GORDON v. LANCE

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Argument of George M. Scott

Chief Justice Warren E. Burger: Gordon against Lance.

Mr. Scott you may precede whenever you're ready.

Mr. George M. Scott: Mr. Chief Justice and may it please the Court.

I like first to apologize for my voice, I've had laryngitis the last few days, I hope the court will indulge me.

Chief Justice Warren E. Burger: Very well Mr. counsel.

Mr. George M. Scott: This case is unique I think in the annals of jurisprudence.

The question presented has never before been presented to this Court.

The question, does equal protection of the laws under Fourteenth Amendment mean majority rule in special elections to determine questions of public policy?

Put it in another way, does the 60% requirement, the extraordinary majority requirement of the constitution and enabling statutes of the state of West Virginia violate the Fourteenth Amendment of the Federal Constitution?

The facts in the case are not in dispute, they're simple and they're brief.

In my home county, Roane County in West Virginia on April 1968, the Board of Education submitted to the people for decision, two issues.

The first question was whether or not to issue of a $1,800,000.00 in general obligation bond.

Second issue is whether or not to increase the rate of taxation for current expenditures beyond the constitutionally prescribed maximum for a period of five years.

On each of these issues, approximately 51.51% of the persons voting, voted in the affirmative and of course the issues failed the passage to canvas by the Board of Education because of the requisite 60% of the voters did not approve the issue.

Constitution of the state of West Virginia was adopted in 1872.

At that time the 60% requirement so far as bond indebtedness or any indebtedness extending beyond the current fiscal year was part of the constitution.

In 1932, the Tax Limitation Amendment was adopted which set forth maximum tax rates for each political subdivision and this limitation amendment provide that these rates could not be exceeded except by vote of the people and 60% voting in the affirmative.

In 1966, an amendment was presented to the people of West Virginia and the only question in that amendment was whether or not to amend and cancel the 60% requirement and substitute a simple majority requirement and the people voted by a majority to retain the 60% rule.

Despite this background -- in light of this background, the Supreme Court of Appeals of the State of West Virginia decided at the instance of five citizens of our county, allegedly voted in the affirmative on each of these issues, that the 60% requirement, the extraordinary majority requirement was inherently discriminatory in that it diluted or debased the vote of the persons who voted yes as compared to the vote of the persons who voted no.

These issues --

Chief Justice Warren E. Burger: Can the constitution of West Virginia be changed by a simple majority vote?

Mr. George M. Scott: Yes, Mr. Chief Justice when it's submitted.

It's submitted at the instance of the two-thirds vote of each house of the legislature, but on the vote of the people, it is a majority vote when submitted to the electorate at large.

Chief Justice Warren E. Burger: Does this record by any chance show what the vote in fact was?

Mr. George M. Scott: I am not certain Your Honor, I think the dissent of Judge Haymond does show that.

Justice Potter Stewart: That is back in 1962, you mean when the amendment --

Mr. George M. Scott: 1966, Your Honor.

Justice Potter Stewart: 1966, when the amendment was submitted?

Mr. George M. Scott: Yes.

Justice Potter Stewart: And this involves both the bond issue and a tax levy as I understand it?

Mr. George M. Scott: Yes Mr. Justice --

Justice Potter Stewart: Each requiring a 60% of the vote of those voting.

Mr. George M. Scott: That's right.

Justice Potter Stewart: Does each of these provisions date back to 1932?

Mr. George M. Scott: The tax limitation amendment dates back to 1932, that's the levy.

Justice Potter Stewart: Tax levy.

Mr. George M. Scott: Yeah, limiting --

Justice Potter Stewart: In excess --

Mr. George M. Scott: -- the levy rates.

Justice Potter Stewart: -- the tax levy an access of what the local government can do by itself?

Mr. George M. Scott: That's right Mr. Justice Stewart and that dates --

Justice Potter Stewart: And how about the --

Mr. George M. Scott: -- 1932, the --

Justice Potter Stewart: And how about the bonding authority?

Mr. George M. Scott: The bonding of the – our political subdivisions have always been prohibited from borrowing money except by approval of two-thirds of the persons voting on the question of borrowing money.

Unknown Speaker: Ever since the existence of West Virginia State?

Mr. George M. Scott: That's my understanding, this is from the 1872 Constitution, our constitution as one of the older ones --

Justice Potter Stewart: As far as the bonding authority goes, this is -- goes back to the original constitution of the state of West Virginia?

Mr. George M. Scott: Yes, Mr. Justice Stewart.

And we think that this -- and of course, this case doesn't present, a situation earlier was -- a discrimination based upon race or religion or wealth or place of residence or marital status or any circumstance that prevailed in any of the so-called one man, one vote cases.

There is I think no factual analogy between those cases and this case, and yet our court felt obliged by virtue of the language in the opinions of those cases, to hold that this 60% requirement was inherently discriminatory.

We think and its our submission that this is a monstrous misapplication of the one man, one vote rule and to support this submission, I have cited to the Court in my brief, articles which have appeared in Virginia Law Review and Georgetown Law Review.

I have also cited articles which have appeared in the Harvard Law Review, the Columbia Law Review, Houston Law Review, Vanderbilt Law Review, the West Virginia Law Review and there are others and the commentators are severely critical of this decision, I think without exception.

Justice John M. Harlan: Mathematically, the Court (Inaudible)

Mr. George M. Scott: Well, it's certainly beyond dispute Mr. Justice Harlan that 60 does not equal 40 and this is I think the basic error that the court fell into.

They treated this as a problem of arithmetic rather than a problem of definition or one of philosophy.

I think that –- and they reached this profound conclusion from the fact that 60 is to 40 is one-one-half is to one, but the rules of arithmetic I think must lead to an absurd result because if you say, speaking mathematically, that this provision is inherently discriminatory then mathematically speaking you have to say that a majority rule is likewise discriminatory and majority as to minority as more is to less and inherently unequal, so the rules of mathematics I think can't be used.

Justice John M. Harlan: And yet one can't escape that arithmetic underlying the one man one vote rule, isn't it?

Mr. George M. Scott: Only on the basis of comparison I think in a geographical sense and also in a all together a different context where the –- so many more people have the right to elect only one delegate as opposed fewer people in another area.

So mathematics does have a play there, but not in the sense that I want to present here, but it is the sense of equality.

It doesn't have to –- one doesn't have to equal one before there can be constitutional equality it seems to me.

Justice John M. Harlan: What does the court do to the federal constitution amendment process?

Mr. George M. Scott: Ignored it.

Justice John M. Harlan: Ignored it?

Mr. George M. Scott: The court said that the federal analogy was frivolous and wholly beside the point.

I want to get to that a little later too.

I do not think that it's frivolous and wholly beside the point.

Justice Byron R. White: Could you tell me or does the record show what percentage of eligible voters actually voted in this election?

Mr. George M. Scott: The record did not show that, I can tell you.

I have an agreement of the counsel here.

There were 8,911 registered voters in Roane county at the time of this election.

The record does show how many persons voted.

There was something -- approximately 5,700 people voted.So approximately, 60% of the actual voters voted.

Justice Byron R. White: But do you know what your normal turnout is -- was this a general election here?

Mr. George M. Scott: This was not a general election.

This was a special election.

They had excellent turnout, I think.

Justice Byron R. White: This is an excellent turn out (Voice Overlap)

Mr. George M. Scott: I think the 60% turnout is an excellent turnout.

Justice Byron R. White: Yeah, but the --

Mr. George M. Scott: The rural area in the spring, when the roads are bad and these are generally scheduled I might add Mr. Justice White so there won't be too heavy turnout.

Justice Byron R. White: That's not unusual but --

Mr. George M. Scott: No, I'm certain.

Justice Byron R. White: Do you know what your turnout is in the general election year?

Mr. George M. Scott: This is a strictly guess Mr. Justice White but I would say roughly 75%.

We have in politically minor county.

So, as I've said in an answer to the question of Mr. Justice Harlan, it's not a mathematical problem, it's a philosophical problem and of course --

Chief Justice Warren E. Burger: I suppose counsel if this were mathematical problem essentially, it could be reasonably argued that on the respondent's theory, one-third of the registered voters are committing the credit of all the registered voters, there were about 28 to 2,900 for the bond issue, were there not?

Mr. George M. Scott: Yes, 2,800, yes.

Chief Justice Warren E. Burger: So that on that argument, if it's mathematics, the third or normally the third of the people are committing 8,900 people, 2,800 of people, 8,900 people? (Voice Overlap)

Mr. George M. Scott: Yes.

Justice Byron R. White: What would you say (Inaudible) other way that it only took a 30% vote in favor to pass the bond issue?

Mr. George M. Scott: I would say the same thing, I think it's valid.

Justice Byron R. White: That there's no majority rule either way?

Mr. George M. Scott: I think not.

We're getting here I think with the situation, the minority veto, of course our constitution and our history is full of instances of minority veto and not necessarily the minority rule where we're getting in situation where -- (Voice Overlap).

Justice Byron R. White: Constitutional provisions to protect minority?

Mr. George M. Scott: I'm sorry Mr. Justice White.

Justice Byron R. White: Handful of constitutional provisions to protect minority?

Mr. George M. Scott: Yes, before this decision I thought that's what the Fourteenth Amendment was all about.

There's one thing that I think is prevalent here, the essence I think of the Fourteenth Amendment in the voting situation is that everybody should have the equality of voting power, and I believe that the court below more or less conceded, the California Court and it's a scholarly decision, a 62-page decision, I think did concede, and I believe that my adversary here, I think we will all have to admit that whenever –- and in situation like this, when any man enters the voting booth, when all the voters first go to the poll, before the election is held, each has exactly the same opportunity, each has exactly the same power to affect the ultimate decision as every other voter.

Regardless of how he votes, he's got the same power to affect the outcome of the election when he goes in.

This wasn't the case in any of the one man one vote cases and those cases seems to me the state had told these people, regardless of how you vote, your vote as a resident of this populous county can have as much effect on the ultimate decision making process as the vote of the man who lives in the less populous rural area.

But here, the state has told the people you each have equal voice, you each have the equal power to affect the outcome.

The extraordinary majority requirement is merely a rule of decision.

It prescribes how many votes it takes to win, in other plurality not a majority but a 60% of the votes --

Justice Potter Stewart: What if Virginia -- what if West Virginia should say that in order to elect a republican candidate it took 60% of the vote, but in order to elect a democratic candidate it only took 50%?

Mr. George M. Scott: That'd be monstrous, I think that'd be monstrous and of course plain violation of Equal Protection Clause.

The candidates are individuals, their people and are subjected to discrimination, they couldn't be treated unequally on such measure.

Justice Byron R. White: Here, here you say --

Mr. George M. Scott: And affirmative than a negative, --

Justice Byron R. White: Here you say that in order to impose a tax levy, or to impose bond indebtedness it takes 60% of the vote, but on other issues it takes 50%?

Mr. George M. Scott: On affirmative bond issue or negative bond issue --

Justice Byron R. White: Yeah.

Mr. George M. Scott: -- is not a person subject to discrimination.

Justice Potter Stewart: No but I suppose -- aren't there other issues in which it only takes the majority?

Justice Byron R. White: By the constitutional amendment?

Mr. George M. Scott: The constitutional amendment is one certainly.

I don't know if there's any constitution distinction between those two.

I think that's a question of public policy which the people of the state has spoken to on separate occasion.

Justice Byron R. White: What if the law -- what West Virginia law was that negative votes shall be counted twice and affirmative votes counted once on bond issues?

Mr. George M. Scott: Well, if such provision were addressed to the voter, I think that would be bad.

Justice Byron R. White: Well, it'd give exactly the same result, wouldn't it?

Mr. George M. Scott: Possibly on a mathematical basis yes I think it would except that we're dealing here with 60% rather than two-thirds.

Justice Byron R. White: Yes well I mean you --

Mr. George M. Scott: But this is addressed to a political subdivision Mr. Justice White, this says -- this restricts the part of political subdivision.

It says you cannot borrow money unless you have this consensus.

Justice Byron R. White: Well, the law could say that in all of political subdivisions passing bond issues or submitting bond issues, negative votes will be counted once-and-a-half and affirmative votes counted once, you have precisely the same result?

Mr. George M. Scott: Well, I –- it's possible that it would -- yes, you are going to have precisely the same result on the mathematical basis, but it's not a question of mathematic --

Justice Byron R. White: Would you make the same argument though there that --

Mr. George M. Scott: No I couldn't make that argument.

Justice Byron R. White: Why?

Mr. George M. Scott: If it were addressed to the voters because the voters were being treated unequal.

Here the voters –- every man stands equally before this Court Mr. Justice White, every man has the same burden, that is to carry his issue, decide the issue and if he has the same power when he goes in to the polls, I don't think he loses that power, that equality of power by casting this ballot.

Justice Byron R. White: Well, on my example, he has the same power when he goes in to because he doesn't know which side he is going to be on until the vote is counted?

Mr. George M. Scott: But the method of –- the way that the -- that the way your example is put I think of course is not this case, but --

Justice Byron R. White: I would be --

Mr. George M. Scott: -- it would be addressed to the voter and I think then you would be discriminating between people.

Chief Justice Warren E. Burger: Well, Mr. Scott in overriding a presidential veto in houses of the Congress under the federal constitution, negative votes have twice the voting value as affirmative votes, don't they?

Mr. George M. Scott: Well, you certainly have to take the –-

Chief Justice Warren E. Burger: To take Justice White's illustration?

Mr. George M. Scott: They certainly have twice the effect and I'm not sure that that in that specific context is justification for the state to treat its citizens unequally.

The federal analogy hasn't met with very much favor at the hands of this Court, although I do want to employ it thereon and I think it is a valid argument.

Chief Justice Warren E. Burger: Well, in each case, the parallel to the veto power overriding the veto of the President in each case, West Virginia's Constitution and the Federal Constitution, it's a matter of the organic law which the people have adopted, is it not?

Mr. George M. Scott: It certainly is Mr. Chief Justice and in our case it's spoken to it in three separate occasions by a majority vote and have voluntary, by majority vote.

A restricted to powers of the majority, decided to protect the rights to the minority in situations like this.

This is -- has --

Chief Justice Warren E. Burger: What was the term of this bond issue -- what was the term of the bond issue, when will they do?

Mr. George M. Scott: 20 years, 5.5%, amortized over a period of 20 years, $1.800,000.00.

Chief Justice Warren E. Burger: Because there's great many people --

Mr. George M. Scott: This turnout, I think analogous.

Chief Justice Warren E. Burger: There's great many people who couldn't vote on this bond issue where you're going to have to pay off the bonded indebtedness, aren't they?

Mr. George M. Scott: That's quite so Mr. Chief Justice and I think it's analogous to a mortgage of real estate.

It is and in fact the mortgage of property even a person is not born at that time of the election.

It might be so, people not yet born on property and have to pay taxes on it as minors before the bonds retire.

There are many reasons, many justifications I think for such a public policy of the state, but I don't think they have to get to a justification of this because I don't think it's discriminatory.

I think that the three-judge District Court in Missouri, I think the Supreme Court of Idaho reached the correct the conclusion that this is not discriminatory, this is –- every person stands equally before this type of provision.

Justice Byron R. White: What make -- any issue -- any difference, what issue the provision applied to, but just across the board the state did require a super majority to pass anything and it's not a question that the state justify it at all, it's just a discrimination?

Mr. George M. Scott: I think that's true where as here, the people have reserved to themselves certain legislative powers which they have refused to delegate to the public office, I think that's true and whether it's a 10% vote or a 90% vote, it can be prohibited entirely.

The state could prohibit, we could if we want to and our constitution says that under no condition shall a political subdivision borrow money.

If they can prohibit it entirely why can't we qualify it?

I think we can, so long as you treat everybody alike and I think this does, every man stands equally when they face this type of the requirement.

Justice Harry A. Blackmun: Mr. Scott, let me ask a question which may not be in your case.

You said this was a special election.

Suppose that the bond issue were voted on under general election, is there -- does West Virginia have a provision as to what happens if a voter just doesn't vote on the bond issue controversy?

Mr. George M. Scott: I'm not sure I follow you Mr. Justice Blackmun.

Justice Harry A. Blackmun: (Voice Overlap)

Mr. George M. Scott: We have separate ballots submitted to the voter and if we accept the ballot and turned it back in to the poll clerk after visiting the polling booth --

Justice Harry A. Blackmun: Supposing that --

Mr. George M. Scott: -- without marking it, it will not just be counted.

Justice Harry A. Blackmun: It's just not counted.

In other states I know this is the case.

Mr. George M. Scott: Yes there is no coram requirement in our state.

Justice Harry A. Blackmun: There are provisions that a failure to vote equals a negative vote?

Mr. George M. Scott: That is not the case in our state.

Justice Harry A. Blackmun: Do you think that has any constitutional deficiency?

Mr. George M. Scott: I think it must have in light of Clay versus Turner which this Court – it came up from South Carolina this past summer and was dismissed for lack of a substantial federal question when that argument was raised, a case which I cited in my reply brief.

I think it has a substantial constitutional deficiency.

I don't think as I said that when a person enters the polling booth that he loses, regardless of how he marks in his ballot, he loses any of the equality that he had before he went in.

And I think this is the basic error made in the California case, where they held and their entire 62-page opinion rested upon one thin thread when they said that it was classified voters and it was sufficient for the class to come into being at or after the election.

It was not necessary for there to be prospective discrimination, it was sufficient they came in to be prospectively, retrospectively there and I think that there is no such thing as a class.

There is not even an identifiable group if secrecy of the ballot is to be preserved.

I don't think you that can come in of course I suppose and say I voted yey or ney, but if the secrecy of the ballot is to be present, how could it be established we voted yes or no.

And I think this is the reason law is valid.

The law is neutral, the law is based on neutral principle that's addressed not to the voters and not to discriminate against people but against specific areas of government action.

It's addressed to specific questions of public policy, shall we become indebted or not.

It doesn't, I mean -- we didn't put the vote whether or not we're going to go ahead have them schools around the county.

The question was are we going to go ahead with the program that we have or were going to increase the expenditures in a certain way and every person who in the booth had a different reason for voting, either yes or no.

There's many reasons for voting one way as there are for reverse and if I have the time I'd like to refer briefly to the federal analogy.

Justice Byron R. White: (Inaudible) discrimination and the issue got down to whether there are circumstances in which the state may discriminate given a good enough reason.

Are those reasons in your brief?

Mr. George M. Scott: I hope that the Brenner (ph) opinion.

Justice Byron R. White: I know you do want us to get that far.

Mr. George M. Scott: I don't think we should Mr. Justice White.

Justice Byron R. White: Well I know you don't.

Mr. George M. Scott: Yes, but if we did, I think certainly there are good reasons as I've said the fact that the people --

Justice Byron R. White: Are those are in your brief, the ones the state claims?

Mr. George M. Scott: I didn't brief that point thoroughly, no, because I didn't think it was essential, the court --

Justice Byron R. White: You don't think you've lost the case do you just -- if the court thought there was a discrimination?

Mr. George M. Scott: I should certainly hope not Mr. Justice White and there is in my brief the arguments of the three-judge District Court in Missouri.

There is in my brief the argument that was advanced in Georgetown Law journal which does set out many reasons that could exist here to justify such a state provision.

There are just a couple of things about the provision.

I know that the in the allocation of senators, when used for college, of course necessary concessions are made at the time of the original (Inaudible) but we're dealing here with the Fourteenth Amendment and I think that if we recall that the Section 1 of the Fourteenth Amendment contains the Equal Protection Clause.

Our Court has said that the Equal Protection Clause forbids an extraordinary majority requirement and yet by Section 3 of the Fourteenth Amendment, dealing with disqualification of officers specifically said, that Congress can buy two-thirds of vote and remove those disqualifications seems highly irregular to me to suggest that one Section of this amendment forbids an extraordinary majority requirement in the next section or the third section requires it.

And in 1967 the Twenty-fifth Amendment (Inaudible) getting down in more recent history provides for an extraordinary majority vote by Congress in determining whether or not the President does continue to disable -- not able to perform the duties in his office.

So, I think that -- to summarize my presentation that there's no specific language of a constitution which requires this result.

There is no specific holding of this Court which require this result.

There's no natural law or rule of reason which requires this result.

Our -- framework of our government is based upon a delicate balance of instances of minority veto such as we have here.

Bicameral legislatures, this doctrine separation of powers, doctrine of the judicial supremacy, the executive veto, all instances of minority veto and it seems to me that if majority rules, strict majority is to become the only acceptable way of political life in the state and local affairs of this nation.

We must recognize that we've embarked upon a new journey of uncertain duration down a new avenue of judicial activity.

This unique combination as I spoke of has been the very source of strength and stability of this great nation and I would regret to see it destroyed.

Chief Justice Warren E. Burger: Thank you, Mr. Scott.

Mr. Wise.

Argument of Charles C. Wise, Jr.

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

In our view, we're dealing here with a voting, an election case that of course does determine questions of whether or not bonds maybe issued or excess levies applied, but it also equally determines whether or not a school will be built for the use of students 20 years in the future as well as the issue of paying for it.

There is certainly no requirement to our knowledge that the West Virginia Constitution was required to submit to the voter an issue such as this.

But it is refreshing that it does do so on such an important matter, education and having done so it seems to us that as all roads once led to Rome, the well-established pass of the decisions of this Court and the denial of the vote cases and in the waiting and debasement and dilution cases as well as discrimination of subject matter as found in Hunter versus Erickson are applicable here because there is in effect no doubt, but that the person who because of his conviction on the issue of whether or not bond shall be issued, determined whether or not his vote is to be counted 50% more than that of another of opposite conviction.

Justice Hugo L. Black: Is it -- is the sum total of your argument that the Fourteenth Amendment forbids a state to have any elections unless it provides for result that was by the majority vote?

Mr. Charles C. Wise, Jr.: Mr. Justice Black, I think that the line will have to be drawn somewhere and we certainly wouldn't contend that elections in very restricted areas or dealing with restricted issues or dealing with the internal procedures of a legislature or something of that kind would require a majority, but we think that when we have and --

Justice Hugo L. Black: Who decides -- who decides where that line is drawn?

Mr. Charles C. Wise, Jr.: This Honorable Court sir ultimately and we think that within the framework of those decisions, it is almost inescapable that when we are dealing with an election on an important issue on a county-wide basis, when a citizen has so little opportunity now of direct participation in an important result that their may be more reason for applying the Fourteenth amendment to this than in the election of a representative where the citizen's interest is certainly not quite as direct --

Justice Potter Stewart: Well, there's no question in fact whether or not the Fourteenth amendment applies to West Virginia, of course it applies to West Virginia.

There's no question about whether or not we're going to apply the Fourteenth Amendment of the Constitution, and I don't of course say that it applies the Fourteenth Amendment to each of the 50 states.

The question is what does the Fourteenth Amendment require, if anything, in this area?

Mr. Charles C. Wise, Jr.: In this particular area?

Justice Hugo L. Black: Yes.

Mr. Charles C. Wise, Jr.: That's correct.

Justice Hugo L. Black: And as I now understand you in connection with your second answer, you say Fourteenth Amendment forbids a state to permit an election on a particular issue if it chooses to submit to the people, to permit that to be decided by less than 50% of -- by more than 50% unless this Court somehow decides that it'd be wise and better to let that election stand?

Mr. Charles C. Wise, Jr.: Mr. Justice Black what I meant was that where the line is drawn, I think ultimately will rest with this Court.

Justice Hugo L. Black: What line, what line?

Mr. Charles C. Wise, Jr.: There are certain areas where we certainly would not contend that the majority would be necessary to arrive at a decision.

I think that the organization of the legislature for example or in connection with submitting the constitutional amendment certainly would not come within what we understand to be the decisions of this Court sir.

Justice Byron R. White: You would say Constitution -- the approval of constitutional amendments would require that?

Mr. Charles C. Wise, Jr.: I think it would be wrong but I think --

Justice Byron R. White: But it wouldn't be on constitutional requirement that's presented?

Mr. Charles C. Wise, Jr.: The line could be drawn whereby it would not be unconstitutional within that line.

Chief Justice Warren E. Burger: Who would draw the line, who would draw that line?

Mr. Charles C. Wise, Jr.: I think ultimately it would rest with this Court sir.

Chief Justice Warren E. Burger: The line for the West Virginia Constitution?

Mr. Charles C. Wise, Jr.: It would determine whether or not the Fourteenth Amendment would apply and permit it.

Chief Justice Warren E. Burger: What about a requirement in the West Virginia Constitution that 50% plus one a majority of all the registered voters would be required to contract bond indebtedness?

Do you think that would be unconstitutional?

Mr. Charles C. Wise, Jr.: No sir, I don't think so sir.

Chief Justice Warren E. Burger: That would require 4,500 votes in round figures here, wouldn't it?

Mr. Charles C. Wise, Jr.: I believe that would be a proper restriction.

Chief Justice Warren E. Burger: It would be far more difficult to obtain that kind of a majority than 60% of the voters actually voting, wouldn't it?

Mr. Charles C. Wise, Jr.: Yes, it is certainly true that it is difficult to get a voter turnout under these conditions in a special election.

But I would guess that if the law were fixed on that basis, it would be much easier to get a better turnout and perhaps these special issues would be submitted in the general election where normally there are more voters participating.

Justice Byron R. White: But you wouldn't -- do I understand that the law says 51% of all the eligible voters, you would think that would be something --

Mr. Charles C. Wise, Jr.: I think that might be reasonable sir.

Justice Byron R. White: And the constitution is important to go on without the actual vote and claim that via majority?

Mr. Charles C. Wise, Jr.: I think it would be a grave error policy to make that type of requirement because we have had a Constitution for 98 years with practically no change and efforts to amend it.

I have met with a very frustrating experience both legislatively at the hands of the voters and I think that's rather typical.

Chief Justice Warren E. Burger: Well how do you -- did I understand Mr. Scott to say that the legislature did by a two-thirds vote adopt constitutional amendment and then the people rejected it?

Mr. Charles C. Wise, Jr.: That is correct.

Chief Justice Warren E. Burger: Well then how were they legislatively frustrated?

Mr. Charles C. Wise, Jr.: They weren't legislatively frustrated.

Chief Justice Warren E. Burger: They just frustrated themselves?

Mr. Charles C. Wise, Jr.: That is correct and of course as this Court pointed out in the Lucas case against the General Assembly of Colorado, the mere fact that there has been approval by the voters of an apportionment prior does not in any ways take the proposal away from the requirements of the Fourteenth Amendment.

And we think also that the Hunter against Erickson case where there was a very sophisticated method employed in depriving certain interested groups of an opportunity to get equal protection of the laws in Akron, Ohio, dealing with local housing.

That that is equally applicable here because those who are in favor of a proposal of the kind voted on in this case are certainly disadvantaged by reason of the 60% requirement and that is the effect of the well reasoned opinion as we say in California and also the West Virginia Supreme Court which took the invitation of this Court in the Maryland case, (Inaudible) against Maryland of attempting to apply what it understood to be the rules of this Court to that situation.

Justice Byron R. White: The majority of the voters in the West Virginia could change the constitution of West Virginia to say that all bond issues shall be approved if they are approved by a majority, the voters actually voting?

Mr. Charles C. Wise, Jr.: Yes sir.

Justice Byron R. White: Is there initiative in West Virginia?

Mr. Charles C. Wise, Jr.: No sir, we have no initiative, and it requires a two-thirds of concurring vote of both houses of the legislation.

Justice Byron R. White: Which you don't challenge?

Mr. Charles C. Wise, Jr.: Do submit, no sir.

We do have a provision for calling a constitutional convention which has not been done for 98-years when the 1972 Constitution was involved, but basically Your Honors, it is our position and we think it goes back even beyond Gray.

Mr. Justice Black in Colgrove against Green in 1946 in a dissenting opinion pointed out that no one would argue that if you gave the one voter one-half of the weight given to another voter, you would have an invalid situation.

Gray certainly makes that clear and as we see at all of the equality cases go to the point that the same weight substantially must be given to the view of each one.

The most invidious discrimination of all as we conceive it is a discrimination based upon the view of the outcome of an issue that a voter may have.

Chief Justice Warren E. Burger: I understood you to concede that constitutionally West Virginia could require a majority of all registered voters in response to questions of Justice White and of myself.

Now, if you have that, what is the mathematical impact of the people who stay home?

Mr. Charles C. Wise, Jr.: It's substantial.

Chief Justice Warren E. Burger: Well, is it more than that?

Isn't discriminatory if we follow your thesis of rigid mathematics?

Mr. Charles C. Wise, Jr.: Well, it seems to us Mr. Chief Justice that the most the state can do is give the opportunity to vote and if it gives that opportunity it ought not dilute the diets (ph) it ought to be fair.

It should not weigh one man's vote greater than another.

Now, it's true that in (Inaudible) many factors may keep a voter away which would influence the outcome.

We of course don't know how the absent voter would vote on a particular issue, did he come to the polls and participate?

Chief Justice Warren E. Burger: Why isn't the Federal Constitutional Provision requiring two-thirds vote to override a presidential veto “unconstitutional discrimination?”

Justice Potter Stewart: Well, the Fourteenth amendment doesn't apply to the federal government, does it?

Mr. Charles C. Wise, Jr.: Not to my knowledge, but philosophically I would suppose Mr. Chief Justice that, that goes back to a part of the great compromise, a part of the traditions of our form of government and in final analysis there seem to be exception to do -- to most rules somewhere along the line.

Chief Justice Warren E. Burger: Well, I had understood all of your argument, the main thrust of your argument was philosophical here --

Mr. Charles C. Wise, Jr.: Yes sir.

I think it's philosophical.

I think --

Chief Justice Warren E. Burger: So, that the difference between the Fourteenth Amendment being binding on the States and not the Federal Government doesn't help you very much?

Mr. Charles C. Wise, Jr.: No sir.

No sir.

I would certainly concede that on philosophic ground.

Chief Justice Warren E. Burger: It is discriminatory in effect and philosophically discriminatory to require two-thirds veto overrides the President.

Mr. Charles C. Wise, Jr.: Mathematically --

Chief Justice Warren E. Burger: It's intentionally discriminatory, isn't it?

Mr. Charles C. Wise, Jr.: Yes sir, Mr. Chief Justice.

I think that's true.

Justice Harry A. Blackmun: Well, lets' get down to something a little less theoretical.

Doesn't West Virginia have a provision about overriding the governor's veto?

Mr. Charles C. Wise, Jr.: Yes sir.

Justice Harry A. Blackmun: The Constitution, what is that, two-thirds?

Mr. Charles C. Wise, Jr.: I believe it's fourth-fifths.

Justice Harry A. Blackmun: Fourth-fifths?

Mr. Charles C. Wise, Jr.: Two-thirds to fourth-fifths.

Justice Harry A. Blackmun: Does your argument mean that, that provision of the West Virginia Constitution must fall?

Mr. Charles C. Wise, Jr.: No sir.

It seems to me that the line properly doesn't extend to matters involving this balance between the tripartite type functions of government.

Justice Harry A. Blackmun: Even in the face of the Fourteenth Amendment, you are saying this?

Mr. Charles C. Wise, Jr.: No sir.

Justice Byron R. White: The Fifth Amendment Due Process Clause subsumes Equal Protection, doesn't it?

Mr. Charles C. Wise, Jr.: Yes sir.

Justice Byron R. White: So the -- how does the -- how can the Fifth Amendment with an Equal Protection Clause implied into it, be squared with the provisions of the main body of the constitution requiring simple majorities in some instances?

Mr. Charles C. Wise, Jr.: I do not think there is complete consistency --

Justice Byron R. White: Well, does the Fifth Amendment then modify the main provision, it has never been held?

Mr. Charles C. Wise, Jr.: It's never been held to.

Justice Byron R. White: So that -- you can say that it is consistent?

Mr. Charles C. Wise, Jr.: That's correct.

Justice Byron R. White: So, there is no denial of Equal Protection in the constitution's equal majority requirements, I mean, just on the constitutional principle?

Mr. Charles C. Wise, Jr.: Basis of law of giving effect to all.

Justice Thurgood Marshall: (Inaudible) assume that it takes legislature passed appropriation for schools are pretty high which would include this county and the government vetoed it forth and you couldn't muster fourth-fifths vote to override the veto, that would be it?

Mr. Charles C. Wise, Jr.: That would be true for that particular session, yes but --

Justice Thurgood Marshall: And you wouldn't have any complain?

Mr. Charles C. Wise, Jr.: We couldn't.

Justice Thurgood Marshall: Why not?

It's the same subject matter, school --

Mr. Charles C. Wise, Jr.: It is the same subject --

Justice Thurgood Marshall: And money.

Mr. Charles C. Wise, Jr.: But it comes about it seems to because of the provisions of the constitution dealing with the effect of legislative appropriation and the fact that in our checks and balance system of government, we give to the executive an opportunity to veto.

Now, whether it is wise I don't know, but as far as we're aware that has not been the subject matter of a decision here and a determination that --

Justice Thurgood Marshall: Dealing with two provisions of your constitution?

Mr. Charles C. Wise, Jr.: Yes sir.

Justice Thurgood Marshall: One is good, one is bad, is that your position?

Mr. Charles C. Wise, Jr.: We think sir that both are bad but we aren't sure that the other one is subject to the application of the Fourteenth Amendment. Certainly, the Court will not be called upon at any time to go 100% by saying that majority rule shall control every aspect of life.

We believe that majority rule as a rule is really involved here except in the sense that the result of applying to each voter equal weight in his vote does result of course in a -- and that there must be a majority to carry a preposition, a majority of those fully.

But that as we understand it doesn't evolve the application on even theoretical grounds of going to the point of destroying the traditional balance of power between the three branches of the government and that would be the last thing that we would urge here.

But we do say that under the Gray against Sanders and all of the cases that follow it, those that deal with local issues as being subject to the application of the Fourteenth Amendment like Avery against Midland, the cases that have recently been decided in 1969 and 1970 such as Cramer and Cipriano and Phoenix which go through a question of the issuance of bonds and the requirement for example in Cipriano that it is impermissible for Louisiana to require by legislation a 50% vote and a 50% in amount result to uphold.

And in the case of Phoenix as well as Cipriano of course the Court vary properly pointed out that you cannot make the voting classification on the basis of whether or not you are a real property taxpayer.

Well, in our view Carrington against Rash, the Erickson decision make it even more invidious if the discrimination is based upon the views that a man hold as to the outcome of an election.

Having granted him a right to come in to participate in an important issue, he should have the right to have his vote counted equally with that of the man who is convinced that an opposite result should come about.

Chief Justice Warren E. Burger: I find that difficult to follow Mr. Wise and blatantly preposition that you and I seem to agree on with reference to 50%, a majority of all registered voters being required because then a man who stayed home might have a vote which would -- a non-vote which would carry more weight than a man who took the trouble to go down to the polls and vote.

Mr. Charles C. Wise, Jr.: That is perfectly true, but I think we are going to have to risk that and encourage them to get out and vote their conviction.

Philosophically there is an inconsistency there Mr. Chief Justice that we would recognize of course.

We also submit that if it is applicable here Mr. Justice White that there is no compelling state interest that would preclude or make it proper to permit this provision to stand.

Section 8 of Article 10 of our Constitution, another Section of the very article that is involved here has an absolute limit on bonded indebtedness and on excess levies.

In no event, even with the 60% votes in successive elections and for a period of time can you go beyond 5% of the assessed valuation.

Of course that constitutes the best way to prevent extravagant government.

As was pointed out early in connection with our provision of the Constitution involved here, the hope was expressed that this would have something to do with preventing that (Inaudible).

Well as a matter of fact, the 30 odd states that have no such provision in their constitutions or laws seem to be able to be just as economical and handle these matter just as effectively as the 16 or 17 which clearly do contain provisions of this kind either in their organic law or in their statute.

As a matter of fact, there has been a great body of sophisticated knowledge respecting bond issues and taxes that has grown up in recent years, the rating services and matters of that kind which go –– do much better job that respective legislative or constitutional provisions do in attempting to prevent the local governmental bodies from going overboard and making extravagant expenditures.

On that basis, we respectfully submit that the West Virginia Supreme Court correctly decided this issue as did California.

Chief Justice Warren E. Burger: Thank you Mr. Wise.

Mr. Scott, you have about five minutes left.

Rebuttal of George M. Scott

Mr. George M. Scott: May it please the Court, Mr. Chief Justice.

By way of rebuttal, I would like to respond to two of three things.

Mr. Wise has made the point at the last that 30 odd states that don't have this rule, don't seemed to be spendthrifts and getting alright, but I think it is also well to remember that the 20 odd states which do have, at least a great percentage of them as far as we know are getting all right in the fields of education.

This does not seemed to have been great hindrance to them in that area.

The question that Mr. Justice Black asked was very intriguing, who decides where lines are to be drawn in this case and of course I would love to argue that this is political question, non-justiciable and if there was anything left in that political non-justiciable political question in theory, I think this would be a classic example for its application.

I would like to remind again also that we're dealing here not with the question of minority rule, but the question of minority veto.

It seems to me that minority rule would be much more constitutionally impermissible than minority veto, and yet we elect the officers everyday.

I understand the last election, elected senators from the larger states by 39% or something like that of the votes cast.

We elect governors, we elect members of the legislatures and we elect -- as I recall in this of course is not in the record but the last man elected to the board of education of Roane county received less than 30% of the total vote cast in the election.

So they have many instances of minority rule which I think are much worst than this, and this is of course just minority veto.

I do not see anything wrong with protecting minorities as I said earlier, I think that is what the Fourteenth Amendment is all about.

Then the use of this word, wait, I think it might have caused some of the -- what I considered to be confusion on the part of lower court.

I am not suggesting that I could have used a better word, I am not sure that I understand what it means.

It does have a mathematical connotation when we should I think are dealing with philosophical definition of this word equal.

And I recall that the lower court quoted opinion of Mr. Justice Douglas In Gray versus Sanders in which he -- it was stated that only -- the only essence of weighting of votes sanctioned by the constitution was in the makeup of the senate and used for electoral college.

But they emphasized the world only, if the only essence of weighting a vote sanctioned by the constitution of those two then of course the next ordinary majority requirement wouldn't be in essence of weighting a vote because there are certainly several constitutional areas where extra ordinary majority votes are required.

Justice Hugo L. Black: Did your constitution compel the legislature to submit this to the people?

Mr. George M. Scott: No Mr. Justice Black, there is no provision for initiative that we can not compel.

Justice Hugo L. Black: It was an act submitted to the people by the legislature to try to find out for themselves --

Mr. George M. Scott: Yes sir, exactly.

Justice Hugo L. Black: Whether there are enough people who wanted it to (Voice Overlap).

Mr. George M. Scott: Exactly and they expressed it very clear and that was the only question submitted as Judge Haymond points in his dissent, 1966 in a majority where people voted three times.

Justice Potter Stewart: Was that true as with respect both to the tax levy and the bond issue provisions in 1966?

Mr. George M. Scott: I do not think so Mr. Justice Stewart, but I could not answer with certainty.

Justice Potter Stewart: It was in fact just to one of them --

Mr. George M. Scott: I think it had to do with bond issues only if I am not mistaken.

Justice Potter Stewart: But then --

Mr. George M. Scott: At any rate it was the question of policy that they decided.

Justice Potter Stewart: And there was a proposed amendment to the state constitution submitted to popular vote in 1966?

Mr. George M. Scott: That could lead to 60% requirement as substitute to simple majority.

Justice Potter Stewart: And on that question, majority vote carried --

Mr. George M. Scott: Majority vote carried and the majority to vote was to retain a 60% rule.

Justice Potter Stewart: Right now I understand.

Mr. George M. Scott: We would urge that the judgment of the Supreme Court of Appeals of West Virginia be reversed.

Chief Justice Warren E. Burger: Thank you Mr. Scott.

Thank you Mr. Wise, the case is submitted.