis G. Lyons: Yes.
Justice Potter Stewart: -- unique in that respect.
Mr. Dennis G. Lyons: The -- it is unique in that respect.
Justice Potter Stewart: I – in other words, I'm simply suggesting those questions to ask whether it's the burden of your present argument that that since Hawaii, there are only several States that you used registered voters is it your thought that the conformity or consensus is required per se and just for that reason by the --
Mr. Dennis G. Lyons: No.
I'm not arguing that, Your Honor.
But I think that I did -- I address myself to the practical aspects here of what a decision on this issue by the Court might mean.
In practice, its effect is not going to be nationwide.
Indeed, if the person who comes in and as a military person and is living on base in 1960 at the time of the census, he is counted in determining Hawaii's representations in Congress.
The odds are 42 out of 50 that he is no longer counted for representational basis -- purposes back in his home state.
Chief Justice Earl Warren: What percentage did you say?
Mr. Dennis G. Lyons: 42 out of 50.
There are only eight States that used registered voters or qualified voters' measure for those representations.
So, I was talking about 16% of the States.
Justice Hugo L. Black: What practical effect does it have on Hawaii?
Mr. Dennis G. Lyons: The practical effect would be quite large.
The original justification that the registered voters jived with population, that was the original basis of setting this up, that is quite wrong nowadays in terms of the statistics.
Thirty-seven and a half percent of the population of Hawaii could elect a majority of the Hawaii House of Representatives.
There are substantial differences in the number of representatives who would be apportioned to each county if we went from the registered voters to a population based measure.
Chief Justice Earl Warren: Well, I understood you -- I understood you were not attacking the -- the proportionate representation in the House of Representatives?
Mr. Dennis G. Lyons: We are attacking it to the extent that it's based on registered -- on registered voters rather than population.
Chief Justice Earl Warren: Yes, that is -- that is true.
Mr. Dennis G. Lyons: But we're not -- we're not saying that once you take registered voters that they have misallocated them to the districts though --
Chief Justice Earl Warren: Yes.
Mr. Dennis G. Lyons: -- which as Mr. Kanbara pointed out, we don't know quite where they got the districts and that is the separate basis for our contentions under the Equal Protection Clause.
Chief Justice Earl Warren: You don't know what percentage of the population of Hawaii is military and what is civilian?
Mr. Dennis G. Lyons: I believe that about 10% of the population of Hawaii is military.
There are about 60,000 military personnel in Hawaii and your total gross population is 600,000.
Chief Justice Earl Warren: Would that -- would that hold true in throughout the islands or would there might there be some islands --
Mr. Dennis G. Lyons: There is concentration of military personnel on the Island of Oahu, the most populous island.
So that if you reapportioned, now this is the difference between population and registered voters and there are a lot of other factors besides the military in there, Hawaii County which is the big island which now has seven would have five, Oahu which is the Honolulu Island would have 40 rather than 36 representatives and there were would be decreases in the two other -- other islands as well.
Ten of the eighteen representative districts would have a different representation under a registered -- under a population measure than under a registered voter measure.
Chief Justice Earl Warren: We'll recess.
Mr. Dennis G. Lyons: -- base to our population oriented measure of apportionment in Hawaii.
The first one was the one that evidently was behind the system, that was the one that appears from the proceedings of the 1950 constitutional convention that framed the article in question, and that was that the registered voter was substantially equivalent to population.
Our answer to that is that it is not.
The thirty-seven and a half percent of the population have elect a majority of the legislature that there are substantial disparities in the representation of the various islands and the various districts.
Justice Byron R. White: Mr. Lyons, let -- I gather that you thought that the eight States could exclude from registering a military people on suitable grounds such as residence.
Mr. Dennis G. Lyons: I think in the case is something that's applied across the board --
Justice Byron R. White: Well, alright, let's assume they can -- assume they can, could you -- does this record have the information in it to show what difference it would make as to whether you had population or registered -- registered voters as a basis, if Hawaii did exclude those military people from registering that they -- that legally excludes?
I mean, you just -- you say that -- that only thirty-seven and a half percent of the population can elect the House of the Senate whatever it is you're talking about but that thirty-seven and a half percent -- is thirty-seven and a half percent of the population including military?
Mr. Dennis G. Lyons: Right.
Justice Byron R. White: And if the Honolulu and if Hawaii could exclude and did exclude those military people if they -- if they could, does this record indicates what the situation would be?
Mr. Dennis G. Lyons: Well, I've no way of knowing how many they could because we don't have an exhaustive Code of constitutional --
Justice Byron R. White: So the record -- so the record doesn't show that?
Mr. Dennis G. Lyons: No.
Because we don't know exactly until they self-align and tried to draw it in terms of registration and how far they could go.
What the population does -- what the record does give you in generally on the island by island basis are the total number of military and a total number of dependents.
The total number of people living on military areas, the people under 20 --
Justice Byron R. White: So I gather -- I gather you would say then that that it is not your burden but the State's burden.
Say that if you're going to use registered voters or if they're going to exclude military that it's their burden to indicate on what grounds they're excluding military and they haven't done anything yet?
Mr. Dennis G. Lyons: Yes, Your Honor.
In fact, the State has never indicated any intention to exclude military people from the reapportionment from the apportionment base.
The only legislative history that we see to have on this is the same as of 1950 convention that the registered voters was chosen one because it was thought to be substantially equivalent to population --
Justice Byron R. White: But you can see that it's conceivable and in equal protection case, it's not -- it's not unusual to talk about some conceivable ground for the State action and the State could say that we're taking care of the military people through the registration device and we do exclude a lot of military from registering and that's our way of doing it?
Mr. Dennis G. Lyons: Well, the -- there are -- I think there are several answers to that.
First, that even if you took civilian population, the -- you still have disparities under the registered voters system.
Justice Byron R. White: And this record does demonstrate that?
Mr. Dennis G. Lyons: Right.
We have footnote in our brief, Footnote 25 on page 63 goes into -- to that.
Justice Byron R. White: And it's added -- and your position would be that that part of this record in itself is sufficient to upset the registered voter basis from --
Mr. Dennis G. Lyons: I believe it is Your Honor that, first, you start with a -- a case where all the purported justifications for this measure do not appear in the -- in the record of what motivated the States to do this.
You have the second factor as a matter of theory and as a matter of fact, the use of the registered voter's test does not cut the same -- quite the same way as eliminating the military population.
They got the further point which I think was inherent in my answer to Your Honor's first question which was that you don't know quite how far the State could constitutionally go in either excluding military from voting or excluding them from registering until the State comes forward and gives to you some sort of attempt to draw the line.
And that would, we submit, if the Court and an opportunity to make constitutional judgment as to the voting line and as to the representation line, but all the State has done here has said that registered voters shall be the measure and for all it appears but they didn't have the military minds.
Justice Byron R. White: What about -- what if the state did say that look this registered voter's basis has consequence of adequately excluding from the vote those military people that we're entitled to exclude and the military people aside the registered voter's basis would give the same apportionment as a -- as their population basis.
Mr. Dennis G. Lyons: Well, if the State also said, that it also excludes the same civilians that we may exclude and I think the teaching of Davis v. Mann is that you cannot discriminate against the military as such and in the representation here there are, some evidences of the discrimination against the military as such in that the military will move on to these military areas, perhaps, concerned ever as having informed the requisite domiciliary area intent.
Justice Byron R. White: What is the alien population?
Mr. Dennis G. Lyons: The alien population I believe is less than 10%, I think it's in the order of about 40,000 which would be about 7, 8%.
Justice Byron R. White: Is the census figures -- the census figures reflect that --
Mr. Dennis G. Lyons: Yes, they do.
Justice William J. Brennan: How about the military?
Mr. Dennis G. Lyons: The military -- the -- there are some discrepancies between the census and the Department of Defense, but the military appears from the record to be around 60,000 or 10%.
Justice Byron R. White: Well that -- those also are the people who are in the military service.
Mr. Dennis G. Lyons: Right.
Justice Byron R. White: But it does -- the census figures wouldn't reflect -- the census figures include all the people who live on military bases or not?
Mr. Dennis G. Lyons: Well, there are different categories in the statistic tables that appear at the end of the record and from them you can get by islands, not by districts the number of military on each island, the number of dependents, military dependents on each one of those --
Justice Byron R. White: You can't tell whether they live on a military base --
Mr. Dennis G. Lyons: -- and you could also get the total number of people in military areas, but there's no way of superimposing each of those three categories on the --
Justice Byron R. White: Are there military areas there are military enclaves or --
Mr. Dennis G. Lyons: -- they are concurrent jurisdiction area.
Justice Byron R. White: Well to what extent -- what is it this contrary jurisdiction over time or on what?
Mr. Dennis G. Lyons: I believe that --
Justice Byron R. White: That the legislature doesn't have the civil legislative authority of the districts that they have.
Mr. Dennis G. Lyons: No, they do not.
It's the simple concurrent jurisdiction over crimes as I understand it.
But you don't have a -- a situation where the only law in the area is -- is --
Justice Byron R. White: Well is this considered to be -- are the military reservations considered to be part of the State of Hawaii or part of the United States or both?
Mr. Dennis G. Lyons: Well I consider them both but they are part of the State of Hawaii and then we don't have a situation here like the District of Columbia or this is not an exclusive legislature --
Justice Byron R. White: But in Hawaii it says here anyone who is a resident who is actually living on a military base cannot register even though he says on that I am -- I reside to be here.
This is my permanent -- I live in Hawaii there all the rest of my life, this is exactly where I am going to live.
Mr. Dennis G. Lyons: They -- they don't accept that declaration unless he was previously a resident of Hawaii.
Chief Justice Earl Warren: May I ask this?
Does the fact that relying on voting registration eliminates aliens as well as these members of the armed forces leads you to the same conclusion so far as aliens are concerned?
Mr. Dennis G. Lyons: Your Honor I would say this.
First, I would say that a state cannot exclude military personnel as such from the representation things.
They can only do so on the basis that was equally applied with the civilians.
As to the aliens, I think that we have not far over with proposition that a state could modify the total population standard so as to simply pick up civilian not part from a citizen population that the ties between a person who is citizen of the United States and a person who is not different and then a state could make a distinction based on that.
But once again that's an adjustment of a population based measure not a measure that starts from the other direction and it says we will start with the number of people who are actually registered in both.
And there is no showing as to whether you would accidentally get the apportionment in Hawaii that exists if you eliminate the aliens.
In fact, the aliens are pretty well distributed throughout the island so that the chances are that you would not by accident recreate the present system of representation.
Chief Justice Earl Warren: Well, I understood you to say that there about 10% of the population who is military and about 10% was alien.
Mr. Dennis G. Lyons: [Inaudible] I think seven or eight, seven or eight.
Chief Justice Earl Warren: Yes.
Well wouldn't that overall effect dilute somebody's vote or if it happens in the case of military, wouldn't it also happen in the case of the aliens?
Mr. Dennis G. Lyons: Well, I think you have this --
Chief Justice Earl Warren: If you use -- you use the word population.
Mr. Dennis G. Lyons: Yes, sir.
Chief Justice Earl Warren: You take it from Reynolds v. Sims and you rely on that word in question.
Now, if that -- if you do, I don't see how you can make much of a distinction between aliens and military?
Mr. Dennis G. Lyons: Well, in -- I think the Court need no -- go no further in this case than to say that there must be a population oriented basis of -- of apportionment.
What is used here is not a population less something.
It's a registered voter's test which is diametrically we submit a post.
Now as to what modifications in a population based test could be justified under the Equal Protection Clause, really, we submit, that's a question for another day.
That what the State has done here is simply to use a measure that's quite different that produces quite a different result from a total population measure.
Chief Justice Earl Warren: Why is not -- why did not do the same thing with the -- with the military depending upon how the State of Hawaii interpreted its own act?
Mr. Dennis G. Lyons: In terms of -- well, we -- we make no -- in the first place, we are not here attacking the system of voting.
We're not saying that there are unconstitutionally depriving anyone of the right to vote.
But what we contend for is that the right that the Court recognized in Reynolds v. Sims and the companion cases is a right to cast one's vote in districts that are properly apportioned on an equal population standard or that's a question for it need not reach today, on some permissible adjustment of the equal population standard and the Hawaii test is simply not that.
There is a further point that I would like to make very briefly and I think it's a very important practical point, it relates to one of the extraordinary actions that the District Court took here.
In the February 1965, order of the District Court after the District Court had held that the number of Senators for senatorial district that was contained in the Hawaii Constitution was unconstitutional that I didn't square off with this Court's decisions and with the Equal Protection Clause.
The Court went on to make what we contend to be an extraordinary affirmative declaration, it's -- and this is part of its order.
The remainder of Article 3 of said Constitution, this is the provision dealing with the legislature, is declared constitutional and valid.
The District Court there went beyond simply stating its views as to certain of the issues that were involved in the case.
What it did was to make an affirmative declaration first that the entire house apportionment system was valid even though at this point no longer had any Senate before it, just look into the house by itself.
That the districting system in the house was constitutional and that every other assumption that went to make up the house was constitutional.
The District Court also and went quite far of its way to do this, affirmatively upheld as constitutional the number of Senators provided in the State Constitution to comprise the Senate.
We submit that this is, in the first place a clear violation of the teaching of this Court in the Tawes case where the Court said, “In reviewing a State legislative apportionment case, this Court of necessity must consider the challenged scheme as a whole in determining whether the particular state's apportionment plan in its entirety meets federal constitutional requisites.
It is simply impossible to decide upon the validity of the apportionment of one house of a bicameral legislature in the abstract without also evaluating the actual scheme of representation employed with respect to the other House.
Now, it was this teaching that the District Court disregarded in affirmatively declaring these provisions of the House and some of the provisions of the Senate constitutional.
This is more than an academic point.
What then happened was that, all these points the house apportionment, the number of Senators and the other details in the House, the registered voters measure were taken as given, they are taken as part of the essential given data that the legislature had to work with in trying to work out a system of overall apportionment for the State legislature because the registered voters had been affirmatively upheld in the house” it was in fact under the form of order that the District Court used in March beyond the competence of the legislature to inquire into that.
It was beyond their competence to make adjustments in the House.
All that they were left to do by the District Court was starting with a 25-man Senate, starting with an arrangement under which the House couldn't be touched.
They had to work out a plan for the apportionment of the Senate.
We contend that the plan that they came up with under which the District Court in effect and in terms maybe used of registered voters in the Senate mandatory and in which in practical effect, they were bound to be these large multi-member districts in the Senates because of the apportionment in the House and the understandable desire to have Senate districts that were bigger than House districts.
That by so doing, the District Court unnecessarily and we contend erroneously injected it self into the -- what should have been in the first instance a question for the legislature?
It deprived the legislature of freedom of action in the number of alternatives that the legislature could adjust in coming to an overall apportionment.
Even if, despite our contention, the use of registered voters is not unconstitutional and the districting system in the House, the multi-member in varying single-member system is not unconstitutional, we contend that it was error for the District Court to freeze those possibilities and that what the District Court then did affected the plan that the Senate came up with in response to the District Court's order.
Now, some of the appellees suggest that at most this was harmless error or that it was cured by what the legislature then did.
Well, we would say that the answer is not simply even if it were the case that plan that the legislature came up with this constitutional.
The basic error is that the District Court improperly froze the alternatives that the legislature had and that is the sort of thing that is of course not cured by a plan which reflects the inflexibilities that were imposed upon the legislature.
Chief Justice Earl Warren: Mr. Lyons in the -- in the Tawes case which one is Maryland, the apportionment in both houses was attacked, was it not?
Mr. Dennis G. Lyons: It was Your Honor, just as it was here.
Chief Justice Earl Warren: Now, but here when you come to us, you don't attack the -- you don't attack the apportionment in the House standing alone, isn't it?
Mr. Dennis G. Lyons: Oh, we do Your Honor.
We attack the districting system.
We attack the use of registered voters and those are the two --
Chief Justice Earl Warren: Well, I know.
Mr. Dennis G. Lyons: -- points.
Chief Justice Earl Warren: I know.
But that is something common to both Houses and something be common to all legislatures if you -- if voters registration is not an adequate basis then -- then it's all out that's true.
But so far as the apportionment is concerned, in this case, I understood your colleague to say that if we didn't -- if we didn't consider the multiple district to issue and the voter registration issue have vital importance to the State, then you had no objection to the apportionment of the lower House because it was done on a -- an equal basis.
Mr. Dennis G. Lyons: Well, Your Honor that -- that is the case that we have no questions other than the multi-member districting and the registered voters.
However, the multiple-member districting, we don't attack on a per se basis.
We contend in effect that the multiple-member districting system here in the house was compounded by the system that the Senate provisional plan adopted and this isn't an overall issue the way that registered voters is.
So, the fullness of the inadequacies of the multi-member system in the house can't be judged apart from the system prevailing the Senate.
Chief Justice Earl Warren: Mr. Naito.
Argument of Yukio Naito
Mr. Yukio Naito: Mr. Chief Justice and may it please the Court.
I represent the members of the Senate of the Hawaii Legislature.
I wish to indicate at the start that the members of the Senate and the members of the House of Representatives of the Hawaii Legislature are in substantial agreement on all of the issues which are raised in all of the cases before this Court.
In interest of time and because the House is represented by counsel also, I will be focusing my attention on a question of the multi-member districting system utilized in both Houses of the Hawaii Legislature.
Mr. Funaki, who represents the members of the House, will be focusing his attention upon the question of the registered voters.
Now with respect to the multi-member districting of the House and the Senate, I think the focus of attention should be on the question whether or not it has been shown by evidence in court below the multi-member districting system of the House and the multi-member districting system for the proposed Senate, operate to minimize or cancel out the voting strength of any voter in any district and we submit that the answer is that it has not been so demonstrated by any evidence.
I believe this Court in Reynolds v. Sims and again in Fortson v. Dorsey had indicated that the overriding consideration in apportionment of the legislature is that the districts be substantially equal in population so that the weight of the vote of a voter in one district is no different by the weight of a vote of the vote -- of a voter in another district.
In this connection, I think it is interesting to note the scope and the tenure of the District Court's decisions which are rendered below.
In its first decision, there is only one reference with respect to multi-member districts.
The District Court in enjoining the legislature from enacting any legislation until they passed a bill which have placed a question to the electorate whether or not a constitutional convention to be convened discussed some of the things which a constitutional convention may desire to consider.
And in this connection the District Court indicated that a constitutional convention may wish to consider the question whether or not the -- whether or not the legislature or whether or not the legislature should be apportioned and neither one for both houses among multi-member districts, and in that event to justify the creation of such multi-member districts.
And to these we're justifying the District Court had attended in a Footnote and it cited in that Footnote the case which arose in the Pennsylvania Supreme Court in 1964 by the name of Butcher versus Bloom, this is found in Volume 203 of the Fed 2d.
Then between the first decision and the second decision, a memorandum was issued by one of the three judges.
Judge Beeks issued a memorandum to Judge Pence and this memorandum was circulated among counsel involved in this case.
And in this memorandum, Judge Beeks indicated that, while there maybe some valid reasons for one or two-member districts on the neighbor islands that the Court could conceive of no justification whatsoever that a creation of other than single-member districts on the Island of Oahu.
There was no explanation given for this particular statement.
Then in April decision, the District Court rejected the proposed Senate plan primarily because it was districted among multi-member districts.
And in this connection, the District Court again cited and relied upon the case of Butcher versus Bloom, the Pennsylvania Supreme Court case, in none of the decisions did the District Court ever discuss the impact and importance of Fortson v. Dorsey.
This leads us to believe that perhaps the District Court was either ignoring the contents of the case of Fortson v. Dorsey or that the Court was not conscious of the impact of that decision rendered by this Court.
If I understand the case of Fortson v. Dorsey correctly, it seems to say that there was nothing invidious per se about multi-member districts in any house of the legislature, but that if it is ever demonstrated that a multi-member districting system minimizes or cancels out the voting strength of any voting or any voter then at that time this Court would focus attention upon that question.
The Governor of the State of Hawaii agrees with the other parties in this case that multi-member districting system per se is not unconstitutional.
However, they indicate that in the particular case of Hawaii, a multi-member districting system makes the Hawaii Legislature unconstitutional and they rely upon various arguments including the argument which has been made before this Court that the districts in both the House and the Senate are created arbitrarily, Second, that the large multi-member districts are over represented to the disadvantage of the single-member districts, and third, that there is a submergence of minority in large multi-member districts.
I wish to address myself first to the question of arbitrariness of the multi-member districts.
It is contended by the Governor of Hawaii that the multi-member districts are arbitrarily created because first, the multi-member districts are not uniform in that there are different numbers of Senators and different numbers of Representatives being elected from the various legislative districts.
I'm not aware of any case which has been decided by this Court or by any Court which requires that in the case of a multi-member district that all multi-member districts must have the same number of Representatives and the same number of Senators.
Justice Byron R. White: [Inaudible]
Mr. Yukio Naito: Yes, Your Honor.
I believe that basically the State has been concerned with what they call the basic areas which the basic areas are the counties.
The counties have been designated as basic areas and based upon the number of voters registered in the respective counties, the number of Senators and Representatives were assigned to various counties.
For example, if you will note in the Senate reapportionment plan, three Senators were assigned to the big island, that's the Island of Hawaii and that was in proportion to the voter registration.
That county or the three Senators from the Island of Hawaii are elected at large.
Two Senators were assigned to what is known as the County of Maui which is composed of three islands.
Two islands have community of interest in that they are small -- they have small population and primarily pineapple plantation.
And these two islands were combined for the purpose of electing -- I'm sorry, I'm getting mixed up with the House.
But for the County of Maui, the two Senators were to be elected at large, so also in the County of Kauai.
On the -- in the sitting County of Honolulu which is the Island of Oahu, the population concentration is too great to have the -- or the legislator felt -- the legislature felt that the population is too great to have all of the 19 Senators elected at large.
So, what the legislature did in this case was to take historical administrative units and assigned Senators in proportion to the population or the voter registration in each of these administrative units except --
Justice William J. Brennan: How many units?
Mr. Yukio Naito: There's a unit known as the cool out before the eighth district representative district, that's the district called Waialua and there's the District of Ewa.
Then the rest are all in the City of Honolulu proper --
Justice Byron R. White: [Inaudible]
Mr. Yukio Naito: Yes.
There is a great deal of history behind the division of the Island of Oahu into various administrative districts.
That has been used since before Hawaii was a next mighty place.
Justice Byron R. White: And are both the house -- are both the house and the Senate districts related into those --
Mr. Yukio Naito: Yes, they are.
Justice Byron R. White: -- in different ways but they are related.
Mr. Yukio Naito: Yes.
Except for the City of Honolulu where again on Oahu, this is the heaviest population concentrated area.
And here what the legislature did for the Senate and what the Constitution of convention did for the House of Representatives was to take geographic lines which run from the mountain to the sea in creating the various senatorial and representative districts and an effort was made to equalize the population in each of these districts.
This is why we say that there has been no arbitrariness in a creation of the senatorial and represented districts.
Justice William J. Brennan: On the districts on Oahu, how many are single-member districts and how many are multi-member?
Mr. Yukio Naito: For the Senate, there is no single-member district on the Island of Oahu.
The number runs there are four four-member districts and three -- one three-member district.
For the House of Representatives, it runs from two-member district to six-member district.
Justice William J. Brennan: They were all multi-member districts?
Mr. Yukio Naito: Yes, Your Honor.
Justice William J. Brennan: For both houses.
Mr. Yukio Naito: That's correct, Your Honor.
Justice William J. Brennan: Well, do you have any single-member district you did mention two -- two small islands had taken the house in Maui, didn't you?
Mr. Yukio Naito: The single-member district, we do have on the Island of Hawaii.
This is the County of Hawaii.
Justice William J. Brennan: But that's for the house -- this is for the house.
Mr. Yukio Naito: Yes.
Justice William J. Brennan: They are multi-member for the Senate here --
Mr. Yukio Naito: That's correct.
Justice William J. Brennan: Right and up on Maui, didn't you say something about pineapple plantations?
Mr. Yukio Naito: Yes.
This is for the House of Representatives.
These two tiny islands are primarily plantation communities and they have to combine the point --
Justice William J. Brennan: Like a single member district.
Mr. Yukio Naito: One representative district.
Justice William J. Brennan: Yes.
Mr. Yukio Naito: The Senators are elected at large.
The -- for the County of Hawaii, all of the Representatives and all of the Senators they elect is at large.
Chief Justice Earl Warren: Are there enough people in anyone of these smaller islands that the counsel referred to as satellite islands large enough for a single district, either in the Senate or the House?
Mr. Yukio Naito: I believe Your Honor that if the Constitution of convention of the legislature desires to create single-member districts.
We must agree with the counsel for the Governor that it is possible to create single member districts.
Chief Justice Earl Warren: What island would that be, that would be Lanai?
Mr. Yukio Naito: I'm afraid the population is too small for Lanai.
Chief Justice Earl Warren: I see.
Mr. Yukio Naito: And so of the Molokai.
Chief Justice Earl Warren: Molokai.
Mr. Yukio Naito: Combined together they would form one representative district.
Chief Justice Earl Warren: Yes.
But there is no single island that -- there's no single island that wouldn't be large enough for a single representative?
Mr. Yukio Naito: No, Your Honor.
There is none.
Chief Justice Earl Warren: There was none. Yes.
Justice Tom C. Clark: Where is the Kahakuloa, Hawaii?
Where is it on the map?
Mr. Yukio Naito: This is Kahakuloa.
See that --
Justice Tom C. Clark: Well, --
Mr. Yukio Naito: It is Hawaii in Kauai your answer, Your Honor.
Well, this is not a populated island.
No one lives there.
Justice Tom C. Clark: Where is the [Inaudible]
Mr. Yukio Naito: It is located on the Island of Molokai.
Justice Tom C. Clark: [Inaudible]
Mr. Yukio Naito: Yes.
There is by statute a county for this colony.
However, for the purpose of administration is included in the County of Maui.
Justice Tom C. Clark: But the population of that county is high?
Is it very high?
Mr. Yukio Naito: I don't know if I have the figures written by hand, Your Honor but it is in the record.
Chief Justice Earl Warren: Before you go on, may I ask you, what administrative units you referred to?
What is the character of those administrative units?
Mr. Yukio Naito: The administrative units generally confers in a large area except on the Island of Oahu.
Historically, for example, there is a mountain range across the island here and historically, they have this area hasn't been considered as an administrative district.
Justice Byron R. White: For what -- for what purposes for example?
Mr. Yukio Naito: For example, at the present time, it has been used as a judicial district.
Chief Justice Earl Warren: Use as what?
Mr. Yukio Naito: A judicial district.
Chief Justice Earl Warren: Judicial district.
Mr. Yukio Naito: Because I believe Your Honor that even if it is shown that the construction of the various senatorial and representative districts maybe arbitrary, we must still come back to this basic question as to whether or not it has in fact operated to cancel out or dilute the vote of any voter and we submit that there has been no showing in this respect.
The other argument which is made by the Governor is that there is an over representation of large multi-member districts to this advant -- to this advantage of the single-member districts.
It is said that in a larger multi-member districts, there's an opportunity for a voter to have a greater decision making influence because he has that many more legislators to look to.
I believe, however, that this Court has already answered that question or that argument in its case of Fortson v. Dorsey where it stated the reasons why one district may elect seven Senators, for example, because in that district has seven times as many people living in it as in the single-member districts.
And without a showing that this in effect operates to dilute the vote of any voter that that multi-member districting system is not unconstitutional.
The other argument which is made by the Governor of Hawaii is that there is a submergence of minority in large multi-member districts.
Again, we submit Your Honor that there has been no evidence shown in the court below of this submergence of minority.
The Governor admits this in its opening brief.
The Governor again admits it and it's required too.
However, the Governor states above all that it is not required that he is not required to show any evidence or submergence of minority.
For this, we dissent because we do not believe that the burden is upon the claimers of apportionment plan to prove that it does not submerge minority.
I believe that the voter who is attacking the plan has a burden to prove that it dilutes this movement -- his vote.
The difficulty in following the argument on submergence of minority, that it is often difficult to determine who is a minority or what is a minority and which minority is being disadvantages in a multi-member district.
And we submit the problem of a submergence of minority exists both in -- by single-member districts as well as a multi-member districts.
It is also interesting to know in those connections on submergence of minority that the Governor in its reply brief takes the position that if all of the districts are equal in a number of Senators and Representatives by the districts elect then they would not object for the submergence of minority.
We submit that this is contrary to the statement in their opening brief.
Chief Justice Earl Warren: Would you mind stating that again please, his statement in his reply brief?
Mr. Yukio Naito: In the reply brief, the Governor makes the statement that if all of the districts, all of the multi-member districts elect an equal number of Representatives and Senators that there would be an equal submergence of minority in all the districts and therefore, it would not be objectionable.
Chief Justice Earl Warren: Even though -- even though, some of the districts were one representative districts?
Mr. Yukio Naito: I believe the Governor was addressing himself to multi-member districts.
Chief Justice Earl Warren: Yes.
Mr. Yukio Naito: In other words --
Chief Justice Earl Warren: But if some were -- if some were single districts and some multi districts but the -- all the multi districts were two, let's say, do I understand that your statement is that -- then there would be no objection?
Mr. Yukio Naito: That is my dissenting in reading your supply brief, Your Honor.
It appears Your Honor that in the end, the question of whether a legislature or a Constitutional convention should create multi-member districts or single-member districts, this in the judgment of that political body so long as the creation of those districts would not dilute the weight of the vote of any voter in any district.
Chief Justice Earl Warren: Mr. Funaki.
Argument of James T. Funaki
Mr. James T. Funaki: Mr. Chief Justice, may it please the Court.
Hawaii has become the United States military bastion for the entire pacific and the military population in the State fluctuates violently as the Asiatic spots of trouble arise and disappear.
Now, this is the manner in which the District Court below characterized the fluctuating and transient nature of the military population in Hawaii.
And this observation by the District Court underlies our position that in Hawaii a total population which is given to severe distortion by the fluctuating military would provide at best a very distorted kind of an apportionment base for Hawaii, a total population apportionment base with the temporary and a very fleeting statistic.
I submit that it would tend to create rotten walls as it's happening currently with sudden troop movements from Scorpio Barracks and Canyon Marine Base being shifted to Vietnam.
Because of their transient status, many of the military who simply do not meet the residential requirement to vote and because of this large number of nonvoting military, coupled with the violent fluctuations of the military population in Hawaii.
The Hawaii Legislature has a very difficult time in fashioning an apportionment plan that would provide effective representation for each citizen in the State.
We submit that the registered voter basis is not only a constitutional permis -- constitutionally permissible basis but also for Hawaii a far more equitable basis in the total population basis.
Chief Justice Earl Warren: What district, could you tell us from numbers what that fluctuation has been in recent years?
Mr. James T. Funaki: Yes, Your Honor.
In Table 9, pages Exhibit 15 on the record page 388, --
Chief Justice Earl Warren: 388.
Mr. James T. Funaki: -- there is a tabulation of the military population in Hawaii since 1940 I believe.
Chief Justice Earl Warren: Alright.
Mr. James T. Funaki: In any event, I would like to just pick out a few of the population figures to show that fluctuation.
The military population was 407,000 in 1944 and a mere 21,000 in 1950.
Then considerable increase two years later to 55,000, then another decrease to 38,000 in 1954, then up again to 56,000 in 1955, 59,000 in 1960, and 79,000 in 1962.
Now, this is only considering the military personnel and I believe, we have about as much personnel on mili -- as much dependence as there are military personnel so that the fluctuation elected here would double.
And so, we submit that with such violent fluctuations, a total of military population taken in an apportionment year would not adequately reflect the total military population for the whole apportionment period.
Chief Justice Earl Warren: Does this include the civil service employees of the armed forces or just a men in uniform?
Mr. James T. Funaki: This is just a men in uniform.
Chief Justice Earl Warren: And not the transient workers in the civil service of the Government?
Mr. James T. Funaki: No, not on this -- this is just the -- any new point.
Chief Justice Earl Warren: Is there any -- any statistic on that that you have?
Mr. James T. Funaki: As to the --
Chief Justice Earl Warren: Civil service.
Mr. James T. Funaki: No, I don't Your Honor.
Chief Justice Earl Warren: You don't have.
Justice William J. Brennan: Well, I notice that 389, civilian employees in the armed forces, would that be right?
18,000, this is January 1, 1964, 18,798?
Mr. James T. Funaki: Yes, Your Honor and I believe that this is --
Justice William J. Brennan: Yes, but -- but that's the only data of which we have that figure?
Mr. James T. Funaki: To my knowledge, yes sir.
Justice William J. Brennan: And what's this other one, other employed civilians 217,000, who are they?
Mr. James T. Funaki: I'm not familiar with that Your Honor.
Justice William J. Brennan: And you don't know whether that figure of civilian employees of the Armed Forces has a fluctuation which matches out of the military personnel?
Mr. James T. Funaki: No, Your Honor.
On the manner of the registered voter basis, the District Court had found that that registered voter basis was constitutionally permissible in Hawaii as it did not operate to minimize or cancel out the voting strength of any of the voting population.
The Governor has contended that the equal population principle requires that sits in both Houses of a state bicameral legislature must be apportioned on a total or gross population basis and that the registered voter basis would be permissible if and only if it adequately reflects the total population.
And Mr. Lyons in referring to his points of 25 on -- in his brief seems to urge that this reflection be a sort of a mathematical reflection and we would disagree with them that there should be any kind of a mathematical formula to show that reflection.
The brief of the Lieutenant Governor maintains that just the opposite is true that the total population must have a stable and substantial relationship to the registered voter population so that in any event, the registered voter basis would be permissible in Hawaii.
Now, the position of the House is that Equal Protection Clause upon which the Equal Population Principle is founded entitles all the people in the State of Hawaii to Equal Protection under that clause, including that protection from exclusion from the apportionment base.
But the Equal Protection Clause goes no further than the invidious discrimination so that a state may rationally select a particular apportionment base that would exclude and classify certain persons from the apportionment base.
And this Court clearly acknowledged the exclusion of aliens and WMCA versus Lomenzo and also hinted that the military might have been excluded if more had been shown than was shown in Davis versus Mann.
Now, the federal census population which the Governor urges as the proper basis for Hawaii is also a refinement of total population as it excludes transient tourists in Hawaii and the transient tourists were a substantial number, I believe they numbered about 510,000 in 1964 in Hawaii.
As used in Hawaii, the registered voter basis would logically accomplish a refinement of the total population so that a fairer estimate of the total non-transient military and civilian population would be obtained.
And we feel that because of the one year residential requirement, the registered voter basis provides a rational means to measure the transients from the non-transients.
The military personnel and their dependents make a significant impact on the apportionment of seats in Hawaii, particularly because of their size, the fluctuation, and the temporary nature of their stay.
As to size, they constitute the military and their defendants constitute about 18% of the total population.
Of the 632,000 total popu -- federal census population in Hawaii in 1960 about 113,000 were military depen -- military personnel and their dependents.
Almost all of them are located on the Island of Oahu and they are --
Justice Potter Stewart: Do I understand correctly that some of these people, military personnel and their dependents are registered voters, aren't' they?
Mr. James T. Funaki: Yes.
Justice Potter Stewart: Any other -- are there any figures in your brief sort of kind of to what percentage of the military establishment there and their dependents are -- are registered voters?
Mr. James T. Funaki: I don't believe we have the record for the military dependents, but I believe the military -- the registration for the military was somewhere in the neighbor of -- neighborhood of about 43%.
Justice Potter Stewart: Of the total military?
Mr. James T. Funaki: Just a minute, let me check that.
On page 368 of the record, there is a classification for military personnel.
Justice Hugo L. Black: How long does a person has to reside in the Hawaii before he is qualified to become a registered voter?
Mr. James T. Funaki: He must have resided in the islands for one year.
Justice Hugo L. Black: One year.
Mr. James T. Funaki: Yes.
Justice Hugo L. Black: The military man along with the others.
Mr. James T. Funaki: Well there's a -- Mr. Lyons was speaking earlier about the military who lives on post who has never been a resident of the -- of Hawaii before he went on to the post and he's forced to live on the post is not eligible to become a registered voter.
And this is the --
Justice Hugo L. Black: From the time he gets there?
Mr. James T. Funaki: That's right.
And this is due to the interpretation of the Constitution where -- the Constitution provides that no person shall be deemed to have gain or lost residence simply because of his presence or absence while employed in the service of the United States or while engaged in navigation or whether a student at any institution of learning and the --
Justice Hugo L. Black: Shall be deemed to have lost his residence –-
Mr. James T. Funaki: Gained or lost, simply because of his presence.
Justice Hugo L. Black: Gain or lost.
Mr. James T. Funaki: Yes and the Supreme Court of the United States -- Supreme Court of the State of Hawaii has held that in military personnel who is force to live on the post, does not establish residence -- cannot establish residence.
Chief Justice Earl Warren: Mr. Funaki, is there anything in the record to indicate that the State of Hawaii has in anyway discriminated against military men in voting as distinguished from the citizens?
Mr. James T. Funaki: No, there's nothing in – there is – there is -- I'm sorry, Your Honor.
There is quite a bit in the record.
There is testimony by a Mrs. Lauta, the clerk was where the City and County of Honolulu, where she testified quite in detail as to the registration procedures and she has testified that there has been no discrimination whatsoever against the military in the registration procedures.
And the District Court had found that the Constitution of the State of Hawaii and the statutes in no way work to disfranchise the military personnel or their dependents.
Now returning to the impact of the military personnel under dependence on the apportionment of seats in Hawaii, I believe I was explaining the concentration of the military on the one island of Oahu.
Almost all of them are concentrated on that island and within a few legislative districts, they're all concentrated.
All of the major military installations are located on the eighth, ninth, tenth, and eleventh representative districts which are only four of the eighteen representative districts.
So that in any such legislative district, the influence or the military is quite profound.
Now size in and of itself would not be so disturbing as the fluctuation of the size of military which severely distorts any given total population in Hawaii and as we have reviewed earlier, there is quite a bit of fluctuation in the State of Hawaii which has disturbed our population picture in the last 25 years.
And within recent months, as I had earlier said that there was about 15,000 men from Scorpio Barracks that were shipped over to Vietnam.
Besides the mass movement of troops in Hawaii, Hawaii serves as a natural military transport station between the continent of the United States and the countries in the Far East so that it would continually process incoming and outgoing military transients in large numbers.
Many of the military who stay in Hawaii are short term personnel, short to as of duty and a good deal of them would be merely serving out the military draft obligations of two years or less and because of this temporary nature, they simply don't qualify to vote.
And even if they were qualified, many of them would maintain their voting and legal residence in their home states and some of them would be indifferent to register if they have any knowledge of their permanent transfer to another station before the next election in Hawaii.
Undoubtedly, these are some of the reasons which account for the low registration among the military.
Apportionment on the total population basis would therefore strengthen the votes of those voters who happen to reside in those areas which are favored by the presence of a nonvoting military.
Now, this can be readily seen by comparison of the ninth and fourteenth representative districts.
Each of the ninth and fourteenth representative districts in 1960 had a federal census population of 42,000.
The ninth had 7,000 registered voters and the fourteenth had 16,000 registered voters.
Under the total population basis, each district would be entitled to three representative seats, but here 7,000 registered voters would vote for three seats in the ninth and 16,000 registered voters would vote for three seats in the fourteenth.
Now not only would be voters in the ninth district have an advantage in this situation but we submit that the advantage given to the voters in the ninth district would -- would frustrate the purpose for which an additional seat might be given in that district by the inclusion of the nonvoting military.
Because political realism would have that the voters in the ninth district would vote for those legislators that are responsive to their needs and not to the needs of the military necessarily and vice versa the legislators would be responsive to those voters upon whom his tenure depends.
As I mentioned earlier that there is no discrimination against the military in the way of registration in Hawaii is continuing to register the mili -- those of the military who are qualified to register to vote.
The use of the registered voter basis is not to exclude the military transients or civilian transients as an objective in itself.
We feel that it is a necessary step to obtain a stable and reliable apportionment base for a more effective representation system.
The use of the registered voter basis need not be in every respect logically consistent with its aims to be constitutional and we submit that it would be enough if Hawaii recognizes that there is a problem with the fluctuating military and the civilian transients and that the use of the registered voter basis might be thought as one rational way to solve Hawaii's problem.
Chief Justice Earl Warren: Mr. Dodge.
Argument of Robert G. Dodge
Mr. Robert G. Dodge: Mr. Chief Justice, members of the Court.
The Lieutenant Governor, who is the defendant in these three appeals, supports the District Court's decision not only gets point.
We feel that registered voters particularly in Hawaii but I'll make it broad on that.
We think that registered voters must be the starting point.
We think that the Court was correct in approving the multi-member districts that in the House of Representatives of Honolulu.
We think that the Court was absolutely correct in holding that the various district boundaries for the House of Representatives had historical, and political, and traditional basis and we're not arbitrary or capricious.
We are convinced that the Court was correct in denying the legislature of Hawaii any some kind of plenary or inherent power to amend the Constitution by setting up even a temporary plan for reapportionment pending the amendment of our State Constitution.
We think that the Court was probably right in 1965 in adhering to what apparently was the 1966 general election deadline set by this Court in Reynolds versus Sims and certain other cases, although, I must admit I have some doubts as to whether that is a practical deadline of Hawaii today because of the time taken to bring it before this Court.
We think that the circuit – that the District Court had to have the authority to enter an order enjoining the legislature from doing any other Acts until it cured the reapportionment system.
We don't know how a District Court in the exercise of its constitutional role in carrying out the federal constitutions can avoid sometimes making orders to legislature to do the job that Federal Constitution requires.
And we think that the District Court was correct in rejecting as its own plan, the plan proposed to it by the legislature of Hawaii I‘m not going to touch on all of these points but I -- there are a couple of I think very important ones, I think probably the most important point involved in these cases is whether or not what this Court meant when it used the term population in the reapportionment decisions in 1964.
And I need to find out what the Court probably had in mind or rather what it meant, was to find out what kind of a constitutional problem we do have here.
We are being -- the Court is being asked by the governor to embark on an entirely new course of action, new course of constitutional law it seems to me, asking the Court to say that there's some constitutional right to be represented in a legislative body.
This Court hasn't yet said that.
All this Court has said in all of the cases involving voting, well it said more than just a little, it said quite a bit.
It said there in one several cases, it is recognized that there's no federal right to a voter to be a voter that this is solely within the realm of the States.
It has said that a state may set up any qualifications for voters as long as they don't discriminate on the basis of race, previous condition of servitude, sex, and whatever else is involved in these things.
But as long as the State's registration laws and machinery as such that there is no violation of the two amendments of the cons -- of the Constitution.
They may set any reasonable voting requirement that there is and I suppose that a State could say that voters could only register to vote after they attain the age of 35 or 40.
We already have in our States the difference in the voting age requirement for it happens to be 20.
I think Georgia is 18 and I think Washington is 21.
So there's no magic in this and the Supreme Court has recognized the State reserved to themselves the right to determine the qualifications for their own voters.
So what are we protecting in these cases?
We're not protecting any individual who can't vote.
We're saying and I think this Court is saying in Reynolds versus Sims and the other one, all of them, that when a person has qualified as a voter, when he has a vote by the State's machinery, this Court is going to be certain under the Equal Protection Clause that that vote of his is going to be worth as much as any other person's vote.
Now I think we're going beyond that.
I don't think we've recognize, I don't think this Court should recognize because I don't think it exists any right to be represented because I am a person living in the State.
I suggest perhaps the way to resolve this thing is to look at the question of standing and I -- I suggest a couple of questions.
What would a Federal Court -- Federal District Court do if an inmate of Hawaii prison or New York State prison convicted of a felony came in and objected because his civil rights were being abused or his equal protection -- protection was being abused because he was not getting proper representation in the Hawaii or New York Legislature.
What if a child came in, even with a guardian ad litem or a transient tourist who was in Hawaii for the term of a legislative session, a transient military person or even I submit a person 20 years old, a legal resident of Hawaii who hadn't taken the pains to register to vote, would he have standing to raise the constitutional question?
And I submit that he would not because the -- the Court I think in Baker versus Carr identified the standing of the plaintiffs there as having a substantial interest to protect and that interest, this Court found was his interest as a voter and I think we're treading dangerous ground if we go beyond that Constitutional protection and that is why I suggest that the District Court was absolutely right in holding that registered voters in Hawaii was proper because every registered voter in Hawaii has almost precisely the same interest in every Representative in the House of Representatives.
The method of equal proportions is the fairest mechanical and mathematical system to apportioned members who have given a certain base.
So there is a table in the -- in the brief some -- in the Lieutenant Governor's brief on Table -- page 14 which shows that the range between votes and representatives of the 18 representative districts is something like one to 2,209 to one to 3,500 and 3,797.
Now, you just simply can't get closer than that in doing arithmetic.
It can't be done.
Justice Byron R. White: Mr. Dodge, What -- how are your -- how is the registered voter in your State?
Mr. Robert G. Dodge: In terms of how can a --
Justice Byron R. White: How do you know how many registered voters there are?
Mr. Robert G. Dodge: Because there is a -- there is a central -- each county registers to voters.
There are four counties as you have heard.
Each county --
Justice Byron R. White: You have permanent register -- you have permanent register.
Mr. Robert G. Dodge: Yes we do.
Well I put it -- I --
Justice Byron R. White: And how often do you purge?
Mr. Robert G. Dodge: Pardon?
Justice Byron R. White: How often do you purge your registration?
Mr. Robert G. Dodge: Actually, we have permanent registration if you vote in each general election.
If you fail to vote in a general election, you must then re-register.
Justice Byron R. White: Well, I know but for purposes that what if you don't vote?
But what if the person dies and hence doesn't vote?
Mr. Robert G. Dodge: Well, if the person dies between general election he is still on -- on the role after his death --
Justice Byron R. White: So how -- how do you tell then how many registered voters were are actually alive?
Mr. Robert G. Dodge: Well, you -- I don't suppose you do, Your Honor.
Justice Byron R. White: Well, quite a few people die every year?
Then that's --
Mr. Robert G. Dodge: Well, that's -- that's true.
But as I say if you have not voted in a general election, your name goes off.
Justice Byron R. White: Well, how -- how does it go off?
Mr. Robert G. Dodge: Well, it's -- it's taken off because there is a -- there's a cross checking system, a card file so that you --
Justice Byron R. White: So, you have a purge every election.
Mr. Robert G. Dodge: Yes.
Every general election, those who have not voted in that general.
They don't have to vote in the primary but if they have not voted in the general action, they're taken off to the roll.
Justice Byron R. White: So you are really -- what you are really saying is that registered voters is not your major at all.
It's the actual voters.
Mr. Robert G. Dodge: Well, we call it registered voters and it's -- it's making a number --
Justice Byron R. White: Well, no, no, it's a number and because if you haven't voted, you're off the list.
Mr. Robert G. Dodge: That's -- that's -- that's true, when you're not counted as a registered voter.
Justice Byron R. White: So -- so you're -- so what you're saying is if actual voter is a test.
Mr. Robert G. Dodge: Well, the Constitution doesn't really say that the -- there was the debate in the constitutional convention as to whether to take total population or to take registered voters or to take votes cast for the Governor in the last general election and it was decided that the most current figure that you could get would be registered voter.
Justice Byron R. White: Well, but you say there's no difference between registered voters and actual voters because if you don't register -- if you don't vote, you're off to registration list which just leaves the registered voters who voted.
Mr. Robert G. Dodge: Well, I suppose that I'm not -- I'm not saying that actual voters --
Justice Byron R. White: Is there a difference between the two or not?
Justice William O. Douglas: Well, I always get the addition of new -- people registering as voters?
Mr. Robert G. Dodge: I'm sorry sir?
Justice William O. Douglas: You don't always get the addition of the new people who are registered.
Mr. Robert G. Dodge: Yes.
Justice William O. Douglas: As well as those who voted?
Mr. Robert G. Dodge: Certainly, the comparison between registered voters and actual voters particularly in view of the fact that 89% and 92% of our voters actually vote, and our registered voters actually vote in Hawaii.
It's an extremely high percentage.
We not only have a high percentage of eligible voters who register --
Justice Byron R. White: Now if you're talking about -- you're talking about the percentage of voters who are registered voters who are alive to vote.
Mr. Robert G. Dodge: Well, I'm sorry there isn't anything in the record to indicate how many there might be who had died between general elections and would still be a registered voter until the end of the elections.
As soon as that section election, that -- that next election comes along, they're off the roll.
Justice Byron R. White: And how often is the -- is the apportionment basis be determined?
Mr. Robert G. Dodge: Every 10 years.
Justice Byron R. White: Every 10 years?
So you're really talking about the -- the registered voters on the first day of the year, is that it?
Mr. Robert G. Dodge: We're talking about the number of registered voters of the general election preceding the time that the Governor -- in Hawaii the apportionment is a ministerial act by the Governor every 10 years and we're talking then about the previous general election registration of statistics.
Justice Byron R. White: Are you talking about the ones who are eligible to vote of that general election where the people actually voted the [Inaudible]
Mr. Robert G. Dodge: We're talking about the total number that was carried under personal roles as being registered to vote for that general election.
We're not talking about the number to that to be voted.
Justice Byron R. White: And the only ones you would carry though are the ones who voted in the last, preceding elections.
Mr. Robert G. Dodge: Yes, that's right.
I might --
Justice Hugo L. Black: Well, they didn't register, didn't they?
[Inaudible] in the election like [Inaudible] in the election in November [Inaudible]
Mr. Robert G. Dodge: You could register the day after the election.
Justice Hugo L. Black: Well, many of these people may or did not vote.
They hadn't registered --
Mr. Robert G. Dodge: Well, we have a table in -- in -- it appears with the last -- the next to the last page, it's --
Justice Hugo L. Black: In your briefs?
Mr. Robert G. Dodge: No, it's intervener's plaintiffs Exhibit GO4, appearing on page 409 of the printed record.
On page 410, there were 230 in -- and I was speaking of the -- of the Tuesday, November 3, 1964 General Election.
There were 239,361 voters registered; 214,694 of them actually voted.
The percentage in the excess of -- I got it in my brief I think almost 89% and I --
Justice Tom C. Clark: Which one you have told would you think the two-thirds in that?
Mr. Robert G. Dodge: I'm sorry sir.
Justice Tom C. Clark: Which total would you take on the reapportionment 239?
The total registered or you think in both cases.
Mr. Robert G. Dodge: No, to reapportion -- to reapportion.
Let's say we were to reapportion.
Let's say we were to reapportion in 1966, we would use 239,361 as the starting point and then of course the figures within that line give you those from each of the other -- each of the registration history.
Chief Justice Earl Warren: Well I suppose that you'd have somewhat the same situation that you based -- based your representation on population because there would be a lot of people who die, people go away, and so forth so that would affect it as much as -- as those who don't vote.
Mr. Robert G. Dodge: Well my point, Mr. Chief Justice is not that you might get the same situation.
I can find nothing constitutionally protected in the total population concept where I -- where I do find it protected in the registered voter concept and particularly in Hawaii where we do have this transient military population that Mr. Funaki spoke of and where the lower court found this to be a substantial reason to avoid the total population even -- I say in -- I say in our brief or we do that total population is valid only if by its use you would reach an apportionment substantially equivalent to what you would reach on a registered voter basis.
I'm 180 degrees off from -- from the governor's position because I don't think that -- I don't think there's yet any Constitutional right to be represented as such, as people with inmates and children and transients, and things like this.
We're talking about our own state.
We're talking about our own state policies and if we take total population which would include military population, we then make the internal affairs of the State of Hawaii completely -- well substantially at the mercy of international conflict over which we and Hawaii have no control.
As for -- pardon.
Justice Hugo L. Black: Why should total population that definition of that word of that term have to include military, if you say they're temporary?
Mr. Robert G. Dodge: I don't think it does have to include it.
But I -- in -- I can't see that the man who was an eligible voter who has not taken the pains to register or to vote, I cannot see how he had standing to raise a Constitutional question.
Chief Justice Earl Warren: But frequently, is that understood in the [Inaudible]
Mr. Robert G. Dodge: Well this isn't my --
Justice Hugo L. Black: Minors, children --
Mr. Robert G. Dodge: Well certainly --
Justice Hugo L. Black: People who are unable to vote --
Mr. Robert G. Dodge: They have -- they have -- they have an interest.
They have a right to petition their government for their grievances, but they do not have a right to be represented, that's what I'm trying to point out.
At least so far this Court had not said so.
And so I think the District Court was absolutely correct in saying that in Hawaii registered voters is constitutionally permissible.
The record is clear also that you found that they, they three judges, found the -- the districts to be historically situated old land divisions, old administrative judicial areas, old school district lines.
And this Court certainly has not seen anything invidious about multiple election districts.
One other point I want to mention briefly is that both the State Supreme Court in an earlier case, involving reapportionment decided in August of 1964 and the federal district court held that the only way that the apportionment of the Senate could be changed in Hawaii was by constitutional amendment.
Now, the Governor is asking you here, the House of the Senate is asking you to somehow vest the Hawaii Legislature an authority to at least temporarily amend our Constitution and I not only ask you not to do it, I don't think that you have any jurisdiction to do it.
I think you were bound to accept the interpretation of Hawaii's Constitution given to it by the State of Hawaii Supreme Court.
They have said that they have denied any legislative inherent, implicit plenary or any other kind of power to our legislature in Hawaii because the Constitution clearly takes -- removes the legislature completely from the picture and I don't think that -- I think this Court must accept that as I think you accepted the decision of Maryland Court of Appeals in -- in the case that came up from Maryland where you said presumably the Maryland legislature has this authority because the Maryland Court of Appeals says that it had.
We have never -- we had under the old Territorial Organic Act, legislative apportionment as the function of the legislature, but they failed for 60 years to 50 years to do anything about it.
And so the delegates to the convention, the legislature, and the people of Hawaii in approving it and Congress would approve it, completely took our legislature out of the apportionment function at all.
And I don't think this Court -- I don't think that the District Court and certainly I'm sure that the State of Hawaii Supreme Court could not grant our legislature the power that the people have not granted to them.
This is not a question of legislative power.
It's a question of sovereign power and the people have reserved it in the document of a State Constitution.
Now as to the matter of relief, I --
Justice Byron R. White: Do you think the District Court below is right?
Mr. Robert G. Dodge: Pardon.
Justice Byron R. White: Do you think the District Court was right?
Mr. Robert G. Dodge: Oh, yes!
In denying a legislature of that power what they did was they enacted the legislation to set up a constitutional convention because this is the only way we're going to get this cured on a permanent basis prior to the 1966 deadline.
Then the legislature said, “That's an expensive process.
Why don't we submit to you what we would like as an interim plan and if you approve it, put it in as the Court's order.”
Simply stated, the Court didn't like the plan and they didn't -- they didn't put it into effect for the -- for the next election which would be this 1966 election.
Justice Byron R. White: But if it has an act of plan [Inaudible]
Mr. Robert G. Dodge: As its -- as the District Court's order and I think that was understood by all parties to the suit.
Justice Byron R. White: And without any reference to [Inaudible]
Mr. Robert G. Dodge: That's right.
Now, we have this situation that we are now in legislative session in Hawaii from being last Wednesday for the 30-day budget session.
If this Court adheres to what apparently where you set as a 1966 general election deadline, the only way in my judgment that we can have a reapportioned legislature elected in 1966 is by a District Court order and I know that -- that the District Courts and this Court hesitates to get in until States have had a chance to work this out for themselves.
I'm suggesting that you might give consideration to a general election of 1968 deadline for Hawaii because we're fairly new to this reapportionment fight.
This all started in 1964 after Reynolds versus Sims and although, the legislature has made a couple of efforts to meet this problem.
Justice William J. Brennan: How long does it take to convene the Constitution provision?
Mr. Robert G. Dodge: Well, our -- it's a little complicated.
It requires the legislature to enact if they're all setting it up in creating one providing for the election of delegates which you --
Justice William J. Brennan: -- the election, according to the legislature of reapportionment?
Mr. Robert G. Dodge: The election of the -- the Constitution says that unless the legislature otherwise provides, the delegates will be elected in the same manner as they were in 1950 which is not completely on a population and registered voter basis, but it gives the Island of Oahu adjourning to delegates.
And then there would be two elections that would be required, and then the submission of the constitutional convention proposal to the people at a special election.
This could all be accomplished well in last, last year when the District Court was faced with this problem.
It could have been accomplished prior to the general election this year.
I doubt if we could start from scratch today and get it done by the general election of 1966'.
Justice William J. Brennan: After a year?
Mr. Robert G. Dodge: Yes. Yes.
Justice William J. Brennan: Is that a liberal allowance or is that minimum?
Mr. Robert G. Dodge: Oh, no.
I think it would be a liberal allowance, Your Honor.
I think so.
Justice Byron R. White: You could mean that as of now, one it stayed effect until the early of 1958.
Mr. Robert G. Dodge: That's right.
If -- if -- unless we --
Justice Byron R. White: Without the legislative election this year.
Mr. Robert G. Dodge: We have legislative elections this year, a third of the Senate and all of the House.
We had the same thing in 1968.
With this expanded time table, we could get everything done by 1968.
I don't think it -- I don't think as a practical means there's enough time to do it now.
Justice Tom C. Clark: Do you have primary?
Mr. Robert G. Dodge: Pardon?
Justice Tom C. Clark: Do you have primaries?
Mr. Robert G. Dodge: Yes, we do.
Thirty days before the general.
Justice Tom C. Clark: That would be October?
Mr. Robert G. Dodge: October.
Our general was the same as the first two or three of November.
Justice Tom C. Clark: You have had reapportionment before October.
Mr. Robert G. Dodge: Yes, that's correct and I don't really think there's time to do it.
You see we've got a -- we've got two ways to amend the Hawaii Constitution.
One is that an amendment proposed by the legislature.
Our Constitution says this may only be voted on adding general election so that route is out if we do 1966 and if we stick to that deadline.
The other way is by initiative or a proposal coming out of the constitutional convention which can be done at a special occasion, not simply the general, but there isn't time that -- the timetable isn't big enough in 1966 to meet that.
So I'm suggesting is have some -- what was the case decided the other day, I think it was Fortson case again, one of the other routes, Dorsey versus Fortson at the District Court level, as I read that case and it's cited in Mr. Marumoto's supplemental brief on the plaintiffs, they had got a way from this 1966 general election deadline.
The people of Hawaii can do this.
There's no question about it and we'd much rather do it than have a court obviously, than have a Court do it.
Justice Byron R. White: Let's assume that -- let's assume that the Court accepted the registered voter basis, accepted the multi-member district.
Well let's assume the Court here agreed in all respects from the District Court.What should happen?
Mr. Robert G. Dodge: Well, I would think that --
Justice Byron R. White: What's the purpose?
Mr. Robert G. Dodge: I would think it would go back down to the District Court.
The stay order would -- would be reinstated in a legis -- to the current legislature, presumably, after a motion is filed would be under a restraint to set up the constitutional convention machinery or constitutional amendment machinery.
Justice Byron R. White: Well, what if the --
Mr. Robert G. Dodge: -- right away.
Justice Byron R. White: What if the Court thought that registered voters was a matter of the basis for apportionment that the multi-member districts were all right and that the plan to vote by the legislature was alright constitutionally?
Mr. Robert G. Dodge: Well, then I would suppose that you'd suggest to the District Court that it entered that as a part of each order for 1966 election.
Justice Byron R. White: Well, in order that -- in order that the legislature that would be dealing with -- that would be proposing a constitutional amendment or a legislature that would be convening in constitutional convention would be the legislature elected in the district interim --
Mr. Robert G. Dodge: Newly apportionment.
It could certainly at that time, certainly.
Chief Justice Earl Warren: Mr. Marumoto.
Argument of Masaji Marumoto
Mr. Masaji Marumoto: Mr. Chief Justice and members of the Court.
The plaintiffs in this case are full residents of the ten districts [Inaudible] and one residence of the fifteenth district.
Our main purpose in starting the suit was to bring about the break up of the stranglehold of the outer islands in the Senate.
This will be accomplished by the affirmance of the decision of the District Court and however, it will be an expensive affair.
Now, the plaintiffs have not appealed so to speak against it, the decision of the District Court maybe unanimous, but I may state the reason that why -- that the plaintiff did not appeal is that until the -- this Court noted probable jurisdiction we did not have funds to print the record or to pay for the printing of the briefs.
Now on this appeal, the position that the plaintiffs state that we agree with the District Court in stating that registered voter basis is a proper base.
And also, multi-member districts in both houses are permissible and I agree with Mr. Dodge that the permanent apportionment should go into effect in 1968.
However, there should be a temporary apportionment for the 1966 apportionment so that at least in -- in 1966 there is -- there will be -- there may not be a perfect apportionment but still in apportionment that is better than which is existing at the present time.
Justice William J. Brennan: [Inaudible] that this ought to be a permanent one on the Act where a Constitution [Inaudible]
Mr. Masaji Marumoto: I agree with that and then I may -- I may enter certain questions.
Assuming that the registered voter basis is a correct basis or an acceptable basis, assuming that the multi-member districting of the House of Representatives is constitutional then I think it is.
And assuming that the multi-member district can be done by this last legislature is also constitutional, I think it is.
What can be done is this?
Under the Hawaii Constitution, legislature may propose constitutional amendment.
Now the senatorial plan, in order to propose a constitutional amendments by the legislature, it maybe passed by two-thirds vote in one session or a majority of vote in two sessions.
Now the pertinent Senate apportionment plan has been adopted at the last session.
Legislatures in session know if it passes the bill at this session, it would have been passed by the legislature in two consecutive sessions.
Justice Byron R. White: Well, could it -- could it pass it at a budget basis?
Mr. Masaji Marumoto: It can as an urgent measure and no question it is an urgent measure.
In order to get into the calendar as an urgent measure, they must be approved by two-thirds of the legislature and I think the legislature will.
Then the --
Justice William J. Brennan: Is that a calendar with two-thirds but it maybe passed by a majority since it is passed by a [Inaudible]
Mr. Masaji Marumoto: That is right.
Then it can go to the November election.
Also in the last session, the legislature passed a bill --
Justice William J. Brennan: Well, [Inaudible] if that happens what goes to the general election.
There's a question whether there shall be a constitutional convention or if it then adopted as a constitutional convention?
Mr. Masaji Marumoto: A question as to whether there shall be a constitutional session convention has already been passed.
It will be on the 1966 election ballot, that question will be on.
Justice Byron R. White: I'm sorry.
I'm a little confused.
If -- if this legislature, the majority votes as to getting in the calendar by two-thirds, does what the last legislature did in the [Inaudible] apportionment plan.
What goes on the valid in November?
Mr. Masaji Marumoto: There will be two, two questions.
One, shall there be a convention, that will be a definitely on regardless of what the legislature have done at this session because that question had been adopted in the last session.
Then, if this session passes, a legislative recommendation or plan for apportionment, that will go on the November -- the election January election for adoption by the electorate.
Justice William J. Brennan: Adoption is what, the constitutional amendment?
Mr. Masaji Marumoto: Constitutional amendment.
Justice William J. Brennan: So if it is ratified at the November election, that will --
Mr. Masaji Marumoto: Yes.
Justice William J. Brennan: Then and there at this general election, amend your Constitution, is that it?
Mr. Masaji Marumoto: That is right and if the voters reject that question, the plan proposed by the legislature and if it passes the other question, shall there be a convention?
There will be a convention anyway, but again, the electorate may have vote for both questions, then there will be --
Justice William J. Brennan: Then what?
Mr. Masaji Marumoto: There will be constitutional convention anyway and then one -- one problem about limiting the constitutional --
Justice William J. Brennan: Actually then -- then you have a constitutional amendment and then you'll have a constitutional convention which may adopt still a different amendment.
Mr. Masaji Marumoto: That is right and one difficulty with having a constitutional convention is under our Constitution, the agenda of the constitutional convention cannot be limited so that the convention may go all over the creation.
Justice William J. Brennan: You may get a complete new composition.
Mr. Masaji Marumoto: That is right.
Justice Byron R. White: And what about -- what about the composition of the convention is that of the same basis on just how to present it?
Mr. Masaji Marumoto: The statute which creates the Constitutional convention, under our Constitutional -- under the provision states that it maybe the same number as in the 1952 convention or the legislature which creates -- which calls for this convention may adopt a different apportionment.
And that is why I do think that there should be a temporary apportionment for the November election so that the stranglehold of the outer islands in the creation --
Justice Byron R. White: Yes, but this -- this particular -- this matter of the constitutional convention -- when is the -- let's assume that this is -- this constitutional convention matter is passed --
Mr. Masaji Marumoto: Yes.
Justice Byron R. White: -- or is adopted --
Mr. Masaji Marumoto: Yes.
Justice Byron R. White: -- and is followed.
Then will -- it'll have to be implemented by -- by a legislative act or had (Voice Overlap) --
Mr. Masaji Marumoto: The Legislature Act.
The Legislature Act and there should -- there has to be election of the delegates.
There has to be --
Justice William J. Brennan: Yes, but the -- but the composition, has that -- is that part of the submission in November or is that has to be decided after the people approve the Constitutional convention.
Mr. Masaji Marumoto: That will be under article --
Justice Byron R. White: That hasn't already been decided.
Mr. Masaji Marumoto: It has not yet been decided.
Now, the Constitution says, “Unless the legislature shall otherwise provide there shall be the same number of delegates to such convention who shall be elected from the same areas and the convention shall be convening the same manner as merely as practical vote as required in the Hawaii State Constitutional Convention of 1950” and then there's another provision which says the legislature may provide some other apportionment.
Now, the legislature will be meeting next annually anyway, the legislature in 1967 will be a general session for all purposes.
That can provide the all of the statutory requirement apportionment in the --
Justice Byron R. White: -- you sure legislate your Hawaii Legislature has not yet provided for the composition of the convention --
Mr. Masaji Marumoto: No.
Justice Byron R. White: -- which maybe approved.
Mr. Masaji Marumoto: No.
That is -- if the legislature does not provide for the --
Justice Byron R. White: And if it -- and if it does, do something in the January 1967 session, as I understood you, what it does cannot include a limitation to consideration by the convention only of apportionment.
Mr. Masaji Marumoto: No.
It has to consider any problem that may come up.
And however, if the convention is held next year, I believe there will be sufficient time for the legis -- the convention to consider all the other problems it may want to consider and it is about time a convention would -- should be held because this first reconvention was held in 1952, in the meantime, Hawaii has become a state, we have not had a convention since then.
Justice William J. Brennan: But you just assume to see that wide open, is that it?
Mr. Masaji Marumoto: I think so.
Now on this question of registered voters, this Court has already decided in WMCA versus Lomenzo, 384 that citizen basis can be a deviation from the population basis.
Now in the six reapportionment cases of 1964 as I understand it, it was the position of the Solicitor General that for capital equality of representation maybe measured either by voters or total population and I wish -- I agree with that contention that it maybe by voters or total population and in the situation in Hawaii that registered voters maybe a substitute for voter population and for this reason, a great deal has been said about the military population.
I have stated on page 15 of my brief set forth certain figures.
However, it is not complete and if this is to be complete, I think we should --
Justice William J. Brennan: On what page did you say, Mr. Marumoto in your brief?
Mr. Masaji Marumoto: On page 15 of my brief.
Justice William J. Brennan: Thank you.
Mr. Masaji Marumoto: I have adverted to the tenth district and the eleventh district only and main district have about all the military installation which kept the [Inaudible] in these districts and then it went on.
However, [Inaudible] as they have found out is in the length show that statement isn't accurate.
However, if we include this eight, nine, ten, and eleven, it will practically include 100% of the military population.
Now on page -- I think at 394, the -- it's in Exhibit 15, one of the exhibits there, showed that the military population of the other islands in 1960 was only 339 out of 50,000 and practically all of the military population, is within 11, all these blue areas are military in the end where he [Inaudible] and Pearl Harbor is in the ninth [Inaudible] and in the eighth where Kauai has naval stations.
Now if we add the total population including the military of those four districts, it comes out to 263,958.
On the basis of total population, the number of legislatures, they would be entitled to these four districts would be 22 and under the registered voter basis, it would be fourteen.
Now, according to 1960 census, the total population was 632,000.
Justice Byron R. White: This is all over the island.
Mr. Masaji Marumoto: All over the island.
So if you divide that by 51 and average population who represented it, it is 12,407.
If you multiply by 14, that is the number of legislators assigned to those four areas under the registered voter basis, these 14 representatives would be representing 173,698 people -- persons, so that the unrepresented population will be 90,206.
Now in 1960, there was a military population of 50,000 and this is all in the record and military dependent population of 62,000, making 112,000.
So that if there are 90,000 unrepresented population, then 90,000 may account -- maybe accounted for by the military.
There will be another 20 -- 3000, 20,000 or so.
Now many of the 60,000 military dependents, being whites and so forth will not register.
So that if these things have taken into consideration, registered voter basis will put in nearly equal or be equivalent to the total population.
Now under the Hawaii Organic Act, before Hawaii became a State or before the constitutional convention, reapportionment was -- to be based on citizen population.
We cannot get citizen population because the federal census does not provide for that.
As I understand it, in New York, some -- some special compensation is paid to the census bureau to get citizen population.
The only way right now to get citizen population in Hawaii is to deduct from the total population, the population of aliens as reported to the immigration service.
But we cannot have citizen population figures by the election districts.
That is the difficulty we have in citizen population basis.
Now under the Fourteenth Amendment, as I understand it, classification can be done and in this particular case, if it's -- it is done on a rational basis with regard to the objective of objective which the apportionment is supposed to serve, then it would be a constitutional classification and I think a registered voter basis in the case of Hawaii is a constitutional classification.
One decision, Butcher versus Carr has definitely decided that the registered voter basis in Vermont is constitutional because not come up to this Court because it has not been appealed but Judge Waterman decided there that although he decided that voter basis in New York was unconstitutional, he decided that the elected -- the registered voter basis in Vermont was constitutional because in New York the voter basis situation was used as a ghost or a continuation of prior malapportionment.
But in -- in Vermont, he found that there was nothing invidious about the use of registered voter basis.
Now, when we come to the question of multi-member districting, this Court has stated that the constitutional standard should be developed on case by case basis.
And as Mr. Justice Brennan read this one decision, first decision today, other points, certain standards have to be decided on case by case basis, on case by case basis, we have already this situation.
In Colorado, the city and county of Denver, as 18 out of 65 representatives and nine out of 35 representatives.
In Toombs versus Fortson, Fulton County has 24 representatives out of 205 and it has a multi -- seven-district county where seven Senators are elected from one county.
Davis versus Cameron in Iowa turned down the objection that it was malapportioned because 11 representatives were elected from Fulton County.
In Buckley versus Hoff, 15 representatives out of 50, just from one district, 16 Senators out of 30 is from one district, Mann versus Davis.
Henrico County and Richmond where a lot of eight representatives in the Senate, Richmond has two, Henrico has one.
I particularly wish to refer to Mann versus Davis because one of the reasons why the District Court held the districting of the County of Hawaii into one senatorial district with three Senators instead of two districts, with one Senator and two Senators was gerrymandering in order to preserve the position of the Senators who were elected from the other district.
Now the explanation in the record and we got to take that explanation because there is no rebuttal of that explanation is this.
In the first district, the registered voter population was 7000.
The ideal population is 9,500.
The total registered population is 28,000.
You will deduct 28,000, 7000 from 28,000 and that would make it 21,000.
So two Senators from the Hilo area will be representing 10,500 registered voters, while senator from this district here, the [Inaudible] would be representing 7,000.
The explanation by the Senator who testified was they wanted to be equalize.
So that instead of the dividing, they made through one district of the three Senators and that is exactly what happened in Mann versus Davis.
The City of Richmond had the enough population for five representatives but not enough for six, Henrico had enough for two, but not enough for three.
So they combined the two and made it into a multi-member district of eight.
With regard to excluding minority representation, again, I refer to Mann versus Davis which was affirmed by this Court in Burnette versus Davis in 382 page 42.
And there a resident, a colored resident of Richmond stated that, it was unconstitutional because if Richmond were divided into five districts in certain areas, covered representative could be chosen but if it were combined together, with Richmond and Henrico with it, the covered population would be reduced, percentage would be reduced from 42% to 29% and the chances of covered representative being elected would be much less.
Probably in a situation that the Governor's representative stated about the Waikiki district.
However, I think it has -- the trend has already been started on case by case method, the delineation of standard that multi-member districts are constitutional.
If multi-member district is constitutional for the house, and then for the Senate also, then, the person who comes apportionment maybe approved the Senate apportionment that was adopted maybe approved the legislature made by a majority of vote if they cannot get the two-thirds vote approve the Senate measures the fast draft session, put it on the calendar on the November election.
And then for the November election, however, I believe there should be a temporary apportionment on the same basis that the legislature passed last year which would give Oahu its number of Senators which is 19 to which it is entitled.
And then the reapportion legislature can enact a bill for the calling of the constitutional convention with proper apportionment for members of the convention.
Chief Justice Earl Warren: Thank you.
Rebuttal of Dennis G. Lyons
Mr. Dennis G. Lyons: May it please the Court.
I would like to restate the nature of our objection to the multi-member districting both in the House and in the proposed Senate plan and that is essentially to its random and arbitrary character.
There has been no showing and I believe we heard no showing here this afternoon as to how these districts really happen to get the way that they are.
Why some of them are one member and why some have as many as six?
Even in downtown Honolulu, there is a district right here the thirteenth with two members.
There's a district here, the fifteenth with six members.
The only specific justification that we heard as to the construction of the districts was that it was stated that some of them coincided with these long standing administrative districts which are now used basically by the way to determine the jurisdiction of justice and peace courts.
That could only be taken as a counting for three out of the eighteen.
There are these administrative districts throughout the whole state.
The only ones that are sought to be justified on this basis are three of the eighteen districts and there are even some of these very several administrative districts together and created a multi-member districts.
Justice Byron R. White: Mr. Lyons, if -- if -- what if we disagreed with you, you have to show what -- what if we suggest that you have the burden showing what was wrong with the -- having a display.
What would you say?
Mr. Dennis G. Lyons: Well, I think we've shown first that there is this great disparity and we've said that there is no consistent pattern.
We've shown there is no consistent pattern.
Justice Byron R. White: And then what's wrong within -- in a consistent pattern as such -- just because when district start creating another two and another one?
Mr. Dennis G. Lyons: Well, if there were some single standard that was applied to construct them all that would be a consistent pattern.
If you have the county, you insist him in Fortson versus Dorsey, but you've got a variety of systems there.
You have many systems as you have posted many systems as you have.
Justice Byron R. White: Well, what's wrong -- what's wrong with that?
Mr. Dennis G. Lyons: Well, it's completely an arbitrary determination of whether or not represented by six people or represented by one person who makes that depends strictly on geographic considerations which we believe this Court has taught us impermissible.
Justice Byron R. White: Do you think this Court has said that it's inherently arbitrary for one person to be represented by one Congressman and -- or one Representative and another person to be represented by six?
Mr. Dennis G. Lyons: Not that it's inherently arbitrary.
There are obvious differences in the amount of representation that you have.
Justice Byron R. White: Yes, but --
Mr. Dennis G. Lyons: Unless there is some rational basis on which that could be done I would contend that it was a violation of the Equal Protection Clause and there is no rational basis for that.
Justice Byron R. White: All you have said is that there are various districts and various members of representatives (Voice Overlap) arbitrary?
Mr. Dennis G. Lyons: And if there's no consistent pattern as to determine how many have hwat.
On the other point, the registered voters versus population, I think the main point that we have to make here is one would be the right here is the right of representation.
The Court said that, the Equal Protection Clause demands no less than substantially equal representation for all citizens.
The measure that is aimed at that is population, a registered voter is a measure that is aimed at something entirely different.
Chief Justice Earl Warren: Very well.