Cases by Issue - Legal Injury

Texas Monthly, Inc. v. Bullock - Oral Argument

Sun, 06 Feb 2011 03:45:15 +0000

Case:

Texas Monthly, Inc. v. Bullock

Media File:

87-1245_19881101-argument.mp3

Related Transcript:

87-1245_19881101-argument.xml

Transcript:

ORAL ARGUMENT OF ROGER JAMES GEORGE, JR., ON BEHALF OF THE APPELLANT

Chief Justice William H. Rehnquist: We'll hear argument now in Number 87-1245, Texas Monthly versus Bob Bullock.

Mr. George, you may proceed whenever.

Roger James George Jr: Mr. Chief Justice, may it please the Court:

Texas Monthly is a general interest magazine published by a commercial corporation in Texas with circulation of roughly 280,000 copies.

It covers various topics of interest to people in Texas ranging from politics to religion, to sports, to food, to social occasions, to all sorts of things, to humor.

It is not published by a religious faith, and it is not a religious magazine.

It is simply a commercial magazine.

It brought this lawsuit in the Travis County District Court in Travis County, Texas, to recover $149,107 in sales tax that it had paid in protest under the applicable Texas procedure for subscription sales during a period in 1985 when the state legislature had imposed a tax on subscription sales of magazines.

Now, the Texas sales and use tax system is a system similar to sales and use tax systems throughout the country.

Generally, any tangible personal property that someone purchases or uses in Texas is subject to the tax.

Thus, if I go across the street from my office and buy a pair of socks, I have to pay 6.125 percent of the purchase price to the State of Texas.

If I buy a typewriter, I have to pay the tax.

If my wife brings back a blouse from Washington after this argument, she's supposed to pay a use tax when she puts it on because she owes 6.125 percent of the purchase price for using it in the state of Texas.

Unidentified Justice: Is that down there?

Roger James George Jr: Well, that was one of the issues that raised in the court below, in the District Court, and our contention was that that was a provision that was ignored and ignored involving sales and use taxes generally.

There are a plethora of exemptions from this tax.

Horses and mules, for example, that are used as draft animals are exempt.

As one might expect in Texas, drill stem bits for drilling equipment, all drilling equipment is exempt from the tax.

And various other items are exempt from the tax ranging from fertilizer to airplanes to certain shrimp boats.

Now, two of the exemptions that exist in this tax are relevant to the case this court has before it today.

Unidentified Justice: Why aren't the others?

Roger James George Jr: Well, the others may be relevant and if so that there is a system of general exemptions or random system of exemptions but two are most relevant to the court's consideration today.

Unidentified Justice: So, you don't claim that there's an unconstitutional distinction between mules and this magazine?

Roger James George Jr: Well, I suppose that would be an interesting case, Your Honor, but I don't have to make that contention today, and I'm not here trying to make that contention.

Unidentified Justice: Yes.

Roger James George Jr: I am here concerning only two of the exemptions, really one of the exemptions.

The first exemption is one to... is an illustration, and that is there is an exemption... and I'll refer to them by the last three digits of these code numbers... Section 310 of the statute... which is a general exemption from tax for charitable, religious, civic organizations, volunteer fire departments, the Boy Scouts, and the Chamber of Commerce.

If any of those institutions... Goodwill Industries, for example... buys something... the Methodist Church... when my church buys something and uses it, it does not have to pay the tax.

There is no exemption for the sale of goods that is generally applicable to those institutions.

So that if the St. Vincent de Paul Store down on Third and Brazos Street in Austin or the Goodwill store sells my magazine or sells a used bicycle or sells a used book, they have to collect the tax and remit it to the state.

And if the tax isn't collected, the state comes after them for the tax.

Unidentified Justice: If they buy it, they are exempt?

Roger James George Jr: Yes.

It's the use of the tax... you have... the tax works so that people who use it are subject to tax except for religious, charitable, educational, the Boy Scouts and all those people.

But if those institutions sell anything--

Unidentified Justice: How about the sale by a church of a religious item, a Bible or a crucifix or something of that sort?

Is there an exemption?

Roger James George Jr: --Now, we come to the subject of this lawsuit, which is the exemption.

The statutes of the state of Texas tax the crucifix.

If they sell the crucifix, they've got to collect the tax.

The regulation involving this very statute.

If they sell a film about a religious subject, they have to collect the tax from the taxpayer.

The regulation specifically provides that if they sell sheet music... for example, if someone sells the Methodist hymnal, if my church sells a Methodist hymnal, that's sheet music, and I suppose the Comptroller of the State of Texas requires them to collect the tax and remit it to the State of Texas.

Now, the exemption that we're here about today reads that exempt from these taxes are periodicals that are published or distributed by a religious faith and they consist wholly of writings promulgating the teachings of the faith and books that consist wholly of writings sacred to a religious faith are exempt from the taxes imposed by this statute.

Unidentified Justice: Mr. George, if you prevail on this argument, do you get your money back?

Do you get a refund?

Roger James George Jr: That's right.

And the trial court--

Unidentified Justice: Is there any question about that?

Roger James George Jr: --No, sir.

In the trial court we won the judgment for $149,107.73, I believe, plus interest, and that's what we're trying to recover here today.

Unidentified Justice: Why is that?

I mean, why wouldn't it be possible, at least, if you were to prevail that the tax would be extended by Texas to religious periodicals--

Roger James George Jr: Because the court... excuse me, ma'am.

Unidentified Justice: --so that you wouldn't benefit from it?

Roger James George Jr: Excuse me, Justice O'Connor.

The system that this court has recognized, and it's every court except the courts of Arkansas and Tennessee and I can find, recognize the rule that courts can't impose taxes.

The legislature of the state of Texas has exempted these publications, period.

This court nor other court can change that decision.

Its only remedy that as taxpayers of under-inclusive statutes have, for generations have is that they don't have to pay the tax until the legislature changes the law and taxes all the people that are similarly situated.

And that's--

Unidentified Justice: Well, does the state concede that you get your money back if you prevail?

Roger James George Jr: --No, no, they do not.

They have contended that the rule ought to be otherwise.

Now, the rule in Texas has, since 1885, been in my favor under state law.

There is the famous Pullman case--

Unidentified Justice: But the state appellate court did not reach this issue, just the state trial court?

Roger James George Jr: --The state trial court said.

The appellate court, of course, ruled that the statute that I contend is unconstitutional wasn't unconstitutional and hadn't reached that issue.

This dissenting judge--

Unidentified Justice: So, I should think that's an issue of state law that's not before us and that's still open?

Roger James George Jr: --Well, I believe that's an issue that... well, I suppose that the state... a possible remand to the court would be possible.

Technically that court did not reach that issue.

The sitting judge, Judge Carroll, in that court, did say that in course the remedy was that we don't have to pay the tax.

Unidentified Justice: But so, then, we're not certain that you're going to get your money back?

Roger James George Jr: Well, we have some... I believe every court in the state of Texas to rule on that has ruled in my favor.

The Comptroller and Attorney General of the State of Texas take a contrary position in this case.

Unidentified Justice: Well, in any event, you have to get over this hurdle first before you can get the--

Roger James George Jr: I've got to win the merits before I would get to that issue, but--

Unidentified Justice: --And why is it relevant for us at all?

Roger James George Jr: --Well, I don't believe it is relevant.

This court addressed this very argument in the Arkansas Writers' Project case.

Unidentified Justice: Well, do we often make decisions that have no meaning?

Roger James George Jr: No, you don't, and that's the reason why you decided in the Arkansas Writers' Project, the Arkansas Times got its money back.

It was suing to get money back it had paid under the Arkansas statute, and this court entered a judgment allowing it to recover that money.

Unidentified Justice: Well, that was treated as a question of standing, though, wasn't it, in Writers'?

Roger James George Jr: I suppose it's either... its standing or remedy is a two-sided coin, obviously.

Unidentified Justice: Now, Ragland treated the question as one of standing, did it not?

Roger James George Jr: Yes.

Well, the Supreme Court of Arkansas in that case--

Unidentified Justice: No, at this court.

Roger James George Jr: --decided that the remedy wasn't available, and this court dealt with it as a standing issue.

Do you have standing to bring it?

And it was exactly the same fact situation in exactly the same pattern; that is, the Arkansas magazine, the Arkansas Times sought to recover taxes it had paid and tried to get back, and the Arkansas Supreme Court said you're wrong on the Constitution, but if you were right, you couldn't get your money back because that's not the appropriate remedy.

This court in its opinion in April of '87 said no, that's wrong, you have standing to bring it.

Now, I think that given the court's decision in the Supreme Court of Arkansas that, in fact, this court has decided that issue; that at least as a matter of law of the United States that my client is entitled to bring this action and seek this remedy and if it is entitled to get it back.

Now, again, Arkansas decided the remedy wasn't available.

This court reversed and rendered in favor of the taxpayer, and I believe that case is directly on point.

Now... it's as on point as any case you're likely to see in this court.

Now, my client brought this action raising three basic kind of arguments.

The first were under the... the first two were under the Minnesota Star issue that we raised: One, that the statute as applied in Texas was discriminatory against in-state magazines, that there was a policy of not collecting the tax if the magazine was distributed in Texas by somebody who wasn't a Texas resident, and that as applied the system discriminated against subscription sold magazines.

The District Court chose not to find any facts or deal with those issues at all and simply determined that the statute was unconstitutional because it constituted a discrimination based upon the content of the speech; that is, if a magazine contained, in the words of the statutes,

"It consisted wholly of writings promulgating the teachings of the faith. "

the statute... the taxpayer didn't have to pay the tax.

And that was unconstitutional under the line of cases that includes this court's decisions from Police versus Mosley through FCC versus the League of Women Voters to Kerry versus Brown and a whole series of cases that say that the government cannot discriminate and impose regulations upon speech based upon the content of that speech.

Unidentified Justice: This is a subsidy rather than a regulation.

What do you think, Mr. George, about the Post Office granting of specially lower rates to educational materials?

That's one category of speech.

Roger James George Jr: Justice Scalia, that--

Unidentified Justice: Why shouldn't amusement materials get the same exemption?

Roger James George Jr: --Justice Scalia, that is a logical conclusion, the dissent that you reached in those cases, in the Arkansas Writers' case, was a logical conclusion.

This is simply a subsidy and obviously we can support the Kennedy Center, using your example, from that case.

The problem is history not logic.

And if this court will review the history of the imposition of penalties involving speech from the Stamp Acts imposed upon the English press through Grosjean versus American Publishing Company, you will see that we have had a history where sometimes legislatures impose taxes and where there is a suspicion, at least, that it was because they want to either silence or in some way chill speech.

Unidentified Justice: But you're talking there... you must distinguish between a tax that just taxes a particular activity and an exemption for a particular activity from a general tax.

Is there no difference between those two in our cases?

Roger James George Jr: Well, if you will look back at the English example of the Stamp Act taxes, the Stamp Act was a general tax, and it was applied to newspapers.

And if you will review the court's reciting of Justice Sutherland's opinion in Grosjean, you will see that that was indeed the case.

It wasn't... the Stamp Act was applied to all sorts of things, including newsprint, and there was a great outcry about that.

But, in fact, the problem is intrusiveness in my judgment.

The problem with the logical position about subsidy versus history is that my magazine, for example, my client contends every two years the legislature of the state of Texas meets, and in those sessions they have all kinds of statutes.

One time they had my clients were exempt.

The next session they weren't exempt.

And now they are.

Subscription sales are exempt, but newsstand sales aren't exempt.

Now, that back and forth, back and forth occurs in this area.

Now, each year my client writes an article, writes the ten best and ten worst legislators, and there is a great interest in that because it is a widely circulated magazine.

And there is some political careers who believe that they have been seriously damaged by being on the ten worst and some that have been greatly enhanced by being on the ten best.

Unidentified Justice: xxx--

Roger James George Jr: Right.

My problem is I cannot prove that Stan Sludder, a representative who was chairman of the committee in 1978, took that exemption out because he didn't like being on the "ten worst" list.

I can't prove that.

And the courts should not be inquiring into that.

That's why we need and why the court's majority in Arkansas Writers' Project have a salutary rule that because while exemptions from tax and subsidies have a logical symmetry... we have Justice Brennan's dissent in the Walz case involving exemption from church property... they are some similar, but not the same.

And the lack of sameness comes from history as much as logic.

Unidentified Justice: --And the threat, the threat that you're worried about would be eliminated if Texas provided that this, this tax would apply uniformly to all magazines including those sold by religious organizations and dealing with religion provided, however, that every religious organization that pays such a tax will receive a subsidy from the state in the amount of that tax that they've paid.

That would be all right?

Roger James George Jr: Well, you rapidly... from breaking this case down into its logical components, the part of the First Amendment that deals with the press and the speech you would have solved.

But the problem with the speech that you deal with the establishment clause, you certainly wouldn't have solved because it's clear there is one fundamental message.

If you start back with Everson, run through Lindlin, run through the Bowen case from last term about establishment clause cases, and that is the state cannot subsidize delivery of religious message.

Justice O'Connor's concurrence in that case says if there's nothing else clear about this area of the law about establishment clause law, you can't do that.

Now, you could not have a system that said every time I pay a dollar to the First Methodist Church in Austin, Texas, for the Methodist Layman that comes every week, that they give that church six and a quarter cents for delivering that message to me.

Now, because it is a direct, it violates every tenet of the Lemon test, and it goes to the heart of the establishment clause.

Unidentified Justice: Religious organizations do not get special mail rates?

Roger James George Jr: I don't know the answer to that.

Unidentified Justice: I think they do.

That's granted.

Roger James George Jr: And obviously they are not alone in getting that.

Unidentified Justice: Well, that may well be--

Roger James George Jr: --But the problem--

Unidentified Justice: --but they're not excluded either.

Roger James George Jr: That's true.

Unidentified Justice: Your argument is the establishment clause excludes them.

We can subsidize everybody else but not these religious organizations because if you establish the clause--

Roger James George Jr: Well, Justice Scalia, we have had since Walz a system and a recognition by this court that when you have carved out a general category of institutions, as in the Texas constitution and Texas statutes that range from the Boy Scouts to the Methodist Church, to the volunteer fire department, to hospitals, to libraries, and you give those, all those good works or good institutions a special kind of benefit, a tax break, a subsidy, as in the Bowen case.

One of the basic... basis of the court's opinion was the religious organizations weren't singled out for special treatment.

The problem with this statute is that only whatever religious faiths are, are singled out for the treatment.

Unidentified Justice: --Mr. George, I take it, then, if the exemption here applied also to publications sold by charitable and educational institutions as well as religious, you think that Walz would be satisfied?

Roger James George Jr: You would not have the establishment clause case, and if it didn't depend on the message, we'd have the kind of Regan case, Regan versus Taxpayers League, that involved the exemption for veterans' organizations and 501... 50(c)(3)(1)... I'm not a tax lawyer... exemption that involved lobbying because it wouldn't depend on the message if all those institutions could distribute magazines or periodicals or other institutions free of the message being determined.

The problem among others with this exemption is that it focuses upon the message.

Someone has to determine whether the message is the appropriate message to get the tax benefit whether it be the... it says... it has to... it has to consist wholly of the teaching of that faith.

Unidentified Justice: How do you reconcile that with our other line of cases that say that the First Amendment not only prevents... not only does not prevent special treatment for religion but, indeed, requires it in such areas as employment benefits.

Somebody who says I don't want to work on a Saturday because my faith prohibits it.

We say you have to make an exemption for that--

Roger James George Jr: Yes.

Unidentified Justice: --even though you don't have to make it for sportsmen who want to shoot on Saturday or any other people who want to do anything else on Saturday, right?

Roger James George Jr: There's no question that there's the whole line of cases, Jehovah Witness cases about working munitions plants that this court has decided.

Unidentified Justice: So, now, why is... why is special treatment of religion required there, but here it is not only not required, it is not even permitted.

Roger James George Jr: One, it is an accommodation to the exercise, and it is possible... and remember in Texas we don't have special treatment for religions except for delivering the message.

If they sell you a crucifix, they've got to pay the tax.

And in this exemption, for example, if you'll look at the last page of the jurisdictional statement, the regulation promulgated by this Comptroller says if they sell you a film, they've got to pay the tax.

It is possible that you could have a system that provided for exemptions for all religious messages or something, and that might be a different case because somehow taxing the message would be intrusive into religions.

The rationale for all of those accommodations of exercise is that we're accommodating the... we're somehow accommodating the exercise of that religious activity.

Now, here--

Unidentified Justice: But the religion clauses don't say anything, in haec verbis, about any duty to accommodate.

I can see how that would explain the Title VII accommodation cases.

But how about the ones that are based purely on the Constitution?

Roger James George Jr: --Well, those cases are based upon a concept that you are forcing someone to violate their religious tenets.

Okay?

That is, I am forcing that gentleman to work in the munitions factory on the tank turret or forego his worker's compensation, and it is against his religion to work on the tank turret.

Now, we have decided, the Court has decided as a matter of constitutional principle that you can't require him to choose between a benefit and his religion.

There would be no choice between benefit and religion to treat the delivery of this tangible good like all other tangible goods, or to collect the 6.125 percent tax.

They can give it away, they can deliver it free and there's no tax.

It's only when they get paid by the person who buys it from the religion.

Unidentified Justice: Well, is this a... is your First Amendment argument based on religious clauses or just on the First Amendment?

Roger James George Jr: Well--

Unidentified Justice: Or is it an equal protection case or both?

Roger James George Jr: --Well, the argument runs first that it's a content-based discrimination, Justice White, and thus you get Arkansas Writers' Project versus Ragland--

Unidentified Justice: Well, then, it doesn't make any difference whether it's a religious message that's discriminated for or against.

Roger James George Jr: --In my judgment, no, it does not.

Unidentified Justice: All right.

You would be here if they exempted magazines about agriculture and taxed, God forbid, magazines about oil?

Roger James George Jr: God forbid.

And I would... in connection with the Arkansas Writers' Project--

Unidentified Justice: But wouldn't you be making the same argument?

Roger James George Jr: --I would say Arkansas Writers' Project... in that case the Arkansas statute exempts religious, professional, trades, and sport journals.

And this court's opinion said that was unconstitutional.

Unidentified Justice: Because?

Roger James George Jr: Because of discrimination--

Unidentified Justice: It taxed somebody else.

Roger James George Jr: --on the base of content.

It's a discrimination based on content.

Unidentified Justice: And I suppose it could be argued that it violates the equal protection clause because it's an irrational distinction.

Roger James George Jr: Well, it's not one.

It is an irrational distinction.

Unidentified Justice: The First Amendment proved it's an irrational distinction.

Roger James George Jr: Now, I come to the religious issue only after--

Unidentified Justice: Why?

Why?

Roger James George Jr: --Why?

Because it's there, I suppose.

And when I brought this case Arkansas Writers' Project had not been decided.

Unidentified Justice: I notice you put it in your second paragraph.

Roger James George Jr: Well, I think Arkansas Writers' Project is directly, precisely on point with this case, and it is a direct decision in this case.

I didn't have the benefit of that case when I--

Unidentified Justice: Let me make a suggestion.

Maybe you got to the religious issue because you have to grapple with it to determine that this is an irrational distinction because the state is going to say... I haven't heard the state yet, but I'm sure they're going to say, you know, we're dealing with a Constitution that gives special privileges to religion.

We have a Supreme Court jurisdiction that gives special privileges to religion.

We have decided that religion is important enough that we're going to give special privileges to religion in this tax law.

Now, if it's rational for the Constitution and if it's rational for the Supreme Court, it's rational for the State of Texas.

Maybe that's why you drew--

Roger James George Jr: --Maybe that is why.

And I think I got there, however, because it seems to me that any equal protection analysis requires the achievement of a legitimate stadient and to achieve a legitimate stadient, it cannot be a law respecting the establishment of religion.

And I believe that in addition to being Arkansas Writers' Project versus Ragland all over again, this case is also a law respecting the establishment of religion as well.

Now, the reason why I arrived at that argument is because I believe both of them are correct.

Unidentified Justice: --Mr. George, do you think it would be unconstitutional to grant an exemption for crucifixes?

Roger James George Jr: For what?

Unidentified Justice: For crucifixes.

Roger James George Jr: Probably not, although the problem with crucifixes and all other religious symbols, that they are delivery of a message.

The problem is, you got to... it is clear that you can't subsidize deliveries of messages.

Now, you may be able to accommodate conduct, and somewhere physical things become conduct as in the man who won't work in the munitions plant.

Now, you would have to stop and say is that conduct or is that a message?

It is symbolic.

You could very well argue that the crucifix by its definition is a statement of your religious principles and thus is a delivery of a message.

Now, you have to accommodate the man going to the church to light the candle.

Now, how about buying the candle?

The candle, in lighting the candle may be conduct; that is, has to be accommodated.

But it doesn't... but when it is the message and delivering the message, we certainly can't subsidize it.

Now, I'm not sure how you deal with that.

I'll reserve the balance of my time.

Chief Justice William H. Rehnquist: Thank you, Mr. George.

Ms. Burke, we'll hear now from you.

ORAL ARGUMENT OF HARRIET D. BURKE ON BEHALF OF THE APPELLEES

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

It is the position of the State of Texas in this appeal that there's been no violation of the establishment clause; that in judging this exemption, Section 151.312, it should be viewed on a violation of an equal protection standard and not a standard involving violation of First Amendment rights.

The test to be applied should be one of a rational basis test.

The rational basis that the state asserts is that, one, it seeks to accommodate religion in the sense of being neutral towards religion and helping effectuate the free distribution of religious messages by a religious faith.

The second rational basis is that the exemption seeks to avoid any violation of the establishment clause.

The third basis is it seeks to avoid any violation of the free exercise clause of the First Amendment to the Constitution.

Unidentified Justice: What about the message of the Arkansas case?

That was just a freedom of the press case, wasn't it?

Mr. Burke: The Arkansas case, Your Honor, the way Texas views the Arkansas case is that in that particular case, you had a different tax structure than what you have in Texas.

Unidentified Justice: Well, but it was a free... a freedom of the press case?

Mr. Burke: It did involve the issue of First Amendment right, free press, yes, Your Honor.

Unidentified Justice: And here some publications are, some parts of the press are taxed and some aren't, in this case.

Mr. Burke: Texas taxes all parts of the press except for religious periodicals.

Unidentified Justice: So, some are taxed and some aren't--

Mr. Burke: The state does not--

Unidentified Justice: --based on content.

Mr. Burke: --The way the state reads Arkansas Writers' Project is that to have a First Amendment violation, there must be a tax that singles out the press as a whole and targets the press for that tax, or it must target a small group within the press.

And then, beyond that, you look to content-based discrimination.

If that is not the way the Arkansas case is to be read, then we must be judging this one a strict scrutiny approach.

However, the state doesn't see that Texas Monthly has been harmed any more than any other retailer in the state of Texas having to pay the tax.

If the court--

Unidentified Justice: I'm not sure that I understand that.

You're saying that this is not a press tax as was involved in Arkansas.

This is a general sales tax.

Mr. Burke: --Yes.

Unidentified Justice: And, therefore, the public harmed by the exemption is not just the rest of the press, but rather the entire body politic.

Mr. Burke: Yes, Your Honor.

That's the way the state views it.

However, if the Court does not view it in that manner and determines that a strict scrutiny approach should be applied in this case, the compelling state interests are the same that I have enunciated as being rational basis to sustain the exemption.

I would like to point out that if the Court so determines that there has been a constitutional violation, the state would request the court to invalidate the exemption, leave Texas Monthly subject to the tax, and remand the case to the trial court level to determine whether or not religious periodicals would then become subject to the tax under Texas Law.

Unidentified Justice: Texas Monthly would not get its money back under that, is that right?

Texas Monthly wouldn't get its money back?

Mr. Burke: Not at that point in time, Your Honor, until a decision was made as to whether religious periodicals become subject to the tax because under the current tax structure, all sales of tangible personal property are taxable.

All property brought into the state for use or shipped into the state are presumed to be subject to the tax.

Therefore, we think in arguing before the state courts that the intent of the legislature is quite clear that if the legislation is invalidated, this exemption falls, that these sales will become automatically subject to the tax, and everyone will be treated equally under the Texas tax structure.

Unidentified Justice: Ms. Burke, what if I think it's unconstitutional for the Texas courts to say after the fact, after the years have passed, we are retroactively going to subject religious periodicals to taxes?

Then I wouldn't have to remand to the Texas courts at all if I thought there's no power in the Texas courts whatever?

Isn't that a strange procedure to decide after the fact that prior sales have been subject to tax, even though the statute says on its face they are not?

How can Texas do that?

Mr. Burke: It's an unusual procedure, Your Honor.

I haven't seen this argued before, but it's no more unusual than invalidating, striking down the entire tax system here just because you have one exemption from an otherwise equal tax.

All retailers of publications are subject to the tax in Texas, including newspapers for this period of time.

Unidentified Justice: Well, that doesn't harm anybody, though, to do that.

I mean, I agree.

It's very upsetting for the state, but it doesn't tromp on any individual rights.

But I'm... the other solution that you suggest is open to the state suddenly subjects somebody to a law that was not in effect at the time the sales were made.

Mr. Burke: Of course, Your Honor, there would be a limitations time period running against the state on necessities taxes.

So, the state would not be able to go back and assess for unlimited time periods.

Unidentified Justice: Is this Appellant the only entity that has filed a protest on this theory?

Mr. Burke: No, Your Honor.

There are two other taxpayers who have suits now pending on this particular issue.

Unidentified Justice: And has the statute run as to all others, because, I take it, this statute has been repealed, the one that we're looking at?

Mr. Burke: The statute was repealed in 1987, effective October 1, 1987.

Unidentified Justice: Has the time run on any further protests?

Mr. Burke: No, Your Honor.

There's a four-year statute of limitations in Texas.

Unidentified Justice: Four-year, a four-year statute?

Mr. Burke: Yes, sir.

Four years from the time the taxes become due and payable.

Unidentified Justice: So, if we told this appellant that it could get its money back, then any number of others could file?

Mr. Burke: That is correct, Your Honor.

The state would be subjected to having numerous refund claims filed against it.

Depending, of course, some would be of larger amounts than others, depending on how the court rules in this particular case.

If the court, though, however finds that the tax itself should be struck in this instance, the state asks the Court to remand this case... not with regard to Texas Monthly... they should get their money back, but to determine from a state court perspective, let the state court determine how to handle the refund situation that might be occasioned as a result of this decision.

The state, though, just as I said before, does not view this as a First Amendment-type issue.

What we have here is an exemption--

Unidentified Justice: Ms. Burke, let me interrupt you just a moment.

Does the state have any statistics as to what the amount of tax that might be collected from exempt organizations if this exempt organization... if this exemption weren't in effect compare as a matter of percentage with the amount of revenue brought in by the state sales tax?

Mr. Burke: --No, Your Honor, there is nothing in the record and I do not have that kind of evidence since the state has not been taxing religious organizations.

Unidentified Justice: Do you have any figures in the record or that you know of what the gross revenue from the state sales tax is in any given year?

Mr. Burke: Your Honor, it is the largest revenue-raising tax in the state of Texas.

Last year alone it brought in about two-thirds of the taxes that were being paid to the State of Texas.

I don't have a dollar figure for you, but it is a substantial tax to the State of Texas.

The exemption in Section 151.312 I have heard been called basically a content-based type exemption.

The state would characterize it more in the nature of first a status-based exemption.

The first decision to be made under the exemption is whether or not the periodical is being distributed or published by a religious faith.

Then, the second part of the exemption deals whether it wholly contains writings promulgating the teachings of the faith.

The aim of this exemption, the state would submit, is to accommodate religious faiths and their adherents by exempting them from the tax on their publications which are disseminating the teachings of the faith.

It allows, therefore, religion to advance itself, but also to be neutral between church and state.

So, it's more of an activity-based exemption even though to a degree you must look at content.

It is allowing the church to be free from religious restraints in disseminating its religious messages.

Unidentified Justice: Ms. Burke, may I ask you on the status point, the first prong, what about an organization of atheists who published a magazine promulgating their views about religion?

Would that qualify for the exemption?

Mr. Burke: I believe it might, Your Honor.

I'm trying to think that the state has granted... and this is not in the record... that the state has granted an exemption to a religious faith that was an atheistic organization.

Unidentified Justice: The statute said religious faith.

I mean, you would really have to interpret religious faith to include an atheist in that.

It's rather strange, isn't it?

Mr. Burke: Yes, it is, Your Honor, but it is a belief, even though it's anti-religion.

The state has tried to extend this exemption as far as it can.

Unidentified Justice: You would interpret religious faith to include anti-religious faith?

Mr. Burke: Yes, in a sense.

Unidentified Justice: That's stretching it about as far as you can, isn't it?

Mr. Burke: Yes, but the state has tried to accommodate religion to the extent that it can, and I believe I'm correct on that.

Unidentified Justice: How in the world does that accommodate religion?

How do you accommodate religion by saying atheism is religion?

Mr. Burke: How do you... accommodation is by allowing the organization to be free from having to support the state.

It is maintaining a physical neutrality between the organization and the state.

Unidentified Justice: Wouldn't you have to name religion and atheism?

Wouldn't you have to name both of them?

And you didn't name both of them.

Mr. Burke: No, unless--

Unidentified Justice: And that was deliberate.

Mr. Burke: --the state considers atheism to be a form of faith.

Unidentified Justice: And the distinction was deliberately made by the state.

Mr. Burke: The state legislature did make a deliberate enactment to exempt religious-type periodicals being distributed by a religious faith.

Unidentified Justice: Ms. Burke, you don't take the position that this accommodation is required, do you, by the free exercise clause?

Mr. Burke: Your Honor, as I understand the free exercise clause, it does mandate that accommodation be required.

It's not just permitted; it's required.

Unidentified Justice: So, you take the position that Texas may not impose a general sales tax on religious publications?

Mr. Burke: No, Your Honor.

I'm not saying it would be an absolute violation--

Unidentified Justice: Well, that's what I'm asking.

Mr. Burke: --to impose the tax.

No, that is not the position of the state.

Unidentified Justice: Can the state impose its sales tax on the sale of candles in a Catholic church, too?

Mr. Burke: Yes, Your Honor, it could.

Unidentified Justice: Okay.

Mr. Burke: And the state is certainly not asserting that it would be an absolute violation of either the establishment clause or the free exercise clause if the exemption were not in place.

They recognize that rational bases have to meet... be drawn under the statute.

With regard to the Arkansas tax, Texas again does see a distinction there because Arkansas did tax only general interest periodicals and exempted everything else from the terms of the tax including newspapers.

Texas tax structure is just the reverse.

It taxed all publications, including newspapers, but exempted only religious periodicals from the terms of the tax.

If the exemption were not in place, as I have said, the state is not saying that the rational basis is that there would be a violation of the establishment clause, but without the exemption there would be a greater involvement between the church and the state in the sense that the church would have the authority to be subject to paying the tax, have an obligation and duty to pay the tax, and if it did not, then the state could go in and file liens against church property if there was a delinquency.

It could seek to seize the church property and sell it to pay a tax debt, and it also could freeze church bank accounts.

This is certainly a greater involvement between the church and the state than if the exemption were not present.

This also pertains with regard to the free exercise of religion.

If the exemption were not present, there's a possibility of a violation under the free exercise clause in that it has previously been held that Jehovah's Witnesses, for example, going out and disseminating their religious messages by selling publications containing their religious messages when they were required to pay a tax and obtain a license before they could engage in these activities, this was held to be a violation of their free speech rights and also a violation of their free exercise rights.

Under the Texas Sales and Use Tax Act, as it was structured during the time period in question, what you had was a situation that engaged in operation as a retailer within the state of Texas, you had to post a bond first.

Then you had to obtain a permit, and then you had to collect and remit the tax or remit the tax to the State of Texas.

Without the exemption in place there is a possibility of a violation of the free exercise clause of the First Amendment.

Unidentified Justice: Ms. Burke, I'm not sure... were you saying that one of our cases we have a Jehovah's Witness case that rested on establishment clause grounds?

Mr. Burke: Free exercise clause grounds.

Unidentified Justice: Free exercise clause grounds?

Mr. Burke: Yes, which was Murdock versus Commonwealth of Pennsylvania.

Unidentified Justice: Murdock.

And you're saying just as we, just as the state couldn't... must make an exemption from a general licensing law for the sale of those pub... was it clear that that was a sale case?

Mr. Burke: Yes, Your Honor, they were directly going out and selling their Watchtower publications, and sometimes they were receiving donations from them.

But that would fall within the definition of a sale under the Texas Sales and Use Tax Act, which is a transfer of tangible personal property for a consideration.

And under that particular case, as I said, it was a general regulatory-type situation, but it also was a tax that was being imposed upon the sale of these magazines.

They had to pay the tax in advance, and they also had to obtain a license, and this is pretty much the same structure under the Texas Sales and Use Tax Act.

The state, therefore, feels that it has asserted either rational basis or compelling state interest to sustain the exemption in this case.

Texas Monthly has also raised the fact that Section 151.312 does not or... they say it does constitute a law respecting establishment of religion.

The position of the state is that the lower court correctly determined that this exemption does not fall under that category; that it meets a three-part test in Lemon versus Kurtzman: Number one, that it has a secular legislative purpose in that it restricts the physical relationship between church and state, and this is what the Court of Appeals in Texas so determined.

It also held that its primary purpose was not to advance or inhibit religion.

To the contrary, the effect was to permit religious periodicals, religious organizations in effect to be free from state sponsorship or support.

And, thirdly, that the exemption did not foster an excessive entanglement with religion.

Unidentified Justice: Do you think the Lemon test is the exclusive test?

Mr. Burke: I think it's a test that should be applied, Your Honor, in this case.

I think it probably should not be so rigidly applied in this type of context, but I think it should be applied.

And I think the exemption meets all elements of the test because I feel that it doesn't constitute excessive entanglement with religion in the respect that it doesn't create the appearance of an ongoing partnership between church and state that, like, say, a direct aid or subsidy would, even though you might refer to an exemption as being a subsidy.

Certainly it has been held in the past that determining in the Walz case that real property being exclusively used for religious purposes didn't constitute an excessive entanglement with religion and also determined whether secular books that were to be given to students of parochial schools, there had to be a determination made there as to whether it contained religious material or whether it was secular in nature.

That was held not to constitute excessive entanglement with religion.

What the state is doing here is being mutual towards religion.

It is trying to accommodate religion by allowing for the free distribution of religious teachings and materials.

It is not advancing or inhibiting religion, it is a secular, legislative purpose, and it does not foster an excessive entanglement with religion.

In the past in that area on advancing religion, just going back to that for a minute, it has already been held that time-release programs where students that were released from public schools to go off school grounds to attend religious instruction, that this type of program did not create a symbolic union between church and state so as to constitute an advancement of religion.

I think this same sort of approach can be applied to tax case in that the voluntary sale and purchase of these types of religious periodicals likewise does not constitute excessive entanglement, does not advance religion.

It has been pointed out that under the Texas tax structure that what we have here is an exemption exempting the sales of religious periodicals based on content.

We previously said we don't feel that the whole exemption is really content-based.

It's more status-based and activity-based.

There are other exemptions, however, in the Texas Sales and Use Tax Act, one of which is an exemption that allows religious organizations and other organizations to make one-day sales in a calendar year of any items that they so desire to sell.

And I realize that is broader based than just the religious aspect.

But, there's another exemption that permits the sale of food, food products by church or the church function, and that can occur any time during the church year.

So there are other exemptions that are basically religious-based in the Texas Sales Tax Act.

The state perceives this, as I've said earlier and submits to the Court that what we have here is a nondiscriminatory tax.

If the Court, however, perceives this as a situation where there is content-based discrimination, a strict scrutiny test should be applied and the exemption should be upheld under this type of test because what we have here is two competing constitutional interests, the right to free speech by the press and the right to free speech by religion.

And to avoid any violation of the free exercise clause or the establishment clause in which we feel a compelling state interest, we submit that the exemption should be upheld.

Thank you.

Unidentified Justice: Thank you, Ms. Burke.

Mr. George, you have three minutes remaining.

REBUTTAL ARGUMENT OF ROGER JAMES GEORGE, JR. ON BEHALF OF THE APPELLANT

Roger James George Jr: Two points.

First, the Arkansas Writers' Project case involved an Arkansas general sales tax statute.

It provided a taxation of all tangible property, according to the court's opinion, in the state of Arkansas, and there were a series of exemptions, like in Texas, for mules and various things, but there was only an exemption for religious, trade, sports, and professional journals.

So, there were a lot of... or media, I suppose.

The agricultural magazines, magazines about the oil and gas industry or other things were subject to tax, along with general interest magazines.

Unidentified Justice: Well, all newspapers were exempted.

Roger James George Jr: In Arkansas they exempted newspapers.

That was a separate grounds for writ petition in that area, in the appeal in that case.

Second... and thus, this case is similar in that only the restriction is... does not include sports, professional journals and trade journals.

It just includes religion, one of the five topics that were involved in the Arkansas case.

And there the evidence was, according to this court's opinion, one to three magazines paid the tax.

In our evidence, the Comptroller's people testified that 20 to 30 paid the tax.

Given the relative size of Arkansas and Texas, I think that's a distinction without a difference in that we, in fact, have as few as 20 of the hundreds and hundreds of magazines that are circulated in Texas are subject to tax... not because of the exemptions, because of the enforcement policy.

Finally--

Unidentified Justice: Because of what?

Roger James George Jr: --Our enforcement policy argument that was part of the trial court evidence.

Finally, let me point to the question of does the taxpayer get his money back.

And, in fact, if you look at this court's opinions about taxpayers contending statutes or schemes were unconstitutional for interstate commerce reasons, a whole range of reasons.

This court's Armco versus Hardesty case and West Virginia statute taxing certain interstate sales--

Unidentified Justice: That may be somewhat different if the holding rests on an equal protection basis than it does on a commerce clause.

Because our case... some of our cases have said when it's an equal protection violation, the state can choose whether to eliminate the favored treatment or the disfavored treatment and just make sure they're all treated equal.

Roger James George Jr: --Well, I suppose the state has to... if it has a statute, it can repeal it and then solve the problem, and you can't repeal... I suppose you could repeal the... there is no equal protection in commerce clause.

Obviously you can't tax it because in commerce you can't solve it by corrective legislation.

You can solve this by corrective legislation.

But you can't solve... courts don't have powers to impose taxes.

It can't go out and make those people who distributed the Watchtower and the Baptist Standard and the Methodist Layman pay the tax because the legislature has exempted them.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. George.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Arkansas Writers' Project, Inc. v. Ragland - Oral Argument

Fri, 09 Jan 2009 14:48:30 +0000

Case:

Arkansas Writers' Project, Inc. v. Ragland

Media File:

85-1370_19870120-argument.mp3

Related Transcript:

1986_85_1370_argument.xml

Transcript:

Argument of Anne Owings Wilson

Chief Justice Rehnquist: Ms. Wilson, you may proceed whenever you're ready.

Mr. Wilson: Mr. Chief Justice and may it please the Court:

This case is on appeal from a decision of the Arkansas Supreme Court which upheld the validity of the application of the Arkansas sales tax to sales of Arkansas Times Magazine when newspapers and certain types of magazines are exempt from taxation.

The Arkansas Times Magazine is a monthly city and regional type of magazine, very similar to this city's Washingtonian.

It's distributed throughout the state of Arkansas, has a distribution of between 25 and 30,000, four fifths of which are through subscription sales.

It has articles on a variety of topics.

It has short stories, articles on politics, religion, fashions, food, leisure activities, other articles of that type.

It does have articles on sports, religion, professional things, and so forth, and I mention that particularly because that's one category of publications that the Arkansas sales tax exempts from taxation.

There are two exemptions.

First of all, the Arkansas sales tax is imposed generally on sales of tangible personal property.

There are two exemptions which are particularly apropos.

One is exemption (f), which exempts all gross receipts or gross proceeds from the sale of newspapers.

The other one is exemption (j), which exempts religious, professional, trade, and sports journals, and/or publications printed and published within the state when sold through regular subscriptions.

Now, just from reading exemption (j) one would think that that might extent to cover all publications printed and published within the state of Arkansas, and in fact that's what the chancellor who first heard the case found.

But the Department of Revenue appealed the case to the Arkansas Supreme Court, and the Arkansas Supreme Court construed exemption (j) extremely narrowly, finding that it only exempted sales of religious, sports, professional, and trade journals.

Unknown Speaker: While we're on the subject of the lower court's holding, I think that I understand the lower courts here to have held that under Arkansas law even the non-subscription sales of these so-called exempt magazines are exempt?

Mr. Wilson: That is correct, Your Honor.

Unknown Speaker: It doesn't turn an whether the sale is by way of subscription or not?

Mr. Wilson: That's right.

He found that the words "when sold through regular subscriptions" were words of description rather than limitation, and that since Arkansas Times was a publication that was regularly sold through subscriptions that all sales of Arkansas Times Magazine were exempt from taxation.

It is our contention that, because newspapers are exempt from taxation and because these other very specific types of publications are exempt from publication, that sales of Arkansas Times should also be exempt from publications or that the other publications should be taxed, that there should not be discrimination.

Unknown Speaker: Well, Ms. Wilson, I guess we don't even have to look at the newspaper question if we focus on just the particular types of magazines that are exempt.

Presumably we could answer this case by answering that question alone, quite apart from the newspaper exemption question.

Mr. Wilson: That is correct if the remedy were necessarily to be to extend the exemption to sales of Arkansas Times Magazine.

But if the case went back to Arkansas courts and the court found that, rather than extending that exemption, that it would simply delete it and tax all sales of magazines regardless of content, there would still be discrimination between magazines and newspapers.

And it is our contention that any distinctions that exist between newspapers and magazines are constitutionally invalid and--

Unknown Speaker: Ms. Wilson, excuse me.

That same thing could happen even if we rested our decision on discrimination between magazines and newspapers.

The same thing could happen.

So it seems to me we don't prevent against that deprivation of relief by resting our decision on the newspaper discrimination, rather than on the magazine discrimination, do we?

Mr. Wilson: --I'm not sure I understand your question.

Unknown Speaker: Well, I'm not sure I understood your answer to Justice O'Connor.

Justice O'Connor asked why couldn't... why do we have to reach the newspaper issue so long as you're discriminating between this magazine and other magazines, isn't that enough?

And you said yes, it would be, so long as when it goes back what happens is that the exemption is extended to your magazine, rather than the exemption for other magazines being eliminated, right?

Mr. Wilson: That's right.

So long as--

Unknown Speaker: But that same thing could happen even if we rested our decision on the discrimination between your magazine and newspapers.

Likewise, when it goes back, likewise when it goes back, unless we say something about it, the court could say, instead of extending the newspaper exemption to your magazine, we'll eliminate the newspaper exemption.

Mr. Wilson: --That is correct.

Unknown Speaker: Okay.

So that issue has nothing to do with whether we base this decision on the magazine exemption or on the newspaper exemption.

Mr. Wilson: Well, again, if this Court were to find that the discrimination between newspapers and magazines was unconstitutional and the Arkansas court then found that the remedy was to delete the exemption, the result would be that all publications would be treated the same, whether they be newspapers or magazines or sports journals or whatever, and that would end the discrimination and we'd have a constitutional result at that time.

Unknown Speaker: But that wouldn't defeat your right to a refund, would it?

Mr. Wilson: I don't know whether it would or not.

Unknown Speaker: You couldn't go back and collect the tax retroactively from all the others?

Mr. Wilson: That... yes, I think to bring us even we would have to get a refund of past taxes.

Unknown Speaker: So the case isn't a moot case just because the... just because the exemption could be eliminated.

Mr. Wilson: No, not as to the taxes collected up through the time of the decision, that's correct.

Unknown Speaker: Yes, all right.

Mr. Wilson: The discrimination obviously in the magazine exemption and also in the newspaper exemption is based almost entirely on content.

It's based entirely on content when the state favors sports journals, religious journals, and so forth.

It's based primarily on content--

Unknown Speaker: Ms. Wilson, you know, when we think of a discrimination based on content in the freedom of speech area, we think of the state as trying to suppress or disfavor certain kinds of content.

You know, maybe communist propaganda or something like that.

Here one would have to assume that the legislature had it in for your kind of magazine and wanted to somehow discourage its circulation.

And yet, that just doesn't seem to be a very rational assumption.

I mean, do you think the legislature was out to kind of censor or suppress your magazine?

Mr. Wilson: --No.

On the contrary, just the timing of it shows that it's not, because the Arkansas Times didn't even begin publication until some years after these exemptions were in effect.

Nevertheless, it is discriminated against, regardless of the purpose of the legislature and regardless of whether it was trying, deliberately trying, to suppress this kind of speech.

It does burden the Arkansas Times Magazine where other types of publications are not burdened.

Unknown Speaker: Yes, I can understand that argument.

But when you go on and say it's a content-based discrimination, usually the reason we talk about a content-based discrimination is you infer from that that there was a desire of the legislature to suppress the content that it's discriminating against.

And I just don't see that that is a permissible inference here, and I gather you agree with me.

Mr. Wilson: Well, the recent cases that the Court has decided where there was content-based discrimination were really not cases where the government was trying to suppress a particular point of view or anything of that sort.

On the contrary, the government in each case was really trying to favor one particular type of speech.

As in Carey versus Brown, the government was trying to favor any type of picketing related to labor issues.

The same thing in Moseley versus City of Chicago, and that was found to be content-based discrimination, even though the purpose of the government in each case was to favor the labor picketing and not to, particularly to suppress the... well, of course, the intent was to suppress everything but the labor picketing.

Unknown Speaker: Here you think the intention of the legislature is to consciously favor religious, professional trade and sports journals, at the expense of other kinds of journals?

Mr. Wilson: That's what the Arkansas Supreme Court found when it decided the case, that's correct.

We don't have... I don't know why the legislature wanted to favor those, and the state has not given any reason why those particular types of publications would be favored.

Unknown Speaker: Well, when you look into some of these sales tax laws, I think you have a question in your mind in almost every one of them as to how certain exemptions came to be on the books.

You know, maybe there are amendments on the floor of the legislature.

You know, if you subject them to any sort of a strict scrutiny or even a fairly rough rational basis approach, a lot of them probably wouldn't survive.

Now, maybe they shouldn't.

But we have said in some of our tax opinions that the scrutiny on equal protection in tax cases is the least demanding in any area of the law; that if there's anything to uphold the thing it'll be upheld.

Mr. Wilson: Well, that's certainly true with things which don't... with taxing statutes which don't involve First Amendment rights.

But when First Amendment rights have been implicated, the strict scrutiny standard has been applied, as in the case, the Minneapolis Star case, being the most apropos recent case.

But the Court has not applied the rational basis standard to taxes which implicate fundamental freedoms, such as the right to speech and the press.

Unknown Speaker: Well, Ms. Wilson, you argue that the legislature in its sales tax cannot distinguish between magazines and newspapers.

Now, if that proposition is correct, then would it mean, for example, that books have to be exempt because magazines are, or that videotapes have to be because magazines are?

Theater tickets?

How far do we go?

Mr. Wilson: It's possible that the state could assert some interest that would justify a discrimination between videotapes, for example, and newspapers.

I don't know whether it could or not.

Unknown Speaker: A state interest, a compelling state interest?

I mean, you'd require a compelling state interest?

Mr. Wilson: I don't know what kind of interest the state could show in that type of discrimination.

I have some doubts as to whether--

Unknown Speaker: Well, we're asking about the legal standard.

Does it have to be a compelling state interest or just a rational basis for the distinction?

Mr. Wilson: --I think it depends on the nature of the tax, how general the tax is, you know, the nature of the exemptions, and many other factors.

I don't... I think generally it's the compelling interest.

Where the First Amendment rights are implicated, it has to be the compelling interest.

And I would think it would be unlikely that a state could show that there was a compelling interest in that type of--

Unknown Speaker: Well, the Court has traditionally given a great deal of leeway, has it not, to state taxing schemes and to let the state distinguish among objects of tax?

Mr. Wilson: --Yes, Your Honor, that is correct, except in the area where it has burdened First Amendment rights.

Unknown Speaker: Well, did Minneapolis Star indicate that a general sales tax would be different, and that we wouldn't have the same concerns?

Mr. Wilson: Minneapolis Star did indicate that a general sales tax could be generally applied to publications, as to all other items of commerce.

That's not the case here.

The tax is not applied generally to items of commerce anyway, and it's certainly not applied generally to publications.

The state picks and chooses between publications in applying this tax.

Unknown Speaker: Well, do you think that the price and frequency and the volume of newspaper sales in general is different from that of magazines, and that that difference might justify the difference in the tax application?

Mr. Wilson: The state has not shown any information whatsoever concerning the volume and so forth of newspapers.

It has asserted an interest in raising taxes.

And to me it seems that the most effective way for it to increase its tax revenues would be to tax everything generally, including newspapers and other publications.

Again, this is not a general tax in Arkansas.

It's... as to publications, it's a very special tax.

Unknown Speaker: Ms. Wilson, what if a state exempts from the general sales tax subscriptions to publications by charitable organizations... boy scouts, churches, museums, and so forth?

Could it do that?

Mr. Wilson: That type of publication, it might be able to show that the state had an interest which was strong enough to justify the discrimination.

Unknown Speaker: Oh, it needs a compelling state interest to do that?

Mr. Wilson: Well, yes, I think it does need... either a compelling state interest or to have some other rights implicated, such as possibly religious, the right to religious freedom or something of that sort?

It might be able to present a strong argument.

But the general standard--

Unknown Speaker: You're comfortable with that, that the state can't except the boy scout publications or museums publications from its sales taxes unless there's a compelling state interest?

Mr. Wilson: --That would be the general principle, Your Honor, unless they could assert an interest which was sufficient to justify the discrimination.

Unknown Speaker: Well, how do you... how does the state justify exempting charities from taxation at all, then?

Mr. Wilson: Okay, you mean just generally, like exempting charities from property tax?

Unknown Speaker: Yes, yes.

They don't... a charity doesn't pay income taxes, its property isn't subject to real estate taxes.

How does the state justify that?

Mr. Wilson: Well, I'm not saying that the Court has to... that if it exempts anything, it has to also exempt the press.

I think that, you know, in most states churches and so forth are exempt from property tax and publications are not exempt from property tax.

But it would be improper for--

Unknown Speaker: Well, if the state can exempt a charity from taxation, why can't it exempt the sale of its magazines from sales tax?

Mr. Wilson: --Exempt the sale of a church or something?

Unknown Speaker: No, exempt the sale of its magazines from sales tax.

Mr. Wilson: Well, it might be able to do that.

Unknown Speaker: Well, it might?

Would it or would it not?

And how would you test it?

By just, would you say a strict scrutiny?

Mr. Wilson: I would say that it should be scrutinized closely, yes.

But the normal rationale for charities is that they provide services that the state would otherwise have to provide and things of that sort.

So you know, the state can frequently justify an exemption for a charity which it possibly couldn't justify otherwise.

Unknown Speaker: Let's assume... you ended it earlier than I thought you would.

I had assumed you would say that the state could do that so long as... without a compelling state interest, so long as it was not demanding that the magazine sold by the boy scouts have a particular content.

See, that was going to be my second question.

Assuming that you can say sales of museum magazines or boy scout magazines are okay, could the state then say, however, you can't qualify if you start selling Time magazine, you know, published by the Arkansas Museum of Art, that that won't be allowed if you're trying to become a general purpose publication.

But since you think that you can't even exempt boy scout magazines and museum magazines at all, much less dependent on their content, I guess the second question has no relevance.

Mr. Wilson: No, I really wouldn't say that.

I would say that if you had a truly generally applicable sales tax which exempted a very narrow classification of publications that the state had identified as being particularly in the public interest or of the type that particularly should not be taxed, then I don't think the same constitutional arguments would apply.

But here we have a situation where nearly all periodical publications in Arkansas are exempt from publications, with at the time that this went to trial possibly the single exemption of Arkansas Times Magazine.

It seemed to at that time be the only publication subject to sales tax on any topic.

If the Court has no further questions, I'd like to reserve the rest of my time for rebuttal.

Argument of John Steven Clark

Chief Justice Rehnquist: Thank you, Ms. Wilson.

We'll hear now from you, General Clark.

Mr. Clark: Mr. Chief Justice and may it please the Court:

Realizing that the Appellant relies heavily on this Court's decision in the Minneapolis Star case, I submit to this Court that this case, Arkansas Writers versus Ragland, is clearly distinguishable.

The facts in this case does not give rise to a First Amendment violation.

The Arkansas tax is not a tax on a publisher, but rather the ultimate purchaser, the consumer.

The Minnesota tax was applied to the publisher.

The Arkansas legislature in granting a tax exemption, a benefit, as a part of its general taxing scheme... and that scheme in development was not to single out and did not single out or target the press.

That's not true with the Minnesota statute.

The Arkansas tax does not affect specifically identifiable individual taxpayers.

It could not have.

As Ms. Wilson has pointed out to you, it was adopted in 1948, long before the Arkansas Times as a publication ever came into existence.

It does not single out any individual members of the media or of the press.

That was not true of the Minnesota statute.

It's been well established by this Court that the press is not immune from any of the ordinary forms of taxation that support ordinary governmental functions.

The Arkansas general sales tax scheme was adopted in 1935 and has been amended many times since then to promote the general welfare of our state through free public education, free text libraries, and protection of wards of the state.

Unknown Speaker: General Clark, the statute, though, does seem to prefer certain journals... sports, religious, professional, and trade journals... on the basis of their content, does it not?

Mr. Clark: No, Your Honor, I submit to this Court it does not.

The general taxing scheme provided for some exemptions, some benefits.

Among those which were three; one to newspapers, which were exempt from sales tax on the sale of that product.

The reason behind that--

Unknown Speaker: Well, could we talk about the exemption of certain types of journals, please?

Mr. Clark: --Yes, ma'am, Your Honor.

The provision that dealt with the four generic types of publications... sport, trade, professional, and religion.

The Arkansas General Assembly, I submit to this Court, in its effort in adopting that standard was to promote those publications, realizing that they did not have the same revenue base in terms of advertising that an publication like the Arkansas Times might have, which also enjoys an exemption from sales tax on advertising space sold which contributes from 60 to 90 percent of the income of those type publications.

With these four generic types, Your Honor, the Arkansas General Assembly in its wisdom I believe determined that there was not an advertising base because of a low subscription interest.

Unknown Speaker: Well, is it a type of content-based treatment?

It's only journals dealing with sports and religious matters and trade and professional journals that qualify for the exemption?

Mr. Clark: Your Honor, it's only those four generic types of publications.

It does not deal with content; it deals with a classification as to a generic description, a type of description the Arkansas General Assembly tried to apply to a host of publications.

It is a matter of fact that in Arkansas there is no publication... there are no publications of which we are aware that has ever benefited from this classification as a religious, a trade, a sport, or a professional publication.

There are none that we are aware of who have made requests for that benefit and have received it.

Unknown Speaker: So the exemption has never been applied?

Mr. Clark: That is correct, Your Honor.

Unknown Speaker: Is it true that the Arkansas Times is the only one that's ever been taxed?

Mr. Clark: No, Your Honor.

There are two other publications.

That information was part of the lower court record and the protective order, the two others who do qualify for general taxation as does the Arkansas Times.

Unknown Speaker: Does the record show... just to be sure, the record shows that the exemption has never been applied?

Mr. Clark: Your Honor, the exemption... we have gone back to our tax administrator and reviewed all of our records.

We can find no evidence.

Unknown Speaker: But was that evidence... but does the record show that?

I'm not questioning the accuracy of what you tell me, but--

Mr. Clark: No, Your Honor, the record does not.

As you recall, in the lower court the Arkansas Times stipulated that it was neither a newspaper nor one of these four generic types of publications.

Unknown Speaker: --Right.

Mr. Clark: The only affidavit from the state tax administrator was to the effect that there were other publications subject to this general sales tax other than the Arkansas Times.

He was not asked and did not produce information as to whether the exemption had ever been applied.

Unknown Speaker: Are there any magazines sold in Arkansas that would qualify for the exemption?

Mr. Clark: Your Honor, I think the answer to that is yes.

They just--

Unknown Speaker: Well, do they just out of the kindness of their heart collect the sales tax?

Mr. Clark: --Your Honor, I do not know the reason why they do not seek this benefit.

But the record--

Unknown Speaker: Well, your answer is that they do collect the sales tax when they sell?

Mr. Clark: --There are three publications, Your Honor, for which the sales tax is to be collected and remitted back to the state, the Arkansas Times being one and there are two others.

There may be publications in the state that would fall under these generic classifications--

Unknown Speaker: That do not what?

Mr. Clark: --That in fact would be exempt from the tax.

Unknown Speaker: And they don't collect it?

Mr. Clark: But they have not applied for the exemption, and so it's not applied to them.

The only way we know whether they're collecting tax and remitting is if they have asked for a sales tax permit.

If they have we audit them, and that's the process; we know whether they're collecting and remitting tax.

So there may be publications that fall within the exemption, Your Honor.

There may be some that need to be taxed and are not collecting and remitting taxes.

It's just a failure of enforcement on the part of the state.

Unknown Speaker: Well, not a failure of enforcement.

You mean it's just a failure to insist that they apply for an exemption.

Mr. Clark: Under our sales tax scheme, Your Honor, all sale of tangible personal property is subject to tax unless a benefit is granted through an exemption.

All persons who are to make such sales must apply for--

Unknown Speaker: Well, I find it difficult to believe that people collect the tax when they don't have to.

Mr. Clark: --Well, Your Honor, as I said, the record reflects no one has asked for that benefit of that exemption.

Unknown Speaker: Well, are you saying that under Arkansas law one cannot simply read the statute, if you're in the business of selling tangible personal property, and say, look, I'm exempt, so I won't collect the tax?

You have to apply for the exemption?

Mr. Clark: Yes, Your Honor.

If you're to sell tangible personal property, you are to apply for a sales tax permit.

In the procedure at that point indicating what you are selling, a decision would be made as to giving you a tax permit number for collecting and remitting your tax or, in the event you were determined to be exempt through the tax administrator's decision, you'd get a letter stating such.

Unknown Speaker: May I ask, what would happen to a publisher who was perfectly... talked to a lawyer and the lawyer said, oh, you're clearly exempt because this is a religious publication, and he said thank you and started to publish, and didn't... he published a purely religious thing they sent out every Sunday or something like that.

And he just never paid the tax and never applied for an exemption.

What... could he be put in jail or penalized in any way?

Mr. Clark: Your Honor, he could be penalized through civil penalties for failure to pay those taxes.

Unknown Speaker: No, but he doesn't have any tax.

He clearly would qualify for an exemption if he went through the procedure.

He does nothing but publish a religious publication, and he's been doing this for five years and somebody in the tax department finds out and says: Hey, you should have filed for an exemption.

And he says: I'm sorry; I'll do it now.

What would happen to him for the past five years?

Mr. Clark: He would not be penalized for that conduct for the publication that was exempt from the sales tax on the sale.

Now, that publisher would be paying sales tax on the materials in the process of publication, but not from the sales tax of the sale.

Unknown Speaker: Well, I was just going to say, it seems to me the fact that no exemptions have been granted in this category, as you've explained to us, does not mean that it is not entirely possible that there are a lot of religious publications that simply didn't bother to apply for the exemption because they realized they wouldn't get into any trouble.

Mr. Clark: Your Honor, I think the answer to that is yes, there are a number of religious publications that are not printed and published in Arkansas, but circulated there, and they wouldn't qualify for the exemption.

We're aware of at least a couple.

Unknown Speaker: No, I'm talking about those that would qualify for the exemption.

It seems to me that you haven't really satisfied me that there may not be publications in Arkansas that would qualify for the exemption that this publisher would not qualify for.

Mr. Clark: Your Honor, I believe that there may well be publications in Arkansas who would qualify for the exemption, but just never have made application.

Unknown Speaker: Right.

Mr. Clark: And the penalty... there would be no penalty assessed in the sense of confinement or jailing.

And since they were exempt from tax--

Unknown Speaker: Or any other sense.

Mr. Clark: --Or any civil penalty that would be assessed.

Unknown Speaker: Well, usually somebody who is supposed to collect the tax and doesn't is going to have to pay the tax.

Mr. Clark: When they have the responsibility to collect the tax.

Unknown Speaker: Yes.

Mr. Clark: In this instance, Your Honor--

Unknown Speaker: Yes.

Well, I take it these magazines had a responsibility to collect it unless they got an exemption.

If they don't apply for the exemption and they don't collect the tax, why shouldn't they have to pay the tax themselves?

Mr. Clark: --Your Honor, there are none that have applied for the exemption.

I just don't know the answer to that, other than... why they didn't.

I just know they didn't.

Unknown Speaker: How many people... how many firms are in the same position as petitioner?

Mr. Clark: Pardon me, Your Honor?

Unknown Speaker: How many are in the same position as the petitioner?

Mr. Clark: There are two others.

There are three totally, the Arkansas Times and two others.

Unknown Speaker: It's a total of three.

And about how much money is involved?

Mr. Clark: For the Arkansas Times, $15,800.

With the other one, about $500 or $600 on an annual event; and the other one, also $500 or $600.

Unknown Speaker: I just wanted to know.

Mr. Clark: All the state of Arkansas, I submit to this Court, needs to demonstrate is that there is some rational basis for these four generic classifications found in the exemptions granted.

A frustration which I feel and I know this Court must also face is the frustration that the record is devoid of any legislative explanation for the granting of these exemptions in 1948.

I would speculate that in granting these exemptions for any publications... and exemptions were granted, as I said, for newspapers, for general interest publications much like the Arkansas Times, as well as for these four generic types of publications... that the purpose behind these exemptions was to foster communication in what is basically a rural state.

And within our general scheme of taxation, that sales tax is applied, as I said, to the sale of all tangible personal property.

A comprehensive section of exemptions, however, was adopted that dealt with First Amendment outlets.

As I mentioned to the Court, for newspapers Arkansas, like 37 other states, created an exemption from sales tax on the sale of that paper, the reason being, I submit, because of the unique means of distribution, young boys and young girls, independent contractors, and the difficulty in administering and collecting that tax.

The Arkansas legislature created for publications like newspapers and like the Arkansas Times an exemption from sales tax on advertising space sold, which comprises, as I have said to this Court, 60 to 90 percent of the base revenues for such publications.

The Arkansas Times, having a circulation of 25,000 to 30,000 in terms of subscription and sales at $1.75 per volume, simply can't support itself on subscriptions and over the counter sales.

That exemption from that sales tax on advertising space sold, which comprises the bulk of their operating bases, gives those type publications the opportunity to publish for profit and foster the communication and the information and ideas that they would carry.

The four generic types of publications enumerated I submit that the Arkansas legislature created for the reason that these types of publications did in fact... or would not in fact have anything other than a limited advertising base because of their specialty of interest.

Unknown Speaker: General Clark, is the exemption for religious, professional, trade, and sports journals... is that conditioned by the fact that they're published in Arkansas?

Mr. Clark: Yes, Your Honor, they must be published and printed within Arkansas and sold by subscription.

Unknown Speaker: And your argument is that a sports magazine would have a less general advertising base than a general interest magazine?

Mr. Clark: Your Honor, a think a general sports magazine, the example being Sports Illustrated, might have a broader base than one which deals with duck hunting or deals with fox hunting or deals with bass fishing.

I think the legislature in 1948 contemplated that certain types of sports journals would have a very limited audience and a very limited--

Unknown Speaker: So limited that no one might ever try to publish them, it sounds like.

[Laughter]

Mr. Clark: --Yes, Your Honor, that could well be true.

The legislative motive in dealing with these exemptions was to deal with the type and the kind of publication.

It was not to deal with what was to be contained in the articles in these publications.

If the state of Arkansas had applied this exemption, for instance, in the four generic categories to only accepted religious publications, it would have been impermissible.

That's not the standard.

If the state of Arkansas had applied the exemption for advertising space only to those publications that advertise the sales of cigarettes or liquor, it would have been impermissible, I submit to this Court.

If the state of Arkansas had said to newspapers that it only applied the exemption to sales tax on the sale if those newspapers published a liberal philosophical agenda, that would not be permissible.

But the Arkansas taxing scheme is not that.

It is not a selective exclusion based on content alone.

And since 1948, as I've stated, we have no record of any publication which has availed itself of this benefit.

Unknown Speaker: But General Clark, I guess it does involve content to this extent.

I don't suppose you could publish Time magazine and just label it "local sports magazine" and just say everything else is unimportant.

You wouldn't qualify as a sports publication just by calling it sports, would you?

Mr. Clark: No, Your Honor, I don't believe that you would.

These four generic definitions... I submit the Arkansas General Assembly were struggling and somewhat inartfully, I would be willing to admit to this Court, to come up with broad categories of types of publications, generic types of publications.

And in reaching those, it tried to have a broad-brush stroke in terms of application.

And then some determination is made by the tax administrator if you were to file a tax permit and a determination is made of exemption.

Then you have ordinary courses of appeal through the appellate process at the state level and then on into the court system.

Unknown Speaker: But you said the purpose basically is to foster communication by magazines that would not otherwise be able to make a profit, in effect.

Mr. Clark: Your Honor, think that was the original legislative purpose with all of these types of publications, to foster this communication in our rural state of the printed word, whether it be newspaper, general interest publications, or these four generic types of publications that might only have, say, a limited audience, a limited advertising base, and have difficulty in administering a tax of $400 of $500.

But it was to foster that communication.

Unknown Speaker: But then it's to foster some communication and not others, for a purpose that is not evident on the face of the statute.

At least that's clear, because I suppose there could be other... other than these four categories, there could be economically marginal publications that would not get the same benefit.

Mr. Clark: Yes, Your Honor, I think there could be.

I'm at a loss to describe some, and we have worked to try to describe some, but feel that there may be some means to fit those... virtually any type of publication--

Unknown Speaker: Say publications on how to play poker, or publications on how to do lots of things that aren't necessarily one of those categories.

Mr. Clark: --As I said, the legislature inartfully drafted this statute.

But in response to your question, Your Honor, for instance a how to do publication might fit under trade, in terms of how to do plumbing or how to do carpentry or how to do electrical work.

The contention that--

Unknown Speaker: What about the very publication we've got before us in this case?

Why doesn't it need the same kind of help?

I guess it doesn't make millions.

Mr. Clark: --Well, Your Honor, I think that one thing that this Court should consider is the fact that this case might be ripe for remand on the basis that we have such an incomplete record, and that the Arkansas Times by stipulation stipulated it was not a newspaper.

It also stipulated it was not one of these four generic kinds of magazine, without a determination being made by the state.

It might well fit in one of these categories.

Unknown Speaker: Well, hadn't it been denied the... or the state was assessing the... you say it had never applied for the exemption, is that what it amounts to?

Mr. Clark: Your Honor, the Arkansas Times did not.

It applied for a sales tax permit initially, it began to collect and remit the tax, protested that tax, and went through the administrative hearing, went to the lower court in Arkansas, and then settled, with the contingent that if in fact this Court or other courts were to determine a different standard they could then challenge the tax again.

At the lower court hearing... they challenged it with the tax administrator.

He denied their exemption.

At the lower court hearing, the Arkansas Times stipulated, we are not a newspaper, we are not one of these four generic types of publications, which took that out of the realm of having some determination of whether or not our tax administrator had made a proper determination.

Then--

Unknown Speaker: Yes, but they must have made that stipulation at your request, at the tax authority's request.

They must have asked them to make that acknowledgment.

Mr. Clark: --Well, Your Honor, they made that acknowledgment on their own.

Unknown Speaker: They did?

That's kind of a surprise, for somebody who's trying to avoid taxation... well, okay.

Mr. Clark: I would submit to this Court--

Unknown Speaker: You did say that they have substantial revenue from advertising?

Mr. Clark: --Yes, Your Honor.

Unknown Speaker: Which is exempted under another provision of Arkansas law?

Mr. Clark: Yes, Your Honor.

Unknown Speaker: To that extent, your response to Justice Stevens' question could have been that would seem to indicate that this is not one of those publications that needs the kind of help that the narrow categories do.

Mr. Clark: Yes, Your Honor, that would be correct.

Unknown Speaker: How much advertising?

Is that in the record, how much?

Mr. Clark: No, Your Honor, it's not.

General interest magazines of the kind of the Washingtonian, the Arkansas Times, rely in advertising, sale of advertising space, for anywhere from 60 percent up to higher percentages in terms of how they publish profitably.

As I indicated, the Arkansas Times has a circulation of 25 to 30,000 in our state, principally among all 75 counties.

But that alone at $1.75 per issue would not sustain the publication as it is presently published and distributed.

Unknown Speaker: Would you just clarify one thing, because I didn't quite follow it.

If they were to take the opposite position and say, well, we are one of these exempt publications and therefore... and you agreed... and therefore we're entitled to be exempt from the sales tax, would they lose the exemption from the advertising tax?

Mr. Clark: No, Your Honor, they would not.

Unknown Speaker: So really, it would be in their interest just to get out of the four... to get into that category?

Mr. Clark: Yes, Your Honor.

They would then be exempt from sales tax on the sale, but they would not lose their exemption from sales tax on the sale of advertising.

Unknown Speaker: So if we have a marginal sports publication, it can get both the advertising exemption and the sales tax exemption?

Mr. Clark: A marginal publication?

Unknown Speaker: Yes, it fits one of the four categories, sports or religion for example.

Mr. Clark: If it were sport, and determined on these four generic categories, it would be exempt from sales tax on the sale.

To get an exemption from sales tax on the advertising, Your Honor... well, excuse me.

If they sold advertising space, it would get that, too, yes.

I'm sorry.

Unknown Speaker: It would get both.

Mr. Clark: The answer is yes.

Unknown Speaker: So the advertising space, if there is discrimination here, the advertising exemption really doesn't have any effect on the discrimination in the sales tax area, if it does exist, because everybody gets the advertising exemption?

Mr. Clark: Everyone would get that, yes, Your Honor.

I think the distinction that the Arkansas General Assembly was attempting to make in 1948 was that with these four generic types of classifications there might not be advertising revenue that could be generated.

Unknown Speaker: So that what they should have done is describe the category they tried to protect as those publications who don't have substantial advertising revenues.

That would have accomplished their purpose in a neutral way.

Mr. Clark: That certainly would have clarified it some, Your Honor.

I think the General Assembly may have moved away from that for fear that what is that standard and how do you apply it, what is substantial advertising revenue.

Unknown Speaker: It seems to me that's easier to apply than this four-pronged standard they came up with.

Mr. Clark: If this Court were to decide that the Arkansas statutory scheme of general taxation fails, then 45 states like Arkansas, I submit, are at a loss to impose a constitutionally approved taxing scheme on the sale of any commercial commodities that have any ties to any First Amendment outlet.

Therefore, I would ask this Court to affirm the decision of the Arkansas Supreme Court below or, in the alternative, to remand this case back to the Arkansas court, since by virtue of the Appellant's stipulation that they are not a newspaper and they're not one of the four generic types of publications exempted, that they've precluded a state determination or consideration as to whether they would fall into one of these categories and they've actually precluded the state courts from determining the parameters of those exemptions.

This Court I believe should not be asked to decide a major constitutional issue on an incomplete record, and that the better position or decision would be, if this decision cannot be affirmed, would be for this Court to exercise restraint and remand this case for development of the record fully.

Thank you.

Rebuttal of Anne Owings Wilson

Chief Justice Rehnquist: Thank you, General Clark.

Ms. Wilson, do you have something more?

Mr. Wilson: Yes, if it please the Court.

Attorney General Clark did make reference to a number of facts which are not in the record, and I did want to bring them to your attention.

One is he stated that there are two other publications in the state of Arkansas that also have paid sales tax.

There was nothing in the record to indicate that and I don't know where that came from.

I don't know which publications those could be.

Unknown Speaker: He didn't volunteer that.

That was in response to a question.

Mr. Wilson: Yes.

I think, though, that... I mean, if there are two publications, I think the situation was that one of them was taxable, admittedly taxable, but it hadn't had any revenue, so it hadn't actually paid tax.

The other I believe was a cockfighting magazine, which would have fit under the sports exemption.

And I really think that the taxes that it paid were on sales of cocks and cockfighting paraphernalia and not on the publications.

But I don't know, because the record was never developed on that point.

Unknown Speaker: Cockfighting?

Rebuttal of John Steven Clark

Mr. Clark: Cockfighting, yes.

I think that's correct.

Another fact that he mentioned that's not of the record and I don't know whether it's a fact or not is that 60 percent or more of a publication's revenue is from advertising.

There certainly is nothing in the record to that effect, and I don't actually know what the proportion of revenue from advertising versus subscription sales is in this particular case or in the industry generally.

Unknown Speaker: Ms. Wilson, could I ask you about your thesis that the state cannot in its management of its fisc, in either the imposition of taxes or, I suppose it would follow, in its disbursement of state funds, favor one subject over another, like sports or what-not.

That's essentially your thesis.

What do you do about, let's say, the Kennedy Center, which receives federal funds?

Now, that is solely subsidizing one form of speech, right, the dramatic arts?

Presumably it's also favoring only particular subjects, namely the subjects of the particular plays and shows that are presented at the Kennedy Center.

Now, is that as much a violation of the Constitution as you say granting a tax exemption for sports is?

Rebuttal of Anne Owings Wilson

Mr. Wilson: Well, the Court has made a distinction between subsidies of that sort versus classifications which burden types of speech.

And probably the best example of each of those is Regan versus Taxation with Representation on the one hand and on the other hand Regan versus Time, Inc., where the Court found that the government could not discriminate on the basis of the type of content in allowing publications to publish pictures of dollar bills in that case.

And in Regan versus Taxation with Representation, where organizations which engaged in lobbying were denied 501(c)(3) exemptions, the Court in that case found that that type of benefit was not subject to a compelling state interest, but rather to a rational basis, and that the government could provide subsidies for the Kennedy Center, the Smithsonian Institute, things of that sort.

Unknown Speaker: Well, why is this different?

Could Arkansas provide a subsidy to have a sporting show in Little Rock?

Mr. Wilson: Yes, I think it could, yes.

Unknown Speaker: At which there would be, you know, speeches and all the communication that goes with that.

It's essentially a communicative activity.

Mr. Wilson: Certainly.

Unknown Speaker: Well, why can't it foster the sales of sporting magazines then, if it wants, so long as it's not trying to stamp out your magazine?

Mr. Wilson: Well, it probably does subsidize the Razorback magazine or something like that, in that there is probably a sports publication at the University of Arkansas which is subsidized by the state.

The state subsidizes student newspapers and things of that sort.

It's a very common thing to do that, and that's certainly very different from something which burdens people, you know, that are similarly situated, people in the same marketplace.

Unknown Speaker: But they're not burdening anybody.

They're just granting them an exemption.

You mean it would be okay if they taxed all of them and then gave money only to sports publications?

That would be all right?

But the vice here is, instead of collecting the tax from anybody and then handing over some of it to sports publications and the other ones that they mention, they simply short-circuited it and they said, instead of, you know, having it come back in and out, just don't pay the tax?

That's what's wrong?

But they could have done the same thing had they imposed the tax generally and then distributed a subsidy?

Mr. Wilson: Well, I think a systematic program of the government where it systematically favored publications that espoused a particular point of view and then denied the same benefits--

Unknown Speaker: Not a particular point of view, a particular subject: sports, I don't know, politics.

The federal government requires special provisions to be made for matters of public interest by radio and television stations.

Isn't that content discrimination?

Mr. Wilson: --Well, again, it's an enhancement rather than a burden on some elements of speech.

It's really just... it's just a different classification of... you know, there's kind of two lines of cases, and one is where the government is allowed to enhance, you know, something like the Smithsonian or the veterans organizations in Regan versus Taxation with Representation; and on the other where it burdens one element of the press versus another, as in Minneapolis, as in the Minneapolis Star case.

This really falls clearly into the areas where the government has sought to distinguish, to burden, one speaker and allow another not to be burdened.

I don't think--

Unknown Speaker: It's a general tax.

It's not a tax just on your company.

It's a general tax.

What they have given is a benefit to some special magazines.

Mr. Wilson: --Well, of course, the benefits that they've granted are such that I still assert one publication is singled out for taxation, where every other publication is exempt from taxation.

One thing I wanted to mention that's just an example of how, well, really irrational these classifications are is again, you know, who decides what a trade publication is?

I guess the state of Arkansas does, some official with the department of finance and administration.

Take a computer publication.

Some people use computers in connection with their hobbies and some people use computers in connection with their trade or business.

Now, should a computer magazine get an affidavit from a subscriber as to whether he is purchasing it for his trade or purchasing it for his hobby?

You know, and of course in the sports category, Arkansas Times publishes plenty of articles about sports; it publishes religious articles.

Because it doesn't publish enough religious articles, the state wouldn't classify it as a religious publication.

Unknown Speaker: But you don't really know that, do you?

You don't know whether, if you submitted those arguments to the state, whether you might be able to get an exemption?

Or did you make that argument to the commissioner?

Mr. Wilson: We did not argue that it was a religious publication or a sports publication, no, Your Honor.

We stipulated with the state that it was not any one of those four classifications and that it was not a newspaper.

And I might add in that regard, the state now wishes the case remanded for development of further facts.

That was a joint stipulation that was agreed to.

Both sides felt that all the facts that were necessary for the court to decide the case were in the record.

And the facts as they are in the record do clearly show that the state had no interest and no justification in making the distinctions that it's made in taxing publications.

If there are no further questions.

Chief Justice Rehnquist: Thank you, Ms. Wilson.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

East River Steamship Corp. v. Transamerica Delaval Inc. - Oral Argument

Fri, 09 Jan 2009 14:48:36 +0000

Case:

East River Steamship Corp. v. Transamerica Delaval Inc.

Media File:

84-1726_19860121-argument.mp3

Related Transcript:

1985_84_1726_argument.xml

Transcript:

ORAL ARGUMENT OF THOMAS E. DURKIN, JR., ESQ. ON BEHALF OF THE PETITIONERS

Chief Justice Burger: Mr. Durkin, I think you may proceed whenever you are ready.

Mr. Durkin: Mr. Chief Justice, may it please the Court:

All of the circuits that have addressed most of the questions that are here under consideration indicate agreement on certain aspects.

One, all circuits agree that admiralty law is applicable to this type of claim.

All of the circuits also indicate their full agreement that strict liability in torts is applicable in admiralty cases.

Four of the five responding circuits had enunciated a rule relative to the damages that are pleadable and collectible in a strict liability and tort claimed under admiralty.

One circuit assumes a different posture.

Before I address specifically the question involved, I would most respectfully invite the Court's attention to two or three, quote, "facts" as set forth in the opinion here under consideration and of the Third Circuit which do not seem to comport with the record upon which those particular findings were made.

And the most grievous, if I may refer to it as such, is the references in the opinion written by Judge Hunter that the one ship involved, the Bay Ridge, never left the dock.

Indulge me for a moment to succinctly outline the differing factors of the first of the three ships and the Bay Ridge.

The episode all started by the problem that was encountered by the Stuyvesant.

At the time the Stuyvesant encountered that particular problem, there was then under construction at a shipyard in Brooklyn the Bay Ridge.

The shipyard that constructed the four of these supertankers was the same.

The supplier of the turbines that were installed in these particular supertankers was also the same.

Now, at the time the Stuyvesant experienced its problem, there was a decision made... The basis for the decision I will review very shortly... that the circumstances required an exchange of the ring that was then at the Bay Ridge, and have it transported for installation into the Stuyvesant.

Thereafter, as far as the Bay Ridge was concerned, there was manufactured a ring different than the original four rings, which newly constructed ring incorporated the recommendations of these plaintiffs' experts, and that ring was thereafter installed in that Bay Ridge.

It is that plaintiff's position relative to the Bay Ridge that at the time that Bay Ridge left that shipyard and while it was en route to its destination, the problem encountered by that ship had absolutely nothing whatsoever to do with the manufacture of the ring.

What happened, at the time that properly constructed ring was being installed in that turbine of the Bay Ridge, some of the appurtenances that had to be installed in order for that turbine to be functional, more specifically a guardian stern bow, was installed in reverse and this installation occurred under the supervision of the representatives of Delaval.

As a result of that valve being installed in reverse, improper steam got into that turbine and it was the improper steam that got into that turbine that caused the disintegration of the components of that particular turbine.

At the time of the episode with the Bay Ridge, when that ring was taken out it was thereafter, it being the first ring, it was thereafter installed in the Stuyvesant.

Now, it may be appropriate now to note that the opinion of the Third Circuit, the Third Circuit made mention on page 7, part of it is carried over to page 8 of its opinion, that the plaintiff did not seek to order a new part from Delaval but in lieu of doing that, obtained the ring out of the Bay Ridge.

Unidentified Justice: Are you asking us to make some factual determinations in this Court that... don't we take the facts as we find them in the court of appeals opinion, or not?

Mr. Durkin: Well, on the point that I just mentioned, I thought if the fact would be a fact obtainable from the record and the specific circumstance, in the court of appeals opinion... the court of appeals expressly states that it's making its findings on a hypothesis that that ship never left the pier.

That ship not only left the pier, but that ship was in the middle of the ocean when it encountered this difficulty, when it was in total distress.

And that was never a circumstance--

Unidentified Justice: I don't know that you... I thought we were just going to deal with the questions you raised in the petition for certiorari.

Mr. Durkin: --I am, sir, but there are two.

That one has to do with the question of the negligence, and the other has to do with the specific circumstance of the applicability of strict liability and tort.

Now, what is suggested by the question that's submitted, factually outlined, is this.

May the manufacturer of a turbine, which turbine is to be the power unit of a 225,000 [= DWT] ton tanker, represent to the shipyard that if that manufacturer can supply a turbine to that particular ship so as for that ship to acquire propulsion, and thereafter when that ship is completed and that ship is sold and that ship is chartered, should that charterer as was the fact here, be responsible without redress to collect in damage approximately two million dollars paid by these plaintiffs to this defendant, Delaval, for that defendant then to do that which that defendant was obligated to at the time of the particular initial construction.

Differently stated, the split in the circuits seems to suggest, according to the Third Circuit, this plaintiff may not collect this type of damage in strict liability in tort, even though the damages that were caused to this particular charterer are without question damages caused by the negligent or improper construction of the turbine at the time of original construction.

There has been much suggested in all opinions relative to this phrase, "economic loss".

The damages that were sought to be collected here were basically four in nature.

One, those monies paid by these plaintiffs directly to Delaval, an amount just the right side of two million dollars, which monies were paid to Delaval to do to those rings that which the law imposed upon Delaval to do in the first place.

Two--

Unidentified Justice: Well, that's ordinarily a contract measure of damages.

Isn't that ordinarily a contract measure of damages, what you just talked about?

Mr. Durkin: --No, sir.

No, sir.

There is nothing here involving quota contract.

This charterer--

Unidentified Justice: But you just described something in terms of a failure to perform, I thought, and that is ordinarily a contract concept.

Mr. Durkin: --Let me state it again, sir.

That which this plaintiff paid to that manufacturer, the amount I refer to, roughly two million dollars, was for that manufacturer to give to that charterer a turbine which that manufacturer, not by means of contract but by operation of law was required to supply in the first place.

Unidentified Justice: You've stated it three times but you haven't made it any clearer to me.

Mr. Durkin: At the time that the turbine was originally manufactured, extra to any contract term, the requirement of that manufacturer was to manufacture a product--

Unidentified Justice: Why was it the requirement on the manufacturer?

Mr. Durkin: --Sir, I'm sorry?

Unidentified Justice: You say there was a requirement on the manufacturer to manufacture in a particular way.

What's the source of that requirement?

Mr. Durkin: Well, the particular turbine was manufactured in New Jersey and the law of new Jersey imposes an obligation upon a manufacturer of a particular commodity, which commodity is thereafter to be introduced into the general course of commerce, a conduct to make that particular turbine reasonably safe.

Unidentified Justice: So then, the Admiralty borrows New Jersey law in that respect?

Mr. Durkin: Well, I won't say, sir, that they borrow the New Jersey law.

Unidentified Justice: Well, then why did you mention New Jersey law?

Mr. Durkin: Only, sir, because you asked me a specific question.

The turbine was manufactured in New Jersey.

Unidentified Justice: But certainly, this case was tried in Admiralty, wasn't it?

Mr. Durkin: Yes, sir.

Unidentified Justice: Well, then if there is a requirement on the manufacturer to make the turbine this particular way, as you say it is, and you say the source of the requirement is from the New Jersey law, Admiralty must be borrowing New Jersey law, isn't it?

Mr. Durkin: Well, not only New Jersey law.

Admiralty has invoked the laws of many land-based authorities on the same question, not solely limited to New Jersey.

New Jersey law comports with many illustrations of the federal court in exercising admiralty jurisdiction, adopting in certain phases of admiralty law, law that's followed by certain state jurisdictions.

Now, when this plaintiff, this charterer, experienced the circumstance that it experienced, if that charterer was required to expend monies, actual dollar expenditures, two million of which went to the defendant for the work that was required to be done by the defendant on the particular turbines involved, in addition--

Unidentified Justice: Mr. Durkin, could I interrupt you.

I have sort of the same problem Justice Rehnquist has.

Wasn't there a general contractor, in effect, involved?

They didn't deal directly with your client and Delaval, did they?

Mr. Durkin: --When you say "they", sir, I'm not following.

Unidentified Justice: Your client is the charterer, right?

Mr. Durkin: My client, the charterer--

Unidentified Justice: That ordered a ship built by somebody.

Mr. Durkin: --No, sir.

No, sir.

The entity that ordered the ship under contract with the shipyard was an entity totally disassociated from the plaintiff in this case.

Unidentified Justice: How did the plaintiff get involved, then?

Mr. Durkin: The plaintiff in this case thereafter, after a sequence of transfers of title, my clients chartered, bareboat chartered that vessel from the then owner.

And under the term of the charter and during the term of the charter, anything that happens to that ship, I, the charterer, assume the responsibility because I take it in an as-is condition.

When the circumstance occurred involving the Stuyvesant it was the charterer, not anyone else, who had to attend to the repairs and--

Unidentified Justice: So, the two million dollars you're talking about is repair cost, not original cost?

Mr. Durkin: --Oh, yes, sir.

Unidentified Justice: I'm sorry, I didn't understand.

Mr. Durkin: Only part of the repair costs that were encountered by the charterer in getting the work done.

In addition to that two million dollars the charterer had to pay more money to the shipyard.

Unidentified Justice: So, you're saying you're a subsequent owner of a ship that was defectively constructed and you say, just like I buy a used car that somebody, when they originally built it, built it improperly, I can sue the person who made the original mistake?

Mr. Durkin: If in your hypothesis you suggest that the new car--

Unidentified Justice: Used car.

Mr. Durkin: --Used car was a day or two old, because at the time my charter commenced, my charter commenced the day that ship left that shipyard.

Unidentified Justice: And your only contractual relationship was with your immediate predecessor in title?

Mr. Durkin: Absolutely.

Unidentified Justice: Not with the shipyard?

Mr. Durkin: No, sir.

Unidentified Justice: Was this a barebottom?

Mr. Durkin: Sir?

Unidentified Justice: Barebottom charter?

Mr. Durkin: Yes, sir.

Yes, sir.

Unidentified Justice: A barebottom charter and a charter of an automobile are two different animals.

Mr. Durkin: I'm sorry, sir.

I didn't get the second part.

Unidentified Justice: The barebottom charter and the leasing of an automobile are two different animals.

Mr. Durkin: Oh, absolutely.

Oh, absolutely.

The lessor in no way... the illustration of the automobile has any right of title.

Under your prior holdings in many, many cases, I as a bareboat charterer for purposes such as these maintain a position for these purposes as if I were the owner.

Now, in order to get Delaval... that's not the correct way to say it--

Unidentified Justice: And the owner's position, the owner would have had a contractual relationship, not with Delaval but with the builder of the boat?

Mr. Durkin: --Yes, sir.

Unidentified Justice: The boat or the ship, pardon me.

Mr. Durkin: That is correct.

Now, the owner, GECC, had no damage because GECC through the trust company got from me as the charterer the per diem or the weekly or the monthly amounts that it was required to get under the charter, whether or not the ship was operational or non-operational.

They sustained no damages.

The only one here who sustained the damage was the charterer who had absolutely nothing to do with the building of the ship or the entering into any contract for the acquiring of the turbines or anything else.

Now, in addition to the two million dollars, I say that in round figures, in order to put the ship in a condition for that particular work to be done, the charterer had to pay the shipyards hundreds and hundreds of thousands of dollars on top of that to equip the ship so as for the work that was required to be done on the turbine's done.

And, sir, the third claim of the damage that comes is the amount that we had to pay to the owner under the term of our charter, and the fourth claim of damage would be that amount that we would be able to collect from our time charterer on our time charter in this case, specific case with Sohio.

Now, there in the fourth--

Unidentified Justice: What contractual remedy would you have against the owner from whom you chartered the ship?

Mr. Durkin: --None, sir.

Unidentified Justice: Because you didn't bargain for it or something, or what?

Mr. Durkin: Well, I'll give you the exact fact.

In most... I have to say most because my experiences with charters are limited, but I have never yet seen a charter of this type where the term of the charter document itself did not require the time charterer to accept the particular vessel in an as is condition.

Unidentified Justice: Well, you just gave up any... you just took the risk that it was, then?

Mr. Durkin: The risk as between myself and the owner?

Unidentified Justice: Yes.

Mr. Durkin: I would think so, but I'm not so sure, even if I didn't do that, under the facts of this case the owner would assume any of the responsibilities that are imputable to Delaval because that owner bad nothing to do with the particular contract for the acquiring of those turbines.

That was all done with the shipyard, and the shipyard in turn had a contract, which contract was assigned in this particular case to GECC via a trust holding, and it was from that particular entity that the charter was enunciated.

Unidentified Justice: Could you just clarify one other thing for me?

Mr. Durkin: Surely, sir.

Unidentified Justice: Does the charterer in this situation get a contractual protection from anybody that the ship is seaworthy?

Does anybody give any... when you say, take it in as is condition, they just take the entire risk that something's wrong with it?

Mr. Durkin: No, it isn't that... there is nothing in the charter, and the charter of course is part of the record, that I can invite your attention to, that would permit the charterer to claim against that owner because of any claimed defect.

I can't go that far as to say that there wouldn't be impossible as a matter of law upon that type of a contractual arrangement, that the ship--

Unidentified Justice: No, I didn't mean... I'm trying to stay away from legal obligation, just contractual.

You mean the... your client in a situation like this enters into a transaction like this with no contractual protection against the danger that the ship may be full of holes or something like that?

Mr. Durkin: --Well, sir, that presupposes that the charterer didn't conduct the usual full inspections prior to the time--

Unidentified Justice: But he relies just on the visual inspection of the ship and so forth, and then takes the risk?

Mr. Durkin: --No, sir.

It's not solely on the visual.

These type of inspections are in depth.

Unidentified Justice: But, I mean, he doesn't have any contractual protection, that's what I'm asking, so he has to insure against this risk, is the only thing he can do?

Mr. Durkin: Well, it would be almost impossible to even understand what the particular risk that would be the subject of the particular coverage involved.

Here the question is going to hone itself down--

Unidentified Justice: Did something go wrong with the turbine, might be one risk.

It's what happened, isn't it?

I mean, it's not totally unforeseeable there'd be something wrong with the product?

Mr. Durkin: --No, and when you say it's not unforeseeable, I guess that would also include the manufacturer who represented that if the manufacturer could build turbines to the specification of those new tankers being built.

Now, here's a circumstance where a subsequent charterer, a subsequent charterer who absolutely, no fault of his, absolutely no fault of his, is required to expend very substantial monies to repair a turbine which by all allegations was improperly manufactured.

Now, according to all of the circuits except the Third, that charterer should not be put in that particular position and that charterer should be able to claim, if his proofs are sufficient to sustain the proofs required in a damage claim.

The Third Circuit says that those particular claims are not collectible because in varying ways they say the turbine doesn't fit into that classification of unreasonable risk.

Unidentified Justice: It wasn't a safety question and it didn't threaten persons or property?

Mr. Durkin: Yes, sir, and I have yet to ever hear, sir, yet to ever hear one man who's ever been at sea and had the power unit go out on a ship and thereafter indicate that that wasn't safety... or an unusual risk involved.

Any time, as was suggested--

Unidentified Justice: Even if it were, though, that wouldn't justify collecting economic loss for the delay or loss of profits?

Mr. Durkin: --I'm sorry.

Would you say it again for me, please.

Unidentified Justice: What kind of... the Third Circuit said you couldn't collect economic losses.

Mr. Durkin: The Third Circuit held this, that unless there is damage done other than the damage to the turbine or personal injury, no matter what else is involved, in this circuit you cannot maintain this type of action.

Now, the Third Circuit for the first time seems to further restrict the rule that may have been claimed in certain state courts.

Certain state courts seem to indicate, including Sealey in California, that the damage that they require as a condition precedent to maintaining this action is a personal injury to someone other than the plaintiff, or property damage other than to this plaintiff.

The Third Circuit specifically, not only in Judge Hunter's opinion but also in Judge Becker's opinion, indicates that it must be the particular plaintiff involved that must add that additional property damage or that personal injury, and as is obvious, any time that you have a--

Unidentified Justice: Well, don't you think the Third Circuit thought it was merely following what the general rule was in situations like this, not just in Admiralty but in other actions?

Mr. Durkin: --I can't really respond--

Unidentified Justice: In manufacturer's liability or product liability cases?

Mr. Durkin: --Well, the Third Circuit did say that they were adopting what they perceived to be the majority rule for on-land cases.

Unidentified Justice: Right.

Mr. Durkin: But one of the things that's intrinsically--

Unidentified Justice: Do you challenge what it thought the general rule was?

Mr. Durkin: --Only in this respect, the general rule as I understood it previously--

Unidentified Justice: In product liability cases on land.

Mr. Durkin: --Only in product liability cases on land, if somebody other than the plaintiff were to be injured as a result of the involved episode or somebody else's property were to be damaged as a result of the particular episode, under those cases I read them to mean that that would satisfy the condition precedent.

As I read the Third Circuit, the Third Circuit and specifically in Judge Becker's opinion, he puts in, in italics before, that where plaintiff... that there has to be additional property damage to the plaintiff and additional or personal injury to the plaintiff in order for the condition precedent to be established and maintained.

Unidentified Justice: Well, that narrowing is sort of irrelevant to this case, isn't it?

Mr. Durkin: Well, everything is irrelevant to this case factually because there has never been a contention throughout that if the rule of the Third Circuit that the risk is not the test but the occurring of the actual damage is the test, there has never been a contention in this particular case that even with the steam emissions and so forth that there was in fact anybody who sustained personal injury nor was there any particular property damage.

So, if that particular rule of the Third Circuit were to be adopted as the rule with Admiralty, any other fact involved would have no consequence whatsoever.

And if I may, I would reserve the remainder of my time, please.

Chief Justice Burger: Mr. Smith.

ORAL ARGUMENT OF ROBERT E. SMITH, ESQ. ON BEHALF OF THE RESPONDENT

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

The issue before the Court is whether under federal maritime law damage to a product caused by a design defect is recoverable in tort.

The product in this case is the main propulsion units for four vessels.

Both the district court and the Third Circuit en banc held that petitioners do not have federal maritime tort claims.

Now, I would like to say at the outset that although the case is within the Court's federal maritime jurisdiction, essentially in our view it is about a non-functioning product.

It happens to arise in a maritime context but it has no other particular maritime flavor.

What is involved here is an interface between product liability law and contract law, particularly exemplified by the Uniform Commercial Code.

And what we are doing in this case is asking this Court to follow the Third Circuit in adopting as the rule the majority rule in land-based courts.

This type of case has been handled--

Unidentified Justice: For both strict liability and negligence?

Mr. Smith: --Yes, sir.

Unidentified Justice: In this kind of a case, like a design defect in a product?

Mr. Smith: Exactly, Justice White.

We draw no distinction between strict tort liability for negligence and product liability law, that's correct.

This is exactly the type of tort that appellate courts in both the states and federal appellate courts have dealt with many times.

It is not an unusual matter.

It is a routine matter for them, and what they have held in the overwhelming majority of jurisdictions is that recovery is denied in tort where a product itself simply fails to function properly but is not unsafe.

In these circumstances, they leave the parties to their contractual remedies.

At the commencement of this action there were ten plaintiffs.

In addition to the four petitioners there Sea Train Lines which is a large, substantial corporation, its wholly owned subsidiary, Sea Train Shipbuilding which built the four vessels involved and which contracted to have them built with the respondent, four wholly owned subsidiaries of Sea Train Lines which were the original owners of the four vessels involved.

Respondent had an extensive agreement with Shipbuilding for the design and manufacture of the main propulsion units.

The contract contained an express warranty.

It disclaimed any warranties other than the warranty expressly set forth.

It provided for certain remedies such as repair and replacement.

It expressly excluded liability for consequential damages.

Respondent moved for summary judgment and on the motion asked for dismissal of the breach of contract and the breach of warranty claims on the basis of the statute of limitations and various contractual provisions which limited plaintiff's remedy, and the disclaimer of warranties other than the warranty that was expressly granted under the contract.

The claims, Sea Train Lines Shipbuilding and the four other Sea Train subsidiaries which are not now before the Court, all were dismissed with prejudice.

In addition, all the contract claims and warranty claims were dismissed with prejudice.

Therefore, we had... the current owners, as you know, are not before the Court, so what we have is that the four petitioners, the present charterers of the vessels, are the only remaining plaintiffs and their claims are exclusively in tort.

All of their contract and warranty claims have been dismissed on the merits and with prejudice.

There are five counts in the complaint that this Court is asked to review.

The first four counts involve a particular component of the main propulsion units for the guide bucket ring, and in each of these counts which relates to a particular vessel, that each of the charterers is a charterer of one of those vessels, the complaint is that there was a malfunction of the guide bucket ring.

On the fifth count one of the owners claims... this is the Bay Ridge which is the ship that's involved in counts four and five... there was a negligence claim, the only negligence claim before you, and the claim is that the respondent failed to supervise the installation of the stern guardian valve which was installed in reverse.

And I would just point out as an aside, the record reveals that the Bay Ridge was the fourth ship built.

The same part had been installed properly by Sea Train Shipbuilding in the three prior ships.

In any event, the damage was confined to the main propulsion units themselves in all of these counts, but consisted only of internal deterioration and breakdown.

There was no damage to persons or other property.

There was no unreasonable risk of harm to persons or other property.

And as Mr. Durkin has candidly said, what is sought here is consequential damage in the form of nature of cost and replacement and lost profits from down time, primarily.

Unidentified Justice: At least on the negligence side of it, what do you do about Ingram River Equipment, in that case?

Aren't there some courts of appeals that have looked the other way in this--

Mr. Smith: Your Honor, we do disagree with Ingram River and Ingram River has permitted recovery in federal maritime law for negligence.

I should say, Your Honor, that the judge there also stated by fiat that he disagreed with the Third Circuit.

Ingram River followed the decision of the Third Circuit.

And without any extensive reasoning, he disagreed with them.

But let me--

Unidentified Justice: --How about any other circuits?

Mr. Smith: --On negligence, Your Honor, I think that there is no other case in point.

Unidentified Justice: How about strict liability?

Mr. Smith: Strict liability, the only case in point is Emerson Diesel in the Ninth Circuit, and Your Honor, I think neither of those cases are ones with which we would agree.

And I would point out that neither one involves an analysis of the--

Unidentified Justice: Well, that may be, but they don't agree with you either.

Mr. Smith: --They don't agree with us.

That's absolutely so.

Your Honor, I could... I don't want to go off onto either Ingram River or Emerson unless Your Honor wants me to go off onto them.

In the presentation what I intend to do is raise the arguments that I think they themselves in their opinions don't adequately state, and we believe we have satisfactorily distinguished them in our briefs.

Your Honor, the construction of the Stuyvesant which is the Stuyvesant ship and its events are the seminal events in this case.

The Stuyvesant's construction was completed in 1977, and I should add that the construction contract which I described before is a 1970 contract.

In December '77, as the Stuyvesant was entering the port of Valdiz in Alaska, it had a steam escape problem of some dimension.

The problem was solved in the port.

There is no allegation that that steam escape problem led to any damage of any kind.

The Stuyvesant then proceeded to load the oil on the ship and proceeded two days later on its voyage down to the Panama Canal.

On that voyage it experienced a problem with its turbine, and I want to say that I heard in the opening argument a reference to a ship without power being in trouble.

The Stuyvesant was not without power.

The Stuyvesant operated at a substantial amount of power at all times.

What occurred with the Stuyvesant was that it was not able to attain its normal speed.

The record shows that the guide bucket ring and the main propulsion units did not function the way they were supposed to function.

There was a malfunction of the main propulsion unit.

But even as it is suggested on the record that the Stuyvesant encountered high seas and some drifting on this voyage down the West Coast off the Panama Canal Zone, nevertheless it made sufficient headway even in a storm that is described by petitioners as having some severity, it had enough power to weather the storm and it made the voyage successfully and in fact off-loaded its oil at the Panama Canal Zone and then proceeded back without incident to the port of San Francisco.

Unidentified Justice: Well, Mr. Smith, is the test there one of risk or one of whether the risk materialized?

Mr. Smith: Your Honor, I think that the test really is one of risk.

I agree with the test enunciated by the Third Circuit, and as I understand the majority of land-based rule, one could have a risk without the harm occurring.

It is very difficult, I think in most instances, to imagine liability without harm actually occurring but I suppose it would be conceivable under some circumstances that risk alone might give rise to liability.

But, Your Honor, both the district court and the court of appeals for a practical matter have determined that there's no triable issue as to risk.

They have so held.

So, I really don't think that that is left in this case.

When the Stuyvesant reached San Francisco an inspection of the engine revealed damage to this guide bucket ring, and it was then replaced as we know with a part from the Brooklyn.

That part did not perform terribly well.

The Stuyvesant resumed operation with it.

There was no further malfunction, but ultimately the guide bucket ring was replaced with a newly designed guide bucket ring.

That was the story of the Stuyvesant, and really it is the only ship which involves much of any incident at all.

As far as the counts two and three of the complaint at concern, they involve the ships which we call the Brooklyn and the Williamsburg.

Both of these ships have been constructed prior to the Stuyvesant.

They were older ships.

They had already seen substantial service at the time that the Stuyvesant encountered the high seas leaving the port of Valdez.

These ships never had a malfunction.

They never had any problem with their engines.

After the Stuyvesant incident, and only because of the Stuyvesant incident, both of these ships had their engines opened in port and there it was discovered that there was a low level of deterioration which one could contend showed that they had the same problem as the Stuyvesant guide bucket ring.

Those guide bucket rings were replaced with newly designed guide bucket rings, ultimately.

Simply nothing happened.

There was simply repair and replacement of the guide bucket rings.

Unidentified Justice: At some expense?

Mr. Smith: At some expense.

But, Your Honor, let me be quick to say that in our view the case is not a case of a question of damage.

It's a question whether there's a valid tort claim.

The fourth count, Your Honor, involves the Bay Ridge and again involved an alleged defect in the guide bucket ring.

May it please the Court, the Bay Ridge never left port with a defective guide bucket ring.

It was the last ship built.

Since it was built after the Stuyvesant incident, all that happened was that by the time it left port it had the newly designed guide bucket ring.

Nothing ever happened on the Stuyvesant.

There is simply no allegation concerning the Stuyvesant that could give rise to liability, and that also was so held by both the circuit court.

Unidentified Justice: You mean, the Bay Ridge?

Mr. Smith: Excuse me, the Bay Ridge.

Unidentified Justice: Was the new ring installed on the Bay Ridge the one that was installed in reverse?

Mr. Smith: No, Your Honor.

I have not been to sea, I would suppose, any more than Your Honor may have been.

The guide bucket rings, as I understand it, are not related to the fifth count.

The fifth count is in a stern guardian valve which is separate and distinct, but part of the main propulsion unit.

They're both parts of a main propulsion unit.

No one has claimed that the guide bucket ring... excuse me, that the stern guardian valve was defective in any way.

It was simply installed in reverse.

I want to make one further point, if I may, and that is that as far as we're concerned the Richmond, which is the petitioner involved on the fourth count, simply has no standing.

The record discloses that the guide bucket ring problem occurred in the past during 1978 and the Richmond became the charterer of the vessel on March 15, 1979.

Unidentified Justice: But your major issue as you see it, I take it, is whether there is any tort remedy at all in this case or whether there's either a contract remedy or there's nothing?

Mr. Smith: Yes.

Unidentified Justice: Well, it is arguable, I suppose, that on count five there is a valid negligence claim?

Mr. Smith: Your Honor, I don't believe so under the majority land-based rule which was applied by the Third Circuit, and that is that once again the damage that we're talking about, the cause of the negligent, or the alleged negligent installation, and in our case supervision of the stern guardian valve involved deterioration and breakdown of that valve, of that part, same as the guide bucket ring that deteriorated.

There's no one tort incident.

There's no collision.

And in fact, as part of the record there's the deposition of the former machinery superintendent of the--

Unidentified Justice: Wouldn't that be foreseeable, that there'd be some down time to replace it and do the work over?

Mr. Smith: --Your Honor, as I understand the majority rule, and I think it's really quite clear on this point, it isn't the possibility that the damage could occur.

It is the risk and the high potential of risk.

Unidentified Justice: Well, isn't it totally foreseeable that if it's installed in reverse that it will require down time to correct it?

Mr. Smith: Your Honor, but that's not the risk that the rule is speaking of.

The rule is seeking to demarcate between contract and tort law and it doesn't focus on the damage.

It's the risk... what the rule seeks to demarcate is a high probability of a safety risk, not that there will be damage and losses, but that persons or property other than the product itself will be damaged.

That's the risk that is talked about.

Unidentified Justice: It just seems like count five is just an ordinary, garden variety negligence claim.

You install something negligently and it's entirely foreseeable it will have to be done over again.

Mr. Smith: Your Honor, I don't think there is any safety implication to the fifth count.

Unidentified Justice: But why should you import this product liability type of limitation into what Justice O'Connor seems to me to rightly describe just as a straight negligence count?

Mr. Smith: The reason, Your Honor, would be that that is in fact the majority rule on land.

Unidentified Justice: Well, does it have anything better to commend it?

Mr. Smith: Your Honor, I think it does.

I think there are very substantial reasons to commend it.

The fact of the matter is, and I think it's the reason for the majority rule... I think the majority rule is well based.

There's a reason for distinguishing between the contract interest to be protected and the tort interest to be protected.

The reason, I think, Your Honor is... and I must say this, is because the contract expressly protects against economic expectations and damaged economic expectations.

The tort is a rule that is implied in law.

The law imposes it on people to protect against safety defects.

But if there's no safety defect, Your Honor, what we say is that this area should be left to the parties in a private bargaining context.

And, Your Honor, this case exemplifies it in many ways.

To begin with, we were party to an extensive contract and there's no doubt that all the parties in this case are substantial commercial entities that can protect themselves and bargain for the types of terms and conditions they thought were appropriate.

In this case we were subject to such a bargain, and we made such an agreement back in 1970.

All those contract claims, all those warranty claims, have now been dismissed without prejudice.

We are being asked to function almost as a--

Unidentified Justice: Without... I thought you said with prejudice.

Mr. Smith: --With prejudice.

Unidentified Justice: Is that because of the statute of limitations that run?

Mr. Smith: We had moved on that ground.

What actually happened procedurally is that after the motion had been made on that ground, and on other grounds such as contractual grounds that the warranties expired, what occurred was that the petitioners served their second amended complaint.

It did not contain those claims.

They themselves elected to go forward on the complaint that is now before the Court, which is exclusively a tort claim, and at that time the Court entered the order dismissing all contract and warranty claims as matter of law, with prejudice.

So that, what we say is that contract properly protects the expectations of the party.

Tort properly protects against the risk of harm that might be caused by a product.

And in this particular case there is no risk of harm.

What we're talking about is the contractual area.

And I want to make one further point, which I think Justice Stevens was asking the counsel for the petitioners about.

The charterers had an opportunity to protect themselves by contract and they entered into an extensive charter agreement, one charter for each of them, which is contained in the record and that charter allocates the very risks that we're talking about here.

As a matter of fact it requires, if it is true that under the charter the charterers are required to make the repairs to the vessel, but that was a bargained for matter.

It was a matter that was within the realm of contract.

So, there can't be any credible claim but that the exact claim that is made here could not have been protected as a matter of contract right.

Unidentified Justice: Would they acquire the right to assert any warranty claims that their predecessors in title could have--

Mr. Smith: I don't believe so, Your Honor.

I don't think there's anything in the record about it.

Unidentified Justice: --May I ask one other question.

I understand your argument about, the contractual remedy should cover both the negligence and strict liability claims, but basically it's the same argument.

But I'm not quite sure I understand fully your answer to your opponent's argument that the power failure on an ocean-going vessel, almost by hypothesis, could create a serious risk of harm or at least enough to withstand summary judgment motion.

Mr. Smith: Well, I'm glad Your Honor asked that question.

I thought I had responded.

There was not a total power failure, Your Honor.

Unidentified Justice: Well, I understand that, but was not there a risk... if we're talking about risk rather than actual events, would not a manufacturing defect of this kind create a substantial risk of a total power failure which in turn might create the risk of a navigation hazard?

Mr. Smith: I don't think so, with the immediacy, Your Honor, that tort law implicates.

There are cases involving... the most innocuous type of product can be dangerous in some contexts, and the courts don't permit plaintiffs by conjuring up what might happen to make a claim in tort.

And there are a substantial number of cases which we cite in our briefs involving engines, including airplane engines, and the courts have found that unless there's some sort of immediate, very very concrete and severe risk of harm, that you're not stating a case--

Unidentified Justice: Let's assume there is this kind of a risk, or there is an actual damage to the person or the property so that this so-called precondition is satisfied.

What can you recover then?

Mr. Smith: --Your Honor, if there's a tort claim, we're not arguing against it.

We're not claiming that the type of damages that are sought here could not be claimed in a tort action.

What we say is that the petitioners don't have a tort claim.

Unidentified Justice: Do you think if somebody had been hurt by this defective design--

Mr. Smith: Yes.

Unidentified Justice: --then you think all of these damages could have been recovered?

Mr. Smith: Your Honor, that would be for a trial.

The discovery in the case--

Unidentified Justice: Well, I'm just asking you.

Mr. Smith: --As a kind of damage in tort?

I doubt that even then, it could be recovered.

Some of them seem to me not to follow up with tort theory at all.

They seem to me to follow from breach of contract.

Unidentified Justice: What about loss of profits, and things like that?

Mr. Smith: It would be extremely difficult, it seems to me, to recover it in court, certainly debatable.

Unidentified Justice: So, it may not make any difference what kind of an action this is, with respect to the recoverability of some of these damages?

Mr. Smith: I beg your pardon.

Unidentified Justice: It may not make any difference what kind of action it is.

Some of these damages may not be--

Mr. Smith: Your Honor is quite right.

I would not concede the recoverability of any of the damages specified, just as a matter of tort law.

But I do want to reiterate that in our view--

Unidentified Justice: --You just don't want to have to litigate it?

Mr. Smith: --Yes, Your Honor.

Unidentified Justice: That's a very apt and fair comment.

Mr. Smith: I did want to mention one fact as well that I think is very important, about the tort aspect and the incorporation into admiralty of the majority rule.

The majority rule, both in terms of strict tort and negligence, was incorporated into admiralty in a series of cases where the reason they were incorporated in was that the federal court, sitting as maritime courts, felt they were the better rule.

That's the reason they were incorporated into admiralty to begin with, so it seems to us only logical that starting with that premise, if those rules were incorporated in because they were in fact the widespread rules in the state, the version that is the majority rule ought to be incorporated along with them and not a disfavored rule.

On that, I want to point out to the Court that the leading case against us in the state courts has traditionally been the Santor case decided by the Supreme Court of New Jersey.

That has been the most aggressive case asserting that there can be liability when a product just is defective in quality.

It involved, in fact, a defective rug that didn't harm anybody.

It had waves in it that shouldn't have been in the rug.

The Supreme Court of New Jersey--

Unidentified Justice: What case is this?

Mr. Smith: --Santor, S-a-n-t-o-r.

Unidentified Justice: How long ago was that?

Mr. Smith: It's a fairly ancient case.

Unidentified Justice: Ancient as I am?

Mr. Smith: 1965.

But may I say, Your Honor, that in a decision this year, not in '86 but in '85, a full 20 years later, the Court has undercut Santor explicitly in Spring Motors which we cite in our brief, and has said that at least as between large commercial entities, claims involving defective products which don't present a safety problem, they're quality defects, should not give rise to tort liability.

And the Court is very explicit in its language, and as a matter of fact they say very succinctly in a quote that I think summarizes our position very well, they say, quote,

"underlying the UCC policy is the principle, the parties should be free to make contracts of their choice including contracts disclaiming liability for breach of warranty. "

"Once they reach such an agreement, society has an interest in seeing that the agreement is fulfilled. "

"Consequently the UCC is the more appropriate vehicle for resolving commercial disputes arising out of business transactions between persons in a distributive chain. "

That's precisely what we have here.

We have the distributive chain.

There are contracts between every link in the chain.

Everybody in the chain had an opportunity to bargain.

We say it would be unfair for us as a matter of tort law.

The contract that we entered into was a 1970 contract.

Quite a few many years later, to be held to a standard of guaranteeing that product when there's no safety implication but the argument is that the product was qualitatively defective.

Indeed, I would say that if the majority land-based rule isn't used, it's difficult to see where the function of tort law, or I should say where the function of contract law would really function in this area.

It seems to me that it would be tantamount to saying that the product manufacturer is a guarantor of this product.

There's another point that I want to make that I think also supports the view that the majority land-based rule should be used, and that is that in fact on the contract side, the Uniform Commercial Code which is what we're talking about predominantly on the contract side, has been adopted in 49 of the states and even in the 50th it has been adopted in rather substantial part.

This is an opportunity for the Court to determine the federal maritime law would be uniform with land-based law and I would point out that there's basically no difference between ship engines and car engines.

In many cases you have the same manufacturers of both kinds of engines.

In many cases the same engines are used in both applications.

The Third Circuit itself said, and I'm quoting them on this point,

"The charterers have not offered and we do not discern any persuasive difference between an action which seeks recovery for a defective ship engine and an action which seeks recovery for a defective car engine. "

"In both cases the law seeks to leave the parties to their bargain, while at the same time protecting consumers of both ships and cars from hazardous defects in the engines. "

And we believe that there is no persuasive rule for a different rule on land and sea.

Unidentified Justice: What about the fact a big, over the road truck or any other land vehicle has a defective engine and it just stops, no great risk except the driver or the people on it might get cold, but when you have a vessel at sea and the moving power stops, aren't you exposed to a great deal of different and greater hazard, the ship that's wallowing around with no steerage?

Mr. Smith: Your Honor, I think that every case of a claim of tort, one is going to have to look at the facts very closely.

Unidentified Justice: No, look at those facts.

The ship is out at sea and the engine stops and of course--

Mr. Smith: Your Honor, I think it depends upon what... first of all, let me immediately say that that's not our case.

I can't say too frequently that the power... all that happened in our case, and with only one of the four engines, we're talking about, is that it failed to attain full power.

It attained very substantial power because it powered right through whatever storm it reached.

The second question that Your Honor raises, which I regard as a hypothetical question, as to whether or not a ship bereft of any power on the seas, one would wish to know what seas they were in, whether or not there were tugs available to them.

Yes, there is some risk.

The question would have to rely upon the facts as to exactly how great a risk there is.

But your point you're making is, that is not this case?

Not this case, and it has been so determined not to be this case, Your Honor, by the Third Circuit en banc and the district court.

Unidentified Justice: --You say we apply the same rule for ship engines and automobile and truck engines.

What about airplane engines?

Mr. Smith: I would say the same with airplane engines.

I didn't mean to confine the engines to land and sea.

I think in all three instances, Your Honor... and I think it has the desirable effect that the manufacturers have some idea what their standard of liability is, their purchasers know, and that whole area is left to contractual bargaining, particularly as between large commercial entities.

It really seems to me that this is a matter that's better left to the area of contract law rather than tort law.

Unidentified Justice: Rarely have I seen a more confusing case.

Mr. Smith: There's one further consideration that I wanted to state, and that's frequently as a basis, the product tort liability law, the courts have said the manufacturer has a greater ability to distribute the risk.

I think once again that as between large commercial entities, that rationale doesn't really operate.

I think as between large commercial entities, they both have the ability to insure or to otherwise spread the risk to their customers in the form of higher prices.

That rationale simply makes no sense here.

And as a matter of fact, I would suggest that in many cases, actually the large commercial user of the product is in better shape to distribute the risk to the manufacturer.

It knows the particular use to which the product will be used.

It knows the particular voyages that will be undertaken.

It knows the particular hazards to which it intends to subject the product.

So, I think that that rationale doesn't hold up here at all.

We urge the Court to adopt the majority land-based rule.

We believe that at least as between large commercial entities, the user of a defective product who is complaining about the quality of the product below, should be left to his complaint in contract law and not tort law.

Commercial entities similarly situated should be left to their contractual remedies, those they can bargain for in the commercial context.

We say that unless safety is implicated, the tort principle simply shouldn't interfere with their contract.

We ask the Court to confirm that petitioners do not have Federal Maritime Court claims, and we ask that the judgment of the United States Court of Appeals for the Third Circuit, dismissing this action, be affirmed.

Chief Justice Burger: Do you have anything further, Mr. Durkin?

Mr. Durkin: Very briefly, sir.

In response to the questions that Justice O'Connor asked of my adversary, no matter what else we may disagree on, both of us fully agree that at the time that that Bay Ridge left that shipyard, that ring was 1OO percent good.

There was nothing wrong with that ring at all.

When that turbine was being installed, not under any strict liability in tort or anything else, there is a valve that's required to be installed to govern the input of steam to that particular turbine.

That valve was put in negligently.

It was put in, in reverse.

When that ship had traveled almost to Chile, because of that valve being put in wrong the turbine malfunctioned.

Our claim on that Bay Ridge couldn't be more addressed to a straight negligence cause of action if we tried.

And the only damages that we're claiming there are the damages that are permitted under any rule when that negligence is established.

And the second, and hopefully the last point, with Justice Rehnquist, we're taking a position throughout that the rule that should govern is the rule of the risk.

As long as the Third Circuit drafted a rule other than that, there is no way that we could rebel against the granting of a summary judgment.

What the circumstance or the applicability of that risk is, of course is a factual question, or record of which is never in the shape it should be at this particular posture.

If the Third Circuit's rule in rejecting the risk theory is that there must be the actual, then concededly there is positively not fact issue in this case.

There wasn't any injury, and there wasn't any additional damage.

But if the risk rule is to be adopted and applied in admiralty, then we respectfully request that the matter be remanded for a plenary hearing or fact determinations consistent with that participation.

ORAL ARGUMENT OF THOMAS E. DURKIN, JR., ESQ. ON BEHALF OF THE PETITIONERS -- REBUTTAL

Unidentified Justice: It sounds to me like you would not follow the land based rule?

Mr. Durkin: Land based rule, as to the question of risk, sir?

Unidentified Justice: Yes.

Mr. Durkin: No, no--

Unidentified Justice: That there's some special risk factor in admiralty?

Mr. Durkin: --No.

What I would like, to state it affirmatively, what I would like to do is to follow the same rule that the Fifth, Eighth, Ninth and Eleventh Circuits have followed, both as to the question as to the liability and the question of the damage, one of which was decided subsequent to the Third Circuit, the other three of which, and others were legion and there was some question as to whether or not it was restricted to fishing vessels.

But this which we are expostulating here today has been imbedded in maritime and admiralty law for a considerable period of time.

Thank you.

Chief Justice Burger: Thank you, counsel.

The case is submitted.

Unidentified Justice: The honorable Court is now adjourned until tomorrow at 10 o'clock.

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Featured:

Gray v. Sanders - Oral Argument, Part 1

Tue, 25 Sep 2012 22:32:51 +0000

Case:

Gray v. Sanders

Media File:

112_19630117-argument-1

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112_19630117-argument-1

Transcript:

Argument of B. D. Murphy

Chief Justice Earl Warren: Number 112, James H. Gray as Chairman of the Georgia State Democratic Executive Committee et al., Appellants, versus James O'Hear Sanders.

Mr. Murphy.

Mr. B. D. Murphy: Yes, Your Honor, may it please the Court.

This is an appeal from a decision by a three-judge District Court which held unconstitutional Georgia's statute describing the county unit system of nominating a party of candidates for state offices and enjoining the party of authorities against holding the primary of 1962 or any primary under a county unit system.

The history of the county unit system of Georgia is set forth to some extent in the opinion of the Court.

The law is also stated to some extent in the briefs of counsel.

It may be worthwhile for me to state it here as briefly as I may.

Georgia, of course, is one of the original 13 states.

When it became a state, it consisted mainly in a few certain areas along the Atlantic coast.

I've forgotten how many counties we had at that time.

Well, I think it was six or seven.

The state officers were elected by the legislature.

The Constitution assigned certain num -- a certain number of representatives to each county.

I think Liberty County had 14.

Some of the other counties had two, some had four.

The town in Port of Savannah had two that represent that trade.

The town in Port of Sunbury had two to represent that trade.

That was the legislative body.

As I say, the legislative body elected the county -- the state officers.

We had no election of governor by the people until 1823.

Early in the history of the state -- the political history of the state, the county's unit system of nominations developed.

It started by caucuses in the legislature, members of the legislature who belong to the Democratic Party would get together and nominate their candidate for governor.

In the same manner, the members of the Whig Party and the legislature would get together and nominate the Whig candidate for governor.

Gradually, they began to invite to those caucuses members of the party from counties that were represented in legislature by the opposite party.

The Whig members would invite democrats from -- or invite Whigs from counties who didn't have Whig representatives and the democrats would do the same thing.

Our convention system of nomination grew out of that.

We never had any direct primaries in Georgia until about 1890 and I think the direct primaries in Georgia grew out of the probably the strength of what was then known as the Populist Party.

The final election of the officers for the state had been -- have always, since election by the people was inaugurated about 1823 by a majority vote of all the voters.

The legislature meets and canvasses the vote and declares the person having the majority of all the votes to be the governor or the state -- Secretary of the State as the case may be.

And, if nobody is elected, they have a -- the legislature proceeds to elect a governor from the -- either the two or three highest.

We had a situation of that sort in 1946 when the governor-elect died before the time came to inaugurate and the legislature elected from some write-in candidates, and the Supreme Court held they couldn't do that and if the old governor continued to hold office and he hadn't resigned, the lieutenant governor-elect was to be the governor until there could be an election.

That, of course, has nothing to do with this particular question.

But I say, the county unit system developed in that way.

Finally, they began to have direct primaries for the election.

They first began to have primaries for the election of delegates to the conventions.

Then, they began to have -- some of the delegates were elected by mass meetings.

Your Honors will find a complete history of the county unit system in the report of the case of Turman against Duckworth in the 68 F.Supp. 744 which was the first county unit lawsuit we had.

The practice was entirely a party practice.

There was never any law on the subject and the convention was the final nominating authority until the adoption of the Neill Primary Act of 1917.

Prior to that time, delegates were, although committed to the man who -- candidate who carried their county, did not always vote in a conformity without amendment and frequently there were convention fights.

The one which produced the Neill Primary Act, so-called, was in 1914 when there were three candidates for the United States Senate and neither of them had a majority of the county unit votes.

And, that was a convention contest which lasted a number of days and was finally resulted in a nomination of Senator Thomas W. Hardwick who was not the leading candidate in the vote of the people.

The legislature passed the Neill Primary Act in 1916.

Incidentally, it's named for Cecil Neill who was the Speaker of the House of Representative of Georgia at that time and who came from one of the city counties, Muscogee.

Well, it was vetoed by Governor Harris, who was then governor of Georgia and who also came from one of the city counties, Bibb.

It was reenacted in 1916 and near 1917, and it was then approved by the new governor.

The Neill Primary Act made no substantial change in the nominating process.

It does not require primaries.

It never has required primaries.

It does not abolish conventions, but it provides that whenever a dem -- a political party has a primary, the person -- the candidate for any office who carries -- gets the most votes in the county, it's in plurality of votes and it's still a plurality not a majority, is entitled to the unit votes of that county on the county unit basis and that the candidate who gets the majority of all of the county unit votes is entitled to the nomination, and that can be ascertained and declared without a formal convention vote.

Incidentally, in some years when there's another -- it's not the year the elected governor don't even have a convention in Georgia.

The Democratic Party does.

Always in the convention, the Democratic Party and the Democratic Conventions -- so far as I know, the Republican parties never had one in Georgia.

Always in the Democratic Conventions, each county is entitled to two votes for each member in the Lower House of the General Assembly.

Georgia has, now, 159 candidates.

It had a 137 in 1877 when the Constitution of 1877 was adopted.

The -- it has what is called a 3-2-1 ratio of legislative representation in the House of Representatives.

The eight largest counties have three representatives.

The next 30 have 2 and the rest have 1.

As I say always, in the convention and in computing the nominating units on the county unit system, the counties have had two votes -- each county has two votes for each member of the House of Representatives to which the county is entitled.

That is -- that was the party practice before the Neill Primary Act was enacted and it has been the party practice and the provision of the Neill Primary Act since that time.

Justice Potter Stewart: General Murphy, this case doesn't involve at all, at least certainly doesn't involve directly, that the system under which your 3-2-1 – your 3-2-1 system for election of the State House Representative?

Mr. B. D. Murphy: It's not involved in this case at all, except that that was, until an amendment of 1962, the method whereby Union votes were allocated to the various counties.

Justice Potter Stewart: Well, it was derivative.

It was derived from that.

Mr. B. D. Murphy: This is from the county --

Justice Potter Stewart: But this --

Mr. B. D. Murphy: -- from the representation of the Lower Houses of the General Assembly and that had always been the rule.

Justice Potter Stewart: I just want to be sure in my -- so I can understand the argument as we go on that we're not -- that there's not involved here legislative apportionment as such at all for your state legislature.

Mr. B. D. Murphy: The apportionment as such.

Now, I say, in 1877, we had 137 counties in Georgia.

We may have too many but they all created by the Constitution.

And, that Constitution provided there should be no more.

In 1903 or 1904, they amended the constitution.

The legislature amended it and proposed it to the people.

The people ratified it to add -- bring the number of counties up to 145, and enough additional counties were created to bring the number of counties up to 145.

It has not always been the eight highest with the three representatives but that's the way it is now and was cite one time, it was 6, and 26 in one.

And, the -- since that time, a number of counties had been three which brought the total, at one time, up to 161.

Each one of those counties was created by separate constitutional amendment proposed by the General Assembly and ratified by the people at the general election.

Sometime ago -- some years ago, two of the counties have been created many years before were merged with Fulton County.

Those were Camilla and Milton, I believe.

So, now, we have 159 counties.

The Neill Primary Act, that I said a moment ago, didn't changed the county unit system as it had been followed by the party up until that time.

It did provide that the convention couldn't change the result of the primary as respects to right of a candidate who got the most votes in a particular county to the vote of that county on the unit basis and provided that nobody was part of the majority of the county unit votes for governor or United States Senate, that should be a run-over primary between the two highest candidates for those two officers alone.

And all the other state officers, the candidate with the most county unit votes, the plurality county votes was to be the nominee.

The can -- the Neill Primary Act does not apply to the congressional district primaries.

It leaves to the determination of the congressional committee or to the executive committee of the party in the district, whether or not it will have a primary on a popular vote basis or on a county unit basis.

But, if it is held on a county unit basis, then the unit votes to which the county -- which each county would be the entitled would be the same as fixed in the Neill Primary Act, that is two for each representative in the Lower House in the General Assembly.

In 1946, the first suit challenging the validity of the Georgia county unit system was filed in a three-judge court in the Northern District of Georgia.

That was filed by Mr. -- Mrs. Turman against the Chairman of the State Democratic Executive Committee.

There was a companion case filed by Cook, a man named Cook, against the Secretary of State which related to the Fifth Congressional District of Georgia.

It so happen that in 1946, the governor of the c -- the democratic candidate for governor who received the highest number of unit -- the majority of unit votes did not receive the highest number of popular votes.

He didn't -- there were two candidates and the man who got the highest number of unit -- majority of unit votes was the second in popular vote.

And, that brought about the case of Turman against Duckworth.

That was heard before a three-judge court and the three-judge court have decided against the plaintiffs there and it was appealed to this Court.

The appeal here was dismissed.

I don't want to take to go into whether or not this Court dismissed the appeal because they were moot or for any other reason.

The record shows what happened.

That was shortly after the decision of this Court in the case of Colegrove versus Green from Illinois.

In 1915, there was another suit brought in the United States District Court for the Northern District of Georgia by a Mr. South and his associate whose name I've forgotten.

That was the case of South versus Peters, Mr. Peters being then challenged in the State Democratic Executive Committee.

That was tried before a three-judge court composed of Judge Sibley, Judge Andrews, and Judge Hope.

And, I say Judge Hope or Judge Sibley because he was then the senior judge, I think, of the Fifth Circuit Court of Appeals and, we think in Georgia, a very able judge.

Judge Sibley wrote a very strong opinion upholding the county unit system and it's set forth in the case -- in that case in the 89 F.Supp., at 672.

I will not undertake to read it, but he goes into the history of the county unit system again, as he had done earlier in Turman versus Duckworth.

That case was also appealed to this Court and it was, here, as I read the decision of this Court, affirmed.

In the meantime, MacDougall versus Green had been decided by this Court.

Justice Arthur J. Goldberg: (Inaudible)

Mr. B. D. Murphy: Your Honor, I thought that the -- I'll be glad to look at it and refresh my recollection, but I thought that the judgment of the three-judge court was affirmed by this Court.

Justice Arthur J. Goldberg: It was, but (Inaudible)

Mr. B. D. Murphy: Well, it may have been.

If so, it may be that the late -- the last case, Baker versus Carr, answers those questions.

Now, the next case that we had was in the Supreme Court of Georgia.

That was the case of Cox versus Peters.

That case was dismissed on demurrer by the trial judge in the Superior Court of Meriwether County, and that dismissal was affirmed by the Supreme Court of Georgia and that appeal was dismissed in this Court for warrant of a substantial federal question.

The next attack on the county unit system was a suit brought in the United States Court for the Northern District of Georgia by Mayor Hartsfield of Atlanta against the Chairman of the Democratic Executive Committee and others which the trial judge dismissed and refused him to empanel a three-judge court.

And this Court did not allow an appeal from that decision.

So, the Justice thought that a rule to show cause should be issued, but it was not issued and that appeal was not granted.

Now, that ended the litigation about the Georgia county unit system until the decision of this Court in Baker versus Carr.

We had a new suit in the Northern District of Georgia which was heard by a three-judge court and that's the case we have here.

Justice Potter Stewart: Do these cases, maybe you've told us and I don't need -- we don't need to know in detail, but do these cases all involve the same issue that's involved here, that is the election of statewide executive and judicial officers or --

Mr. B. D. Murphy: Yes.

Justice Potter Stewart: -- or were some of them de -- were some of them an attack on the legislative apportionment system?

Mr. B. D. Murphy: None of them was an attack on the legislative apportionment.

Justice Potter Stewart: They were all --

Mr. B. D. Murphy: They --

Justice Potter Stewart: They were all of a piece of the kind of litigation we have before us now.

Mr. B. D. Murphy: That's correct.

As a matter of fact, I think, the petition in this case was copied almost verbatim from South versus Peters.

It was filed on the same day of the decision in Baker versus Carr.

I will say that in South versus Peters, the election involved there -- the election in 1950, I think it was 1950, also involved the election for the nomination of the United States Senate.

Now, this case was filed and immediately after Baker against Carr.

I don't think it's improper to say.

That was, of course, a great deal of conversation among Georgians, Georgia politicians about the effect of that decision and there were numerous conferences on the subject, and the legislature was called into extraordinary session.

It was actually an extraordinary session at the time of the hearing in the court below in this case.

As a matter of fact, it passed and the governor approved on -- the judgment in this case was -- or the hearing was concluded.

I'm not sure whether judgment was entered on that day or the next day.

The governor approved a statute which amended the Neill Primary Act and these respects, I said a little while ago we have 159 counties in Georgia, and the new Act allocated unit votes to the various counties in accordance with the bracket system that's set forth in the Act and is in the, I think, in the briefs and is also in the opinion of the Court.

No longer was the number of votes of the county -- number of unit votes to which the county was entitled based twice than the number of the representatives in the lower House to give us in.

The Act provides, new armies will have it, that all counties with the population of less than 15,000 shall have 2 unit votes.

Counties with a population between 15 and 20 or 25, I'm not sure which, will have 3 and so on.

Finally, it gets up to a bracket where they allocate additional votes at the rate of 2 for each 15,000 additional population.

Under the county unit system, as it was enacted by that statute, Fulton County which had 6 unit votes under the old system and now has 40.

No county has less than two, however small the population may be.

The Court of -- the three-judge court held that this new -- that the Neill Primary Act, as amended by the Act of 1962, was unconstitutional because it was invidiously discriminatory against people who lived in -- against the plaintiff and others similarly situated, if they have been a resident of Fulton County.

I overlook, saying that the new Act provides that, in order to be nominated in the first primary, the candidate must receive not only a majority of the county unit votes but a majority of the popular votes.

And, if he does not receive a majority of the county unit votes and no county receives a majority of the county unit votes and a majority of the popular votes, there's a run-over primary between the candidate receiving the greatest number of county unit votes and the candidate receiving the greatest number of popular votes.

Unless, it so happens that the candidate will receive the greatest number of county unit votes, also received the greatest number of popular votes, but not a majority of either or both.

Then, it run-off is between the candidate with the highest number of county unit votes and the candidate with the highest number of popular votes but, in that run-off primary, the candidate who receives the majority of the most county unit votes, without being a majority because there'd be only two, is declared the nominee.

There was this additional change in the nominating process that, as respects, officers -- candidates for officers, other than governor and United States Senate, the same rule applies of requiring the majority, both the county unit vote and the popular vote.

And, if there is no majority of both, then the two highest candidates would have to run again.

Now the --

Justice Potter Stewart: That happens with the one who got the highest unit votes when --

Mr. B. D. Murphy: The one who gets the highest unit --

Justice Potter Stewart: -- unit votes?

Mr. B. D. Murphy: Of course he has to have a majority because there's going to be two.

Justice Potter Stewart: A majority of the units?

Mr. B. D. Murphy: Majority of the units.

He's entitled to nomination.

I say it makes that change in the nominating process, as embodied in the Neill Primary Act.

The Neill Primary Act requires only plurality of county unit votes of candidates other than the governor and United States Senate.

Whereas, this Act, as I read it, requires the same sort of majority for all the candidates than it does for governor and United States Senate.

Now, the Court in this case said that this Act was invidiously discriminatory and it set forth its definition of invidious discrimination in the opinion and enjoined the Secretary of State, who was the state official who handles elections and putting in the voter's name on the ballot with the general election who is nominated under the Act or by virtue of the county unit system.

Now, enjoined the party authorities from holding any primary in 1962 or any other time.

Under any county unit system, unless it was such a county unit system as it would not be invidiously discriminatory under the opinion that was filed by the Court in this case.

As I read that opinion, it provides that the county unit system will not be invidiously discriminatory if it allocates unit votes to counties on a basis of population or if it allocates unit votes on the basis of – on the law of equal proportion that relates to the assignment of the representatives in Congress and will not be discriminatory if -- but it provides that no discrimination will be deemed invidious if there's no greater discrimination against any county than there is against the laws -- against any state in the assignment of electoral votes at the last election for president and vice-president of the United States.

I'm not sure that I know where that theory would lead Georgia with reference to the assignment of county unit votes.

Justice Potter Stewart: The position of the government of that part of the Court's opinion and decree should be excised.

Would you agree that it was perhaps unnecessary to the decision of this case no matter how it was decided, whether it was decided --

Mr. B. D. Murphy: Well, if you -- if this Court holds that the Neill Primary Act is unconstitutional for --

Justice Potter Stewart: That's really all that's before us, isn't it?

Mr. B. D. Murphy: No, sir.

It's not all that's before here.

There's also before you the question of whether or not the Democratic Party in Georgia, without any state law.

Justice Potter Stewart: Well, that yes, that's before us.

Mr. B. D. Murphy: They can hold a primary on a county unit basis.

Justice Potter Stewart: But, it -- but, there is not before us any other alternative system, is there?

Mr. B. D. Murphy: No, sir.

There's been -- none has been adopted.

As a matter of fact, when this case was handed down, the State Democratic Executive Committee met and revised its rule so as to provide for a popular vote and the primary then was held in September 1962.

Justice Potter Stewart: No stay was requested in this Court, was there?

Mr. B. D. Murphy: No stay was requested in this Court.

Justice Potter Stewart: There was a stay requested in --

Mr. B. D. Murphy: But there was denied in the court below, and I don't -- now, as I say, if the Court holds that the Neill Primary Act, as amended, is unconstitutional, as did the trial court, then the next question is what can the Democratic Party in Georgia do about it?

Under this decree, it can hold a democratic primary on a county unit basis, to hold it only on a popular vote basis, although it may if the Court permits this formula that was set forth by – for the court below to stand.

It may hold the primary on the county unit basis, provided it meets the requirements of the Court's idea about what will not be invidious discrimination.

Now, it's the position of the appellants here as stated in our brief and is -- I think we stand upon that the county unit system, as it existed in Georgia at the time of the amendment of the Act of 19 -- the Mandatory Act of 1962 and, as it now exists, is that and represents a proper exercise of legislative power by the state.

Of course --

Justice John M. Harlan: It did not strike -- the Court did not strike down the money as such, did it?

Mr. B. D. Murphy: No, sir.

It struck down the Act we had.

Justice John M. Harlan: Yes.

Mr. B. D. Murphy: And said you could have one if you -- the party could hold -- of course the party -- the Act, being unconstitutional, is left to the party but the party did not know and take the word out.

The -- a system that would be in conformity with the Court's opinion, the party simply reverted to the majority vote and the last election was held on majority vote basis.

Now, we needed to have a reapportionment here.

So, that's not on its way up here because we had -- as a matter of fact, the Court never have granted appeal to judgment and express this --

Justice Byron R. White: Mr. Murphy, you don't -- do you contend that the -- that, without there being a state Act which had been set aside, you say the party did something or you -- is there any part of your argument that the state action would -- would --

Mr. B. D. Murphy: I don't think so, Your Honor.

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

Mr. B. D. Murphy: I think that Baker versus Carr answers that question that this Court can deal with what I'm trying to say here that, where the Act --

Justice Byron R. White: That's the primary.

Mr. B. D. Murphy: Sir?

Justice Byron R. White: That's the primary.

Mr. B. D. Murphy: This is a primary, yes.

Justice Byron R. White: This is a primary and it's a party primary.

Mr. B. D. Murphy: It's a party primary, yes.

Justice Byron R. White: No -- you raise no question about it being a state action?

Mr. B. D. Murphy: No, sir.

We raise no question about it being state action.

I think we have passed all that questions.

I think this Court is --

Justice Byron R. White: Or any question about the case being moot?

Mr. B. D. Murphy: It would be moot if it related only to the 1962 election, but the judgment of injunction is broad and sweeping.

It's enjoined this forever against holding a primary under county unit basis under the county unit system unless we do it according to what the Court says would not be invidiously discriminatory.

Justice Byron R. White: Well, would you tell me how the -- why this is state action?

Mr. B. D. Murphy: Why it is a state action?

Justice Byron R. White: Yes.

Let's assume there was no statute whatsoever stated in your argument relating county unit, but there's the party rule only.

Mr. B. D. Murphy: Well, I think it is -- we would contend --

Justice Byron R. White: After all, the party was the one who decided to hold a popular --

Mr. B. D. Murphy: That's correct.

That's correct.

I think, under the decision of this Court, this Court will hold this at state action, and I don't mean to say by that but I agree with it but I say my point --

Justice Byron R. White: Now, what --

Mr. B. D. Murphy: -- in trying to flog the dead horse on that question.

Justice Byron R. White: What decisions are those?

Mr. B. D. Murphy: Terry against Adams and these other cases, the classic case.

I wouldn't say that -- the law of Georgia doesn't require primary.

It doesn't require primary for any purpose and the Neill Primary Act, as it existed before the Court struck it down as unconstitutional, unless we can get to this Court to reverse it, doesn't require a primary.

Justice Byron R. White: I suppose then if the primary is state action, so is the convention.

Mr. B. D. Murphy: That's the contention on the other side and I think that's what this Court decided and I don't think --

Justice Tom C. Clark: Well, it's the only where the state is predominantly what party, where the Pentagon has an election.

Mr. B. D. Murphy: Well, that exact question was that where Judge Sibley in -- the only time is have been considered, I think authoritatively, was by Judge Sibley in South against Peters and he said it was not equivalent to election.

Justice Hugo L. Black: He said what?

Mr. B. D. Murphy: That it was not equivalent to election, the democratic nomination.

Justice Tom C. Clark: We have several times it was -- I think, have used the word “tantamount to election.”

Mr. B. D. Murphy: Yes.

Justice Tom C. Clark: In the Jayberg --

Mr. B. D. Murphy: Well, in the Jayberg, I don't know whether the Court might review that situation again in view of the fact that there is an elected republican senator in Georgia and we've got a republican senator in the state senate who was elected in November.

Justice William J. Brennan: Mr. Murphy, now that you've tried the popular primary, are you suggesting that the party would like to return, nevertheless, to the --

Mr. B. D. Murphy: To the county unit system?

Justice William J. Brennan: County unit system.

Mr. B. D. Murphy: Well, we think that the county -- the Democratic Party of Georgia would have a right to adopt any method of nominating its candidates if it sees prompt.

Justice William J. Brennan: Without suggesting that it intended to return.

Mr. B. D. Murphy: How is that?

Justice William J. Brennan: Without suggesting that it intended to return.

Mr. B. D. Murphy: Yes sir.

I have no idea as I'm not a member of the State Democratic Executive Committee and I don't know how or what the next committee will do.

I will say this, the only time that the dominant political factor in Georgia heretofore has changed from the county unit system was 1908, I believe, when Governor Hoke Smith who, by which of being a governor was well dominating the Executive Committee, reverted to the popular vote plan and abandoned the county unit system and he was very silently defeated for that reason, and since then, they've been back on the county unit basis.

Now --

Justice Byron R. White: But, would you say that if the party decided to nominate by a convention, that -- and that the convention was organized on the same basis as the -- on the county unit basis, that we have a state action in this case?

Mr. B. D. Murphy: Well, I don't think you would and I think if the Democratic Party want to have a state convention to nominate its candidates, it ought to be allowed to do so and I think it could do so, most of the other states could.

Justice Potter Stewart: Now, wouldn't it -- would it or would it not be allowed to do so under the outstanding injunction?

Mr. B. D. Murphy: I think, probably, it would, Your Honor.

Justice Potter Stewart: That's what I think, too.

Mr. B. D. Murphy: The outstanding injunction enjoining them against holding any primary.

Justice Potter Stewart: It just relates to primary, is it not?

Mr. B. D. Murphy: It just relates to primary.

Justice Potter Stewart: I suppose, under that injunction, a Democratic Party, if it wanted to, could have a dozen party leaders meet in the smoke-filled room and nominate all your statewide officials.

Mr. B. D. Murphy: Well, that's what the republicans do in Georgia.

Justice Potter Stewart: Well, that's all the republicans in Georgia, I suppose.

Mr. B. D. Murphy: I think -- I didn't mean to be facetious, Your Honor.

Justice Potter Stewart: I know you weren't and I wasn't -- well, we both were a little bit.

Justice Hugo L. Black: Well what's the -- what's the republican run-off?

Mr. B. D. Murphy: Well, Your Honor, they nominate the candidate for governor.

I mean, it's in this record.

I suppose the only man who knew about it was Judge Tuttle who happens to be a republican, and he set out in this record in outlining the history of the Georgia politics and the Georgia county unit system how it is that -- in the opinion of the Court, how it is that they nominate candidates, the republicans nominate candidates.

And, they have a county unit system.

It's sort of like ours.

But, he says that the Republican Party of Georgia, although judiciary it is probably not action normally anyone from the statewide office during this century, uses a convention system for nominating for state office and presidential election here.

The convention also selects a State Central Committee which has the power to nominate candidates between quadrants of conventions which are held during presidential election here and its elect meets the county at mass meetings to the state and the primary toll in Georgia.

Justice Potter Stewart: Well, I -- General Murphy, going back to Justice White's and my inquiry, in your opinion, it would not be a violation of this injunction if the democratic party in Georgia decided to have a few party leaders and nominate the state officials, would it?

Mr. B. D. Murphy: I don't think so.

I don't know how well it had to find election is to do it that way --

Justice Potter Stewart: Well, it's been a q --

Mr. B. D. Murphy: But I don't think it would be a violation of this injunction.

I started to say that the republican quite operates that way in Georgia and did nominate a candidate for governor in 1962 and he qualified by getting a requisite number of signatures on his nominative petition.

Justice Arthur J. Goldberg: (Inaudible)

Mr. B. D. Murphy: Well, I don't know of any case in Georgia where a republican or any other party has not elected a candidate for state office since I have been old enough to vote.

I, again, remember back to reconstruction but the only reason that the Democratic Party elects the state officer -- of course, that's the way the people vote in the final election in November and he has to get a majority of all the votes cast.

Ordinarily, he doesn't have any opposition.

I agree that that's true, but the only reason why that is so is because that's the way the people vote and, this year, there would've been a republican candidate who would've polled a very substantial vote.

The Republican Party got about 35 -- between 35% and 40% of the votes in 1960 for in the presidential election.

And, Mr. -- the candidate, unfortunately, was killed in an automobile accident and didn't get to make the race, but they did nominate a very fine --

Justice Hugo L. Black: I can understand that you have raised any -- asked us to overrule or reconsider Smith and Allwright?

Mr. B. D. Murphy: No, sir.

Justice Hugo L. Black: -- or Terry versus Adams.

Mr. B. D. Murphy: No, sir, we have not.

We have not.

Justice Hugo L. Black: And then your vote said that this was state action, did it not?

Mr. B. D. Murphy: Yes, sir, and we are not undertaking to reargue those questions, that is this difference, I think, in classic case and in the Allwright case that, in those cases, the primary was required by the law in the County in Georgia.

Chief Justice Earl Warren: We'll recess now.

Featured:

Gray v. Sanders - Oral Argument, Part 2

Tue, 25 Sep 2012 22:32:51 +0000

Case:

Gray v. Sanders

Media File:

112_19630117-argument-2

Related Transcript:

112_19630117-argument-2

Transcript:

Argument of E. Freeman Leverett

Chief Justice Earl Warren: Mr. Leverett.

Mr. E. Freeman Leverett: Chief Justice and may it please the Court.

I would like to make one or two full remarks with regard to one or two questions or rather one of two matters that Mr. Murphy touched on.

That has referenced to the evolution of the county unit method of nominations insofar as in 1917, it was enacted into law.

I think Mr. Murphy made it clear that the -- the basis for that enactment into law was the fact that at that time, under the party rule, there was no provision for a run over primary in the event that one candidate for Governor or Senate failed to receive a majority of the unit vote.

And it was this convention juggling and convention nomination that led to the incorporation of the county unit method into law.

It was not as an unfounded statement, we say in the appellee's brief would have that it was tied in with any scheme to disfranchise Negroes.

It was instilled and stirred or inspired solely as we see it from the desire of the people to prevent convention nomination.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: That --

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: That is -- that is a consequence of it both before and after it was put into laws.

I will come to that momentarily --

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: That is correct sir.

At the outset, I would like to state this that we think, do not contend otherwise that Baker versus Carr has settled all questions of justiciability, standing to sue in jurisdiction.

We make no issue of that.

At the same time, we do say this, that there is still remains an area, under the Fourteenth Amendment in which the State is accorded a wide latitude of discretion and with respect to which no court should undertake to substitute its judgment.

To that extent, there are still areas that are non-justiciable once you get past the initial question.

Before getting into the merits of what we think are the applicable Fourteenth Amendment standards in this case, I would like to discuss briefly one question which the appellee raises, which if he is correct of course would dispose of this case and that is that there is -- that it's unconstitutional to have any weighting at all in an electoral system.

The appellee says that representation is a shared right and consequently some weighting, some inequality is necessary due to interim shifts in population and that sort of thing.

On other hand, he says that voting is not a shared right, and therefore, there can be no weighting.

We think that this cannot withstand analysis.

The Governor and other executive department officers represent the citizen in the execution of the laws, just as represented -- represent the people in the making of the laws.

And, neither the legislative apportionment case or in the case of the judiciary and we elect our judges in Georgia or in the case of the executive, the voter votes individually.

No one else participates or shares in the casting of that vote and that's true in the legislative case.

Now, what happens after his vote is cast and after it has been tabulated, the influence of the effect that is given to that vote is necessarily weighted because he obviously cannot exist in a vacuum.

There are other people to be considered whose votes also have some influence in a way.

Justice Byron R. White: Mr. Leverett, you are suggesting then that -- that if the -- if the legislative question were here along with the county unit question, the apportionment of the State legislature and the measure was the same in each case that you should get the same answer here in this Court?

Mr. E. Freeman Leverett: Indirectly, I think so.

If this juncture primarily --

Justice Byron R. White: That must be the -- that must be the result of your argument?

Mr. E. Freeman Leverett: At this juncture, I am primarily refuting an argument that is advanced in the brief of the appellee to the affect that --

Justice Byron R. White: And also making the contrary argument?

Mr. E. Freeman Leverett: That is correct sir.

That's correct.

Justice Byron R. White: And the --

Mr. E. Freeman Leverett: Now, as to a legislative representative, the total legislative power is shared by the allocation of one or more members of a multi-unit body or collegiate body by the allocating of one of more of those numbers to particular areas.

And under the electoral arrangement involving the executive of the judiciary, you don't have a number of people to be shared by allocating one out to each.

You only have one individual, the Governor or the particular judge or the other State House office and the sharing necessarily has to take effect in a different manner.

So, in that case, as in the case of the election of the President, under the electoral college which the sharing is done by the allocation of units rather than by the allocation of individual representatives.

Justice Potter Stewart: The difficulty with your argument so far as I'm concerned and as I understand it tentatively is this -- let's take the case of the United States Senator.

The Constitution of the United States itself provides what -- what district, what territory, what sovereignty is going to elect a United States Senator and that is the sovereign state of the United States, so you -- that -- that is predetermined.

We don't have here, in the case of an election of the United States Senator any problem or any choice of the State to divide up the district?

Mr. E. Freeman Leverett: We aren't contesting its argument that it can.

We are arguing that it is --

Justice Potter Stewart: It's not a matter of districting --

Mr. E. Freeman Leverett: No.

Justice Potter Stewart: -- when it comes to it because this is -- this has all been decided in the Constitution of United States, it's the State that's the unit.

Mr. E. Freeman Leverett: The State is the unit, that's correct sir, (Voice Overlap).

Justice Potter Stewart: And the State elects the United States Senator?

Mr. E. Freeman Leverett: Well, that is -- that's true in Georgia.

We don't district the State for purposes of electing Senators.

We have devised the unit system for the purpose of dispersing electoral power, but we do not draw any district alliance from the standpoint of -- of people we (Voice Overlap) --

Justice Potter Stewart: I -- I'm just suggesting that to me unlike my Brother White's suggestion as I got it from his question that this a quite a different case from a legislative apportionment case?

Mr. E. Freeman Leverett: There are differences, that is correct sir, but we say this that if it's constitutionally permissible to have any weighting of votes with regard to legislative representation beyond the de minimis weighting that inevitably flows due to population shifts, that it necessarily should follow, that you can have the same thing with reference to a statewide office as a Governor or a judge, it's -- it's granted, it has to be accomplished, the -- the form as the --

But the basic underlying proposition is that if there can be weighting as to one like what is there to say that you cannot have weighting as to the other.

The Fourteenth Amendment draws no such distinction.

Justice Potter Stewart: But I'm just suggesting that the problem is different?

Mr. E. Freeman Leverett: I think that would follow.

Chief Justice Earl Warren: It's your position (Inaudible)

Mr. E. Freeman Leverett: That what -- what feature of it, please?

Chief Justice Earl Warren: The question of weighting the votes.

Mr. E. Freeman Leverett: Our -- our position will be that --

Chief Justice Earl Warren: You say that's a -- that's a --

Mr. E. Freeman Leverett: That it's Constitution --

Chief Justice Earl Warren: -- situation the Court must stay out of it, isn't -- do you think it is not a justiciable question?

Mr. E. Freeman Leverett: I think that it's not constitutionally impermissible.

Now, I think you -- it's justiciable to the extent that you get into the area and you go to a certain point, I will come to that momentarily and if I haven't answered your question --

Chief Justice Earl Warren: Well --

Mr. E. Freeman Leverett: -- please stop me but it would --

Chief Justice Earl Warren: Right, (Voice Overlap) --

Mr. E. Freeman Leverett: A little ahead of myself on this point.

Chief Justice Earl Warren: Go right ahead.

Mr. E. Freeman Leverett: Now, in the court below, as did the two courts in the South and the Turman case did not accept this attempted distinction.

They said this, it relied upon MacDougall versus Green, they said, “We do not strike the county unit system as such.

We do strike it in its present form and cited references to the permissibility of weighting the votes.”

In the Justice Department, I don't think either accepts this attempted distinction.

They referred to it and say that there probably are some differences, but they end up saying that we don't have to decide that here and then they go all up on (Inaudible) involving burden of proof and end up postulating two standards that they say should apply in these cases.

I will come to those also momentarily.

However, the Government does concede that if you had a situation where there was not a direct election of a statewide official such as you had years ago with regard to governors in many states that you probably could have weighting there.

We say that that is exactly what this is because the county unit system, as devised, with regard to units, its simply a substitution for this collegiate body that, theretofore had done the electing and that is the convention, to nominate not to elect.

Now, that brings me to what we think are these proper standards in this case and I think it would also follow in a legislative apportionment case.

Justice Arthur J. Goldberg: Mr. General, when you're arguing (Inaudible)

Mr. E. Freeman Leverett: Yes sir.

Justice Arthur J. Goldberg: In other words, you clearly mentioned something that the state government (Inaudible) constitutional requirement.

Mr. E. Freeman Leverett: That is my position, yes sir.

This has to be approached I think from a two-fold standpoint.

First, the validity of a unit system per se, and then the secondly, the overall substantive standards that would apply under the Fourteenth Amendment, governing the weighting of votes.

First, with respect to the validity of the unit system per se, you might --

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: You did not pass on it.

Now, the appellee, I believe, argues that.

I do not wish to occupy the time of the Court if you think that it's not before the Court, but the appellee argues it and I'm not certain whether --

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: It is here.

I'm not -- frankly, I'm not familiar with the rules and procedure of this Court.

Under Georgia law, if a judgment is right for any reason, it should be sustained on appeal regardless of the reason given to in below.

And I presume that is the rule here.

I have never actually read a case on it.

The -- this question might be restated thusly, would a unit system be valid even assuming equality of population within each of the participating units?

The court below as well as the court in the Turman case and the South case have said or resolved this question in the affirmative.

The appellees though says no.

He (Inaudible) -- or relies upon the Mosley case, United States versus Mosley in which the Court held that there was a federal right to have one's vote counted.

The appellee says that since in a unit system, the candidate or rather the votes of the unit are cast as a unit that the votes of the people within the unit who voted for the minority candidate are not counted, and therefore, it brings it within the pale of Mosley versus United States.

As far as the Mosley case is concerned, we think it's sufficient to distinguish by the fact that it was a criminal case where there has been fraudulent and covert acts that were contrary not only to federal law but to state law, that some votes have just not -- it's been simply -- people tabulating them had refused to count them.

And that being a criminal case, we think has no relevancy to this situation where this is legal under State law and there was nothing covert about what is done here.

And we say that the idea of casting votes by unit is Constitution that it gives recognition to the organization of the State on a county basis and that has been true as illustrated by the history in this case of the county unit system from the very earliest.

Georgia has accorded a high degree of autonomy to its counties.

They voted as a unit in electing the Governor in the -- at the outset.

As the Court in the case here said below, counties were governmental units in Georgia before the union and had their voice in the councils of government on the State level through representation.

In the South case, a judge simply said this, the history of the State and of the political parties within it shows that political power has from the beginning been exerted to a large extent through counties as voting units on similar unit lines.

Similar recognition has been given to the identity of interest in a county that brings about the rationality of treating them as a unit.

In several, the recent reapportionment cases, the Tawes case from Maryland, the Simon case from New York, Baker versus Carr itself upon remand, and the Scholle case in Florida.

Under Georgia law, our counties have always enjoyed a high degree of autonomy.

They have it within their power to levy taxes or not levy taxes, to afford certain vital services or not to afford.

They elect their own officer.

They have their own system of courts and public records.

County government is managed by a wide variety of boards of county commissioners, ordinances and county managers.

The Georgia Constitution expressed the exempts of county government from -- to uniform its provisions.

Lastly, each county has its own school system, determines amount of taxes that it will levy within the certain limits and the extent of enrichment programs that it will impose upon its educational system.

And is -- in this context, the unit aspects of this case of course apply equally to all counties, regardless of the population.

That brings me to the Fourteenth Amendment standards that we think are applicable to cases of this nature and similar to cases involving apportionment.

We think that these standards are inferable from a composite of the majority concurring and dissenting opinion in Baker versus Carr, regardless of the divergences in that opinion with respect to the procedural questions of jurisdictions, justiciability, standards and so forth.

In the majority of opinion, it was stated, “Judicial standards under the Equal Protection Clause are well developed and familiar and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must that a discrimination reflects no policy, but simply arbitrary and capricious action.”

In one of the special concurring opinions, this statement was found.

Universal equality is not the test.

There's room for weighting.

The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.

And another concurrence where emphasis was placed upon the fact of horizontal as well as vertical discrimination, the blending of those two which brought about a situation, where it was impossible to determine if there was a basis.

Another concurrence was careful to give assurances that State legislatures need not be “so structured” as to reflect with approximate equality, the voice of every voter.

Nor does the Constitution prevent the states acting not irrationally from choosing any electoral, legislative structure it thinks best suited to the interest, temper and customs of its people.

Mr. Justice Frankfurter's dissenting opinion, he very strongly says in a language that I could hardly improve that the idea of equality of voting power is not implicit in the history of American institutions.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: Yes sir, I think that it is as far -- as far as the Constitution is concerned.

And I''m not arguing political science and I would hope the Court will not argue political science.

Justice Arthur J. Goldberg: Let's talk about the Constitution.

(Inaudible)

Mr. E. Freeman Leverett: Simply because it has never been the law before that equal population representation is the only legitimate basis of electoral apportionment.

Also because there are other factors that enter into it.

I -- I will -- I'm coming to that and if I have -- do not answer your question, please call my attention to it and I will go back, I will try to, I may not, but I will certainly will.

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: That's correct sir.

We think that several propositions necessarily follow is corollary to this or from what has been said in these cases, in the various opinions.

First, that the Fourteenth Amendment does not limit a state's choice and allocate its electoral power to a single basis, equal population representation, either in the case of legislative representation or in the case of the allocation of electoral strength as the statewide offices.

And particularly is that so, in this situation where this is simply the primary and you do have a general election where people are capable of expressing themselves with numerical equality and that has been done.

We had a run-off election in Georgia for Lieutenant Governor and a dissent arose as to the candidates who would participate in that.

And another candidate who is following them was limited mostly to one of the big cities came within 2000 or 3000 votes of getting enough signatures to get on the nominating petition in a little less than two weeks.

We have traced in our brief the history of legislative assemblies and demonstrated that when the founding fathers came to draft the Constitution, they were divided into two factions.

One, the French school of thought which inspired by the writings of Rousseau were referred to as the egalitarian democrats, the egalitarians, one man, one vote.

On the other hand, in a raid against them was the British school of thought which saw the necessity for imposing limitations upon majority will at its very source, a proposition that had been suggested as early as Aristotle's political, the history of the convention records that the resulting product was more English than French.

In fact, the -- one of the affidavits of the appellee that is in the record concedes this fact that the English school of thought predominated in the nominating or rather in the constitutional conventions.

It's been shown too I think that while Thomas Jefferson has generally recorded as being on the side of equalitarian democracy.

He was basically an agrarian democrat and it just happened that equalitarianism fit in quite fine with his conception of a grand -- agrarian democracy as the people started moving out of the tidewater areas out into the western portions of the country and tilling the land.

But we don't have to go to the records of the constitutional convention to determine what the nature of this government is that was founded.

We think the plain words of the Constitution itself are highly ambiguous.

To begin with, a national legislature was provided for, in one House of which each State has equality of representation regardless of the number of people.

And even in the other branch which as George Mason said was to be the grand depository of the democratic principle.

Equality is not achieved there either because of the fact that -- of the requirement that each State had at least one representative regardless of the number of people.

Justice Potter Stewart: Suppose what we have before us here is an amendment of that Constitution which was adopted about almost to not quite 100 years afterwards, that's what's before us here.

Mr. E. Freeman Leverett: That's right.

Justice Potter Stewart: There is no constitution in the (Inaudible)

Mr. E. Freeman Leverett: And you have the Fifth Amendment which was adopted after that Constitution --

Justice Potter Stewart: That contains (Voice Overlap) --

Mr. E. Freeman Leverett: -- which contains a Due Process Clause of this --

Justice Potter Stewart: No Equal Protection Clause?

Mr. E. Freeman Leverett: No, but as this Court said in Beadle versus Scholle -- versus Scholle that it would be unthinkable that the Equal Protection Clause of the Fourteenth would impose a high standard upon the States than the Fifth does against Federal Government.

The second illustration I think of the Constitution in this regard is with regard to the President who is elected not by the people, but by electoral votes.

And there's disproportions in between the States in the casting of those electoral votes.

The third illustration is the provision for changing the fundamental law itself.

That's voted on by the States in which each State has one vote regardless of the number of people.

When Congress elects a President in those situations when it's permissible for Congress to do so, each State votes as a unit, each State has one vote.

Justice Arthur J. Goldberg: Suppose they're all (Inaudible)

Mr. E. Freeman Leverett: Is the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: That is correct sir, but could you -- could you say that the Federal Constitution does not construct a republican form of government?

Justice Arthur J. Goldberg: No, but that's not the question.

The question is -- you're arguing the question as to whether a constitutional right (Inaudible)

Mr. E. Freeman Leverett: I will answer that this way, it seems to me that if you say otherwise, you have to say that the Federal Constitution imposes a system that is arbitrary, that is unreasonable, that denies equal protection to the voters and merely because of the fact that there's no Equal Protection Clause applicable to it, is the only thing that saves it.

Justice Potter Stewart: No, that -- as Mr. Justice Goldberg says, the specific provisions of the United States Constitution save it.

Some people might think this is arbitrary and discriminatory, but it is certainly -- there's no question about its constitutionality because these are provided and we all know without going into it, the history behind all that.

The history here is quite a different history.

Georgia wasn't created by several counties getting together and voluntarily giving up some of their sovereignties to create the State of Georgia.

Mr. E. Freeman Leverett: Those differences I think were pretty well disposed off at least to my thinking in the Tawes case.

If this argument about sovereignty is circular, what do you mean when you say one was sovereign, one was not?

It's simply this, that there is here an identifiable unit, a group of people who have particular interest that those interests should be given some recognition.

Now, I do not think that it is unreasonable for Georgia to take that analogy and apply it in its own internal structure as it has and as it would continue to do so unless this Court intervenes.

I -- I can't conceive of the -- under the Equal Protection Clause which is itself a product of history and in determining what is rational, history and tradition and the federal system itself would seem to offer some test at least.

Now, the Court may disagree, but that is a way that it -- as I see it.

That is the way I would answer the question.

The last point I think that we might say that disputes the fact of complete equality and expression of majority will is the example of this Court itself.

The founding fathers created this Court composed of nine men, no one of which has ever been voted on by anybody, but yet gave you the power.

As Madison pointed out in the federalists, to set aside the Solomon Act, it's enacted by 535 of the people's chosen representatives and the President who was also elected.

This opinion in Baker versus Carr, Mr. Justice Frankfurter reviewed the apportionments existing in legislatures and common law and the English procedure and the colonies and the States at the time of adoption, the States at the time of the adoption of the Fourteenth Amendment and today, and concluded that, as he stated, “These figures show more than individual variations from a generally accepted standard of electoral equality.”

They show that there is not as there has never been a standard by which the place of equality as effect an apportionment can be measured.

We think that that brings up another of subordinate propositions up to the general proposition that equal protect -- equal population is not the only basis of electoral apportionment.

And that is that courts should not become involved in drawing mathematical formulas.

That is not the type of thing that is generally thought to be a judicial function.

To begin with, first, judicially insoluble question that you have is what method of mathematical evaluation are you going to use, aside from the actual fixing of the limits and the formula itself?

Would it be the theoretical minimum of persons unable to -- capable of electing a majority of both Houses or one House and what about a unicameral legislature and I think you have a case in Nebraska, I do not know whether it is coming up here or not.

How would you apply to the Georgia situation?

Would the -- assume that theoretical minimum is the test.

The more difficult problem then remains of fixing the limits.

Should it be 16.5%, the theoretical minimum of persons who are capable of electing a majority in the United States Senate, or should it be 43.3%, the number of persons residing in 39 States who could cast a majority of the electoral votes for President.

Now, the three-judge court in the Georgia legislative apportionment case held that a theoretical minimum of 22% for both Houses was invidiously discriminatory and that one house at least had to be proportionate to population.

Upon remand in the Baker case, the District Court invalidated minimums of 26.9 for the Senate and 28.7 for the House.

In New York on the other hand, theoretical minimums of 36.9% for the Senate and 38.2% for the House were up held.

The Idaho Court in Caesar versus Williams upheld a minimum of 32.7 which by the way is substantially the theoretical minimum under the 1962 revised county unit law.

Colorado minimums of 29.8 for the House and 32.1 for the Senate were held invalid.

But in none of these cases, as any court undertake it to say just where this line can be drawn and the reading of the opinions leaves you completely helpless in trying to discern from there any ascertainable standard or formula.

Or, there's another method that you could use and evaluate.

That's the mathematical ratio, the comparison of one political entity to another that can be compared to either the most disproportionate or the least populous unit or it can be compared to an average unit.

And applied to the Georgia County unit system, it results that the ratio of Fulton County, the State's largest county, the Echols County, the smallest county is 14.8 to 1.

On the other hand, it is the court below held that the comparison should be from the particular county to the average county of their ratio would be approximately 1.93 to 1.

Baker versus Carr, the courts validated an apportionment which gave ratios to largest to the smallest of 7 to 1 for the Senate, 23 to 1 for the House.

There were some variations in Alabama that got involved there on the problem of the fact that one House could not be completely proportionate to population.

Under the Electoral College, the ratio of New York to Alaska runs 8 to 1 as to eligible voters and 5 to 1 with regard to population.

The ratio of the average Congressional District to Alaska which is one Congressional District is approximately 2 to 1 not 5 to 1.

When compared with Senate representation, the ratio of Alaska to New York is 74 to 1 as to population and a 131 as to eligible voters.

Now, there's a third statistical approach and that is suggested by the American Society of Political -- the American Political Science Society and that is comparing the percentage departure from the median or from the average district or unit as involved in this case.

The Science Association recommends a maximum departure of 15% for Congressional districts.

Representative Celler has recommended 20% in some legislation he has proposed and Senator Clark who apparently was inspired by Mr. Anthony Lewis' article in the Harvard Law Review has proposed a 50% maximum deviation from the average district.

Now this is simply a preview, a prelude of things to come.

If this Court or any other court gets itself in the position or trying to evaluate, to set formulas, to draw lines that is not the solid stuff that is traditional to the judicial system.

They are no judiciable manageable standards by which you can evaluate such a situation.

I would certainly hate to think that this Court or any other court should get itself in the position that the Swiss Federal Tribunal did recently, when they undertook to draw lines and they struck down a coram limitation on its proportionate system of apportioning representation by holding that a 6.6% coram limitation was valid, whereas a 12.4% limitation was invalid.

They didn't tell us approximately what point it becomes permissible or unconstitutional.

Justice Arthur J. Goldberg: General, (Inaudible)

Mr. E. Freeman Leverett: Nothing except that the express desire of his law making power was frustrated.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: I don't -- I don't think you can say that it's the will of the people, the legislature, they're supposing they represent the will of the people, they provide it otherwise.

Justice Potter Stewart: Well, that's certain with respect to your argument.

I never heard that the legislature is terribly upheld here so far as representing the people of the State.

Mr. E. Freeman Leverett: The argument I think that -- of the question that you asked presupposes, does it not, that equality of representation is the only basis of representation.

Justice Potter Stewart: No, I was only pointing out that the -- it's hardly to be presumed that the law as provided -- legislature of Georgia as presently apportioned, at least its House of Representative can be presumed to be the will of the majority of the people of Georgia, whether it's constitutional or not, it's a different question.

Justice Tom C. Clark: I thought the 1962 election has been the same (Inaudible)

Mr. E. Freeman Leverett: It would have, except it would not have been a run-off as I recall in the race for Lieutenant Governor.

He would have been elected on the first ballot.

Justice Tom C. Clark: But all the other officers did the same?

Mr. E. Freeman Leverett: That's right.

So there -- there would've been a difference in the -- one of the Congressional districts, of course that's not imposed by state law.

It -- I wouldn't -- well, I say this, it would -- under the old system, it would have been -- there would have been a difference under the new -- under the new system.

Of course, it was abandoned before but a successful candidate would have won anyway under the new system.

Justice Arthur J. Goldberg: But your argument basically is that's the only (Inaudible)

Mr. E. Freeman Leverett: That's correct sir.

Justice Arthur J. Goldberg: And the court was (Inaudible)

Mr. E. Freeman Leverett: Which old system?

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: If this Court had not decided Baker versus Carr, my guess would be that we would have probably applied it, but I have no -- there had been a move a foot to get it -- to bring it up to fall of what it was at the time it was originally not enacted in the law in 1970.

Now, in all candor, I think I should say that I do not think it would have taken place last year if it had not been for Baker versus Carr.

Justice Byron R. White: I understand you to say that there's enough reason for the legislature to simply to want to prefer beyond the less populous counties and that's the end of the question.

Did you simply want to -- the legislature simply wants to weight the less populous county's votes?

In the primary they should be perfectly free to do so.

Mr. E. Freeman Leverett: That's correct.

Justice Byron R. White: And you -- and that's enough ration -- that's enough rationality.

Mr. E. Freeman Leverett: That's right sir.

Justice Byron R. White: And to -- and you would get the same answer then I suppose if they did it another way and said each person in a rural area, you're in a certain county gets three votes, he casts three ballots.

You get exactly the same results, wouldn't you?

Mr. E. Freeman Leverett: Casting of -- I would -- I would have to analyze that mathematically, I'm not sure that it would give you the same result.

Justice Byron R. White: Well, I mean whatever the figures would be --

Mr. E. Freeman Leverett: It might.

Justice Byron R. White: You just said, he would cast out many more votes, he would've -- you should come out with a -- in the legislature spree to -- to give people an equal voting power.

That's -- that's essentially your argument.

Mr. E. Freeman Leverett: That's essentially, yes it is.

I will not say that I could -- I'm not enough a mathematician to (Voice Overlap) --

Justice Byron R. White: Well, I don't care about the figure -- I don't care about the figures.

I just -- but wouldn't you get the same answer also if the legislature changed its mind next year and said that we will give people in the city four votes and people in the country one vote?

Mr. E. Freeman Leverett: Not -- not just with that language because it doesn't work that way (Voice Overlap) --

Justice Byron R. White: Well, I know, but let's assume that you had -- that they've just reversed the scales and made the county unit system preferential to urban areas --

Mr. E. Freeman Leverett: That would be perfect for that.

Justice Byron R. White: -- rather than rural areas.

Mr. E. Freeman Leverett: Perfectly balanced.

Justice Byron R. White: So the history hasn't anything to do with this.

Mr. E. Freeman Leverett: I think history has because the -- this Court has held time in time again that history and the traditions of the people have some influence, it's not controlling but it has some --

Justice Byron R. White: So then you wouldn't -- you suggest you wouldn't get the same result that you weighted this system in favor of the cities because that isn't historical.

Mr. E. Freeman Leverett: It was to some extent when the people first started moving out of the tidewater areas out into the country.

We had that problem in Georgia, the coastal counties which were the -- you might say the urban areas were over represented at that time.

Justice Byron R. White: Well, do you have a suggestion as to why you say it's irrelevant, I know that, but assume someone didn't agree with you.

Do you have some suggestions as to why the rural area geographically should be preferred in the -- in the amount of voting power it has in the primary?

Mr. E. Freeman Leverett: I don't think I could express it any better than -- was expressed by the Court in MacDougall versus Green, that the desire to disperse, to diffuse political power, to prevent people in concentrated areas from -- you have a community of interest, you have opportunities who have all of the mass media of communication available to --

Justice Byron R. White: Well, diffusion doesn't mean inequality, does it?

Mr. E. Freeman Leverett: How is that sir?

Justice Byron R. White: I mean, diffusion doesn't mean inequality.

You had com -- (Voice Overlap) --

Mr. E. Freeman Leverett: That's what we're arguing, I think.

Justice Byron R. White: -- you had absolute diffusion when you had a -- when you had a -- your life primary.

Mr. E. Freeman Leverett: Diffusion is --

Justice Byron R. White: That was the -- that was diffusion of --

Mr. E. Freeman Leverett: It's not the diffusion we usually think of in terms of MacDougall versus Green.

Justice Byron R. White: Yes.

And you would I suppose get the same result then when the legislature decided to weight the votes in favor of functional groups.

Mr. E. Freeman Leverett: I'm coming -- I -- I'm going to touch on that with different methods of apportionment.

Even after you take into account the different methods of representation of mathematical computation, you then have a problem of what political scientists referred to as unofficial apportionments where these extra legal forces that rise up to neutralize -- the juror apportionments such as lobbies, and pressure groups, and reapportioning of the State Senate.

We came across one aspect of that as originally drawn out of scenic districts, achieved a remarkable degree of equality, they didn't vary more than 10%.

But when it got in the legislature, some people in one county said, we don't want to be with this group, we rather go in this other county, even though there's no other adjustments made to -- to alleviate the inequality that results.

We have more community of interest with this particular group of counties over here.

That -- that in our mind subordinates any considerations of abstract equality.

Now, the second proposition that follows from the idea that equal population representation is not the only basis is that this Court cannot pick and choose between conflicting bases of representation.

The oldest -- one of the oldest at least is political unit apportionment which is exactly what Georgia has employed here, apportionment according to political units.

We have superimposed the population bracket on top of it to give it some aspect of equality, but political unit apportionment is one of the oldest.

Another is of course the functional division apportionment, William and Mary College elected its own Representatives as did the English universities.

Another type of functional division apportionment has been suggested recently by one commentator who says that we are developing cleavages in the urban areas that transcend urban and rural lives, that the rise of labor unions on one hand and employers on the other might some day make it desirable to apportion Representatives along functional divisions of the population in order to --

Justice Hugo L. Black: I think that was done in Italy once, wasn't it?

Mr. E. Freeman Leverett: How is that sir?

Justice Hugo L. Black: I think that was done in Italy once, wasn't it?

Mr. E. Freeman Leverett: Yes, sir.

Justice Hugo L. Black: By Mussolini.

Mr. E. Freeman Leverett: Many European countries I think have followed that, particularly in Austria and in that area.

Another method of representation was suggested by John Stuart Mill who advocated the quotient system of apportionment, a pre-population allowance, that's in vogue in Europe.

We say that the Court is not equipped to make the policy choices between these conflicting bases.

I don't see how you can adjudicate that a particular basis is not permissible without at the same time adjudicating what is a republican form of government.

I recognize the distinctions made in the Baker versus Carr --

Justice William O. Douglas: But your -- your present argument, it goes against the Baker versus Carr?

Mr. E. Freeman Leverett: No, sir.

I don't think it goes against it.

I -- and I recall the distinction made, but what I'm saying is this that --

Justice William O. Douglas: That -- that it isn't a real distinction?

Mr. E. Freeman Leverett: I don't -- I don't see how you can avoid it.

It seems to me that you get down to this that you cannot determine whether a particular deviation or departure from equality is reasonable or unreasonable unless you first postulate what is the norm and when you have once postulated the norm, it seems to me that -- I can't see any difference in standard that would be compatible with equal protection and yet not at the same time represent a republican form of government or vice versa.

There may be, I -- but I fail to see it.

Justice Potter Stewart: I don't -- I -- perhaps I'm making a mistake in repeating it, but at least, as far as I'm concerned, your argument now doesn't go to the problem before the Court in this case.

We're here talking about -- not about legislative apportionment at all.

We're talking about the election of the United States or the -- of the nomination by -- in a one party state of a United States Senator and of statewide officials, executive and judicial as I understand it.

We don't have all this history.

The fact is that as I understand the briefs, 47 out of the 50 States at least have a system of election of statewide officials which is based on one man -- one voter one vote, counted equally.

You don't have all this history that you have in legislative apportionment.

You don't have all the problems of representative government in a State legislature.

Isn't this quite a different kind of a case we have?

Mr. E. Freeman Leverett: I think may be I can come to --

Justice Potter Stewart: That's the fifth time I've asked that question, I shan't ask it again.

Mr. E. Freeman Leverett: I think I can come to the heart of the forum, and I say this, we think that the true test is not the Court to pick and choose between conflicting basis of representation, either legislative, diffusion of electoral power and State House Offices or otherwise.

The true test is, it's the Court -- is to tell them whether there's any recognizable basis there.

If there's any basis at all, then I think that ends it and there are some of course that obviously are impermissible, race, sex, and that sort of thing.

But if a particular system reflects a recognizable, identifiable expression of policy, and it's a policy that is certainly had some recognition in governmental structure, I think the function of the courts should end there.

And they should not go into weighting, and as the Government would suggest, determine whether there's only a moderate departure from per capita equality and all of the drawing of lines that that would entail.

And we say that the Georgia system does have a recognizable basis and that is as far as the matter should go.

Chief Justice Earl Warren: Mr. Abram.

Argument of Morris B. Abram

Mr. Morris B. Abram: May it please the Court.

I want to interrupt the procedure of the argument which I will outline to the Court, so that the Court will know what I intend to argue here today to say that I think at the outset or the threshold of this case, it is very important from the argument we have just heard from the appellants to get firmly in mind the position which the appellee takes with regard to the differences between apportionment and voting.

Now, the problem arises through the necessity of giving a minority some voice.

To give a minority some voice in the field of representation, you have got to have some classifications, districting is classification.

If the drawing of a line in saying this man is in this district, this man is another.

That at least is classification.

The only other way you can give a minority of voice and representation is either to have a proportional system of representation or to ignore the minority's voice by elections at large.

Therefore, using our system which is not a proportional system, the American system hasn't developed that way, if you are going to give a minority a voice, a voice, not control, you must have some classification.

Now, in the field of voting, no classification is necessary because one man's vote is his fair voice and no classification is necessary and nor is any classification usual at least in American history and in any of the State practices with the possible exception of the three that have been described here today.

The truth is that in franchise exercise, the majority or the plurality control generally under our law, but through a unit system and the only purpose of it could be is to see that a minority prevails because one or the other must.

If you try the classification of voters, qualified voters, that to the State is to aside who is a qualified voter, in order to give one man a greater vote there is an opposite side of this coin.

You have had to give somebody else a lesser vote, so obvious the classification in the field of voting must in necessity involve discrimination.

Now, I should like to point out that --

Justice Potter Stewart: Of course, as you've indicated the -- as you've implicitly indicated that a State is not without power to discriminate in what might seem an arbitrary way among voters that -- isn't that correct that Georgia, as I understand you, if you're 18 years old, you can vote.

Mr. Morris B. Abram: Yes sir.

Justice Potter Stewart: But you can't vote if you're 17 years, 364 days old?

Mr. Morris B. Abram: That's a perfectly proper classification, I should think, the age classification.

Justice Potter Stewart: Now, somebody of that latter age might think it's pretty arbitrary?

Mr. Morris B. Abram: But he might very well do so, but I think that I could defend that sir and I would be prepared to do so if that were the issue, but --

Justice Potter Stewart: And I suppose a State could say to a person who's lived in a -- in a precinct or in a county only 29 days that you can't vote or somebody (Voice Overlap) --

Mr. Morris B. Abram: I think they're all (Voice Overlap) to this but I think that particular suggestion appeals to me as a reasonable one.

I might say this sir, under the law of Georgia in Talbert versus Long, our Supreme Court has said that the qualifications of voters are established in the Constitution, Article II Section 2 and that once that classification has been established in the Constitution, the power to further classify is exhausted and the legislature has no further power.

Justice Potter Stewart: That's as a matter of your State Constitution?

Mr. Morris B. Abram: A matter of State Constitution.

Now sirs, prior to 1962, it shall be my contention here, the county unit system had developed into the irrational, discriminatory practice.

And this had been permitted because it was favorable to those who control the political system of Georgia.

But the new Act of 1962, I shall try to demonstrate was a deliberately discriminatory device.

It didn't just grow.

It was created in a few days of the General Assembly session.

In answer to my Brother's argument that this is something that the people through their Representatives want, I would point out at the threshold of the argument that the Georgia legislature which passed this unit system which is presently under attack and was held void was a legislature whose Lower House represented 22% of the people.

The majority of the House represented 22% of the people and the majority of the Senate, it's now been reapportioned which passed this Act was elected sirs, by 5.5% of the people of Georgia due to the rotation system which I can't go into.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: Well sir, I -- I don't adopt that premise.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: Oh, yes sir, because we have not had sir, in dealing with history which I presumed is permissible, we have not had a Governor of Georgia elected in the last four decades from a major county.

This Governor qualified after the unit system was knocked out, he was not going to run for Governor.

He was induced to run.

It is generally recognized because the unit system was knocked out.

The votes that were cast in the urban counties of Georgia were enormous, the registration just surged forward and the people went to the polls this time.

Mayor Hartsfield's affidavit shows that it has not been customary for people in the urban counties to register or vote to anything like it, the proportionate numbers they are to the population because the fact your vote didn't count.

You can't say the system has it.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: Yes, yes, yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: That -- that's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: The Court is correct, yes.

Now sir, I should like to proceed on a more orderly basis and in order for the Court may know the course I'm going to take, I should like to say that first I'm going to try to examine the unit system.

Second, I'm going to mention very briefly the point alluded to by Mr. Justice White, that is the constitutional protection of this primary, but I'm going to deal at little length on the question of whether or not this primary effectively controls the election of the United State Senator because I think the Seventeenth Amendment question could be in this case.

And then I'm going to try to measure the county unit statute against the Fourteenth Amendment in practice and principle.

And then I'm going to briefly discuss the Seventeenth Amendment question.

Now to begin with, I think Mr. Justice White was correct when he asked the question or if there was an implication in the question, what would be the effect of Georgia saying that a man in Echols County shall have seven-and-a-half ballots, a man in Clayton, one ballot, DeKalb, three-fifths of a ballot, a man in Fulton half a ballot, a man just one county removed, three-and-a-half ballots, a man over a county line, one-and-a-fifth ballots.

For no matter how you look at the unit system this is precisely its effect and that's what it's designed to achieve.

The system is further more compounded in its effect by the fact that a man does not have to get the majority of the votes of the county in order to carry the full county units straight to the county.

In a five-man race, a man may get 30% of the votes of a county and carry the full unit vote of the county thus reversing the vote for those who voted against him who were in the majority.

It is for this reason that the system contrived to produce some rather absurd results.

For example in 1954, the Governor of Georgia was overwhelmingly elected by unit votes though he only received 36% of the popular votes and 72% of the people had in fact voted for somebody else.

Justice Arthur J. Goldberg: That is not possible under the amendment.

Mr. Morris B. Abram: Oh, yes sir, it is possible under the amendments.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: No, sir.

He must, but if Your Honor, if there -- one man has the majority of the popular vote and the other man has a majority of the unit vote then they get into a run-off under a unit vote.

And then you got the man who won the popular vote tagged, there's a popular vote candidate in a county unit election which of course would be politically disastrous.

Now, the system I said a moment ago, prior to 1962 --

Justice Potter Stewart: You mean this would be a -- this would be a terrible political liability to be known --

Mr. Morris B. Abram: It would --

Justice Potter Stewart: -- as the fellow who the majority of the people, the State report for Governor?

Mr. Morris B. Abram: It would be that sir and Mayor Hartsfield's affidavit in the record shows why there were campaign after campaign of scorn and vilifications directed against the most people of the State who lived in urban centers, day after day from the start.

The record shows this, the kind of language that was used against people from cities.

And the kind of a program hit upon the cities in election after election by people who presumably were trying to represent it.

Justice Potter Stewart: I've heard this that about some people that nobody has formed but the people, but I didn't realize that it was such a terrible (Voice Overlap) --

Mr. Morris B. Abram: Well, under the unit system, it doesn't help if the people have (Inaudible), if the units are against you.

The record is complete I think on that point sir.

Now, when the Governor called the legislature after this suit was filed, he called it and I quote his call, “To preserve, protect and defend the traditional democratic institutions existing in this State,” meaning the unit system.

There is on the record an affidavit from a legislator who was present at the briefing sessions about this legislation and I'd like to read to you what he said went on there.

“The general tenure of the briefings of the Governor and the Attorney General and the associated counsel present at said meeting of April the 10th, 1962 was to preserve, protect the county unit system, maintaining as far as possible existing discrimination ratios, and to do as little as possible to correct these and at the same time attempting to prevent further intervention by the federal courts.”

Now, I might say that there is not one scintilla of evidence in this record to contradict this purpose and intent which was -- which was flagrantly demonstrated in the trial of the case below.

Justice John M. Harlan: Is there any legislative debates on there?

Mr. Morris B. Abram: Sir, we don't keep records of legislature debates.

We don't have committee reports in general either sir.

Now the system as it was devised is a bracket system. From zero to 15,000 population, you get two units, then you get another unit for additional 4999 people, then a unit for 9999, then a unit for 14,999, then a unit for 14,999 and then two units for 29,999.

Now, it's rather curious, 30,000 people at the bottom of the scale get four units, 30,000 additional people at the top of the scale get two units.

29,999 people at the bottom of the scale get four units, but 29,998 people at the top of the scale get no units.

Now, it's mentioned that the history of the unit system supports this.

I might point out -- I'm going to argue that no unit system is permissible because the -- of course the decision below was standard, the Court adapted that principle which I think is the correct principle in this case.

But in 1970, 50.5% of the people had forty-four and eight-tenths percent of units.

The effect of the system as demonstrated in the Hartsfield affidavit has been -- it has been politically profitable for candidates for statewide officers to run races in which direct attacks are made upon the centers having the greatest population.

No man from Fulton County has served as Governor for four decades.

No Fulton man or United States Senator in the 20th Century.

There hasn't been a Fulton County Congressman serving a full term for 25 years until the unit system was voluntarily abandoned and Congressman James Davis who had been twice elected by a minority vote and twice defeated by a majority was sent home and a new man returned to Washington.

There was, as Mayor Hartsfield has pointed out, a tremendous lack of interest in elections growing out of this state of affairs.

I might point out further that there is not one sentence in this record which shows that any public permissible good or and was achieved by the unit system or prevented by it.

The record does show however, and I think by plenty of evidence that there is a connection between the county unit system, a Negro disfranchisement.

Now, I shan't go into this at great length but the basic premise of this argument --

Justice Potter Stewart: It does not make any – you're not relying on the Fifteenth Amendment?

Mr. Morris B. Abram: No, sir.

But the (Voice Overlap) --

Justice Potter Stewart: Well then what's the point of your argument at all?

Mr. Morris B. Abram: Well, in Nixon versus Herndon, it was said by the Court, Mr. Justice Holmes that the violation of the Fourteenth Amendment was so great he didn't have to rule under the Fifteenth Amendment.

Justice Potter Stewart: And that's your argument here too.

Mr. Morris B. Abram: And that will be my argument here too.

Justice Potter Stewart: So why do you --

Mr. Morris B. Abram: Well, I mentioned it only to show that the purpose of this, this deliberate discrimination and the reason for permitting this -- this secular discrimination over a long period to develop was that it was giving a great deal of benefit to those who wish to depress and to void the Negro franchise.

But I think it's only fair to say that I don't want to say anything more about it except the record shows that where the county unit power gave to the inbuilt political apparatus, the greatest advantage there, you had real Negro disfranchisement and in certain counties with large Negro populations, with high unit values, no votes at all from Negroes.

On the other hand, in the urban counties where the Negroes were voting and of reasonable proportion of their population, their votes didn't count.

It ends up in a statement by Professor Banner which is in the record.

These facts had a considerable bearing upon the determination of rural lawmakers to maintain the county unit system.

Now, maintain it, they have.

In 1952 and in 1950, a constitutional amendment was submitted by the legislature having them passed by two-thirds of both Houses to the people of the State to engraft the system upon the Constitution and each election by popular vote of about 30,000 majority, the attempt was defeated.

I don't think it would have been possible that there would have been any change in this had it not been for Baker versus Carr and the intervention of the federal court below.

And I might quote Mr. Madison on this principle who says in the debate on Article I, Section 4 of the Constitution, the right of the Congress to control the time, place and manner of elections, he said this.

“The inequality of representation in the legislature of a particular State would produce a like and equality in their representation in the national legislature as it was presumable that counties have power in the former would secure it to themselves in the latter and secure it to themselves they did in Georgia.”

I should like now to turn to the question whether this primary is protected and I want to read one statement, one sentence here from the Classic case which I think outlines it in its proper form.

Where the State law has made the primary an integral part of the procedure of choice or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary election includes the rights protected by Article I, Section 2.

Justice Potter Stewart: The State law does not require a primary.

Mr. Morris B. Abram: It does not, but it does say this, that if a primary be conducted, it shall be conducted by the unit system.

Justice Potter Stewart: Has to be done in this way.

Is there anything -- forgetting now what the Constitution might or might not require, is there anything in the injunction which would prevent a group of democratic party leaders meeting and nominating the candidates for State office?

Mr. Morris B. Abram: No sir, but there is a reason why it will not happen.

And that is when a man goes through a primary, he has got a badge of respectability attached to him which makes him a formidable candidate at the polls.

And that is one of the reasons, I suggest, why the Republican Party has not developed in Georgia, you can always make the argument they have nominated their man on a telephone.

Justice Potter Stewart: But probably -- well, that's about all the Republicans are in Georgia?

Mr. Morris B. Abram: Well, no sir, there are great many of them and many of them -- I must say that many of them are people of great substance and ability.

But the point is they are still not conducting a primary and I suspect one of the reasons they haven't is because they would have to do it by the unit system and they would be tarred with the same brush that they used in arguing against the Democratic candidates that they have a unit system of election.

Justice Potter Stewart: Just let me pursue my question once more in a different way.

If -- if there were -- if there were a convention, let's say to which the delegates came in kind of a county unit way, for instance in Connecticut, there's a convention of that kind, if I understand it, I don't know the detail, would that be a State action?

Mr. Morris B. Abram: I would suppose that if State law governed it in some way and --

Justice Potter Stewart: Let's say the State law was just (Voice Overlap) --

Mr. Morris B. Abram: Didn't govern it at all.

Justice Potter Stewart: -- this provided for -- that if a party had gotten a certain percentage of the vote at the last election then they were a party, but that they're -- but they were entirely free to nominate their candidates any way they wanted for the next election.

Mr. Morris B. Abram: Well, let me state two answers that I have to that sir.

The first answer in Georgia, the Democratic Party did held a convention of this party, it would be a State action by virtue of the fact that it would be tantamount to election.

Justice Potter Stewart: Isn't that what the Classic said?

Mr. Morris B. Abram: That's what Classic says.

In fact, controls the procedure of choice.

Justice Potter Stewart: So that doctrine --

Mr. Morris B. Abram: That doctrine --

Justice Potter Stewart: -- is limited to a one-party state, so to speak.

Mr. Morris B. Abram: That's right, on one-party states.

Now, on the two-party state I think the thing is less clear, but I should say that the two-party state still couldn't do certain things with respect to convention, they couldn't bar Negroes, I am sure the Fifteenth Amendment would control that.

And I suppose if there are limits to what you can do in a convention.

I don't want to try to argue about (Voice Overlap) --

Justice Potter Stewart: Well, suppose you could conceive of a party -- of a party that it was political objective was, say, white supremacy and citizen's counsel party to say, it -- couldn't it bar -- I mean, (Voice Overlap) --

Mr. Morris B. Abram: (Voice Overlap)

Justice Potter Stewart: -- under -- we have the right of free political expression and free speech?

Mr. Morris B. Abram: I must say I don't know what the Court would do with it if the case got here but my feeling is that that is not before us because in Georgia, the case before us without any doubt the Democratic Party controls the procedure of choice under the Classic doctrine.

Justice Potter Stewart: I'm giving a case --

Mr. Morris B. Abram: Yes, I understand.

Justice Potter Stewart: -- that's not here, I was just --

Mr. Morris B. Abram: But I would say this, Terry versus Adams goes very far, because in that case you held it was state action for this Jaybird Party to have a nomination process, excluding Negroes with respect to what, with respect to county and precinct offices in a pre-primary -- primary entirely unregulated by state law.

Now under the doctrine of Terry versus Adams it wouldn't take much of an extension to get the kind of a problem that the Court is speaking of.

Now, whether or not the Georgia Primary is tantamount to election, I think you have the precedent of the Georgia Supreme Court in Thompson versus Talmadge which said this.

Over a period of approximately half a century before the drafting of the 1945 Constitution, throughout that period, there has been only one and one dominant political party in the state.

And Professor Banner says in his affidavit that Georgia has been one-party state since removal of federal troops in 1871, none but democrats have held the State Office since the 1890 decade after which period this party has been completely in control of statewide elections.

You have before you in the record the kind of voting that takes place in the general election as compared to the primary and non-presidential years and except when some grave constitutional questions are being presented for ratification which further demonstrates that this primary is a procedure of choice.

May it please the Court, I would like now to turn to this equal protection problem in this case and I want to start by saying that the Due Process Clause was pleaded in the complaint.

We have not stressed it before this Court for the reason that in Beadle versus Scholle, the Chief Justice stated this.

“As this Court has recognized discrimination maybe so unjustifiable as -- to be a violation of due process.”

And consequently, I think it would be well to address ourselves and myself to the question of the Equal Protection Clause.

Now, I start from the premise that voting is a personal right and this Court decided this point in U.S. versus Bathgate, I have already mentioned the fact that I think you've got to have some classification to give a minority some voice in the representation process and need no classification in order to achieve that in the election process, the franchise itself.

Justice Potter Stewart: But (Inaudible) -- you must concede that a State can classify as to eligibility of voters.

Mr. Morris B. Abram: Oh, yes, I --

Justice Potter Stewart: I mean you've already asked the age and --

Mr. Morris B. Abram: I mean after you point (Voice Overlap) --

Justice Potter Stewart: Length of residency?

Mr. Morris B. Abram: But I should say to be accurate and to be careful about it, I should say this.

After the state has classified you as an eligible voter, no further classification is permissible.

Justice Potter Stewart: Without carrying that a little further, could a state classify an eligible voter in terms of whether or not he pays taxes, state taxes?

Mr. Morris B. Abram: Sir, I would say only this. I suppose that is possible, but I would say this that after having two people, both of whom have paid taxes and have entered the class, the State itself is established whether through it's Constitution or it's laws.

I do not think it is permissible then to draw distinctions between the people whom it is already classified.

Justice Potter Stewart: Could it classify on a basis of whether he has got at least an eighth grade education.

Mr. Morris B. Abram: I should think so.

I should think so.

Justice Potter Stewart: Certainly could as to whether or not he's literate?

Mr. Morris B. Abram: I should certainly think so.

Justice Potter Stewart: Could he do it on how much property he owns?

Mr. Morris B. Abram: I -- no.

I really would say that that's historically been permissible.

And whether or not at the present time it would be so regarded, I can't say, but I don't think that it's necessary to decide this case in order to determine how you set the original qualifications of the vote.

Justice Potter Stewart: No, I do not think you get very far calling one original and something -- something else could say -- give a man with a graduate degree, five votes, a man with a college -- with a BA degree, four votes and a man with an eighth grade education, three votes?

Mr. Morris B. Abram: I would say this.

It would have more rationality behind it than this statute as we're going to try to demonstrate in a moment, but I still think it would be in my judgment irrational.

Justice Potter Stewart: But that would be an original classification as --

Mr. Morris B. Abram: Yes.

Justice Potter Stewart: Because it is the same thing when you give somebody zero vote or one vote --

Mr. Morris B. Abram: I would concede that is true.

Justice Potter Stewart: -- it's whether you get one or two.

Mr. Morris B. Abram: I would concede that's true.

Justice Potter Stewart: So the -- and you do -- and you do as I think you must concede that a state does have power to classify certainly as to age and --

Mr. Morris B. Abram: Yes.

Justice Potter Stewart: -- the length of residence?

Mr. Morris B. Abram: I agree with that.

Justice Potter Stewart: And literacy?

Mr. Morris B. Abram: All I am saying is that once you have established too as a qualified voter, you may not then on grounds that have in them two elements that I am going to now discuss, begin further reclassification and distinctions.

Justice Potter Stewart: I was reading Senator Tower's new book the other day and it seemed to indicate that the -- perhaps the best democratic theory was to let those who spend as little -- the least money, have the least vote -- the voters who spend the most money have the most vote, would that be a -- a rational classification?

Mr. Morris B. Abram: I should not think so Your Honor, but there maybe those who think so, but I don't think that is necessary for --

Justice Potter Stewart: Would that be original?

Mr. Morris B. Abram: I would say that it would be original.

I certainly would agree in two senses perhaps.

Your Honors, I think the general principles that govern this field are these: classification, if it produces substantial discrimination and is irrational in the sense of capriciousness.

That is without rhyme or reason I think as Mr. Justice Clark said in Baker versus Carr is an improper use of classification in this field if any classification beyond the classification of voter per se is permissible.

And I also might point out that irrational could also mean a system of discrimination to achieve what is an impermissible state policy, or one without some kind of reasonable objective in terms of what we generally regard as the end of state power.

Unknown Speaker: (Inaudible)

Mr. Morris B. Abram: Well, I am going to try to demonstrate in a moment when I analyze the unit system Your Honor that the Georgia County unit system does not classify with regard to voters on any basis that could conceivably have any rational relationship to a permissible state end.

Now, I do not think geography is a permissible state end and I don't think --

Unknown Speaker: (Inaudible)

Mr. Morris B. Abram: I must say.

Justice William J. Brennan: Well, you had (Inaudible)

Mr. Morris B. Abram: I'm going into that sir.

Justice William J. Brennan: (Inaudible)

Mr. Morris B. Abram: Exactly, I am going to try to demonstrate how the system even cuts into the voting power of those who are generally in the class that presumably favors and I think I can demonstrate it on this record.

Justice Byron R. White: (Inaudible)

Mr. Morris B. Abram: Yes, Your Honor, and that --

Justice Byron R. White: (Inaudible)

Mr. Morris B. Abram: Yes, Your Honor.

You see, I am in an area right now and perhaps I should say that.

I don't really -- on my premise of this case, I do not really -- I really shouldn't be arguing the question of what kind of classifications based on geography or based on other things should be permitted.

My point is that none of this is permitted.

But if the Court, if the Court believes as the lower court did that some kind of weighting can be given.

I am trying to define the standards at least from my viewpoint which would be more proper than others or less improper than others.

Justice William J. Brennan: Now, you say none should be submitted, speaking now only with primary elections?

Mr. Morris B. Abram: I am speaking of a primary election and I think it would apply to the general election too, Your Honor.

Justice William J. Brennan: Well, I understand.

Would you apply it necessarily?

You don't have to (Inaudible) as a matter of legislative representation?

Mr. Morris B. Abram: Sir, I don't think this case really involved a necessary representation and I haven't thought out what the standard should be in the field of legislative representation.

I don't want to enter that field, if I can avoid it because --

Justice William J. Brennan: That's why -- that's why --

Mr. Morris B. Abram: Yes.

Justice William J. Brennan: I thought your argument was that whatever it might be in the area of --

Mr. Morris B. Abram: Yes.

Justice William J. Brennan: -- legislative representation, in this area --

Mr. Morris B. Abram: That's right.

Justice William J. Brennan: Your position is that there ought to be no weighting of (Voice Overlap) --

Mr. Morris B. Abram: That's correct, that is exactly my position.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: I thought I said Your Honor, I thought I said, some may think it is permissible on the grounds of history, and certainly there is a -- there has been a traditional sense.

But I do not have any definitive views with respect to what property qualifications, how much property qualifications, what educational levels.

My point is that we don't have that in this case because we have established two qualified voters are and the sole question here is whether a man who happens to live at one particular place shall have seven votes and another man a half.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: It could conceivably be.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: It could conceivably be.

Justice Potter Stewart: Georgia had a poll tax from (Inaudible).

Mr. Morris B. Abram: Georgia had a poll tax for many years.

It abolished the poll tax.

Now, in the Georgia system -- I'm sorry -- I'm -- I didn't -- I weren't referring to the question which I left, any classification which produces substantial discrimination and is irrational in a sense of capriciousness, no rhyme or reason, I would say is a violation of the Equal Protection Clause.

Irrational may also mean that it may have a pattern, but seeks to achieve some kind of an impermissible state policy which is another way of saying that the discrimination is directed in hostility towards certain groups.

Now, the Georgia system has a discriminatory object and a capricious impact.

There is no pattern that you can discern in this system except that the larger the population, the less the vote of each voter shall be counted.

But, the system also can be viewed as discriminating as amongst counties in roughly the same population groupings, and in roughly the same geographical areas.

On page 22 of our brief, we point out some mountain counties.

Now, these counties are all small counties in the mountains.

Dawson, one vote for 1795 population, Towns one for 2269, Lumpkin, one for 3620, Rabun, one for 3728, Pickens, one for 4451, Franklin, one for 6637.

Then, you can go down in the Southwest section of the State, the old plantation belt and you will find discrimination ratios as great amongst those counties sirs as 1 to 1200 to 1 to 6500.

Then you can take the counties, this one is just on a random, that Board of the State on Florida and the discriminations ratios run from 1 unit assigned to 938 votes to 1 unit assigned for 8211 votes.

You can take it within Congressional districts and you will find counties adjoining each other in a Congressional district which has some maybe historical grouping.

You will find Crawford County adjoining Bibb and Crawford has one vote for 2900 and Bibb one for 11,000. Echols County adjoins Lowndes in Eighth Congressional District, Echols has 1 for 938 and DeKlab has 1 for 12,850 and so it goes.

Now actually, how much rationality is in the system?

In the lower court, a counsel was asked by one of the three judges.

Now, I am asking you, what was the purpose of making it all the way through, less units for thousand as the counties got large, rather than making it the same unit for a 1000?

What was the purpose behind that, the court asked.

Counsel replied, “Well, I don't know.”

The legislature passed this bill.

We have to take it whether or not it's valid and understandable by what it says.

The State does not suggest directly any permissible ends or state policy which could justify this classification.

And I am perhaps straining at an implication when I suggest that their brief and their argument here today, because it quoted Harrington Mills, suggest that there may be two.

They quote Harrington as saying not until the French romanticism was there any serious questioning of the principles of economic basis of politics.

Now, if this system has some economic base presumably, it's based upon the distributional of property or income or something like that, but if you will look at the Hammer affidavit on page 157 and 158 and nine of the brief, you will find that those counties that have the least personal income had the most votes.

Those counties have at least distribution of wages and farm products have the most votes and those counties that have the least property have the most votes.

And in each case, the growth, the progression of affairs is running against the counties that have the most votes.

Justice Potter Stewart: So, this -- certainly, arguably and nothing irrational and having a reverse twist on economic (Voice Overlap) --

Mr. Morris B. Abram: It's not the historical basis though.

Justice Potter Stewart: No, but they --

Mr. Morris B. Abram: That they were arguing it on a historical basis.

Justice Potter Stewart: If the state, I suppose, arguably could decide that we want the have-nots in the state to have more representation than they have because they are the ones who need the legislative help?

Mr. Morris B. Abram: They could argue it, but as far as I am concerned, I would feel the argument is not correct.

Justice Potter Stewart: I don't know that it has been argued in this case.

Mr. Morris B. Abram: It has not in this.

But they do argue the second point very affirmatively.

They say that with regard to education, and this is the way they put that, quoting Mill, “However, frequently overlooked as Mills' insistence that vote should be weighted according to competency.”

And then they quote Mills directly, “It is not useful but hurtful that the Constitution of a country should declare ignorance to be entitled to as much power as knowledge.”

Now they come out on one side of that question.

Now, what's the record show?

The record shows that in the counties that have the least voting power, you've got the highest median educational levels.

In the old six-unit counties, you've got 10.66 being the median educational level and in the two-vote counties, you've got two-and-a-half years less.

Truth is that the record only shows one basis, hostility against people, the more people, the less the vote and the more the discrimination.

Now, I think this is the kind of a case which was alluded to, though not directly by Mr. Justice Harlan and Mr. Justice Frankfurter in Baker where they said, of Baker, this is not a case in which a state has through a device, however, sophisticated and oblique, denied Negroes or Jews or red-headed persons a vote or given them only a third or sixth of a vote, that was Gomillion versus Lightfoot.

This is a case -- leaving aside the racial elements, this case in which as state had deliberately given people on a basis not on their education, not on any basis if they are willing to stand up and tell us a half a vote or seven-and-a-half votes and that feels discrimination.

I must admit that there is a presumptive validity to state legislative acts, but once you have demonstrated the kind of discrimination implicit in this case in which a majority -- I'm sorry, in which a man maybe or in which a -- 50% of the people have only 31% of the units and in which it is mathematically possible to find a Governor elected by 50.5% of the votes in a two-man race and 6.1% of the votes in a five-man race.

Once you've demonstrated this, I think there was some burden on the State to put something in this record and they put not a word.

Justice William J. Brennan: If you're right Mr. Abram, on this record, I gather we don't have to reach the question whether unit system per se violates the (Inaudible)

Mr. Morris B. Abram: You mean whether unit systems are which --

Justice William J. Brennan: Per se.

Mr. Morris B. Abram: Per se?

I think this about it.

I don't think you have to, but I will tell you why I have argued it.

I believe the Court is going to -- probably want to write an opinion on the case rather than just a per curiam order.

Now, if it writes an opinion, I assume that it would want to set guidelines on the basis of what the law actually is, and the way the Constitution should be interpreted and I think therefore it's important to argue the point of constitutionality per se.

Justice Potter Stewart: How wide of an impact would this case have if there -- am I right, in understanding from the briefs that there are only two other states in the union that have any approximation of this?

Mr. Morris B. Abram: I have never heard of any other states having any approximation to it except the State of Maryland and the State of Mississippi.

Justice Potter Stewart: Mississippi.

Mr. Morris B. Abram: And the State of Maryland of course is a two-party State.

Legitimately, the State of Mississippi I think you all agree is a one-party state, except in presidential years.

Justice Tom C. Clark: On your Classic argument (Inaudible)

Mr. Morris B. Abram: Sir?

Justice Tom C. Clark: On your Classic argument.

Mr. Morris B. Abram: Yes, yes.

Now --

Justice Potter Stewart: Is that -- does any state ever had the -- this kind of system in the general election as distinguished from the primary?

Mr. Morris B. Abram: No sir, but --

Justice Potter Stewart: Majority?

Mr. Morris B. Abram: But there was another unit system which I'm going to talk about in just a minute, Houston, Tennessee and stricken by their Supreme Court in 1937, I want to get into that in just a minute.

I want to refer the Court to the language of a case which I think has been frequently overlooked at least by me.

Mr. Justice Bradley in Missouri versus Lewis at 101 U.S. spoke these words.

“It is not impossible that a distinct territorial establishment and jurisdiction might be intended as, or might have the effect of a discrimination against a particular race or class, where such race or class should happen to be the principal occupants, just happen to be the principal occupants of a disfavored district.

Should such a case ever arise, it will be time enough then to consider it.”

This at least is such a case.

I might point out that on the merits, every Justice of this Court and every judge below who has ever considered the county unit system on its merits and thought it to be a justiciable issue has ruled it unconstitutional.

That was the opinion of Mr. Justice Andrews in South versus Peters.

It was the opinion of Mr. Justices Douglas and Black in South versus Peters.

It was the opinion of the three-judge court below in this case and it was also true with regard to Tennessee's Supreme Court in Gates versus Long decided in 1937.

Now, I'd like to go into that case in just a minute.

Tennessee erected a unit system by statute for a use in its primaries and under this system, every county had the same proportionate number of unit votes as its proportion was to the population as a whole with this exception.

No county should have more units than one-eighth of 1% of its population.

We have done an analysis of how the county in the system in Tennessee would have assigned units under the county unit system in Georgia?

How Georgia will assign units.

That appears in our brief.

Under the present unit law under attack in Georgia, Echols County has two units and Fulton has 40.

Under the Tennessee law, Fulton would have 695 and Echols would have three.

Yet applying the Equal Protection Clause, the State Supreme Court of Tennessee declared that system unconstitutional.

There has been some allusions and I am sure that the Court's thoughts will naturally turn to MacDougall versus Green and I think I should pay some attention to it.

The case did not say as I think my Brothers would agree that there is some room for geographic distribution of voting strength.

It stands only for a principle or permissible geographic distribution of voting initiative which is an entirely different thing.

Justice Potter Stewart: Those were nominating petitions, were they?

Mr. Morris B. Abram: Yes sir, nominating petitions.

Now in that case, they rose under the desire of the Progressive Party in 1948 Government ballot and the law in Illinois required that you get 25,000 signatures, but of those 25,000 names, at least 200 had to come from each of 15 counties in the State.

Now, there are 102 counties in Illinois at the time and the record demonstrates that you could get 61 -- I'm sorry sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: Well, sir, the first point about it is not a geographic test with regard to voting, but only with regard to political initiative.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: I'm not going to argue that the case was correctly decided, but I do say that under the principle of that case, there is a vast distinction between this case and the MacDougall case, the first distinction being political initiative rather than voting, and the second being the bite of the system.

For example, under the Illinois system, Cook County had 52% of the population by the 1940 census and you could get 61% of the signatures under that law from Cook County.

There were at that time at least 49 other counties with more than 25,000 population which meant that to get 200 signatures in each of these 49 counties leaving aside the 51 other counties that you could've gone to, you would've been getting only eight-tenths of 1% of the people to sign your nominating petition.

And this Court apparently thought it was a reasonable device.

Now, I would like to turn for a moment to the Seventeenth Amendment claim.

The language of the Seventeenth Amendment on this point is clear.

The Senate of the United States shall be composed of two Senators from each State elected by the people thereof and it doesn't stop there.

It was very careful to decide and to determine who those people shall be, it said this.

The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

It said, the State can determine who these electors shall be and Georgia has.

Georgia has said it in these words of its Constitution.

Every citizen of this state who is a citizen of United States, 18 years or upwards not laboring under any disabilities named in this article and possessing the qualifications provided by it shall be a qualified voter.

So Georgia has now decided who the elector shall be under the Seventeenth Amendment.

Now, having decided who the elector shall be, the state legislature has determined that these electors shall not elect the United States Senator from Georgia.

He is in fact and has been in fact since Reconstruction, elected by not living human beings or qualified electors, but by county units and a unit is not a person.

There is no way to change a unit into a person and if the legislative history of the Seventeenth Amendment demonstrates a desire to get rid of the indirect election of Senators, this system of course grabs an indirect election upon us.

I should like to conclude by saying --

Justice Potter Stewart: Seventeenth Amendment says Senators shall be elected by the people of the State?

Mr. Morris B. Abram: It says, “The Senate of the United States shall be composed of two Senators from each State elected by the people thereof.”

Justice Potter Stewart: Of course that can't mean literally what it said with people (Inaudible) --

Mr. Morris B. Abram: Then it says with the people shall be -- then it says the electors (Voice Overlap) --

Justice Potter Stewart: A 5-year-old boy can go up and say I'm --

Mr. Morris B. Abram: It says the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Justice Potter Stewart: Alright.

Mr. Morris B. Abram: But my point is that once a State has made that definition, it then grabs upon the people who are defined as qualified voters, a right then secured by the Seventeenth Amendment to vote for the Senator of United States.

Justice William J. Brennan: Mr. Abram, if we were to agree with you on this point, would that be enough to dispose of this case without touching the State office?

Mr. Morris B. Abram: No sir, because you would then have state elections for Governor, Lieutenant Governor, for the judges of all of our higher courts, the Commission of Agriculture, the man who sets the fire insurance rates, the Comptroller General, all of these offices would then be elected by county units.

Justice Tom C. Clark: Those are all statewide offices?

Mr. Morris B. Abram: They're all statewide offices.

You see sirs, every statewide officer in Georgia who sits in the Capital and administers our law and runs our government from the Chief Executive going down is elected under the unit system under the Act as amended.

The U.S. Senators are also elected.

Now, the Congressmen, the statute does not provide that the Congressman shall be elected by a county unit system, but under practice --

Justice William J. Brennan: You're quite right Mr. Abram that it's the same statute that applies to the United States Senator and the others.

Mr. Morris B. Abram: Yes, that's right sir.

Justice William J. Brennan: Well, if we agreed with your argument regarding the United States Senator, wouldn't that be sufficient to affirm this injunction without referring to it.

Mr. Morris B. Abram: But I should suggest sir, if you put it on that ground, on that ground alone, while you would have upheld the judgment below, I would say there might be room and certainly as long as there's light and there's hope for passing the statute that limited itself to the Governor, Lieutenant Governor and the other important officers --

Justice William J. Brennan: You mean you don't -- would be back here again?

Mr. Morris B. Abram: No sir, for this reason sir.

There had been about five county unit cases that have attempted to reach this Court and every time we tried to reach this Court, we tether between mootness and prematurity.

If we file the petition in equity, pertaining to our election before the State Democratic Executive Committee has met to determine whether there shall be a primary, we are met at the threshold by the argument but we don't know whether we're going to have a primary or not and you are premature.

But if we wait until at the last minute, they decide to hold a primary which means the unit system then applies, then we are in a great race to get to this Court, because otherwise under the doctrine of U.S. versus Anchor Coal Company, we then -- be moot which is the way we read the disposition of the original county unit cases in this Court.

So consequently, we are constantly tethering between prematurity and mootness.

This is one of the few cases that in which there was enough speed below to afford a relief and an opportunity to reach this tribunal.

Justice Tom C. Clark: What do you say the practice in the congressional race it was?

Mr. Morris B. Abram: The practice there Mr. Justice Clark is this.

Under the rules of the party whether or not the unit system is employed in a congressional primary depends upon the decision of the democratic executive committee which governs that primary.

That committee by the way is always named by the incumbent Congressman provided he is a democrat, incidentally all are Democrats, is named by the incumbent Congressman.

So the Congressman does have under this system a way of determining under which system I want to run.

Whether I want to get elected by unit votes or whether I can best throw myself on the wishes of the people.

Justice Potter Stewart: Nominated technically (Voice Overlap) --

Mr. Morris B. Abram: Nominated, yes sir, nominated.

The word should be nominated, but I might add sirs that we have a case now pending in the Federal District Court of the Southern District of Georgia, it has been pending I might add for over two years there, a damage suit based upon a Congressman's having been elected with less than a majority of the popular vote and though he got a majority of the unit votes.

Justice Tom C. Clark: Some districts (Inaudible)

Justice Potter Stewart: Yes sir, and if one wants to argue the electoral college analogy, I am perfectly agreeable to going into it.

But I don't think it's apposite for the reason that it's -- as Mr. Justice Stewart pointed out, it's something that came out of the Twelfth Amendment and this of course predated the Fourteenth Amendment.

Justice Potter Stewart: The Seventeenth Amendment argument necessarily depends upon this proposition that -- this is an election rather than a nomination.

Mr. Morris B. Abram: Yes sir.

Justice Potter Stewart: Does it (Inaudible)

Mr. Morris B. Abram: It has to go on the principles in the Classic case that it's tantamount to an election.

Justice Potter Stewart: Well, it is not more than tantamount but it is.

Mr. Morris B. Abram: That is the election.

It is the election where the Senator is elected in Georgia.

It is undoubtedly true that as a legal proposition he could not -- and he could not --

Justice Potter Stewart: He couldn't take office after that -- after the --

Mr. Morris B. Abram: But that's where he has been elected.

Justice Byron R. White: Well, Mr. Abram, as I -- you didn't cross petition here, did you?

Mr. Morris B. Abram: Sir?

Justice Byron R. White: You didn't cross petition --

Mr. Morris B. Abram: No sir.

Justice Byron R. White: -- here and -- so, you're perfectly happy with the discriminations that are built into the -- and allowed by the decree below?

Mr. Morris B. Abram: I am not happy about them sir, but I'll want to be perfectly candid to the Court.

I knew and I still that no unit system that discriminates a little bit will ever be adopted by the Georgia Democratic Party because unless it discriminates a lot, there is no magic in it and there is no profit from it.

Justice Byron R. White: But doesn't be really the decree below to the extent that it does allow a discriminatory system?

Doesn't it really violate some of the things you have been arguing here?

Mr. Morris B. Abram: Exactly.

I couldn't agree with the Court more.

I think the decree below in avoiding the system as it was then in use was thoroughly right and correct and should be affirmed.

But if the Court goes into the question of whether or not if this advice as to how a unit system could be constructed is or is not proper, I would say that the system they have suggested is improper.

Justice Byron R. White: Well, the State as I understand in your brief suggest that the -- that -- and the Government suggests that some part of the decree be eliminated --

Mr. Morris B. Abram: The Government --

Justice Byron R. White: That part of the injunction.

Mr. Morris B. Abram: The Government says if I -- the Government will speak through the Attorney General --

Justice Byron R. White: Well, (Voice Overlap) -- what do you think about that?

Mr. Morris B. Abram: The Government's suggestion is that the Court should not do any more than affirm the invalidation of the Neill Primary Act as an amendment that the rest of the opinion is an advisory opinion and was improper to be put either in the opinion or the decree.

My judgment is, my view is, that -- and I am the one with the Government on this, the decision below was correct in invalidating the county unit system as amended.

But it was incorrect when it suggested that a county unit system could be devised and used in this franchise field.

But, my view is -- further -- goes further than I understand the Government's view --

Justice Byron R. White: I understand.

Mr. Morris B. Abram: I say that when the Court writes its opinion, it should say that no unit system, this or any other is constitutional under the Fourteenth and Seventeenth Amendment.

I should like to conclude Your Honors by saying this.

It's been foreshadowed by some conversation already.

The thing I'm going to say and that is that the worse that can happen, if this Court upholds the court below is that everybody in Georgia can have a vote who has been declared a valid qualified voter by the Constitution of the State.

And furthermore, I do not think there is any way that you can uphold this system even if you don't say a system is per se unconstitutional, until you can say that two equals four or feel that 50 cents is the proper amount of change for a dollar or that you can give eight ounces per pound.

I think a qualified voter is a qualified voter, is a qualified voter and a vote, is a vote, is a vote.

Chief Justice Earl Warren: Mr. Attorney General.

Argument of Robert F. Kennedy

Mr. Robert F. Kennedy: Mr. Chief Justice, may it please the Court.

I would first like to state the interest of the United States in this case.

Declaration of independent states a principle which is basic to our American way of life, namely that governments derive their just powers from the consent of the people.

In periodic elections here in the United States, we select our leaders.

If we become dissatisfied, we select new leaders.

So therefore, the free and unencumbered exercise with a franchise is basic to American system.

We believe that this free and unencumbered exercise with the franchise is under serious challenge in an arbitrary, capricious and discriminatory fashion in the State of Georgia.

But we believe that this evil is not confined to the State of Georgia as the Court heard in the Tennessee cases last term.

Districts have been so arranged in certain areas of the United States that an individual in one area has 10, 15, 50 or 100 times the vote strength of an individual in another area.

The United States Government has a responsibility to do all in its power to ensure that those who have been disfranchised in whole or in part that that right is restored to them.

That in this effort to also restore some confidence in representative government where this kind of practices exists.

In Baker versus Carr, this Court has determined that the weighing or dilution of votes through malapportionment was justiciable in the federal courts under the Fourteenth Amendment.

This is the first case in which the Court has been asked to pass upon the major substantive constitutional issue.

Therefore, the principles enunciated in this case will have an effect on millions of Americans who have been deprived in whole or in part of their franchise.

The issues involved in this case really are relatively simple.

First, as far as the facts are concerned, there has been a gross and arbitrary discrimination against the voters who live in the urban areas in favor of those who live in rural areas.

And number two that that gross discrimination is in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Beyond that, we don't feel that it is necessary for the Court to go.

We don't think it's necessary for the Court to accept some hypothetical variant to this system which the Georgia legislature may pass in the future.

We don't think that the Court should limit its future actions in this field by accepting a standards -- standard which may or may not be applicable to other states under other circumstances in other parts of the union.

In this case, Mr. Chief Justice, the discrimination is gross, but before I get into a discussion of that, I would like to discuss just briefly about what we feel the scope of this case is in view with some of the questions that has been raised.

First, we are not against a county unit system as such.

We are against the Georgia County Unit System because it discriminates against those who live in urban areas in favor of those who live in rural areas.

And number two, we're not saying or contending that under all circumstances in every situation, that every vote must be given equal weight.

If you have a unit system or if you have a representative form of government with Representatives that elected to the legislature other than statewide election, you're bound to have some departure from exact equality.

Further, there are other theories of representation.

You might take into consideration geography, you might take into consideration historical background and you might take into consideration economic interests and a number of other matters.

These kinds of departures -- perhaps they are harmless or perhaps they are necessary or perhaps are unavoidable.

The fact is in the Georgia County Unit System however that the departures are not harmless, are not unavoidable and are not necessary.

Further, I think that we should remember that we are considering here a statewide election for statewide offices.

We're not -- we don't have to get really involved in various theories of representation.

Here is one man, one vote.

You can have equality.

We feel that, however, if you depart at all from this equality that it should meet the most exacting test, it should be subject to the most exacting test and that we feel at a minimum that test should be -- that the departure should be minimal.

And number two that it should be -- to further some part of the elective process.

We feel that what has happened in the State of Georgia under the Georgia County Unit System is not a departure that is minimal, is not harmless.

Let me just give you some examples.

If you live in one of the eleven smallest counties in the State of Georgia, your vote is worth seven-and-a-half times an individual who lives in one of the four larger counties in the State of Georgia.

If you live in Savannah, Georgia, your vote is worth four times if -- if the -- you have to get four votes in Savannah, Georgia to offset one vote in Glascock County, Georgia.

If you live in Fulton County, Georgia with Atlanta, you have to get 14 votes to offset one vote in Echols County.

A third of the populations living in the smallest county in the State of Georgia have a majority of the unit votes.

We used to have, and I repeat used to have, a saying in my City of Boston which was vote early, and vote often.

If -- if you live in one of the small counties in the State of Georgia, all you have to do is vote early and you accomplish the same result.

Conversely, a majority of the population living in the larger counties in the city -- in the State of Georgia have only a third of the unit votes.

If you live in one of the large counties in the State of Georgia, you've got one unit vote for every 12,889 people.

If you live in one of the smaller counties, one of the eleven smaller counties in the State of Georgia, you have one unit vote for every 17,115 people.

If you live in one of the 116 of the smallest counties in the State of Georgia, you have 251 unit votes.

But the same population in the four largest counties in the State of Georgia, approximately the same population has only 90 votes, a discrimination of almost three to one.

Now, this is -- this kind of discrimination is unfair as giving everybody who lives in the Eastern part of the state 10 votes for every person who lives in the Western part of the state or people who have red hair five times their vote value of those who have blond hair or those who have white skins, 10 times the vote of those who have dark skin.

And this voting disparity has had a major result in the State of Georgia.

If you're living in Fulton County, you pay -- in 1960 you paid about $80 million in taxes to the State of Georgia.

That from the State of Georgia to Fulton County came approximately $22 million.

The other $59 million was used elsewhere in the State of Georgia mostly for the smaller counties.

If you live in one of the seven largest counties in the State of Georgia, you paid in 1960 a $160 million worth of taxes, $60 million of that was used elsewhere in the State, $60 million, excuse me, was used in those eleven counties.

The rest of it, the $100 million was used elsewhere in the State.

Now, what happens in Echols County?

Echols County paid $82,000 in taxes in 1960, but they received back from the State $280,000.

If you live in one of the eleven smallest counties in the State of Georgia, in 1960, you paid $2 million in taxes to the State of Georgia, back from the State however, you received $4,500,000 in taxes.

A person living in Fulton County, the State there -- the county there pays $3.66 for every dollar they received back from the State.

But if you live in Echols County, you receive back from the State $3.40 for every dollar that you paid in.

The per capita tax in one of the largest -- in the largest counties in the State of Georgia in 1960 was $77 per capita.

In the smallest counties in the State of Georgia, it was $19 per capita.

And yet what you received back from the State of Georgia, if you lived in one of the largest counties in the State of Georgia, you at least received back $22 per capita and if you lived in one of the largest counties, you received back $69 per capita.

Well, I'm not contending here that this money that was used by the State of the Georgia in these smallest counties was not for good purposes.

I'm not contending that there should not have been perhaps some discrimination between the taxes that were being paid by the larger counties and the smaller counties because the larger counties are better off financially.

But I do say that if you're -- if the large counties of the State of Georgia are going to pay the bills for the small counties, certainly their vote should count as much.

Certainly when you consider what has happened in Fulton County and Echols County, a vote in Echols County being worth 14 times the amount of the vote in Fulton County.

We hear and we talk a great deal about state's rights, but to turn the coin of state's rights over and you get state's responsibilities.

There are many things that need to be done in the major metropolitan areas of the United States or problems of the urban renewal, of the purification of water, of transportation, of education, of juvenile delinquency and many of these problems are being ignored.

And while you have a system as you have in the State of Georgia or on the Georgia County Unit System where there is the great advantage for those who live in the rural areas in favor of those who live in the urban area.

The people in the urban areas are always going to figure and figure correctly that they are second class citizens and those in the rural areas are the ones that are going to reign supreme.

Justice Byron R. White: Well --

Chief Justice Earl Warren: General --

Justice Byron R. White: -- Mr. Attorney General -- excuse me.

Chief Justice Earl Warren: I'm just going to ask General, do you believe that there is any place in a state system of voting for weighting the votes in the general elections for Senator or Governor or the general state offices?

Mr. Robert F. Kennedy: Mr. Chief Justice, I don't think it's necessary for us to reach that point.

I do say that although I have given it a great deal of thought, I have difficulty coming up with any system that makes any sense which is a unit voting in connection with a statewide election.

As I say, I don't think it's necessary to reach that point and as I said a little bit earlier, what we are contending here is about the Georgia County Unit System.

But I do have a difficult time coming up with any meaningful unit vote as far as the statewide elections go.

Justice William J. Brennan: Well, Mr. Attorney General, is the -- what was -- what is the Government's view if we were to agree with the argument addressed in the Seventeenth Amendment as -- respects to nominations for the United States Senate and can sustain the injunction addressed to the statute on that ground.

Would the Government think we ought to reach all these other questions (Voice Overlap)?

Mr. Robert F. Kennedy: Yes, yes.

Because the order goes beyond -- the order of the lower court goes beyond just the election of the United States Senator, Mr. Justice.

And what is involved here is a statewide election for all of these other offices and I --

Justice William J. Brennan: Well, is this a suggestion then that indeed we can't dispose of the case only on the Seventeenth Amendment?

Mr. Robert F. Kennedy: That's correct.

Justice Potter Stewart: You don't express any position on the Seventeenth Amendment in your brief, do you?

Mr. Robert F. Kennedy: No, we do not.

We don't think that it's necessary to reach that.

Justice Potter Stewart: I understand.

Mr. Robert F. Kennedy: Now, the justification that has been offered for this discriminatory system is that those in the rural areas are not as able -- well-able to organize themselves that they don't -- they are not as articulate as far as politics is concerned and they don't take as active interest in politics.

I think that that contention does not bear upon to the facts.

I think that anybody that is in public life that has represented a rural area is found that his constituents are articulate, are vocal, are strong and well-able to take care of themselves.

I think that the statistics at least of the elections in the last few years have shown that those in rural areas take a very active interest in politics.

For instance, in the 1960 election, the -- it was five states which were primary rule in the United States which led all the others as far as vote participation.

Idaho with 80.8%, New Hampshire with 80.6%, Utah with 80% and the two North Dakota and South Dakota with approximately 79%.

The City of New York, 59% of the eligible voters voted in the election in 1960.

Outside the City of New York, however, was 77%.

Approximately 50% of the people in Newark, New Jersey voted in the election, but outside the City of Newark, the percentage was far, far higher.

In Illinois, the vote in the down state counties of Illinois, the rural county was much higher by and large than the wards of Cook County, Chicago, Illinois.

The contention is what they'd -- that they don't vote as much as a block.

They don't vote as much as a unit.

They don't get together as much.

I don't think that that is borne out either.

Of the 75 counties in the 1960 election in the United States which voted for more than 80% for one candidate or another, all but one of those 75 counties was a -- had a population of less than 50,000.

But even assuming -- even assuming that this contention was correct, Mr. Chief Justice, I still don't think that it bears up.

It's a -- we put a great premium in United States on participation in elections, getting together and organizing them.

And if we -- if the State of Georgia can penalize those who are well-organized, there is nothing to prohibit a State from penalizing the members of the American Medical Association for being better organized and housewives for instance.

Or even members of labor organizations because they happened to be better organized than say, some other group.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Kennedy: I don't think it would be constitutional and I don't think that would be wise.

Justice John M. Harlan: General, do you -- do you -- do you -- the District Court as I read its opinion did not strike down the county unit system as such like it was careful to say that it was not doing so.

Do you -- does the Government's position is if the -- is it the Government's position that the system as such is unconstitutional?

Mr. Robert F. Kennedy: No, the Government's position of that subject that does not have to be reached by the Court.

We can think that this county unit system should be struck down as it's been put into operation.

We don't think that the Court need approved, as I said, some other system which may or may not be put into operation by the State of Georgia.

Justice John M. Harlan: What -- what you're suggesting as I understand it is that the District Court's decree in its advisory apportion, as that term is used that it would be modified by striking those out -- those provisions out that the present county unit system as applied so to speak, as devised should be struck.

And without any indication as to what might meet the Court or that it might meet the constitutional standards if the legislature re-met and substituted four instead of three and five instead of six, (Voice Overlap)?

Mr. Robert F. Kennedy: Yes.

Justice John M. Harlan: Is that -- is that it?

Mr. Robert F. Kennedy: That's correct.

We think that if the -- it's -- be clear and starting really with the Tennessee reapportionment case and we hope in this case that what the ideal is, one man, one vote.

That number two, that if there is any variation of this that it has to be to further the elective process, that idea can be followed by states.

The reasonable men in our state legislatures and those who have the responsibilities in our state can follow that.

We don't think to try -- if -- or the Court to attempt to set up a standard which is going to be applicable in Massachusetts and California and the State of Washington and Florida or in Texas is impossible.

These people know their states.

They know what the history and the background of it is.

They can pass a law which would be discriminatory.

We feel that what has happened in the State of Georgia that this is discriminatory.

But I think as a men of good will that they will make an effort by and large throughout the State to pass a law which is their, an equitable law for the citizens now that the Supreme Court has passed on this matter.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Kennedy: No, because we have the courage of it Mr. Justice.

We just don't think it's necessary to say at the moment.

Justice John M. Harlan: You also (Voice Overlap) --

Mr. Robert F. Kennedy: And we state that this county unit system is invidious.

In answer to the Chief justice, I said that I couldn't -- I could not give you a description of one that does not raise all kinds of problems, but I -- there might be a state where the lawmakers for historical reasons, geography, for other factors that I'm not aware of at the moment who could come up with a unit system which would make some sense.

So, for -- I just think that it's not necessary to go beyond --

Unknown Speaker: You can't conceive it.

Mr. Robert F. Kennedy: I cannot conceive it.

Justice Byron R. White: Well now, why is it -- Mr. General, why is it so clear that the (Inaudible) -- this particular system is so bad?

Is it (Inaudible) -- the Government's position that there is no scheme at all in this system that isn't a crazy quilt without any reason or is it that it's so clear and so -- is there so much of a pattern of discrimination against urban areas?

Mr. Robert F. Kennedy: I think (Voice Overlap) --

Justice Byron R. White: (Inaudible)

Mr. Robert F. Kennedy: I don't think it's a crazy quilt.

Mr. Abram has pointed out that there were discriminations within groups, but I think that as a general proposition that this is a systematic discrimination and I think it's been the --

Justice William J. Brennan: So the more -- the more rural an area is, the more weighted votes gets.

That's the whole spectrum of discrimination.

Mr. Robert F. Kennedy: That's correct, in favor of those who live in rural areas and against those who --

Justice William J. Brennan: So essentially, it is a rural-urban discrimination in the Government?

Mr. Robert F. Kennedy: That's correct.

In favor of those who live in urban -- in rural areas against those who live on --

Justice Byron R. White: You say its -- do you say the Government's position is that beyond the power of the legislature of Georgia to prefer a rural voter to an urban voter?

Mr. Robert F. Kennedy: Yes.

Justice Potter Stewart: At least in an election of this kind of a statewide election of executive or judicial officers with statewide constituency.

Mr. Robert F. Kennedy: That's correct.

Justice Potter Stewart: You -- as I gather, you've implied there might be different considerations and other considerations in legislative apportionment within a state?

Mr. Robert F. Kennedy: That's correct.

Justice John M. Harlan: (Inaudible)

I thought you recognized that the urban country consideration was a factor that could be taken into account, didn't have to be scooted per se, but that it was over-weighted here or as applied here, it was enough reason for discrimination.

Mr. Robert F. Kennedy: Well, I think that it can certainly in -- if you were having a representative kind of election, Mr. Justice.

But none in statewide elections.

We don't think that this is in furtherance of the elective process.

Now, as I say that this discrimination here as put into effect is gross and number two, that it's not in favor, it's not -- does not further the elective process.

Those -- that's the test that we apply to any kind of -- where there is a differentiation in the weighing of voting.

Justice John M. Harlan: So that (Voice Overlap) --

Mr. Robert F. Kennedy: This is different.

As has been pointed out, this is different than when you have an election that involves a representation of members to the House, to the legislature up to the Upper House in the State.

Chief Justice Earl Warren: Well, in one situation, in the legislative situation, you have representations, but when you have a statewide election, you -- there's no necessity for weighting votes.

They -- you vote for one office to represent not the districts but minorities or majorities but to represent the entire State, is that the -- isn't that the --

Mr. Robert F. Kennedy: That's correct.

Chief Justice Earl Warren: -- the difference between the two, General?

Mr. Robert F. Kennedy: That's correct.

And the -- another justification that has been used for this kind of practice in the State of the Georgia is that one area or one county will still dominate the State that -- that would be -- the rest of these voters in the State will be overwhelmed.

That -- that's -- really doesn't bear up because the biggest county in the State of Georgia is Fulton County with only 14% of the vote.

Well then if they say that's the geographical area, well, the DeKalb County borders which is the next biggest county borders on Fulton County, but the rest of the large counties are spread around the State.

For instance, the third biggest, the Chatham County which contains Savannah which is on the East Coast and you have Muscogee County which is the fourth largest county, and that is on the west side of the State.

Bibb County is the fifth largest and that's in the central part of the State and the rest of them are all spread around.

So it's not any geographical group that could so dominate or control the State which would cause this danger.

And it's hardly a justification for penalizing those who live in these major metropolitan areas, penalizing their vote strength by 50% and rewarding those who happen to be, maybe who live just a few miles away in a small rural county who is only comparative virtue appears to be that they live in a area that has a small population.

Justice Byron R. White: (Inaudible) the real -- really meaningful figures is not to be the population of the counties, the numbers of Democrats or Republicans in the Primary.

They really got a weight.

(Inaudible) strength of the counties, you ought to do it over the number of people voting in that primary, shouldn't you, rather than the population.

Mr. Robert F. Kennedy: So, I think that that's (Voice Overlap) --

Justice Byron R. White: And isn't that -- isn't that a significant factor in some counties of Georgia or isn't it?

Mr. Robert F. Kennedy: Yes it is.

That gets -- when you consider that factor, it gets into many other problems which are not involved here.

There are some counties, that rural counties which vote a very high percentage of their population.

Frequently, they have a low Negro population.

Justice Byron R. White: And if they --

Mr. Robert F. Kennedy: The one that have --

Justice Byron R. White: Suppose the number of Republican voters in Georgia is not large enough to make this (Inaudible)

Mr. Robert F. Kennedy: It's not very large.

Justice Byron R. White: In any county?

Mr. Robert F. Kennedy: In any county.

Justice Byron R. White: There's apportionment (Inaudible)

Mr. Robert F. Kennedy: Not any -- it's not in (Inaudible)

Chief Justice Earl Warren: General, in Georgia, is there any power in the people to initiate a constitutional amendment or must it come from the legislation?

Mr. Robert F. Kennedy: There is not.

Chief Justice Earl Warren: It must come (Voice Overlap) --

Mr. Robert F. Kennedy: Must come from the legislature.

Chief Justice Earl Warren: From the legislature itself.

Mr. Robert F. Kennedy: Now, it's a -- didn't argued also that this is comparable to the electoral college, Mr. Chief Justice and that you have some variance in the electoral college and so that therefore you should also have it here or can have it here.

I don't think that really bears up.

I don't think the analogy is correct because there is a far difference, a great difference between the states who gave up their sovereignty and there were concessions made.

When they gave up their sovereignty to create the United States, one of the concessions that was made to them was the fact that they would have the equivalent vote in the electoral college, equivalent to the number of Senators had -- they had plus the numbers of Representatives they had.

Now this, I -- I'm in disagreement with the brief of the appellants and the argument of the appellants that this was all like problem between the English system and the French system and Thomas Jefferson and Adams and others were involved in determining whether they really believed in democracy or not.

There wasn't any question about believing in democracy but the struggle at that time was between the large states and the small states.

And there wasn't anybody that contended that there was greater democracy in one state over another state, but there was this problem between large states and the small states.

The idea that there was this English-French system, that really wasn't taken up, I don't think it's borne out by a study of the debate of the constitutional convention.

The English-French system and the merits of them were taken up after the constitutional convention rather the -- it might be that there's some confusion about Mr. Harrington, Mr. Harrington, who was a quoted, lived in the 18th Century.

And I believe that quotes come from Mr. Parrington's book who was a -- wrote about the American Scene in the 20th Century.

So, some of the confusion might arise out of that.

There is also contended that we don't really have enough cases for the Court to pass on.

That there is -- there hasn't been enough litigation in connection with this matter for the Court to make any decision.

I don't think that that bears up in -- when the Constitution was written, we didn't have decisions on due process or commerce between the states or freedom of speech, but we made important progress in all of these fields under the general umbrella of the Constitution and under the guidance of the Supreme Court.

When George Washington was President, you didn't have railroads, you didn't have automobiles let alone jet aircraft.

But the great miracle of the Constitution is that we've been able to deal with the problems of the 20th Century as well as the problems of the 18th Century.

These are the great problems that are facing the United States at the present time.

And this kind of invidious practice that exists now and has existed before and the Georgia County Unit System is a -- strikes at the very heart of the United States.

If we can give equal protection to those who feel that they've been deprived of their economic rights, certainly we can give equal protection to those who have been deprived of the most basic right of all which is the right to vote.

If we cannot protect them, then the whole fabric of American the system, then our way of life is irreparably damaged.

Thank you.

Rebuttal of E. Freeman Leverett

Mr. E. Freeman Leverett: I have got 3 minutes, I believe.

Chief Justice Earl Warren: Yes, you have, (Inaudible) -- go right ahead.

Mr. E. Freeman Leverett: Please the Court.

I think the Seventeenth Amendment in this case proves too much.

Because if it is true, if it is a correct position.

The result would necessarily follow that in any state where nomination was tantamount to election, you could not nominate by a convention.

Reference was made to some State Constitution provisions defining the right to vote.

The Georgia Supreme Court held in Cox versus Peters that they related only to the general election and not to the primary, that's binding on this Court as far as with reference to state law.

A statement was also made that the winning candidate for Governor was induced to run by virtue of the county unit system being stricken down.

That simply is not so.

I don't want to involve myself in personalities, but I think I know where of -- I speak in that regard.

So also to suggest --

Justice Byron R. White: Now what did -- what was that point, I didn't (Inaudible).

Mr. E. Freeman Leverett: Mr. Abram stated in his argument that the successful candidate for Governor in Georgia in -- of a 1962 General Election was encouraged to run because of invalidation of the county unit system in the court case below and I simply said that was not so.

Justice Potter Stewart: (Inaudible) not very important one way or the other?

Mr. E. Freeman Leverett: No sir.

I hope not.

Next, we have not suggested as has been stated by reference to Parrington and by the way I forgot the “H” instead of a “P” there, it should have been Harrington, that the county unit system is based on the economic basis of apportionment.

We say that it's based on political unit apportionment, not geographically, but its political unit apportionment.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: Position of the State is that in it -- that these things of those features which tend to give these concentrated areas of population in an inordinate amount of power by virtue of the fact of the concentrated numbers, that that -- the State can take those matters into account.

And I think that's always been the basis upon which this type of apportionment has been explained.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: You there are getting into valued judgments in which the Court is called upon to evaluate and apply its policy judgments no differently than the Court a few generations ago did in Lochner versus New York.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: It's not just because you're in the labor union, but if you live in an area of concentrated population density where there are avenues for communication, where the mass media of communication can organize people along much more cohesive groupings than you have in the rural areas.

We think that those disparities in power are just as relevant when a state comes to apportion its electrical -- its electoral power, as are the disparities in bargaining when Congress passed a (Inaudible).

Justice Arthur J. Goldberg: You have said that that is a rational basis for the state to engage in between what?

Mr. E. Freeman Leverett: That is --

Justice Arthur J. Goldberg: Is that what you're arguing?

Mr. E. Freeman Leverett: That is correct sir.

Justice Potter Stewart: The basic -- the basic issue that we end up with I suppose is whether a state under the Constitution in the election process of statewide officials, statewide officials can absolutely disregard the -- what we think of is the traditional American system of majority rule?

Mr. E. Freeman Leverett: One -- one --

Justice Potter Stewart: Isn't that it?

Mr. E. Freeman Leverett: -- person, one vote.

That's correct sir.

Justice Potter Stewart: A majority rule is what we come down to --

Mr. E. Freeman Leverett: And as to the --

Justice Potter Stewart: -- in a statewide election?

Mr. E. Freeman Leverett: -- Chief Justice -- the question of the Chief Justice which I think relates to what you have posited now Mr. Justice Stewart, you do not have to go to districting to -- in your legislative area because you can get perfect equality of voting power in a legislative situation simply by doing the same thing that was done with respect to Congress in many states until 1842 when districting came, required by Act of Congress.

You could have a state at large election and have perfect equality.

But in order to get a diffusion, in order to give recognition to local interest, you district a state and then it's where your inequalities come into.

MacDougall, we say as our case, I think it states very eloquently the reasons, the basis that we say this county unit system should be upheld.

We put in our answer, our verified answers at page 72 to 73 of the record and it has just as much probative value as the opinionated affidavits that the other party put in.

If it please the Court, I think that's -- my time is up so, I appreciate the Court's indulgence.

Featured:

Baker v. Carr - Oral Argument, Part 2

Tue, 25 Sep 2012 22:36:39 +0000

Case:

Baker v. Carr

Media File:

6_19610420-argument-2

Related Transcript:

6_19610420-argument-2

Transcript:

Argument of James M. Glasgow

Chief Justice Earl Warren: -- et al., Appellants versus Joe C. Carr et al.

Mr. Glasgow, you may continue your argument.

Mr. James M. Glasgow: May it please -- Mr. Chief Justice and may it please the Court.

Yesterday afternoon when the recess occurred, I was about to discuss the opinion of the three-judge court.

The opinion maybe found at page 214 of the record.

The three-judge court announced the following rule as applicable and decisive of the case in that court.

From a review of these decisions, referring to the decisions on page 216 of the opinion, the court said that, “The federal courts whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration will not intervene in cases of this type to compel legislative reapportionment."

The court thought it was highly significant that the question of reapportionment had been before the state court in the case of Kidd versus McCanless and the court points out that it is significant that the case of Kidd versus McCanless involved the identical apportionment statutes and the identical state of facts as confronted the three-judge court.

The court also pointed out that in view of Kidd versus McCanless and other opinions from this Court, it did not think that question could be adjudicated in that court as -- or was appropriate for judicial relief.

Justice Felix Frankfurter: Well, Kidd against McCanless wasn't passed on by this Court, Mr. Attorney General.

Mr. James M. Glasgow: Kidd versus McCanless --

Justice Felix Frankfurter: It wasn't passed, it wasn't adjudicated here?

Mr. James M. Glasgow: No, sir.

If -- that wasn't appealed to this Court in that case and this Court dismissed the appeal on the authority of Colegrove versus Green and Anderson versus Jordan.

Now, the court also points out that the suggested remedies that had been asked for in the complaint are indirect in the sense that they are not sought directly against the legislature of Tennessee and this is a lawsuit involving state administrative and judicial officers.

The court also pointed out that it could -- had no authority to order an election at large as prayed for in the complaint and that if it were to do so, it would lead to serious geographical inequalities and other discriminations probably -- probably to a greater extent than those already existing.

The court then said that the Constitution of the State vested the duty of making an enumeration of voters squarely in the hands of the State legislature and concluded by pointing out that this would amount to nothing more than a kind of judicial legislation and an unwarranted intrusion into the political affairs of the State of Tennessee.

General Wilson and I have divided the issues to be argued here this afternoon and I will deal primarily with the questions of state law which are involved, which we think are important and which we think are decisive of the question and that the Court need not reach the alleged federal questions.

If my time permits, I will also discuss the issue of justiciability and General Wilson will go into the questions of discrimination and the proposed remedies.

Briefly, I would summarize our contentions at this point and point out that we think that state law is decisive of this lawsuit that the issues here are not justiciable as between the parties, that the subject -- there is -- there are no adverse interests, that the suit is unauthorized under the -- the Eleventh Amendment and the subject matter generally is not justiciable.

We insist that the federal courts lacked jurisdiction of the question and that reapportionment is a political or a legislative question.

We think that the Court has already announced principles which decide the issues in this case.

We further insist that there is no discrimination and that the 1901 statute is valid in Constitution.

What is the issue in this case?

Is it voting rights or is it a Republican Form of Government?

If I understand the -- the proposition stated in the argument of the Solicitor General's brief, I believe it's on page 17, in the opening sentence he said the issue involves the proposition of fair representation in the legislative halls.

It's one thing to insist upon voting rights, we think.

We think that it's quite another thing to insist upon fair representation and a Republican Form of Government.

In turning to the state law and we are aware of the cases which this Court has said that it is loath, I believe the term is, to decide questions of state law.

The Court has also said that it doesn't like to venture into the delicate field of faith of federal and state relationships.

With that in mind, I would like to discuss for a few moments, the Tennessee constitutional provisions.

Yesterday, it was brought to the attention of the Court that Article I, Section 5 of the Tennessee Constitution, guarantees the right of suffrage and also elections shall be free and equal.

We insist that Article IV of the Constitution and not Article I, Section 5, controls the right to vote in the state and the right here certainly is a state right because it involves the election of state officers.

Unknown Speaker: (Inaudible)

Mr. James M. Glasgow: We think so, if Your Honor please?

We think that in view of the -- this Court's opinions in the various cases such as Smiley versus Holm, Carroll versus Becker, Wood versus Broom and others that there is a federal right that is guaranteed to a citizen of the United States to vote for a congressman under the Federal Constitution.

On the other hand, the Federal Constitution is silent on the question of state legislatures and state representation.

Article I, Section 5 of our Constitution, which is in the Bill of Rights, is very brief and with the Court's permission, I would like to read the first sentence.

“The elections shall be free and equal and the right of suffrage, as here and after declared, shall never be denied to any person entitled thereto, except upon a conviction by a jury of some infamous crime previously ascertained and declared below and judgment thereon by Court of Competent Jurisdiction.

Now, the words that were not pointed out to the Court yesterday and I'm sure that was by inadvertence, are the words “here and after declared” and that we insist the -- refers to Article IV, Section 1 of our Constitution which prescribes then of the voting qualifications and defines the right to vote.

Now, every citizen or a person in Tennessee who is a age of 21 years, who has been a resident of the State for 12 months and who has resided in his county for 3 months, is guaranteed the right to vote under Article IV, Section 1.

Now, none of these appellants insist that they have been denied access to the ballot box.

None of these appellants insist that they haven't been permitted to cast their votes in free and equal elections.

None, except insofar as Article I, Section 5 is concerned, none of them insist that their votes have not been counted.

And we insist, may it please the Court, that in considering what their rights are in regard to the right of suffrage if they meet these qualifications and they participate in elections, that is all that they're entitled to by way of a right to vote under the State Constitution.

I would also point out that we have a provision in our Constitution which is similar to the provision in the Federal Constitution that the General Assembly shall be the judges of the qualifications of its members and also of their election.

Now, the federal cases I think are very clear that that is an exclusive function of the legislative body.

That is that body exclusively determines what the qualifications of its members may be.

It also exclusively determines what -- whether or not a member of Congress has been duly elected for example and in our state, whether or not a member of the legislature has been duly elected and in the case of State versus Shumate in 172 Tennessee at 451, the Court said that "It would not enter into any kind of judgment or would not enter in any kind of what judgment, it would not do anything about enforcing that type of right.

That anything that arose in regard to the qualifications of the members of the General Assembly was something that the House concerned would have to dispose of.”

Now, we insist that the Courts of Tennessee under that provision would not have any authority whatsoever to determine whether or not a member of the General Assembly had been duly elected.

We think that's a question that must be determined under the Constitution by the House itself.

Now, what is the significance of that proposition?

To us it simply means this, that if there is any question here concerning the electoral process in the State in -- with reference to the election of members of the General Assembly, then it must follow that any question which arises in regard to that election must be decided by the legislature itself and the Courts should not intrude upon the prerogatives of the legislature.

Justice Charles E. Whittaker: Mr. Glasgow, granting that that would be -- maybe true as respects in an elected official, does that prevent the Court of Tennessee, while the State is getting ready to hold an election, to require the State to comply with its Constitution?

Mr. James M. Glasgow: I take it that Your Honor is referring to the question of apportionment.

Justice Charles E. Whittaker: Yes.

Mr. James M. Glasgow: Now, in that regard, may it please the Court, we disagree with our opponents as to the effect of the Tennessee constitutional apportionment provisions.

We think that the question is probably been laid to rest in Kidd versus McCanless and that being true, we think that what the Tennessee court has, at least by implication, said in regard to those provisions, is binding in this Court and on the federal courts generally.

And as was pointed out from the bench here yesterday, I think there are reported decisions of this Court where it -- it's been pointed out that although there maybe a violation of a state constitutional provision, that question must be addressed exclusively to the state court and not the federal courts.

Now, Article II, Section 1 of our Constitution, creates three branches of Government; the executive, judicial and the legislative.

The second section of our Constitution provides that, “No member of either department shall exercise the functions of the other.”

In other words, they must be kept separate.

Our court has adhered to that principle and in the case of Richardson versus Young, 122 Tennessee 471, the court discusses the proposition in detail.

There, the Court said that the Courts are not to perform legislative functions.

Now, the three apportionment provisions of our Constitution commence immediately after Section 2 and they're contained in Article II, Sections 3 through 6 inclusive.

Section 3 provides that the General -- that the General Assembly shall be constituted of the House of Representatives and the Senate.

Section 4 provides for an enumeration of voters and apportionment of representatives within every subsequent term of 10 years.

Section 5 provides for apportionment among the counties or House districts according to qualified voters not to exceed the number of 99.

Section 6 provides that the number of senators also to be apportioned shall never exceed one-third of the number in the House and finally, no county maybe divided in creating those districts.

Now, under the present system of Tenne -- in Tennessee, the House of Representatives is composed of 99 members and the State Senate is composed of 33.

Now, the appellants argue very strenuously that these provisions in the Tennessee Constitution are mandatory, hence, self-executed.

They insist that the 1901 apportionment statute became obsolete and invalid in 1911 because an enumeration was not made within the 10-year period as required by these provisions.

I will discuss Kidd versus McCanless in that respect in detail in a few moments, but if this point, suffice it to say, that we disagree with their construction and that there are a number of precedents in the state law or state decisions which hold contrary to their insistence.

The appellants also insist that in regard to these provisions, there is a measurable discrimination.

These arguments of course we reject as being unsound.

We think that the Court is being asked to usurp legislative functions and that the courts should assume a dominant role and make this legislature subservient to the judicial process, we think that falls squarely in teeth with the doctrine of separation of powers.

Now, again we assert that apportionment statutes as we have them in Tennessee are valid and as was suggested here yesterday, if we disregard the Tennessee constitutional provisions for the purpose of argument, the question then becomes whether or not the State legislature had the authority to enact an apportionment statute.

Our court has said repeatedly that the legislature has plenary authority except as inhibited by the State Constitution.

And we insist that the legislature of Tennessee certainly had a right to pass an apportionment statute in the absence of any constitutional provision.

The appellants also insist that there has been gross discrimination in regard to the distribution of State revenues and particularly in regard to general education appropriations and the rural roads allocations.

I would like to point out to the Court that on page 209 of the records there appears what we considered to be an interesting answer to those charges.

It's a very brief statement that was filed by the former Solicitor General in this cause.

One would think --

Unknown Speaker: (Inaudible)

Mr. James M. Glasgow: Yes sir.

One would think that the cities and the rural legislators or the city legislators and the rural legislators are constantly at each others throats and that the general education bills are always passed over the opposition of the city legislators and that the gasoline tax distribution was made over their opposition, but these -- this insert indicates that Chapter 14 of the Public Acts of 1959 which is a general appropriations law and is specially pleaded in this case, the Act was passed by the House by a vote of 81 "Aye's" 11 "No's".

The 11 No's were all by representatives from rural counties.

Another -- I beg the Court's pardon that is the Rural Roads Act of 1955.

The General Education Law of 1950 -- 59 was passed for the Senate by a unanimous vote of 33 Aye's.

In the House of Representatives there were 91 "Aye's" and 6 "No's".

Now we think that that is an answer to some of these charges of discrimination with reference to the distribution and allocation of tax funds.

And certainly the logic of the proposition is that that must be an exclusively governmental function to be handled entirely by the legislature.

It's just as important that the under populated rural counties have educational systems that are financed adequately as it is to have them financed adequately in the larger cities.

The record also contains the case of Kidd versus McCanless, it's at page 59 in the record.

That case, as found by the District Court, involved the identical facts and the identical statutes.

In that case the Supreme Court of Tennessee rejected the contention that the 1901 apportionment statute became invalid in 1911.

Now, we insist, may it please the Court that that is tantamount to holding that those provisions are not self-executing and that they're not mandatory.

If they were, the Court could not have found that the Act did not expire in 1911, so we think that the doctrine of the Kidd case as decided in the state court has the effect of going against what they insist is basic in this lawsuit and that is that those provisions are mandatory and self-executing.

Now, the Chancellor in the court below in Kidd versus McCanless said -- overruled the demurrer that was filed to the billing chancellery and held that the statute was invalid.

He then fell back on the de facto doctrine and said that all of the acts which had been done by the legislative body were valid as the de facto acts.

The Court quotes at length from the Chancellor's opinion on page 62 of the record.

Then the court pointed out that the de facto doctrine could not apply because once the -- the legislature was declared a de facto body, then he would have no authority whatsoever to act.

And if it had no authority to act, we in substance would have no legislature in Tennessee.

That being true, the court finally declared that the ultimate result of holding this act unconstitutional by reason of the lapse of time would be to deprive us of the present legislature and the means of electing a new one and ultimately bring about the destruction of the state itself.

We submit, may it please the Court that in view of the Kidd case that the arguments -- that the Tennessee apportionment provisions in the Constitution are self-executing and mandatory are unsound.

Now, what was the effect of this Court's dismissal of the appeal?

Same issues were involved, same statutes were involved and we think that the force and effect of this Court's dismissal of the appeal because if there are -- were federal questions then or federal questions now, there certainly were questions then.

We think the force and effect of that was to say that there was no substantial federal question and further that the grounds which the state court placed its judgment upon was adequate to support the judgment.

In the case of Maxey versus Powers in 117 Tenn.

381, the Court was confronted with an analogous situation and it's a case which I bring to the Court's attention merely to indicate that this is not something that we have devised here on a moment's notice in the way of an argument.

But there, our court was confronted with construing another provision of our Constitution regarding the laying out of civil districts and counties.

And there, the Redistricting Act was challenged as it is here and the Court said that that was a political question and it being a political question it was the type that the Court could not go into.

We think that the --

Justice Felix Frankfurter: (Inaudible)

Mr. James M. Glasgow: Perhaps that's a better statement, sir.

We think that the effect of the arguments in regard to the state law in this proposition is to inject this Court into political controversies in the State of Tennessee and for the federal judiciary to take over the state political situation.

We think that that would be abhorrent to our system of government.

We don't think that the basic law of our State should be disregarded and on one hand and then the appellants say, “We'll take this and leave something else.”

We -- we think that they should be consistent throughout.

We think that the ultimate effect of the courts getting into this situation would be to put the federal judiciary in the -- the situation of being on a primrose path in federal state relations.

I come now to the issue of justiciability and as we understand the rule under Article III, Section 2 of the United States Constitution, that is always an issue in every law suit.

Is a case or controversy presented within the meaning of those provisions?

We insist that the appellants have the same interest in apportionment in Tennessee as all other voters and citizens.

They seek to secure to themselves representation which they say would be fairer than what we now have.

In doing so, they have the same interest as all other citizens in a Republican Form of Government.

Therefore, we insist that the complaint does not allege a private wrong and we further insist that the -- instead of accepting the allegations as pleaded in the complaint that the Court should look behind those allegations and see exactly what they're pointed to.

The substance of the matter is that they have not suffered an injury which is direct.

Further, the appellees have no real official interest in reapportionment which are different for most other state officials.

And we would invite the Court's attention to page 55 of our brief, appendix (a) where we go into the question in some detail as to what the interest of these appellees maybe in regard to the electoral system in Tennessee.

First of all, the Board of Elections is composed of three men who have no other duty than to appoint the County Election Commissioners.

They have no authority on them, they can't dismiss them, they can do nothing more than appoint them.

They are directed by statute to meet once a year.

Next, the Attorney General is -- made a party here and it is said that he has certain duties in regard to the election of -- of state legislators.

We reject the idea that he has anymore duty in that regard than he does advising any other state officials.

We think that's all he does.

The idea that he does more is not founded in -- in our statutes.

That being true, certainly, he could have no official entries in reappointment statutes as such.

He is required under our statutes to be made a party in the event the constitutionality of a state statute disabled.

I take it, that's the primary reason that he was made a party below.

As to the Coordinator of Elections, he has various minor duties in regard to them such as set out here on pages 58 and 59.

He has no supervision over the election, he cannot control the election, he does not conduct it.

The Secretary of State receives certificates from the County Election Commissioners as to the results that -- of the elections in those counties.

Now, we insist that that is too remote in the electoral process to be the basis of an injunction against these officials to require them to hold an election at large or to withhold -- conducting an election until the General Assembly is appointed, I mean apportioned.

Now, that being true in regard to their interests, we fail to see how they have any interest whatever that reaches to the critical issue of apportionment.

Next, we insist that the -- this is an unauthorized suit against the State because the purpose is to compel the legislature to act, not to strike down alone a statute which it enacted many years ago, but the purpose of -- of this suit goes further than that, much further.

The purpose is to compel the legislature to reapportion the State of Tennessee and in doing that, we think that that is asked that the courts take over the electoral system and direct the legislature to do something which is beyond the power of the courts.

Article I, Section 17 of our Constitution inhibit suits against the State unless they have been authorized by the General Assembly.

Certainly, the General Assembly has not authorized a suit of this character.

As was pointed out in Petty versus Tennessee Missouri Bridge Commission, the doctrine of governmental immunity -- immunity is strictly applied in Tennessee.

Now, that being true, we insist that these appellants as citizens of Tennessee have no standing whereby they can maintain a suit and a citizen cannot sue the State within the meaning of the Eleventh Amendment and this Court has so held on a number of occasions.

Finally, I would suggest that the nature of the subject matter which General Wilson will discuss in some detail is such that the courts should not entertain this kind of a complaint and we think that the court below was eminently correct in what it did.

The issues are political and they go to the part of a Republican Form of Government.

We think that reapportionment is a legislative question and if the Court is without power to exercise any kind of equitable power with -- in regard to this kind of a question.

If the Court will not exercise its equity power, then we insist that is not a proper case for a declaratory judgment because the declaratory judgment statutes are procedural only and that it would be improper to make a declaration unless the Court is prepared to grant equitable relief.

In conclusion, I would suggest that I think that it would be improper for the courts to take over the political affairs of the States.

I think that in this field of federal and state relationships, it is necessary that the sovereignty of the States and their political affairs be administered by the States.

I think whatever a state court may say or the State's highest court may say about its own Constitution is binding here if it's relevant at all in this case.

The effect of the court's going into this questions, I suggest would be to open up many new fields of litigation and that the court then be called upon to redistrict the various municipalities throughout the country so that the people within the cities would themselves have a fair representation as is contended for here on questions for municipals annexation will the voters be given an opportunity to express themselves?

We respectfully insist that all of those questions may arise in the future.

If the Court goes into this area and we think that the Court should reject such a notion.

Justice Charles E. Whittaker: (Inaudible) Mr. Glasgow, that Tennessee could tomorrow repeal this constitutional provision that affords the core of this case, wasn't it?

Mr. James M. Glasgow: I think that the Constitution could be amended and those provisions eliminated, yes sir.

Justice Charles E. Whittaker: Well as long as it's their, is it to be ignored?

What does it mean?

Why is it -- I don't follow that.

Is there now, it means something, are you complying with it?

Mr. James M. Glasgow: In -- in that sense, no sir.

It hasn't been complied with in regard to the reapportioning of the legislature since 1901.

Justice Charles E. Whittaker: But it's still there.

Mr. James M. Glasgow: Yes sir.

Justice Charles E. Whittaker: And it gives to a citizen in the great county the right no to have his vote or read down in Shelby County in Memphis not to have his vote diluted by somebody out in the mountains, doesn't it?

Mr. James M. Glasgow: No, sir.

I don't think that it means that because I think that the case of Kidd versus McCanless shows that our court doesn't attach that significance to those provisions.

In other words, if I go back to the argument that if -- as our court said, the reapportionment statute did not become obsolete, in 1911 then those provisions can be neither mandatory nor self-executing.

Now, that -- that's uncharacteristic of many state constitutions or many provisions in state constitutions.

In Colegrove versus Green, there are a number of situations which are cited which are not enforceable in the courts in regard to state constitutional provisions.

And we think that whatever the state courts say about those things are controlling and we rely upon the classic statement of Mr. Justice Cardozo when he said that the -- a state court's construction of its own constitution is decisive and controlling everywhere.

And we think that that is the situation with which this Court is confronted on the basis of the Kidd case.

Justice Charles E. Whittaker: Well, is there any case in Tennessee that holds this constitutional provision does not mean that Tennessee must reapportion every 10 years as its words say?

Mr. James M. Glasgow: The only case that there is in Tennessee, if Your Honor please, is Kidd versus McCanless.

Justice Charles E. Whittaker: The court below, the three-judge court here said that on the affirmance of this bill, as I read it, that a discrimination was being practiced, but they couldn't do anything about it for want of power, isn't that what they said?

Mr. James M. Glasgow: That's true, they said that.

Justice Charles E. Whittaker: Now, isn't that substantial also Kidd Chambers or Kidd -- the Kidd case, not the ground of it also?

Mr. James M. Glasgow: The ground of a Kidd case as I read it is that the lower court held the act unconstitutional and the Supreme Court said that the trial court erred in holding it unconstitutional because to do so wound in effect place Tennessee without a State legislature.

There -- there would be the de facto doctrine which the Chancellor said was applicable.

The Supreme Court rejected and said that the effect of adapting the de facto doctrine would be to abolish the legislature.

Justice Charles E. Whittaker: If your argument is right as it appeared to me this bill a while ago when you said that the State legislator is competent to determine the election and competency qualification of its own members.

If that's right, then nothing that could happen toward the future compliance with the statute would in anyway under mind the validity of the present legislature nor in anyway affect the validity of the laws it had enacted since 1911.

Mr. James M. Glasgow: Well, I -- I think that that's true, if Your Honor please.

Justice Charles E. Whittaker: Yes.

Well then -- the how it couldn't be true that if it were now held that Tennessee, in order to accord equal protection of the laws to its citizens, must comply with its constitutional provision.

How could it then be said that this would leave Tennessee without a present legislature --

Mr. James M. Glasgow: Well --

Justice Charles E. Whittaker: -- or undermine the validity of the laws it had been enacted since 1911?

Mr. James M. Glasgow: In regard to the polarity to the validity of the laws, that have been acted -- enacted since 1911, I daresay that the courts would not invalidate those laws, but if the argument which is advanced here is correct that the legislature or the apportionment provisions expired in 1911, then it must be that there -- everything that's been done since 1911, is invalid.

I -- I -- as a matter of theory, I don't see how it could be any other way and I think that was the problem that was in the mind of the Tennessee Court.

Justice Charles E. Whittaker: Well, that couldn't be true could it or couldn't, Mr. Glasgow, if your argument is sound that the legislature is competent to determine the election and qualification of its own members and they've done that year -- term after term since 1911.

Didn't -- if that argument is good, then they were properly elected in the past?

Isn't that true?

Mr. James M. Glasgow: That's true.

Justice Charles E. Whittaker: Well, would that mean that the courts couldn't do anything about the future with respect to complying or requiring compliance with the Tennessee Constitution?

Mr. James M. Glasgow: Well, it's our insistence, may it please the Court, in that regard that the question is a political question.

It's one of that the courts have refused from -- for many, many years to adjudicate and that being true, it's not a proper area for the judiciary and we -- we insist and General Wilson will go into the proposition of the equal protection provision that the equal protection provision has no application in this case.

Justice Charles E. Whittaker: I don't know the answer to the question.

I was just seeking some information.

Mr. James M. Glasgow: I'm afraid I haven't been as helpful as I would like to be.

Justice Felix Frankfurter: (Inaudible)

Mr. James M. Glasgow: That's true, Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. James M. Glasgow: I --

Justice Felix Frankfurter: (Inaudible)

Mr. James M. Glasgow: If it --

Justice Felix Frankfurter: (Inaudible)

Mr. James M. Glasgow: If I sounded confident on that score, if Your Honor please, I intended to say nothing or do nothing more than to suggest that I -- that I doubt if the courts will hold at anytime the --

Justice Felix Frankfurter: (Inaudible)

Mr. James M. Glasgow: No -- no, sir.

I don't mean that.

[Laughter]

Unknown Speaker: (Inaudible)

Mr. James M. Glasgow: I haven't heard that argument made as yet, Your Honor please.

Unknown Speaker: (Inaudible)

Mr. James M. Glasgow: Thank you.

Chief Justice Earl Warren: Mr. Wilson.

Argument of Jack Wilson

Mr. Jack Wilson: Mr. Chief Justice and may it please the Court.

This case is here on appeal from the three-judge District Court.

A question was raised yesterday as to the duty of this Court on this field.

It is the insistence of the appellees here that this Court must consider at least three things.

One of those is whether this case is justiciable.

The Court must make that determination.

If the case is justiciable then this Court must determine whether the Federal District Court had jurisdiction of the subject matter.

There is, in our view, a difference.

A case maybe justiciable insofar as the parties are concerned but not as to the subject matter or the Court might find that it is justiciable as to the subject matter, but the proper parties are not before the Court.

And then a matter of great importance to the appellees and to the State of Tennessee for determination by this Court and I think perhaps the most important question if the Federal District Court has any jurisdiction is what relief, if any, maybe granted by the Federal District Court.

One of the members of this Court early in the argument yesterday if I understood him, said this.

“If we determine that there is jurisdiction, need this Court concern itself with the question of relief” and the appellees say that this Court must of necessity concern itself with the question of relief.

Now, General Glasgow has, in some detail, considered the question of whether the case is justiciable from the standpoint of the appellants, from the standpoint of the appellees and from the stand point of the subject matter to the extent of whether it is or is not political.

At this time, I wish to address myself to the subject of the nature of the subject matter of this suit insofar as jurisdiction is concerned.

Now, I think it goes without question that the subject matter of a lawsuit is to be determining not necessarily on some technical basis but from a practical standpoint.

What is the frame of the complaint in this case?

What is this case about?

Well, on the surface, on the face of it, there is an averment here of a violation of rights under the Fourteenth Amendment and the civil rights statutes, but that is not the nature of the complaint.

If the nature of the complaint was a violation of personal rights, the appellants would cite this Court, invoke some statute having to do with voting.

They do not do that.

They invoked as statute having to do with representation in the legislature of Tennessee.

What does the complaint have to say or ask in the way of relief?

Is it that an injunction be issued by the Federal District Court to require these appellants to permit these appellants to register?

Is it that their votes be counted?

Is it that they'd be permitted to enter the polling places?

No such thing, no such thing.

What is the relief asked for?

Well, a declaration as to their constitutional rights, and what else?

That the next election or members legislature in the State of Tennessee be enjoined.

That's the nature of the action, or they say that there be an election at large.

It is the appellees' contention, may it please the Court, that this case does not involve private rights, that it cannot involve private rights.

We concede and very readily that there is a right under the Constitution of Tennessee for all citizens to have the type of government provided by the Constitution of Tennessee.

But we say that that is not a personal right in the sense that it can be enforced by an individual voter.

It is a constitutional right, Mr. Justice Whittaker, in response to your question but it is not an enforceable right in the courts under the law and Constitution of the State of Tennessee.

Justice Charles E. Whittaker: Why not?

Mr. Jack Wilson: Simply because of the division of powers under our Constitution, may it please Hour Honor.

The -- our state court will not entertain the suit.

They say it's political.

They say it's in the legislative field.

They say they could not enforce the right and that is the position under the Tennessee Constitution.

It is not a personal right that can be enforced in our courts.

And I think that for whatever reasons, the Supreme Court of Tennessee may have found that to be true, we believe that this Court will and must, since it is a state right under our state constitution, accept the view of our Supreme Court.

Now, if that is true and we can do no more than to ask the Court at this stage to take our assertion that it is true then the question does not involve anything having to do with the weight of a ballot at the ballot box.

Now, I am aware that this Court has in the past that is to see at least two members and two members of the Court now sitting, have said that they can see no difference between a ballot cast in the -- at the ballot box, literally, metal, plastic whatever it is and the effect that that ballot has in the legislature of a state.

The appellees say to this Honorable Court that that theory that that insistence, and we respect it, must in this case be reexamined.

It must be examined microscopically.

The case may and could turn on that question.

Now, what is their difference?

Is there a difference?

We think so.

It said that if a citizen cast his ballot for three state senators when he should be allowed to cast his ballot for six state senators that his right to vote has been denied, we respectfully disagree with that contention.

We say that that ballot cast in the state of Tennessee is put in that ballot box, it is carried, it is counted as all other ballots are counted.

Now, the case is with which this Court has been concerned, Nixon against Herndon, the Terry case, these other cases have been cases where the -- the voter was not permitted to put his ballot in the box or if he put it in the box, it was fraudulently counted or not counted at all.

What's the situation in Tennessee?

It is not at the polls.

The vote of which complaint is made is in the legislative halls of the State of Tennessee.

That's what this case is about.

Now, what difference does it make as to jurisdiction?

What difference does it make as to whether the case is justiciable?

It makes this difference.

Is there a private personal right involved at the ballot box?

If there is not, what does the civil rights statutes as to voting have to do with this case?

What do rights under the Fourteenth Amendment as to voting have to do with this case if the complaint is in the General Assembly of Tennessee, in the halls and not at the polling places?

That is one of the decisive issues in this case.

Now, what has this Court done heretofore as to those issues?

It has recognized that distinction, has consistently held from Colegrove case up to this very minute while I speak that there is a difference.

Cases from California, from Georgia, from Pennsylvania, from Oklahoma have been before this Court and this Court has refused almost all of the time, even to hear the cases on the merits.

And this Court has said citing the Colegrove decision that no federal question -- substantial federal question is involved.

And this Court said in Kidd against McCanless, may it please the Court, that there was no federal question, substantial federal question and that case involved the identical statutes, the identical facts and almost the identical parties.

Now, what about these other state constitutions where this Honorable Court had said that there's no substantial federal question?

I invite the Court's attention to the Constitution of Pennsylvania.

That case has been before this Court and within recent years.

Under that constitution like the Constitution of Tennessee, there is a provision almost identical saying that election shall be free and equal.

This Court wouldn't hear the case.

It wouldn't even set it down for argument.

What else is in the Constitution of Pennsylvania?

Well, up there, may it please the Court, they have a specific provision in their constitution that municipality shall be entitled to extra representation in their legislature and they have said in the suit brought as I understood it, that those municipalities still didn't have the representation they should have because of malapportionment, but this Court refused to hear the cases.

With that type of provision in the constitution, and Tennessee has no such provisions there, what about the Constitution of Oklahoma and that case was before this Court.

Somewhat interestingly and surprisingly to us in Tennessee, the Constitution of Oklahoma has a provision that the reapportionment statutes in that Constitution may be affirmatively enforced in the courts of Oklahoma.

That case came before this Honorable Court.

The Court wouldn't hear it, the Court wouldn't hear it wouldn't even -- let it be argued.

Justice Potter Stewart: But it happened in the Oklahoma state courts?

Mr. Jack Wilson: It was filed in a three-judge Federal District Court, may it please the Court.

Justice Potter Stewart: I was wondering what the Oklahoma courts have done.

Mr. Jack Wilson: They sustained a motion to dismiss.

Justice Potter Stewart: The Oklahoma Court, the state court?

Mr. Jack Wilson: No, it was not brought in the state court, may it please Your Honor.

Justice Potter Stewart: As I understood what you just told us, the constitutional --

Mr. Jack Wilson: Yes, Your Honor, the --

Justice Potter Stewart: The case itself provides that the Court shall have the -- the power to affirmatively enforce it.

Mr. Jack Wilson: Mr. Justice Stewart, you are entirely correct.

The Constitution does so provide but the plaintiffs in that case elected to bring it not in the state court but in the federal court.

But the question is important for the reason that there, the citizens of Oklahoma had determined that the apportionment provision in that statute was either mandatory or was self-executing and that its provisions might be enforced in a court of law or equity.

And such is not true in Tennessee.

On the contrary, our court has held that it cannot enter the field.

And of course one of the questions for this Honorable Court is, “If the Supreme Court of Tennessee has held under our own constitution that it cannot enter the field, will this Court enter the field?”

And I say to the Court that it is not only a -- a serious question and an interesting question but one of great importance in the operation of the Government of the State of Tennessee.

Now, I wish to discuss two additional points in the time remaining and those points, the appellees consider of utmost importance and I believe have not been touched upon up to this point.

Let us assume that this Court should refuse to accept the appellees' insistence here that this is not a personal and private right under the Fourteenth Amendment.

Let us assume that this Court should find that this is a personal right.

We're assuming this.

The appellees take the opposite view as I have said repeatedly.

What would be the basis for -- for finding that some federal right was involved?

And of course, unless there is a federal right, this case is not -- this Court is not concerned with the case.

What would the personal or private right be under the Constitution of Tennessee -- of the United States?

Of course, reliance has had upon the Fourteenth Amendment, but since there is no question here about voting now under our insistence, what would the right involved?

Well, necessarily, under our view, it would involve a right to equality of representation in a state legislature.

That would be the type of right that this Court would have to find, was protected by the Federal Constitution.

Now, has this Honorable Court ever so held up to this time?

It has not.

It has held that the right to vote for a state officer, the right of representation in a state legislative body is purely a state right.

We think that that is sound.

We think that the --

Unknown Speaker: (Inaudible)

Mr. Jack Wilson: May it please the Court, this Court did hold that the right to have a vote counted at the -- the vote counted at the ballot box, and there seems to be no question about that.

And I would like to say and emphasize that any citizen of Tennessee who has the right to vote in a state election in Tennessee under our theory and insistence, has the right to have the vote that he puts in the ballot box counted when it's taken out of the ballot box, that most assuredly is a state right.

Now, Your Honor has reference to the classic in Saylor cases.

Those cases involved literally a denial of the franchise at the ballot box, not in a legislative hall.

Now, returning if I may to the question here of whether that is a federal right.

Now, may it please the Court, if there is a federal right here as to the extent of representation in a state legislature, it arises and may arise under the frame of this complaint only by the route of discrimination.

And I daresay that most actions laid under the Fourteenth Amendment would come -- would follow that route of discrimination.

Now, let's get down to bad route on this thing.

If there is discrimination under the Fourteenth Amendment, will it bear examination?

Well, you're going to have discrimination, you're going to have to treat one class different from another class, I think.

Now, it's recognized in sound law that of course there maybe – classification under state law.

Is there discrimination between classes where there is unequal representation in the state legislature and this case may turn on that?

This case may turn on that very point.

We say not.

We say that that can't be discrimination in the usual sense.

And why do I say that?

Let me give you one illustration and I think this is important.

It said that according to the appellants here that if this thing goes through the ballot box.

We say it does.

We say it's in the legislative hall.

Now, the reason we say it can't be discrimination is this.

The effect of inadequate representation in the legislative halls has no direct casual connection with whether the person affected cast his ballot or did not cast.

Now, many of our states and some of our border states give 18-year of citizens the right to vote.

Tennessee does not.

What is the status of a citizen in Tennessee 18 years old, 19 years old, 20 years old, who under the law of Tennessee does not have the right to vote and yet he is very greatly affected as a citizen by what the legislature does in the halls of the General Assembly of Tennessee.

Is there discrimination as to him?

If so, when and where did it arise?

Then the question comes up, if there's discrimination here, an unlawful discrimination?

Was it purposeful?

Is it purposeful and intentional?

Can that be shown where there is unequal -- inequitable representation when the involvement is that it's due not to an affirmative act of the legislature, but to the passage of time and shifts in population.

Now, may it please the Court, we very seriously insist that there is not and cannot be any discrimination in this case.

It isn't a case involving voting.

The right to representation in a state legislature is not protected under the Fourteenth Amendment as the right to vote might be, the right to vote at polls.

We say that the Civil Rights Act is confined literally to the right to vote at the polls and that that is not at issue in this case.

Now, due to the limitation in time, I must take up our final and perhaps most important, certainly, equally, important point from the standpoint of the appellees.

Now may it please the Court, and that is the question of relief, I invite the Court's attention and I do not want this repetition to be offensive and I hope that it isn't.

The real party in interest in this case in Tennessee is not before the Court.

That's the legislature of Tennessee.

It's their action or their inaction of which complaint is made.

There is no complaint incidentally and I would like to emphasize it, there is no complaint as to anyone of the appellees before the Court.

It is averred that they have done anything, they shouldn't have done.

That it is averred when the Court gets into the case and the Tennessee law that there is anything that any of these appellees could do.

And that of course again goes to the question of whether the case is justiciable.

But since the legislature of Tennessee is not before this Court, either actually or figuratively, the appellees who are before the Court on behalf of the State of Tennessee do think it proper, do think it important to discuss the question of relief and certainly that would be most important if this case is sent back to the three -- three-judge District Court.

Now, may it please the Court, there are three principal suggestions here as to relief.

As we view the case, it will be the duty of this Court to determine whether any one of those three maybe granted or if not, whether some other possible type of relief could be granted in the event the Court finds that the District Court has jurisdiction.

The first subject suggested relief by the appellants here is that there be a declaration, that the apportionment statutes in Tennessee are unconstitutional.

What would be the effect of a declaration by the Federal District Court at the reappor -- the apportionment statutes of Tennessee are unconstitutional.

We connected -- the appellees connected with the government of the state of Tennessee, take the position that the effect would be and must of necessity be that the government of the State of Tennessee is operating unconstitutionally.

I submit that there could be no other reasonable conclusion.

The Federal District Court let it say, makes that declaration and as its decree, what does the State of Tennessee and its government can do?

It's operating unconstitutionally.

Can it, aside from the rule in Luther against Borden, the old case discussed a moment ago, upon the declaration being entered, the decree, what may the State of Tennessee do as to let us say the operation of its courts?

If the government is operating unconstitutionally, may it continue to sentence defendants in criminal courts, may it?

May it continue to pay its school teachers?

It's an unconstitutional government at that time.

May it pay its judges?

May it maintain its hospitals for the mentally ill?

What happens to the State of Tennessee upon that declaration?

Well, of all practical purposes and I might – I pause here to say that this is not theoretical, may it please the Court.

This matter, when you are directly connected with the operation of a state government.

Suppose the State of Tennessee had planned to execute a defendant in a capital case on the day following the declaration entered by the three-judge District Court.

What would the Attorney General of Tennessee advise the warden of a state penitentiary as to carrying out that execution?

Frankly, I don't know.

I hope the question doesn't arise.

The question will not arise if no such declaration is made by a Federal District Court and that is one reason why and an important reason why from a practical standpoint that we say the Federal District Court should not enter any such decree.

This is a matter for settlement by the citizens of Tennessee.

Now, may it please the Court, and my time -- very little remains, there are two other proportions.

It is said, “Let's enjoin the next election for the legislature of Tennessee, let's enjoin it.”

Who enjoins?

Not a state court, not a court of the State of Tennessee.

A Federal District Court enjoining a state election or state officers, has it ever been done in the history of the United States?

Would this Court send this case back with directions to the Federal District Court to enjoin the next election of members of the legislature in the State of Tennessee, actually, not?

I cannot believe you will do it.

What is the third suggested --

Justice Potter Stewart: (Inaudible) members of this District Court involved in a similar situation with the Governor of Tennessee when he was a district judge, Judge Martin.

Mr. Jack Wilson: In an entirely different aspect, may it please the Court.

That case had to do with sending the national guard of the State of Tennessee to the polling places in one of the counties.

Justice Potter Stewart: Yes.

Mr. Jack Wilson: But there was no question of enjoining a state election and I believe that there never would be by a Federal District Judge who was familiar with the Tennessee law.

Now, may it please the Court, the third suggested remedy is this.

When I have an election at large, let the Federal District Court say we will ignore these reapportionment statutes.

Let's hold an election at large.

Well now, the Supreme Court of Tennessee has said that the Constitution of Tennessee has no provision whatsoever for the holding of an election at large for members of the legislature.

The Federal District Court found that to be true and the Federal District Court went further and said that to permit the holding of an election at large would, could and probably would result in greater inequities than now exists.

And as was suggested here by a question of one others members of this Court, the effect of that election at large more than likely would be simply to reverse the situation.

The urban representatives would take over and be largely in the majority, it would be just a flip of a coin at that time.

Justice Potter Stewart: Would that be true of you -- if you figure that out if --

Mr. Jack Wilson: Not mathematically, may it please the Court, but I think from a practical standpoint and psychologically if I may use that word.

Now, what is the -- to happen about this?

What is the remedy?

It's averred here that the legislature of Tennessee has taken no action for 60 years.

If I maybe permitted to go outside the record momentarily, the legislature of Tennessee which adjourned the 17th day of March, did take some action.

It has not reapportioned.

Whether the legislature of Tennessee will reapportion within the next few years, I do not know, but it did pass a resolution to require an enumeration of the qualified voters under the Constitution.

It did pass a resolution to study the subject.

That fact will have no bearing nor it's not persuasive with this Court but I simply mention it as a matter of information.

Justice Potter Stewart: The legislature, you mean every two years?

Mr. Jack Wilson: Yes, Your Honor.

Justice Potter Stewart: In the odd number of years?

Mr. Jack Wilson: Yes, Your Honor.

Justice Potter Stewart: (Inaudible) year --

Mr. Jack Wilson: Yes, Your Honor.

Justice Potter Stewart: So it has met in 1961 and is now adjourned.

Mr. Jack Wilson: Yes, Your Honor.

Justice Potter Stewart: And won't -- won't convene again unless there's a special session until 1963 --

Mr. Jack Wilson: That's correct.

Justice Potter Stewart: -- after the 1962 election.

Mr. Jack Wilson: That's correct, sir.

Justice Potter Stewart: And I suppose there are provisions for special sessions in the legislature.

Mr. Jack Wilson: Indeed, there are.

Justice Potter Stewart: On the call of the Governor?

Mr. Jack Wilson: Yes, Your Honor.

Justice Potter Stewart: Any other way for a special session?

Mr. Jack Wilson: That's the only way, Your Honor.

Now, may it please the Court, in conclusion, we think that this case in addition to the points discussed, we hope and believe thoroughly does involve this.

There is not only a question here of the enforcement or possible enforcement of state rights by a federal court.

There is also the question of whether the judiciary, and in this instance federal judiciary, will step over into the legislative field.

Those are two very serious questions.

Now, we think that from time immemorial, citizens of Tennessee like all other Americans have been proud of their state.

We believe that the citizens of Tennessee can take care of this problem and will take care of it.

We say that for this Court to send this case back to the Federal District Court saying that that court has jurisdiction and that that court may grant relief is authorized to do so that that would be a little short of putting the State of Tennessee in a political or governmental receivership.

I think it would be a little short of that.

I think it would be saying that the people of Tennessee incapable of self-government and that they cannot and never will be able to solve this problem.

Chief Justice Earl Warren: (Inaudible)

Argument of Z. T. Osborn, Jr.

Mr. Z. T. Osborn, Jr.: Mr. Chief Justice and may it please the Court.

This Honorable Court in light of the closing made, it might well be alerted to this that for the first time in 60 years, a state legislature in Tennessee agreed to have an enumeration and that that only after this Honorable Court noted probable jurisdiction in this case.

Had it not been for that, the allegations made would have been just as literally true as they were following the 1959 legislature.

Now, in this case, we seek not a declaration by this Court as to how a state legislature should be apportioned.

We do not seek to obtain from this Court any action that the courts have not traditionally granted.

What we seek from this Court is this, examination of an act of a state legislature for whether it complied with, the Constitution of Tennessee and the Constitution of the United States.

We ask this Court to pass upon whether a state legislature can, in the base of certain rights that are established and conferred by the State Constitution, adopted now in 1870 and following Tennessee's readmission to the union upon its ratification of the Fourteenth Amendment which served to guarantee the equal protection of rights that were established by the state as whether or not a state legislature can -- by an act destroy those rights.

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: It means that -- it -- it means that if this Court --

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: If it means that, if Your Honors do review this Act for its constitutionality and if you do find that the Act of 1901 apportioning Tennessee in violation of the Constitution of Tennessee and of the Constitution of United States, if you find that that Act is invalid, there are certain things that will follow in logic as pointed out by this Court in Smiley versus Holm and in other cases.

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: Right.

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: This is what we say that we are entitled to.

If this act of apportionment which was not based upon an enumeration, no enumeration was in fact made which was not based upon the provisions of Tennessee's Constitution, but was based upon some matter pulled out of the air, not susceptible to any rationalization.

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: When and --

Justice Felix Frankfurter: So therefore, (Inaudible)

Mr. Z. T. Osborn, Jr.: Yes.

Justice Felix Frankfurter: (Inaudible) is that right?

Mr. Z. T. Osborn, Jr.: Yes, alright.

And -- and now, I will --

Justice William J. Brennan: (Inaudible)

Mr. Z. T. Osborn, Jr.: Yes.

Justice Felix Frankfurter: But if you have that ground (Inaudible)

Mr. Z. T. Osborn, Jr.: I'll now explain why and very briefly why.

We do ask for a declaration respecting an election at large and a declaration respecting a constitutional election.

The reasoning in Smiley versus Holm is simply this, that if a state legislature given power to apportion, does not apportion then the legislature or congressional declaration -- congressional delegation remains unapportioned and at large.

Now, if we have no act of an -- of apportionment, we do have if we have to elect another legislature, we do have two alternatives; either to let the legislature subject us to an election at large, an election of an unapportioned legislature or the Court saying to these defendants who hold our elections, "You may as an alternative provide for an election in compliance with the mathematical formula expressed in the Constitution of Tennessee.

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: Exactly the same provision in the Constitution of Tennessee for an election at large as there is in the Constitution of the United States for an election of congressmen at large.

The two provisions are -- are almost identical.

This Court held that a statement in the United States Constitution that the people could choose congressmen and then could go on and let the congressmen apportioned or legislatures apportioned.

Upon their failure, the people still had a right to elect congressmen and in Tennessee's Constitution, the legislature is dependent upon the people.

It is to be chosen by the people and if the legislature should fail to exercise its power to apportion, still the legislature would exist.

And to argue to the contrary is -- as the Attorney General does is to say that the legislature somehow depends upon some act of its own for its existence.

Now, it'd be the --

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: No, only the terms which have been by this Court, your -- this Honorable Court construed to mean and to in effect provide for an election at large.

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: Well, the --

Justice Felix Frankfurter: I understood the value and purposes --

Mr. Z. T. Osborn, Jr.: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Z. T. Osborn, Jr.: It is derivative.

We're -- we're saying that the same provision in the Constitution of the United States construed by this Court exists in the Constitution of Tennessee and is construed and it would be similarly construed.

Now, we want -- we want -- in this rebuttal to -- to follow upon a trend suggested by Mr. Justice Whittaker which is this.

You never have to reach the de facto doctrine with respect to any prior act of the legislature.

The de facto doctrine would -- would not be applied by this Court or by the Court of Tennessee or any of the courts of the United States to the question of seat -- of a seat in the legislature or to the question of whether there were 10 invalid seats in that legislature or a dozen people that were not entailed to be there.

Commencing with the apology of the parliament of King James, the legislatures have consistently been held to be the exclusive judge of the qualification of their members and the de facto only applies, it's -- it's never applied to anyone except some official elected to some office and the question then of whether he's properly elected or whether his office is properly created.

The courts do pass upon that but they do not pass upon the question of -- of a seat in the legislature.

So, if General Wilson should be asked whether to go ahead and execute this prisoner and he's smart, I know him well enough.

He would say it once, "Go ahead and execute the prisoner.

We had an -- a law against murder long before the illegal act of 1901 unlawfully apportioned in Tennessee."

And he would secondly say that the courts have always rejected any attack upon an act of the legislature based upon its membership.

So, he would -- he would -- he sets up -- he puts the ox in the ditch in order to try to get -- get him out but he would not be concerned with any of those things that he urges.

Chief Justice Earl Warren: Mr. Rhyne.

Argument of Charles S. Rhyne

Mr. Charles S. Rhyne: Mr. Chief Justice and may it please the Court.

First of all, I would like to say on behalf of the Solicitor General that he wanted to lodge with the clerk the maps to which he referred yesterday and if that maybe done, he would appreciate it very much, and we would too.

Mr. Chief Justice and -- and may it please the Court.

I listened very careful to my distinguished adversaries here to see if they could utter one word in defense of the factual discrimination which exists in this case and I failed to hear it.

I think there can be no question but what's the right to vote is created by the State of Tennessee and we don't challenge that at all.

We say that when that right is created, it must be given to everyone in equality under the measurable equality set forth in the Constitution of Tennessee.

And that if anyone is discriminated against, by then, that the right to vote is a part of their civil rights and the Fourteenth Amendment comes into play and we have that protection.

We do not believe that -- that any state can invade a federally protected right and so keep it completely destroyed or nullified or -- or eliminated or that all relief is blocked forever such as the situation here.

And I also call the Court's attention to the fact that the -- the Saylor case which was referred to here in five ballot box stuffing, not just counting ballots but stuffing ballot boxes so that -- that votes were deluded so it's -- it's right in point with this, what I would call ballot-box rigging here so that one man's vote is worth only a tenth or a twentieth of another man's vote and I say that there can be no question but what that is discrimination.

I say there can be no question but what under the Civil Rights Act, the right to vote is protected, that it is a civil right and that it is a personal right.

I was quite surprised to -- to hear it argued that the -- that the right to vote is -- is not a personal right, why, certainly it's a personal right.

And it's been held so in Herndon versus Nixon and all other cases that I've ever read involving the right to vote in this Court.

So, we say that the State of Tennessee has no power in this 1901 Act or in any other to -- to nullify a federally protected right.

We say that here we're asking this Court which is under our system of checks and balances, the ultimate safeguard of individual rights of civil liberties in this country to carry out its duty.

The legislature of the State of Tennessee is not the ultimate safeguard of individual civil rights under the Constitution of the United States of America, this Court and the federal courts and all courts are.

And so, we say that the right to vote is such a civil right and that it is protected under the Fourteenth Amendment and we would sum up our case in this way.

We have here 11 voters who have been given a right in Tennessee to vote in equality with all other voters similarly situated.

And the State of Tennessee has, through this Act of -- of 1901, taken away their right of equality and given them a one-twentieth or one-tenth of the right to vote.

And so, when all other avenues of relief are blocked, we ultimately must come here, we're at the end of the line.

There cannot be a judicial no man's land where civil rights are involved in the United States of America and that is what is involved here.

And this Court in Smiley versus Holm and in case after case has always held that the right to vote of an American is important, that it is a personal right and then it cannot be taken away by any action of any state government.

So therefore, we believe that these individual voters have a -- a right which under these facts have been taken away and we ask this Court to do as courts have from time immemorial, reverse and remand this case to the District Court with the instructions to provide a remedy that is adequate to the protection of the right that is here before the Court and which Tennessee has deluded and destroyed.

Justice John M. Harlan: Could I ask you a question before you sit down Mr. Rhyne?

Supposing starts -- Tennessee started in a new on all this today, do you recognize any right in the State to make a classification of some kind between urban and city voters?

Mr. Charles S. Rhyne: Well, we start to do it --

Justice John M. Harlan: Did they make any (Inaudible)

Mr. Charles S. Rhyne: It's unreasonable -- if it's unreasonable classification but there's no defense here that this classification that's involved here, Mr. Justice Harlan, is reasonable.

We would recognize any reasonable classification.

Justice John M. Harlan: You don't stand on a numerical one -- but it doesn't have to be inapplicable.

Mr. Charles S. Rhyne: Not an absolute -- not an absolute slab rule numerical provision.

Justice Felix Frankfurter: (Inaudible)

Mr. Charles S. Rhyne: The only other one I know of, Mr. Justice Frankfurter is in Oklahoma.

Now, I -- I have not -- I have not researched out that point --

Justice Felix Frankfurter: (Inaudible)

Mr. Charles S. Rhyne: Pardon?

Justice Felix Frankfurter: (Inaudible)

Mr. Charles S. Rhyne: Yes, it is and I do know that once the -- the Supreme Court of Arkansas did reapportion the State of Arkansas, but it seemed to have done that just under -- or without any specific constitutional provision.

Featured:

Baker v. Carr - Oral Reargument, Part 1

Tue, 25 Sep 2012 22:36:40 +0000

Case:

Baker v. Carr

Media File:

6_19611009-reargument-1

Related Transcript:

6_19611009-reargument-1

Transcript:

Argument of Charles S. Rhyne

Chief Justice Earl Warren: Number 6, Charles W. Baker, et al., Appellants, versus Joe C. Carr, et al.

Mr. Rhyne.

Mr. Charles S. Rhyne: Mr. Chief Justice, may it please the Court.

This is a voting rights case.

It's brought here on appeal by 11 Tennessee voters who seek federal court protection to end flagrant discrimination against their right to vote.

These 11 Tennessee voters lived in five of the largest cities of Tennessee.

They are the intended and actual victims of a statutory scheme which devalues reduces their right to vote to about 120th of the value of the vote given to certain rural residents.

Since the right to vote is the greatest civil right, the most fundamental civil right under our system of Government, this system under the statute of Tennessee is as shocking as it is purposeful and successful.

These appellants bring their case here under the Fourteenth Amendment in the Civil Rights Act.

Now the District Court in passing on their complaint said that it entirely agreed that their rights were violated and that the evil was a serious one which should be corrected without delay but that court found that it either did not have the power or should not exercise it under the precedents to which it refer.

Justice Potter Stewart: Did the court indicate which rights were violated?

Did it indicate that they were federal constitutional rights or only the right --

Mr. Charles S. Rhyne: It did --

Justice Potter Stewart: -- under the Tennessee statute?

Mr. Charles S. Rhyne: It did Mr. Justice Stewart.

If you will look at the opinion of the court, you will find that it indicated both.

I realized that our adversaries have said that the court only had reference to the violation of the state constitution but if you will look at page 219, the court says it --

Justice William J. Brennan: Page what?

Mr. Charles S. Rhyne: Page 219 of the record, Mr. Justice Brennan, the third line.

The court said it is strenuously argued by the plaintiff that the case alleged in the complaint is one involving a clear violation of their individual rights guaranteed by the Fourteenth Amendment.

And then when the court later on refers to both the state constitution and rights, Mr. Justice Stewart, I think that it's a fair reading of the opinion of the court that it had reference to both rights under the Fourteenth Amendment and rights under the Constitution of Tennessee.

Chief Justice Earl Warren: Where is that language Mr. Rhyne?

Mr. Charles S. Rhyne: On page 219.

Chief Justice Earl Warren: Both?

Is it following in the same sentence, you begin that what the court's observation like what --

Mr. Charles S. Rhyne: Yes, Mr. Chief Justice, I think that I can -- I'll read it all in order that there'll be no mistake about it.

The part that I read which referred to violation of their individual rights guaranteed by the Fourteenth Amendment is about one, two, three, four, five lines there at the top.

Chief Justice Earl Warren: I see that.

Mr. Charles S. Rhyne: And it said -- and for this reason that the court should in some way overcome its reluctance to intervene in matters of a local political nature and formulate a remedy which would adequately protect their rights.

They refer to their rights under the Fourteenth Amendment.

Chief Justice Earl Warren: Yes.

Mr. Charles S. Rhyne: It is insisted that the wrong committed against them by the failure and refusal of the state legislature to abide by the state constitution is clear and unmistakable and that the court should not leave such wrong without a remedy.

With the plaintiffs' argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiff, the court entirely agrees and I submit Your Honors that a fair reading indicates that the court had reference to rights under the Fourteenth Amendment because it referred to a wrong under the state constitution and rights under the Fourteenth Amendment.

And of course, the next sentence refers to the -- to the evil and their statement that they entirely agreed that a serious one that should be corrected without delay.

Justice Felix Frankfurter: You don't mean to imply because it referred to wrongs under the state constitution, they had no rights under the state constitution.

Mr. Charles S. Rhyne: I certainly did not Mr. Justice Frankfurter because we contend that our right to vote that these voters are speaking of stems from the state constitution.

Justice Felix Frankfurter: Well, I'm suggesting is therefore that -- you should make of the word "wrong" is a little limited.

Mr. Charles S. Rhyne: I did not intend to, Mr. Justice Frankfurter.

I meant to -- to say that we claim both rights under the state constitution and rights under the Fourteenth Amendment because it's our -- to say a little plain, I think they're both -- say the same thing.

Now, the right to vote in Tennessee is created by the Constitution for all over 21 years of age who have resided in the State for one year or in the county where they want to vote for three months.

And the constitution also provides that voting shall be free and equal.

Now, true it is that this appeal is based on still higher authority, the great principle of equality under the Fourteenth Amendment, principle of equality of man which was set forth in the Declaration of Independence in which is so deeply embedded in the -- in the conscience and morals of our people.

The way in which these voting rights of the plaintiffs have been effectively denied, so effectively we say as to be effectively destroyed is by a so-called reapportionment statute adopted in 1901.

Now, the ultimate thrust of that statute today is that one-third of the qualified voters living in the rural areas of the State of Tennessee elect two thirds of the State Legislature.

Now, that 1901 statute not only violates this requirement of equality in voting, which I had just referred to the Tennessee Constitution, not only violates the requirement of equality in the Fourteenth Amendment of the Constitution of the United States of America.

But it plies directly in the teeth of and openly and flagrantly violates another provision of the Tennessee Constitution which is designed to by periodic 10-year reapportionment of the state legislature to guarantee this equality of which the Tennessee Constitution speaks.

Justice Felix Frankfurter: The ratio you gave a minute ago was as of today or as of 1901?

Mr. Charles S. Rhyne: It's as of today, Mr. Justice Frankfurter.

Justice Felix Frankfurter: What was it at 1901?

Mr. Charles S. Rhyne: 19 and -- in 1901, there were 11 representatives under this 1901 Act assigned to counties and districts who were not entitled to them.

That is 11 out of 99.

I'm not a good enough mathematician to give you the exact ratio.

But when this 1901 Act was adapted, the legislature failed two things.

It failed to enumerate the qualified voters as required by the constitution.

And it failed to follow the constitution or provision which I was just going to refer to that requires this enumeration and then apportionment of representation the 99 members of the House of Representatives and the 33 members of the Senate according to the voting population among the counties and districts of Tennessee.

Now, that is a mathematical formulary.

There's no question but what it was violated by the 1901 Act.

And since 1901, Mr. Justice Frankfurter, the situation has grown steadily worse.

Justice Felix Frankfurter: Let me see if I understand.

In 1901, according to your mathematics, 11 counties had a larger representation and they were entitled to under the Tennessee Constitution.

Mr. Charles S. Rhyne: That's right, Mr. Justice Frankfurter

Justice Felix Frankfurter: And since then that disparity has increased merely because nothing was done since 1901 and there's been a shift in the population between rural and urban, is that right?

Mr. Charles S. Rhyne: That's very true.

And we have filed with the marshal some figures bringing up-to-date the exhibits to the complaint because we did not have when we argued this case before, the voting population figures from the census.

Under those voting population figures, Mr. Justice Frankfurter, there are now 29 representatives assigned to counties and districts who are not entitled to them under this constitutional formulary because of what you referred to, the growth in population and the shifts in population.

And they also reveal the fact that in some of these rural counties in the last 10 years, they lost as much as 21% of their qualified voters so there's a tremendous shift going on from the rural areas to the city urban areas in -- in Tennessee.

Justice John M. Harlan: Well, Mr. Rhyne, am I right (Inaudible)

Mr. Charles S. Rhyne: Yes, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Charles S. Rhyne: On 232, Exhibit 5, it shows there the counties who were given 11 more if you'll subtract the 7 of the -- from the 18, the number they were entitled to by the formulary and --

Justice William J. Brennan: Am I right (Inaudible)

Mr. Charles S. Rhyne: In 1900, yes.

Justice William J. Brennan: 1901?

Mr. Charles S. Rhyne: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Charles S. Rhyne: The ratio today is given in these latest figures that --

Justice William J. Brennan: Of the constitution?

Mr. Charles S. Rhyne: Yes, these revised figures which we have given you.

And it's entitled to -- its Exhibit Number 5, the second page, Mr. Justice Brennan, addendum to Exhibit 5.

And it shows that the number of direct representatives that shall be -- is entitled to under the formula is 15.

The actual number they have is seven.

Justice William J. Brennan: Well that's (Inaudible)

Mr. Charles S. Rhyne: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Charles S. Rhyne: Yes, yes.

Chief Justice Earl Warren: Mr. Rhyne --

Mr. Charles S. Rhyne: Now --

Chief Justice Earl Warren: I just want to get over (Inaudible) a little on this.

I understood you to say at the outset that the voting rights of these people had been reduced to 1 to 20 if I compare it --

Mr. Charles S. Rhyne: Yes.

Chief Justice Earl Warren: -- with other voters.

Mr. Charles S. Rhyne: Yes.

Chief Justice Earl Warren: Then I understood you to say that one-third of the voters of the state represented two-thirds of the legislators.

Mr. Charles S. Rhyne: Yes.

Chief Justice Earl Warren: Now --

Mr. Charles S. Rhyne: I --

Chief Justice Earl Warren: -- how do you have you equate those (Voice Overlap) --

Mr. Charles S. Rhyne: I explain that this way, Mr. Chief Justice.

I'm taking more county where the -- Moore county has --

Chief Justice Earl Warren: Oh, this was just one county you were --

Mr. Charles S. Rhyne: One county.

Chief Justice Earl Warren: -- referring to.

Mr. Charles S. Rhyne: I'm using it as illustration.

That is --

Chief Justice Earl Warren: Alright.

Mr. Charles S. Rhyne: That is the extreme.

Chief Justice Earl Warren: I'll take no more time.

Mr. Charles S. Rhyne: That's the extreme.

Moore -- well, I -- if Moore county has, for example 2300 and Shelby County 312,000, they have seven, Moore county has one and that's comes out to a mathematical 20 to 1.

It's true that in the exhibits which you have before you which were just completed, that I think the situation around creates Oak Ridge is even worst now because of the influx there in Anderson County.

But the 20 to 1 exist with respect to -- to Shelby and Moore County.

Its not -- that's throughout in the state.

It's an average about one-tenth.

Chief Justice Earl Warren: Is Oak Ridge one of the five cities?

Mr. Charles S. Rhyne: Not -- it's not one of the five.

It has a voter representative before the court now.

Justice William J. Brennan: What were the other five?

Knoxville --

Mr. Charles S. Rhyne: Knoxville, Nashville, Chattanooga and Memphis.

Justice William J. Brennan: (Inaudible) the fifth?

Mr. Charles S. Rhyne: The fifth one --

Justice William J. Brennan: No, no, the four.

Mr. Charles S. Rhyne: Is East Tennessee --

Unknown Speaker: The Oak Ridge is --

Mr. Charles S. Rhyne: -- area.

No it does not include -- its Montgomery County, Tennessee.

Our voter is a -- is a judge of the county court of Montgomery County.

Justice Felix Frankfurter: That's not a city, isn't it?

Mr. Charles S. Rhyne: Well, it's an urban area --

Justice Felix Frankfurter: Alright then.

Mr. Charles S. Rhyne: Mr. Justice.

Justice Hugo L. Black: That would be the fifth city,(Inaudible)

Mr. Charles S. Rhyne: I counted Montgomery County as a -- as a city or an urban area.

I should've said five of the largest urban areas.

Justice Felix Frankfurter: (Inaudible) enacted the 1901 Act.

It's without (Inaudible)

Mr. Charles S. Rhyne: Yes, it was

Justice Tom C. Clark: It applies the same ratio in Knoxville (Inaudible)

Mr. Charles S. Rhyne: Yes, they did violate it in this 1901 Act because they assigned --

Justice Tom C. Clark: They violated the Act.

Mr. Charles S. Rhyne: Well, up until that time, they have complied with the constitutional formula.

There were 3 -- well 9 in 19 and -- or 1880, 1890 reapportionment, we have no -- no quarrel with it, evidently it were -- it carried out mathematical formula.

Now, this mathematical formulary was contained in the Constitution of Tennessee way back in 1835 and reembodied --

Justice Tom C. Clark: (Voice Overlap)

Mr. Charles S. Rhyne: -- in -- in the new constitution.

Justice William O. Douglas: (Inaudible) largest city in (Inaudible) going with the representatives in the (Inaudible) cities have changed this, suppose that's true.

Mr. Charles S. Rhyne: Well, I would imagine that at that time, Tennessee was largely a rural state.

This urban growth has come greatly since that time.

Now, I would say simply on the -- the factual situation that we have tried to -- to update that with the figures that we have given the Court to show of what we said the last time was that this situation is growing worse instead of better all the time.

And our position is that when Tennessee creates this right to vote, it must give it inequality to all who qualify.

And no one can say that under this reapportionment statute of 1901, all the voters are treated equally and partially and uniformly and this Court has said a good many times that the Fourteenth Amendment strikes down discriminations whether they are sophisticated or simpleminded.

And we think that whether you cloak it under the terms of reapportionment or any other cloaks, no matter how ingeniously or geniously contrived that this is a discrimination which is clear from the facts on -- in the complaint.

And under those facts, these voters have a constitutional right that is invaded and have standing to maintain this suit because a man's right to vote is personal to him.

It's not shared with anyone.

And when these people have their right to vote invaded, deluded, rendered worthless or practically so by this 1901 Act, it's a personal wrong to them to have their vote so affected.

Justice Felix Frankfurter: Mr. Rhyne, is there any state constitution of any other 50 states that has an explicit provision aligned inequality in the voting rights or providing for inequality?

Mr. Charles S. Rhyne: You mean expressly saying that?

Justice Felix Frankfurter: Yes.

Mr. Charles S. Rhyne: Well, there are, as you well know Mr. Justice Frankfurter, many states where there is not equality.

I know no state that actually --

Justice Felix Frankfurter: No, no, no.

Mr. Charles S. Rhyne: -- spells it out.

Justice Felix Frankfurter: I don't mean -- I don't mean the practical wordings of --

Mr. Charles S. Rhyne: Yes, you mean (Inaudible)

Justice Felix Frankfurter: -- the electoral system.

Is there any of the fifth -- in any of the 50 state's constitution, is there a provision authorizing the apportionment of voting rights in state representatives or for congressional representatives providing for inequalities that some region or some classes or some -- whatever the distinction is?

Mr. Charles S. Rhyne: I don't believe not in those -- those terms.

I say the --

Justice Felix Frankfurter: Well in any terms.

Mr. Charles S. Rhyne: The inequality --

Justice Felix Frankfurter: Any terms.

Mr. Charles S. Rhyne: The inequality exists as a matter of fact.

And of course, some of the state legislatures are --

Justice Felix Frankfurter: I was trying to deal with --

Mr. Charles S. Rhyne: -- are set up.

Justice Felix Frankfurter: I wasn't trying to deal with that problem.

Mr. Charles S. Rhyne: Yes.

Justice Felix Frankfurter: I wanted to know whether any state constitution authorizes by its constitution unrelated to what the federal constitution may have to say about it inequality in voting rights.

Mr. Charles S. Rhyne: I would say not.

I have not read --

Justice William O. Douglas: What county unit said it?

Mr. Charles S. Rhyne: Well, that -- as I -- I didn't understand his question to reach that kind of a situation where the constitution --

Justice Felix Frankfurter: Man for man, man for man --

Mr. Charles S. Rhyne: It doesn't say --

Justice Felix Frankfurter: -- does any --

Mr. Charles S. Rhyne: -- any expressed words, the county union -- unit system, the town system in -- in New England and all the things that the Solicitor General has reviewed in his brief.

I do, of course, provide for inequality.

But I understood Mr. Justice Frankfurter to say is there any state that -- that in express language, violates the great principle of equality.

And I say there is no state constitution adopted -- the people would've adopted if that spells out -- the people over here are not going to have an equal vote with the other people.

I --

Justice Felix Frankfurter: You mean the rural people who want more votes wouldn't adopt it if it were put into the constitution?

Mr. Charles S. Rhyne: Well, I just can imagine such a discriminatory provision being put in any -- the basic fundamental law of any state.

Now --

Chief Justice Earl Warren: They do as between the Houses of the legislature, do they not?

Mr. Charles S. Rhyne: Oh, yes.

Chief Justice Earl Warren: Some states say that one House will be according to population and the others will be according to counties.

Mr. Charles S. Rhyne: Yes, Mr. Chief Justice.

But again, I had understood Mr. Chief -- Justice Frankfurter's question to exclude that situation and to ask me whether or not --

Justice Felix Frankfurter: Whether in the popular legislature --

Mr. Charles S. Rhyne: -- it was written as --

Justice Felix Frankfurter: Whether in the popular legislature.

Is there any state in the union which in terms discriminates between man and man as to numbers, not as to -- as to the weight of his voting powers.

Mr. Charles S. Rhyne: Oh well now, if you -- if you bring all of this geographic div -- division of state ledgers by -- legislatures by the county unit system in -- in Georgia or the town system up in New England, why of course they are inequalities.

But I thought you wanted to know --

Justice Felix Frankfurter: Those are --

Mr. Charles S. Rhyne: -- if it was written out.

Justice Felix Frankfurter: Those are op -- those are operating inequalities.

I'm talking about explicit inequality.

Mr. Charles S. Rhyne: Now, that's what I thought.

There is no provision in any state constitution that makes -- doesn't say one man, one vote.

Justice Felix Frankfurter: That's what --

Mr. Charles S. Rhyne: That's what I'm --

Justice William J. Brennan: (Inaudible) that's not observed (Inaudible) even in the populous counties.

Every county (Inaudible)

Mr. Charles S. Rhyne: Now, that is a rather common provision throughout the country.

Some say its in Kansas.

You may have noticed in the brief amicus curiae I filed here, any county that has over 250 people is entitled to one representative.

Justice William J. Brennan: (Inaudible) counties rather.

Mr. Charles S. Rhyne: Yes, now I think, Mr. Justice Brennan, they're almost as many different provisions with respect to this as there are states.

There is no great uniformity throughout the nation.

Justice Felix Frankfurter: Most of the New England states allow every town where it has 20 people in it as in New Hampshire, many a town has not more than 20 or 24 or 20,000, just one representative.

That is what I was talking about.

Mr. Charles S. Rhyne: Alright.

Now, proceeding --

Justice Tom C. Clark: Now, I wonder if the -- if Texas was to come up with what you've just mentioned, this limits the representation (Inaudible) of a county of, say 100,000 population.

It was for 100,000.

Mr. Charles S. Rhyne: Yes, Texas --

Justice Tom C. Clark: To me it's different (Inaudible)

Mr. Charles S. Rhyne: Well now, that -- I think that -- that Texas certainly takes into consideration changes in population and -- and is in many respects --

Justice Tom C. Clark: They have -- give one vote to each person (Inaudible)

Mr. Charles S. Rhyne: No.

Justice Tom C. Clark: (Inaudible)

Mr. Charles S. Rhyne: No.

No and -- and we're not arguing for absolute mathematical equality here.

We're saying we have a -- a mathematical formula in the Tennessee Constitution.

But we are asking for the reasonable equality required by the Fourteenth Amendment.

Justice Felix Frankfurter: But the case --

Mr. Charles S. Rhyne: Now --

Justice Felix Frankfurter: -- will be different for you if it weren't in the Tennessee Constitution, exactly the same reapportionment statute, exactly the same consequences but no such provision as you rely on it with Tennessee Constitution, would the case be different for you under the federal --

Mr. Charles S. Rhyne: I would say --

Justice Felix Frankfurter: -- constitution?

Mr. Charles S. Rhyne: I would say yes because the Tennessee Constitution is one of the important, the very important legal facts that this Court must consider in relating this up to the -- to the Fourteenth Amendment.

It shows what Tennessee intended with respect to -- to voting rights and the extent of the violation of that intention and then also indicates a measurable remedy.

I think the Tennessee Constitution has tremendous significance in this case because in each state I think that in considering the Fourteenth Amendment, you have to consider the totality of the facts and the legal provisions and --

Justice Felix Frankfurter: And the total --

Mr. Charles S. Rhyne: -- when you do that.

Justice Felix Frankfurter: And the totality doesn't include the construction, the definitive construction by the State's Supreme Court of the Tennessee Constitution?

Mr. Charles S. Rhyne: I wouldn't say to you, Mr. Justice Frankfurter that the Tennessee Supreme Court has never really construed this reapportionment provision.

All it did was say that it'd be chaos if we enforced it they did not say --

Justice Felix Frankfurter: It hasn't --

Mr. Charles S. Rhyne: -- that the 1901 Act was constitutional.

They didn't pass on that question.

Justice Felix Frankfurter: You don't -- well, it's passed on it by denying a right under it.

If that isn't passing on it, I don't know what it's passing on.

Mr. Charles S. Rhyne: Well, I was going to say that one of the big factors in this case is that we are at the end of road.

Obviously, we can get no relief.

We've exhausted all of our remedies in Tennessee.

The Tennessee state court will give us no relief.

Its obvious that this state legislature in the last 60 years which hasn't reapportioned itself in which never once has the Senate given more than 13 votes in favor of reapportionment, never once has the House given more than 36 votes in favor of reapportionment.

There is no remedy there.

The Governor can do the --

Justice Tom C. Clark: When was the last time the legislature was -- asserted this legislature.

Mr. Charles S. Rhyne: It's -- it -- it passed a resolution at the last session to provide for a steady --

Unknown Speaker: In 1959, it turned it down.

Mr. Charles S. Rhyne: And in 1959 it turned it down.

There is an exhibit, Exhibit 2 attached to the complaint of Mayor West which sets forth every time that the legislature has considered it for the last 60 years even though about -- which has turned it down.

And I say, never more than 13 in the Senate, never more than 36 in the House.

And of course, you'll remember there -- there are 33 votes in the Senate and there are 36 votes, I mean 99 votes in the House.

Now, with respect --

Justice Tom C. Clark: In that record, many of these -- letting it to say -- I didn't understand.

Mr. Charles S. Rhyne: Yes, they appointed a committee to -- to study last year.

But so far as I know, it hasn't done anything --

Justice Tom C. Clark: Do you have any --

Mr. Charles S. Rhyne: -- you remember the -- the Assistant Attorney General advised this Court of that study group last argument.

Justice Tom C. Clark: And they (Inaudible) had the report back or just --

Mr. Charles S. Rhyne: No, they made no report at all, so far as I know.

I think they've had a hearing.

Justice William J. Brennan: Do I -- do I understand that constitutional changes cannot be made in Tennessee except by a constitutional convention called by the legislature?

Mr. Charles S. Rhyne: That's true.

And two legislatures have to vote on it so that (Inaudible)

Justice William J. Brennan: The people themselves have no way of initiating a constitutional (Inaudible)

Mr. Charles S. Rhyne: That's true.

There's no initiative and -- and referendum in -- in Tennessee.

And the Governor can do nothing.

If you'll look at this Exhibit 2, the Governors have repeatedly asked the legislature to reapportion itself and this fallen off on deaf ears.

So I think we're at the end of the road.

Justice Felix Frankfurter: Is this the only proposal of the Governor of Tennessee over the years the legislature has not adopted?

Mr. Charles S. Rhyne: Of course not, Mr. Justice Frankfurter.

Now, the right --

Chief Justice Earl Warren: May I ask you -- may I ask you this, Mr. Rhyne.

Do you rely wholly on the state constitution -- provision or would you still be here if there -- if there was no state provision such as you're relying on?

Mr. Charles S. Rhyne: I would say this that we would probably still be here.

But I do -- do not want to -- to say for one second that we don't rely on the state constitution --

Chief Justice Earl Warren: No --

Mr. Charles S. Rhyne: -- to show the kind of vote that has been created --

Chief Justice Earl Warren: Yes.

Mr. Charles S. Rhyne: -- in Tennessee and to show the -- the facts that relate up this Fourteenth Amendment question which we bring here to the Court.

We're here under the Fourteenth Amendment --

Chief Justice Earl Warren: Yes.

Mr. Charles S. Rhyne: -- because of discrimination against the votes of -- of these voters.

Chief Justice Earl Warren: Yes.

Mr. Charles S. Rhyne: And --

Chief Justice Earl Warren: But I don't ask you to give up anything, I'm just -- just asking you though if -- if you would still be here under the Fourteenth Amendment if there was no such guarantee --

Mr. Charles S. Rhyne: Well, I think --

Chief Justice Earl Warren: -- from the state constitution.

Mr. Charles S. Rhyne: Assuming the -- the same kind of -- of discrimination Mr. Chief Justice --

Chief Justice Earl Warren: In fact it's the same.

Mr. Charles S. Rhyne: And assuming a lot of conjectural things, of course you'd -- you'd bring in the fact of whether you'd have conflicting statutes and all of that so I think that merely points out the importance of the Tennessee constitutional provision, the fact that it is in the basic law there.

The fact it is tremendously important in this case.

And it's certainly much more important than if it were just a statute of the -- of the State of Tennessee that would bring on all these other things.

Now --

Justice Potter Stewart: Mr. Rhyne --

Mr. Charles S. Rhyne: -- in connection with --

Justice Potter Stewart: Mr. Rhyne, just to pursue that a moment.

What if the state constitution explicitly provided the precise apportionment that now exists in Tennessee, would you be here?

Mr. Charles S. Rhyne: Well, if it were not carried out.

If the --

Justice Potter Stewart: No, it were -- would be carried out.

The state constitution (Voice Overlap) --

Mr. Charles S. Rhyne: Well, we would not be here --

Justice Potter Stewart: -- my assumption would -- would provide --

Mr. Charles S. Rhyne: We would not be here (Voice Overlap) --

Justice Potter Stewart: -- if that apportionment had now in fact exists.

Mr. Charles S. Rhyne: Well, if -- if it were done by the constitution, I don't know -- we would be here.

Yes, because --

Justice Potter Stewart: Well, I thought you would.

And therefore, why -- how was the state constitution have any real importance at all?

Mr. Charles S. Rhyne: Well, I think it's tremendously important because I say it shows what a vote means in Tennessee.

It shows how much discretionary area there is in dealing with the -- the -- a right to vote in Tennessee according to the fundamental law of Tennessee.

Justice Potter Stewart: But you're here under the fundamental organic law of the -- of the federal union, not -- not any law of Tennessee.

Mr. Charles S. Rhyne: Yes, we're here under the Fourteenth Amendment of the Civil Rights Act.

But we are saying that this Tennessee constitutional provision had tremendous significance because it shows the fundamental law of Tennessee what the people of Tennessee think about this and we're not saying that this Court has to -- to carry out that formula but we're saying that it's one of the things that the Court should consider in deciding whether or not there's a violation of the Fourteenth Amendment.

Because Mr. Justice Stewart, I think when analyze it, you'll see that the Tennessee requirement of equality, the Fourteenth Amendment requirement of equality are one and the same thing.

They're --

Justice Potter Stewart: Well, are you --

Mr. Charles S. Rhyne: -- they're not in (Voice Overlap) --

Justice Potter Stewart: Are you saying this Mr. Rhyne that this, at least, is one of the important fact -- ground facts from which you draw the conclusion of capriciousness under the Fourteenth Amendment?

Mr. Charles S. Rhyne: Yes.

Yes, it is.

Justice Potter Stewart: Is that it?

Justice Charles E. Whittaker: Mr. --

Mr. Charles S. Rhyne: Yes, it is.

Justice Charles E. Whittaker: -- Rhyme, did I correct (Inaudible) you are not here insisting that Tennessee must carry out the formula of its constitution?

Mr. Charles S. Rhyne: No.

I say we are here insisting that the formulary in Tennessee should be carried out.

We think that that measures the right.

It's a measurable right.

Now, it's true that this Court can either, having jurisdiction under the Fourteenth Amendment, it can use any of the things that are available to it to -- to ensure that the voting rights of these people are carried out.

This Court could if it shows -- interpret the Tennessee -- having jurisdiction under the Fourteenth Amendment, interpret the Tennessee Constitution and not even have to reach the Fourteenth Amendment.

It's done that in -- in cases.

Justice Felix Frankfurter: What's --

Mr. Charles S. Rhyne: It's --

Justice Felix Frankfurter: -- the case in which it has done that?

Mr. Charles S. Rhyne: It's done it in the case, Mr. Justice --

Justice Felix Frankfurter: Don't tell me --

Mr. Charles S. Rhyne: -- Frankfurter, the Greene --

Justice Felix Frankfurter: Don't tell me the case that I wrote is a compact case.

Mr. Charles S. Rhyne: This is Greene versus Nashville -- Louisville Railroad, 244 U.S. 499 in which the -- the question there was discriminatory taxation.

The court explicitly took jurisdiction under the Fourteenth Amendment and decided the case under the Kentucky Constitution and said, "We don't have to reach the Fourteenth --

Justice Felix Frankfurter: As against --

Mr. Charles S. Rhyne: -- Amendment question.”

Justice Felix Frankfurter: As against the determination of the state court that the state constitution gets no legal rights?

Mr. Charles S. Rhyne: You enforce the -- the state constitution of Kentucky in that case Mr. Justice Frankfurter.

Justice Felix Frankfurter: Just answer my question, please.

Under -- in defiance of a State Supreme Court that the state constitution creates no legal rights?

Mr. Charles S. Rhyne: I would answer your question in this way.

The Supreme Court of Tennessee did not decide in the McCanless case that the Constitution of Tennessee creates no rights.

Justice Felix Frankfurter: It didn't -- it --

Mr. Charles S. Rhyne: It said it would not enforce those rights, Mr. Justice Frankfurter.

That is the way I read that decision.

And I think that is a fair reading of it because all it said is, if we enforce these rights, we'll have chaos in Tennessee.

Justice Felix Frankfurter: Well if li -- litigant came before the con -- the Tennessee Court, it asked for certain remedies and the Supreme Court of Tennessee with full knowledge of its state constitution said, "This is not an enforceable legal right.”

That's what that decision says or it says nothing?

Mr. Charles S. Rhyne: Well, I -- I can see that we read it differently, Mr. Justice Frankfurter.

Justice Felix Frankfurter: Well, how can -- did it dismiss the complaint or didn't it?

Mr. Charles S. Rhyne: It did.

And I call your attention to the fact the Chancellor of the lower court there upheld the rights.

Justice Felix Frankfurter: I know but the Chancellor was reversed by the higher court.

Mr. Charles S. Rhyne: I can see that the -- I say we disagree on interpretation of the -- of what --

Justice Felix Frankfurter: But we --

Mr. Charles S. Rhyne: -- the Tennessee Supreme Court did.

Justice Felix Frankfurter: We can't disagree that the Supreme Court overruled the Chancellor and we can't disagree that the Supreme Court denied relief, can we?

Mr. Charles S. Rhyne: We cannot Mr. -- but --

Justice Felix Frankfurter: Alright.

Justice Charles E. Whittaker: Mr. Rhyne, if I might ask you to help me in this respect.

If Tennessee was rid of its constitutional provision had then no systems for the allocation of its legislators, how would they be allocated?

Mr. Charles S. Rhyne: How would they --

Justice Charles E. Whittaker: If they absent this constitution.

Mr. Charles S. Rhyne: How would the voters be affected by inequality?

Justice Charles E. Whittaker: How -- no, no, no, no.

How would the 99 members of the House and the 33 Senators be allocated if there were no constitutional provision?

Mr. Charles S. Rhyne: I frankly don't know because -- to the fact that the Constitution provides for 99 and 33 is one of the important facts in this case which proves the importance of the Tennessee Constitution, Mr. Justice Whittaker.

Justice Charles E. Whittaker: Now must Tennessee have some system for the allocation of its legislators, the district's accounts.

Mr. Charles S. Rhyne: Well, since they held a system, I would rest on that.

I would say that -- that -- certainly in treating the right to vote for members of the legislature, all the states have some system and I can't imagine them not having one.

Justice Charles E. Whittaker: Even if they were rid of this Constitution and could do precisely the people -- this is -- what is being done, would that then come forth with the Fourteenth Amendment in your view?

Would that be a system if they adopted as a system what they have now if they could lawfully, being rid of the constitution, would that be an adequate system, a proper choice of basis by the people of Tennessee?

Mr. Charles S. Rhyne: Not what they have now, Mr. Justice Whittaker.

But I -- I say I -- I'm a little hesitant to speculate about if this and if that because I think we have to take the facts and the law in -- that we have here in this case because in this case, we have a -- a delusion of a -- a voter right, a kind of thing that this Court has in good many cases held will not stand up against the ban of the Fourteenth Amendment.

The -- the Texas Jaybird case for example where -- that you held that Negroes must be allowed to vote in the Jaybird primary as well as the Democratic primary in the general election because that's the only place that their vote could be affected.

And I think that in -- in this case as in Classic that -- which we cite in our brief and in Saylor that the delusion of a vote is a denial of the vote.

And this Court has held time and time again that fundamental rights can be lost by indirection as -- as well as direction and that under those circumstances, this Court will give relief because voters have standing to complain and come here to get this Court to protect their rights.

Justice John M. Harlan: Could I ask you a question?

Do you claim that the Fourteenth Amendment requires that each person's vote in the state be given equal weight?

Mr. Charles S. Rhyne: Reasonable equality.

Justice John M. Harlan: Well, reas --

Mr. Charles S. Rhyne: Reasonable equality.

Justice Charles E. Whittaker: As a matter of fiscal --

Mr. Charles S. Rhyne: Not mathematical equality --

Justice John M. Harlan: Not mathematical --

Mr. Charles S. Rhyne: -- Mr. Justice Harlan.

Justice John M. Harlan: -- equality.

Mr. Charles S. Rhyne: But reasonable equality.

I think that that is the thrust of the equal protection of the law's requirement of the Fourteenth Amendment, reasonable equality.

Justice William J. Brennan: Well to put that kind of treaty Mr. Rhyne, I already pointed out to it that 1901 shall be entitled to 8, actually had only 7 whereas today shall be entitled to --

Mr. Charles S. Rhyne: 15.

Justice Potter Stewart: -- 15 actually has gone to 7.

You might say that there was in Fourteenth Amendment stance, no denial of equal protection the 1901 with 8 -- entitled to 8, having only 7 whereas you might have a different view of the 1961 entitled 15 and having only 7.

Mr. Charles S. Rhyne: Because of the grossness.

Yes, Your Honor --

Justice Felix Frankfurter: Am I interrupting --

Mr. Charles S. Rhyne: -- I would agree.

Justice Felix Frankfurter: Am I entitled to ask you what you would say to 13 instead of 15?

That's the --

Mr. Charles S. Rhyne: Well --

Justice Felix Frankfurter: --11, let me begin with 11.

Mr. Charles S. Rhyne: Mr. Justice Frankfurter, I think this Court has from time immemorial taken the facts in each case and passed on them.

And you yourself in this -- I think it's this D'Amico case versus Maryland said that you didn't have to draw a line for all time.

You draw it case by case.

And so I think that we do have the required -- 15 here in -- in dealing with the actual facts rather than speculative facts that that is a violation of -- of --

Justice Felix Frankfurter: But I --

Mr. Charles S. Rhyne: -- the Fourteenth Amendment.

Justice Felix Frankfurter: But I do have to think of the road as I'm going on, what kind of road you're inviting me considering the fact that this isn't a unique Tennessee situation.

This isn't a unique Tennessee situation.

The Solicitor General gives heavy figures as to the number of states that are affected.

From my point of view, if you are right, from my point of view, if you are right, I see no difference between writing into a constitution equal representation and not writing in it so far as the Fourteenth Amendment is concerned.

Mr. Charles S. Rhyne: Well --

Justice Felix Frankfurter: Where -- where -- where this is essential, where the state power which is ultimately lodged in the highest court of a state in construing a constitutional provision says there's no legal right.

Mr. Charles S. Rhyne: Well, Mr. Justice Frankfurter --

Justice Felix Frankfurter: So I have to think about not in this case.

15 --

Mr. Charles S. Rhyne: Well --

Justice Felix Frankfurter: I have to think about Maryland which I'm told is -- many (Inaudible) more disparaged to this.I have to think of a lot of state and not say this is just Tennessee.

For me, this is the United States, not Tennessee.

Mr. Charles S. Rhyne: Well I would say, Mr. Justice Frankfurter, the main thing we have to think about here is -- is voting rights in disparagement, in degrading, in delusion of those rights all over the United States of America.

I grant you that this is a rotten situation that exists in most of the states.

And that it's destroying the integrity of State Government.

But the only way to restore that integrity is to carry out voting rights and that is the very point that we're making here.

And we're saying that under the Civil Rights Act that the Congress has done all it can by conferring upon the federal courts the power and the duty to protect voting rights.

As a matter of fact, in 1957 in amending the Civil Rights Act, it quote, "including the right to vote", it aided that specifically.

And in 1960, it added an amendment said that the word vote "shall include all measures necessary to make it effective."

Now, the Congress certainly recognized that voting rights were not being protected throughout the United States of America.

And it deliberately chose to spread them the equity powers of the federal courts as the way to protect those voting rights, not the state courts but the federal courts.

And --

Justice Felix Frankfurter: But the Congress of the United States never dealt with this problem although the inequalities in reference to congressional representation precisely would say and in coming to this law of flagrancy.

Mr. Charles S. Rhyne: I think that the picture with respect to congressional representation, Mr. Justice Frankfurter, isn't the same.

You don't have people attacking the integrity of the Congress of the United States of America on the disproportionate --

Justice Felix Frankfurter: Well that's a -- that's a --

Mr. Charles S. Rhyne: -- population thing which you do in this thing.

There's a more compelling situation that exist.

Justice Felix Frankfurter: That's there choice of the words.

Lots of people use the word "integrity" --

Mr. Charles S. Rhyne: Well --

Justice Felix Frankfurter: -- loosely and narrowly.

Mr. Charles S. Rhyne: -- I think though that there is -- Professor Anderson said in the affidavit that's attached to the Michigan brief amicus curiae that this thing is -- is very deep.

This denial of equality has gotten to the point of ethics and where even the school children wonder about the morals of their seniors who flagrantly violate the state constitution.

This is an entirely different situation than the congressional situation.

Justice Felix Frankfurter: I commend you -- I commend you the matters as a dependent -- dependency to the opinion in Colegrove and Green.

I just have you to look at those matters --

Mr. Charles S. Rhyne: Yes, Mr. Justice --

Justice Felix Frankfurter: -- then you'll see an inequality.

Mr. Charles S. Rhyne: Yes, Mr. Justice Frankfurter.

I recently looked at those and I'm merely saying to you that this is an entirely different situation.

Now, with respect to the jurisdiction of this Court, this Court has never held -- it's never held in any court decision that it doesn't have jurisdiction.

And in Smiley versus Holm, Carroll versus Becker and Koenig versus Flynn, it expressly invalidated state reapportionment statutes on the suits by voters.

Justice Charles E. Whittaker: You're speaking of jurisdiction in the sense of power.

Mr. Charles S. Rhyne: Of power, jurisdiction in the sense of power.

Then, in Colegrove versus Green, the vote was four-to-three for a jurisdiction.

I grant you, it was four-to-three differently composed not to exercise it because it was found that certain compelling circumstances were not there.

But, since Colegrove versus Green, you do have the fact that in this 1957 Act and the 1960 Act, the -- the -- the -- the law was changed and the federal courts were told that the action rather than inaction was expected of them.

And I say to this Court on the jurisdictional power that this case has all the traditional prerequisites for the exercise of equity power because the 1901 Act is clearly unlawful.

The damage to these voters is irreparable and the remedy at law is inadequate.

Now to refer these people to a political process which is -- is no remedy at all, if you're going to refer them to any remedy, it must have a reasonable chance of being effective but to refer these people back to the political process really is a -- is a mockery of justice because until voting rights are en -- enforceable in the federal courts and you have equal or reasonable equality, the ballot box is no remedy for the kind of situation that exist here.

Justice Felix Frankfurter: Will you or the Solicitor General tell us what the remedies would be here other than to declare this unconstitutional.

Mr. Charles S. Rhyne: Yes, Mr. Justice Frankfurter.

Justice Felix Frankfurter: What the remedy will be.

Mr. Charles S. Rhyne: I certainly did express -- I would address myself to that in just a moment.

But first of all, I would like to say that the compelling circumstances which Mr. Justice Rutledge found absent in Colegrove versus Green are here and that those compelling circumstances are these, number one, there is a clear violation of a constitutional right.

Number two, there is no reasonable basis for the voting discrimination which is laid out in this complaint.

And the defendants offer no justification for it and they cannot offer it on these facts.

And as I have just said, there is no other remedy.

We're at the end of the road.

If this a judicial no man's land, these people, the two-thirds of the voters of Tennessee are consigned to be second class citizens for the rest of their life because these defendants exalt their position into an untouchable absolute justice.

In Gomillion -- in Gomillion, the defendants there said, "Well, you can't touch us because a state can carve up its political subdivisions anyway it wants to.”

But this Court held that there was no such thing as an absolute insofar as constitutional rights were concerned.

There's no such thing as an absolute that gives anybody an untouchable right and power to destroy voting rights in this country.

And true it is, that was -- that was geographical discrimination favoring I guess, I hate to call it favoring, white as against colored.

I don't quite in -- in -- interpret that as a -- as a favor to the white.

But here, you have geographical demo -- discrimination of even worse, more gruesome character of the -- discriminating in favor of the rural people against the urban people.

And I say there's nothing in the Constitution of the United States of America that ordains and nothing in the Constitution of the te -- of Tennessee that ordains that state government is and must remain an agricultural commodity.

And there's nothing in neither one of those constitutions that said, "It takes 20 city residents to equal one farmer.”

Justice Felix Frankfurter: Mr. --

Mr. Charles S. Rhyne: Now --

Justice Felix Frankfurter: Mr. Rhyne, may I ask you this question.

Does on the fact, just the fact, every fact that you now put before the Court taking into account, does this case differ from the fact in Kidd and McCanless on the facts?

Mr. Charles S. Rhyne: I would say the only difference between Kidd versus McCanless on the facts and here is the fact that the situation has grown worse since then on the facts because this thing has become more and more gross which I say calls more and more -- is a more and more compelling circumstances for relief here.

And --

Justice Felix Frankfurter: But the disparity or from your point of view, in defense to one been in McCanless?

Mr. Charles S. Rhyne: Oh, yes.

Oh, yes, they weren't then and they aren't here.

Justice Felix Frankfurter: Now, since the facts in Kidd against McCanless were exactly the same from the point of view of constitutional consideration, I put this to you.

You talk as though Colegrove against Green, a four to three decision with Justice Rutledge concurring with the judgment on the ground that he did stood alone.

Kidd against McCanless -- in Kidd against McCanless, he appealed to this Court on your ground was dismissed on the -- and the basis for dismissal was given in the per curiam because Colegrove and Green and the Anderson case were cited.

So Colgrove and Green doesn't hang in this dubious situation in which you indicate it does.

Not only that, but the Anderson case before that also cited Colegrove and Green.

And while in the Anderson case there was a dissent noted.

In Kidd against McCanless, no dissent was noted.

Is that correct?

Mr. Charles S. Rhyne: As you state the facts, Mr. Justice Frankfurter, I would agree with them.

I wouldn't agree with any conclusion that the citation of Colegrove versus Green and Kidd versus McCanless or any other many cases that's been cited, stands for the fact that this Court lacks power --

Justice Felix Frankfurter: No, all I'm --

Mr. Charles S. Rhyne: -- to protect voting rights.

Justice Felix Frankfurter: All I'm saying is it isn't a four-to-three decision with one dubious and what is more important in Kidd against McCanless as well as in Anderson, a claim was made that the lower court decision, California in one case, Tennessee in the other, rested under state ground.

This Court in dismissing did not take that thing.

It rested on Colegrove and Grove without qualification.

Mr. Charles S. Rhyne: Well --

Justice Hugo L. Black: Am I right in --

Mr. Charles S. Rhyne: -- Mr. Justice --

Justice Hugo L. Black: Am I right in thinking, if you're asking us to reconsider those cases whatever they have?

Mr. Charles S. Rhyne: Yes.

Justice Felix Frankfurter: Oh, alright.

Mr. Charles S. Rhyne: Yes, yes.

I -- but my only point is that this Court has never under -- in any case that I know of, have held that it doesn't has -- have power.

It's held that it should not exercise power under particular -- under particular factual situations.

And I am saying that in this case, the compelling circumstances which did not in -- exist in Colegrove versus Green, do exist.

And one of the compelling circumstances, one of the great differences, Mr. Justice Frankfurter, I insist here is that this state legislative situation has reached the point of a -- of a great national tragedy.

And I think that's a compelling thing because there is no cure of that other than action by this Court.

The legislatures are not going to do anything about it.

It's obvious that there's no other remedy where -- as I say, we're at the end of the line and the only way that that situation can be cured is by this Court enfo -- enforcing the voting rights of these voters.

Justice Tom C. Clark: What about Congress, did they have any --

Mr. Charles S. Rhyne: I think, Mr. Justice Clark that Congress has gone about as far as it can in giving to the federal courts in the 1957 and the 1960 Civil Rights Amendment, a strengthened equity jurisdiction.

And if you'll look at the history of those particular acts, they were trying to protect votes no matter where they were cast or how they were cast and the method that Congress shows was the equity jurisdiction of the courts.

Now, I think Congress has gone about as far as it could because it would have to choose some agency other than itself to do this and it shows the courts.

And I think that under those circumstances and under the compelling circumstances of this case not only does the power exist but it must be exercised because either it's exercised are the great right to vote which is here before this Court for either vindication or denial will be denied.

And I cannot imagine courts, courts that were created --

Justice William J. Brennan: Well, let me --

Mr. Charles S. Rhyne: -- for the very purpose.

Justice William J. Brennan: Mr. Rhyne isn't that -- is that entirely true?

Certainly some State Supreme Courts, say --

Mr. Charles S. Rhyne: New Jersey.

Justice William J. Brennan: -- the Supreme Court in New Jersey have.

Mr. Charles S. Rhyne: Yes.

Well I would not --

Justice William J. Brennan: And other State Supreme Courts also have dealt with this problem, haven't they and they --

Mr. Charles S. Rhyne: Yes.

Justice William J. Brennan: -- stated that pretty quickly once they --

Mr. Charles S. Rhyne: Once they have faced up to it, yes.

Now --

Justice Potter Stewart: Many state constitutions confer upon the state courts.

The very function of saying that the --

Mr. Charles S. Rhyne: I think they're about -- about 12 of them.

Justice Potter Stewart: Yes.

Mr. Charles S. Rhyne: Now, that brings me --

Justice Hugo L. Black: Has the Tennessee Supreme Court directly held either that this apportionment is in accordance with its constitution or that it's against its constitution?

Mr. Charles S. Rhyne: Mr. Justice Black, it refused to pass on that particular point.

In the record here we have its -- its decision.

And we have also its decision.

Its decision starts on page 59.

And over on we have also, it's -- it's a decision on rehearing.

Because on rehearing, they asked the Court to pass on that point.

And over on 66, it says, “No, it was not going to pass on that.

It didn't have to pass on anything other than the one point that this would cause chaos.”

It did not interpret (Voice Overlap) --

Justice Hugo L. Black: Well, am I -- am I correct in thinking that your argument based on the fact that the Constitution requires this would be done in your way and that that therefore denies equal protection of the law?

Mr. Charles S. Rhyne: Yes.

Justice Hugo L. Black: Based on the principle that they have a law of Tennessee.

It does not -- which does require what you (Inaudible) and it's being enforced with a discriminatory eye or an invidious eye so that it become necessary for them to apply the law equally.

Mr. Charles S. Rhyne: Yes.

Justice Hugo L. Black: And that you say that the Supreme Court of Tennessee has not decided one way or the other on that question.

Mr. Charles S. Rhyne: It has not.

Justice Hugo L. Black: We had a case on Tennessee where they had a tax law, state tax law.

And it was written one way in the book and enforced another.

We held that since they were doing it discriminatorily as I recalled it, did that deny the equal protection of the law?

I have read very greatly but my recollection is that -- substance to what we held.

Unknown Speaker: On the outset --

Mr. Charles S. Rhyne: In that case if it's the Browning case, Mr. Justice Black, you held -- in my interpretation of -- of that opinion that the power to classify railroad property -- another property existed in the Constitution.

Justice Hugo L. Black: They brought it by Custom.

Mr. Charles S. Rhyne: And that this Court couldn't find that there was enough discrimination there to upset the CUSTOM and upset that interpretation.

Justice Hugo L. Black: Dictation from the law as construed and applied through the years.

Mr. Charles S. Rhyne: Yes.

Now here --

Justice Hugo L. Black: (Inaudible) here that there had been no decisions of the Supreme Court of the United States and that the Custom is not sufficient to bring it within the ruling of the Browning case.

Mr. Charles S. Rhyne: I think that's -- that's -- I think that is true.

Now, on remedy -- on remedy --

Justice Tom C. Clark: Coming back to that power of the Congress, I was just wondering if under its authority to implement the Fourteenth Amendment and appearing that half of the states have this same discrimination that you mentioned at various degrees, would it be within their authority and power to appoint a commission to go into that and perhaps pass some general law, an Act of Congress with reference to this?

Mr. Charles S. Rhyne: I'd say it -- it certainly would be within their power to appoint a commission.

But they have designated the federal courts instead.

They have even asked the federal courts in -- under the 1960 Act to act as referees on registration Mr. Justice Clark.

So, I think Congress thinks it's done all it needs to do because the courts have been the traditional protectors of Civil and Constitutional Rights and so they referred this to the courts.

Now, I'd like to say --

Justice Felix Frankfurter: Is there anything in the -- is there anything in the congressional debate which referred to -- to the federal -- which indicated that Congress conferred as explicitly as you seem to indicate, jurisdiction on the federal court to deal with the enforcement of state constitutional provision regarding the apportionment?

Mr. Charles S. Rhyne: They were dealing, Mr. Justice --

Justice Felix Frankfurter: Well, just answer that, yes or no.

Did they?

Mr. Charles S. Rhyne: No.

No.

Justice Felix Frankfurter: Alright.

Mr. Charles S. Rhyne: They were dealing with the use of the Fourteenth Amendment to protect the voting rights free of the states.

Now, I'd like --

Justice Felix Frankfurter: Are these of -- particularly of all colored -- colored citizens, isn't it?

Mr. Charles S. Rhyne: Well, they did not specify --

Justice Felix Frankfurter: We know they didn't but all the legislation was about that.

Mr. Charles S. Rhyne: They were, I think, concerned also about other citizens who were discriminated against in their right to vote.

Justice Felix Frankfurter: Such as the Puerto Ricans?

Mr. Charles S. Rhyne: Yes --

Justice Felix Frankfurter: Yes.

Mr. Charles S. Rhyne: -- and others.

And --

Justice Felix Frankfurter: What others?

What --

Mr. Charles S. Rhyne: Well, I -- I would say they could have this urban situation in mind too.

Justice Felix Frankfurter: Do you think there is anything in the -- I'm asking you whether in the debates there is any reference to this urban situation?

Mr. Charles S. Rhyne: I do not -- I do not know whether there is or not, Mr. Justice --

Justice Hugo L. Black: As I recall --

Mr. Charles S. Rhyne: -- Frankfurter.

Justice Hugo L. Black: -- within the Slaughter-House case.

A statement was made with the Fourteenth Amendment at the time it was passed probably not so to include -- to protect anybody with color (Inaudible) has it been limited that way?

Mr. Charles S. Rhyne: No, it's been held -- Mr. Justice Harlan's --

Justice Hugo L. Black: Construing the question I asked you a moment ago just going a point further.

As I understand it, do you say that there has been no ruling by the Supreme Court of Tennessee what is done here is in accordance with the constitutional provision --

Mr. Charles S. Rhyne: That's right.

Justice Hugo L. Black: -- do you say that they refused to decide it?

Mr. Charles S. Rhyne: That's right.

Justice Hugo L. Black: Why did they refuse to decide?

Mr. Charles S. Rhyne: They said they didn't have to in their opinion on rehearing which I cited to you.

They said they didn't have to point -- pass on that point because they had decided the case under this other point that it would destroy the State Government if they enforced these voting rights.

Justice Hugo L. Black: Now, if they have refused to decide this question, this constitutional question that it is a meritorious question, why would it not come up on the question of equal protection of the law under the doctrine of Mooney against Holohan?

Mr. Charles S. Rhyne: It would and it's here.

Now, I'd like to say just a word about remedy and my time is --

Justice Felix Frankfurter: Before you pass that, in the Browning case, did the Tennessee Supreme Court say that the Tennessee Constitution didn't require equality of tax treatment or did they say that while it's in the Constitution, 50 years have elapsed since that has been disregarded which?

Mr. Charles S. Rhyne: They said the latter --

Justice Felix Frankfurter: Alright.

Mr. Charles S. Rhyne: -- Mr. Justice Frankfurter.

Justice Felix Frankfurter: So they didn't construe the Constitution to read otherwise in its language way -- did they?

Mr. Charles S. Rhyne: Yes.

I think it indicated that there was power to classify there Mr. Justice Frankfurter.

Justice Hugo L. Black: Did they have --

Mr. Charles S. Rhyne: I think I'd better reserve the balance of my time --

Justice Hugo L. Black: Did they have any --

Mr. Charles S. Rhyne: -- for rebuttal.

Justice Hugo L. Black: -- cases in that court in that field from this Court indicating that the probability was it was some kind of a political matter of which courts could have no possible jurisdiction?

Was that in the Browning case?

Mr. Charles S. Rhyne: No, there was not an argument about it being politics there as far as I know Mr. Justice Black in my reading of it.

May I reserve the balance of time?

Chief Justice Earl Warren: You may Mr. Rhyne.

Mr. Solicitor General.

Argument of Cox

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

I would like to state first as clearly as possible the issues which we think this case presents, which ones need to be decided at this time and which we think can be deferred and finally the position of the United States with respect to each of these issues.

The central question of course is whether the District Court had jurisdiction over this case.

The complaint alleges an intentional invidious discrimination depriving the plaintiffs of their rights under the Fourteenth Amendment.

The general jurisdictional statues give the District Courts jurisdiction over all claims for depravation of constitutional rights under color of state law.

And I remind the course -- Court that under Bell and Hood incomparable cases, it's enough that the complaint state a colorable cause of action in order to give the court jurisdiction without going on to pass upon the merits of the Constitution.

Justice Potter Stewart: In that connection, Mr. Cox, preliminarily, am I right in my recollection that the defendants filed a motion to dismiss based upon two grounds.

Want of jurisdiction over the subject matter and secondly, failure to state its cause of action.

Mr. Cox: Yes.

There were two -- there were four in that as a matter fact.

But they were on those two grounds, Mr. Justice Stewart.

And the court -- the court's order refers to both grounds.

There's no question about that either.

It seems to me, the meaning of the dismissal for one of jurisdiction is fine I take it.

There's some dispute about the meaning of the dismissal for failure to state a claim upon which relief could be granted.

I emphasized the latter words because it seems to me that that was the meaning that the District Court attached to the order rather than the notion that there wasn't a substantive claim stated.

Because if you read as Mr. Rhyne pointed out the Court's opinion, it refers to the claim of rights under the Fourteenth Amendment, to the claim of rights under the state constitution.

And then in the next sentence it says, "We agree that there has been both the violation of the state constitution and the plaintiffs' rights", which I take it referrs back to the first seven.

Justice Potter Stewart: Do you think that the --

Mr. Cox: But in any event, the court's opinion plainly discusses only the remedy.

It does nothing -- there's not a word in dealing with the substantive claim of a violation of Fourteenth Amendment Right.

Justice Potter Stewart: Well, now why --

Mr. Cox: So I think that --

Justice Potter Stewart: While we're still on this rather dull subject of procedure of pleading, Mr. Rhyne emphasized at one point that the state had not sought to justify this system and am I not correct in thinking that against the matter of procedure or pleading that the -- that that point has not yet arrived?

The -- the state filed a motion and has not yet answered on the merits, isn't that correct?

By the state -- I mean the defendants in this case.

Mr. Cox: Well, I think -- I would think a difference might be taken then.

It would seem to me that on the argument of the motion to dismiss going to the merits of the Fourteenth Amendment claim, it would be permissible for the state to say, "Look at this apportionment.

This is explained by our desire to represent people according to the proportion of taxes paid.” Or look, “This is explained by our desire to give every county or every town as in New England, a representative.”

So that it would seem to me that procedurally, that issue might arise under acts upon it called a demurrer rather than a motion to dismiss.

On the other hand, it is a question that might require proof of some fact --

Justice Potter Stewart: That would --

Mr. Cox: -- and in that event it would come up to the -- a later stage.

Justice Potter Stewart: In the event that this Court should -- should -- should decide that the District Court had jurisdiction, all those matters would be matters of affirmative defense if you will or -- or as it (Voice Overlap) --

Mr. Cox: That's quite true.

That's quite true.

The one thing that it seems to me must be decided.

Finally now is the narrow question whether the District Court had jurisdiction of the subject matter, the sense of power to deal with it.

That issue, I think, has to be decided, inescapable.

And we argue of course that the District Court had jurisdiction.

As the circuit question presented, somewhat related to the first which is whether the District Court may consider the merits of appellants' claim --

Justice William J. Brennan: Well Mr. Cox --

Mr. Cox: Yes.

Justice William J. Brennan: -- before you leave that, what else have to be decided?

Mr. Cox: What else?

Justice William J. Brennan: What else do we have to decide -- we are here to?

Mr. Cox: Well, I've just -- let me say there -- there is a second question in the case which is whether the bill should be dismissed in the exercise of an equitable discretion.

There is the doctrine, which I'm sure the Court is familiar with after the first argument, that sometimes, when an equity court has jurisdiction over the subject matter and even though there is no adequate remedy of law still because the matter is not suitable for the Chancellor's action either because their act would be against the public interest or because it would entangle in a non-traditional function.

The bill will be dismissed for one of equity.

Justice Potter Stewart: Well, wouldn't that -- at least in the first instance also be a matter for -- to be canvassed by the District Court (Inaudible)

Mr. Cox: I think that it -- substantially, yes.

It would seem to me it stated most accurately, this question may be before the Court.

Are the chances of framing some kind of effective relief so small and the likely danger to the public from continuing with the case so great that the Court should shut off further investigation of that question at this stage?

Before it looked at the merits, investigated the alleged wrong or before there was a full hearing and discussion on the question of relief.

I simply say that it is not that clear and the Chancellor can exercise his discretion or at some later stage of the case if it does appear that there is no way to grant relief within circumscribed by the limits of the judicial function.

And we argue that there are enough possibilities of relief so that the plaintiffs' case shouldn't be shut off at the outset.

Justice Felix Frankfurter: Mr. Solicitor, you cite my academic interest.

Take the classic case of (Inaudible) where a -- or take -- take a -- a famous singer befalls on that context and Mr. Bing, Rudolf Bing brings the proceeding in the New York District Court to mandatory injunction.

Now, plainly enough, I suppose on a technical view, there is jurisdiction in the sense that there is a right he broke a contract, not contested, you certainly could get damages against her but a court of equity would dismiss it because it doesn't enforce a personal service like making a person sing because that it approaches too much in slavery, isn't that right?

Is that a --

Mr. Cox: On the --

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: My recollection is that there is precedent for granting a negative injunction.

Justice Potter Stewart: You can stop her --

Mr. Cox: But didn't --

Justice Potter Stewart: -- from singing for everybody else.

Mr. Cox: (Voice Overlap) --

Justice Felix Frankfurter: (Inaudible) singing else where, yes.

But the --

Mr. Cox: And --

Justice Felix Frankfurter: The affirmative, you can't get the prayer that he sings and carry out a contract, it would be dismissed, wouldn't it?

Mr. Cox: Well, if it was -- let's -- let us just add a little bit to the case and assume --

Justice Felix Frankfurter: I'm not saying that this is this case.

I'm trying to give (Inaudible)

Mr. Cox: No.

No, but I think this case -- I think your case, it does illustrate one of the points I was trying to make.

Let's assume that the prayer was for an injunction compelling her to sing plus a prayer for other and further relief.

And let's assume that it was suggested during the argument on the original motion to dismiss that may be the negative injunction would do some good.

On the other hand, the defendants said, "No, it won't do any good at all.

You can't frame a negative injunction that will work."

It would seem to me that would be quite proper for the Chancellor under those circumstances to say, "We're not going to shut the door, and is it Mr. Bing who had the first contract, we are going to investigate this question of relief."

Justice Felix Frankfurter: But I don't think there's any doubt that -- the suggestion of my Brother Stewart.

She -- Mr. Bing could get a negative injunction.

She shouldn't sing -- sing for the New York Opera House, forgot about that or equity could even retain the injunction, the -- as a subsidiary to it in order to assess damages.

But the -- the prayer for a mandatory injunction certainly deny, wouldn't it?

Mr. Cox: Yes, and I suppose that in this case if the complainants were to say to the Court, "The only thing that we ask is an injunction against the legislature of Tennessee and there were no prayer for other relief and they disclaimed any desire for other relief.”

Well, then there might be nothing more to the case --

Justice Felix Frankfurter: And you are going to --

Mr. Cox: -- at this stage.

Justice Felix Frankfurter: You are going to tell us what -- you are going to envisage possible remedies or tell us whether there was any case in this Court in which we granted -- in which we recognized jurisdiction without seeing where the exercise of jurisdiction leads.

Mr. Cox: I --

Justice Felix Frankfurter: Any case in which in the abstract, we said there was power without indicating, adumbrating in some way either money damages or injunction or mandamus or whatnot.

Mr. Cox: I shall later try to suggest some of the possible forms of relief.

I wouldn't want my ignorance of all the Court's decision indicated was not in that category.I don't know of one.

There is a third question which is potentially in the case and which I think I should note expressly that is of course the question of whether the fact stated in the complaint do make out a cause of action.

As I suggested before that issue does not in our judgment need to be decided at this stage of the case.

On the other hand, as Mr. Justice Black suggested during the original argument, it is a question that here -- here without a decision below but nevertheless here, if there is jurisdiction that may arise sooner or later.

And I take that the complainants would have no objection to a decision on it now.

If there is any doubt about it, we think it is clear that at least a colorable case is stated and that this Court would be well advised to remand the case so the District Court might give it the benefit of a full opinion investigation of the question which might be on the facts and not just on the pleading.

That last question is involved in the question of jurisdiction, I think, to this extent.

The justiciability of the case depends in part upon whether the merits of the constitutional claim that is made are need for or amenable to judicial consideration, upon whether the interest that deserve constitutional protection here are sufficiently identifiable.

The fact is that -- would have to be taken into account are sufficiently articulateable so that the case can be adjudicated and so you can take a hold of it and reach a conclusion.

As I say, I don't indicate final decision on that point need be made.

But since it does bear upon the justiciability of the cause, I'm going to direct my attention to it first and then go on in sequence to the other aspects of the question of jurisdiction and finally to deal with the argument concerning equitable discretion.

The right to be free from hostile or capricious discrimination in the definition of the person invited -- entitled to vote or the exercise of the franchise is a federal right protected by the Fourteenth Amendment.

Although the clearest examples involved racial discrimination, the Fourteenth Amendment ex -- extends this course, prohibits of course arbitrary and capricious actions against other classes of people.

And surely it would violate both the Equal Protection and Due Process Clauses for a state to deny the franchise, say to all people who would ever visit at the British Commonwealth or to all red-headed women or on any other entirely arbitrary basis.

It seems to me that the geographical --

Justice Potter Stewart: Or is it the -- or it could be done with respect to all women, couldn't it?

Mr. Cox: So far as the Fourteenth --

Justice Potter Stewart: So far as the Fourteenth Amendment lands, it required an additional amendment to the Constitution to give females the road, did it not?

Mr. Cox: I suppose the question would be raised whether that was an arbitrary discrimination.

Justice Potter Stewart: It was raised.

Justice Felix Frankfurter: It was raised.

Justice Potter Stewart: It was raised, it was raised.

Mr. Cox: I'd forgotten the case.

Justice Potter Stewart: And it was decided in this Court.

Mr. Cox: That it was not an arbitrary --

Justice Potter Stewart: That all women could be denied to vote under the con -- under the Fourteenth Amendment and not to the Constitution generally until we got the suffrage amended.

Mr. Cox: But it -- it seems to me that the fact that a rational line can be drawn in voting between men and women does not go to -- it indicate that a rational line can be drawn in terms of race or in terms of geography.

Surely a --

Justice Potter Stewart: A rational line can certainly be drawn between the sexes on -- in many areas but --

Mr. Cox: Oh, and in voting.

Justice Potter Stewart: Or was --

Mr. Cox: Well, in -- in terms of the whole --

Justice Potter Stewart: (Voice Overlap) --

Mr. Cox: -- legal background.

It seems to me that I would not have quarreled with the decision of the Court.

Surely, nothing in the decision and I think this is the only important one.

Surely nothing in the decision indicates that the Fourteenth Amendment does not prohibit irrational differentiations with respect to the exercise of the right to vote.

And a geographical discrimination I think must be agreed, can be as arbitrary and discriminatory as many others.

Nobody would debate the case.

If a state were to say that the voters in the eastern half shall have 10 votes and the voters at the western half shall each have one or one vote and one-tenth of the vote.

If I -- the process of apportioning representatives, the state gives 10 representatives to each of the sparsely settled counties in the eastern half and only one to each of the well-settled counties of the western half.

That seems to me just as arbitrary and just as capricious as labeling of the fraction of the vote that those underrepresented are entitled to get.

Certainly, there is no merit in the argument that the appellees make that the constitution guarantees only the right to cast a ballot and have it physically counted but it doesn't guarantee you anything with respect to the value of the count that it gets and that it may be neglected from then on.

Now of course, the present case isn't quite as clear as my examples although I think it is a very clear one.

But in relation to it and in relation to the question whether this is a justiciable problem, the question does arise unless the constitution guarantees exact numerical equality, how can a court determine whether a malapportionment violates the Fourteenth Amendment.

In my judgment, there are two steps to the analysis.

One of which the Court certainly can take and the other -- and which is sufficient for this case.

The other of which a court might take or might take it in part that the first step is simply to inquire whether there is any rational justification or any coherent purpose for the discrimination or differentiation of something other than sheer caprice or indifference or the perpetuation of unjustified political power.

Since there is no foundation for the discrimination in this case, it seems to me that there is no need to go further.

Justice Potter Stewart: Again, do we know that really?

You -- we can guess that you can argue that but the state has not yet, as a matter of procedure, had any opportunity to factually justify this system, isn't that true?

Mr. Cox: Well, I think -- I suppose all I am really arguing that is -- insofar as the pleadings go, that would be a fair conclusion.

There are a good many things that points strongly in favor of that conclusion.

And one of them, if I may deal at this point, was the question that was raised, one of them is the fact that the only basis permitted by the Tennessee Constitution for apportionment is equality of representation according to population.

And it seems to me that it hardly lies in the mouth of Tennessee to say, "Oh, but there was another rational reason for doing it", which doesn't appear.

I think for the state, I won't say that in the matter of law, the state could not possibly come in and show another rational foundation.

I do say that the fact that there is this provision that permits no other, the fact --

Justice Potter Stewart: And make it --

Mr. Cox: -- that 60 years --

Justice Potter Stewart: -- embarrassing for the state to do so.

Mr. Cox: -- had gone by may indicate pretty strongly certainly enough to put the burden on them to come forward and to indicate the rational basically first.

Justice Potter Stewart: Now, we are getting pretty close to the -- to the Browning case.

And the fact is the state couldn't say, "Well, this is our system and could justify it.”

Mr. Cox: If the state -- as far as my argument is concerned, if the state had written this provision into its constitution --

Justice Potter Stewart: Yes.

Mr. Cox: -- nothing I say is directed to the proposition that it would then be constitutional.

I would still be here if I could find the complainant's argument come in as amicus, I would still be here arguing that it violated the Fourteenth Amendment.

Justice Potter Stewart: Move it to Tennessee and become a complainant yourself.

Justice Felix Frankfurter: Mr. Solicitor, may I put this to you.

You belong to an administration that has had signal experience with the inability of two Houses of the legislature.

You agree on highly desirable legislation.

And it may well be that Tennessee may have had difficulties from year to year in getting the two Houses to agree to a proper apportionment.

Now, I take it mandamus couldn't lie so that the constitutional right derived from the fact from two Houses that legislate can't agree on what is proper legislation.

I didn't mean to be -- say anything except to the call attention to a well-known legislative fact to which the last session of Congress (Inaudible) administration.

The difficulty of getting a comport between two Houses of a legislature and legislature will deem highly desirable.

Mr. Cox: I -- I cannot speak with any great degree of knowledge without the political history of Tennessee.

My reading of the allegations in the complaint would indicate that the difficulty wasn't in getting the two Houses to agree.

It was simply that minority who have these unjustified, as we say of power, won't give it up.

Justice Felix Frankfurter: But we know that legislation doesn't merely mean the process of legislation, isn't merely what gets on the floor of legislatures.

We know that the legislative process, its agreement in what is -- the reference to the (Inaudible) called the “cloakroom”, we know that the process involved agreement or disagreement between those who wield political power.

And it may well be, looking ahead and I for one has to look ahead, it may well be that this is one of these situations.

And therefore, it isn't merely -- we're not here engaged on abstract questions.

Is their jurisdiction abstractly considered but what can you do about it?

Not you meaning what is -- can a court do about it or what is involved.

I take it you agree that you couldn't mandamus control apportionments, could you?

Mr. Cox: Well, I would -- I had hoped to pros -- postpone until later the question --

Justice Felix Frankfurter: Alright.

Mr. Cox: -- of what the -- the degree might be.

I was going to suggest that there were a considerable number of possibilities here.

Justice Felix Frankfurter: You couldn't mandamus a legislature, could you?

Mr. Cox: No, I tried -- you could not.

Justice Charles E. Whittaker: Oh, even if you couldn't tell them what to do, does that mean there isn't power to tell them that what they are doing is unlawful?

Mr. Cox: It does not.

And frequently, telling them what they are doing is unlawful supplies the necessary impetus to achieve a solution of the matter.

Justice Felix Frankfurter: And you think if you can't go beyond that, that that is a fair legal argument to say --

Mr. Cox: I -- I --

Justice Felix Frankfurter: -- that you might push them into doing something which legally, you couldn't compel them to do --

Mr. Cox: Mr. Just --

Justice Felix Frankfurter: Isn't that the fair argument?

Mr. Cox: I think that is a factor to be taken into --

Justice Felix Frankfurter: Do you think that's a fair argument to address to this Court that you might push them into doing things although legally, you couldn't make them?

Mr. Cox: I think in determining -- first I have not suggested that there is no other relief that the Court could frame.

I think that in determining how to exercise its discretion, one of the factors that this Court may take into account, I think it frequently has taken it into account, is the very great likelihood that public officials and others in this country will comply with the law where it is clearly had declaimed.

Justice Felix Frankfurter: I know of only one such case, Mr. Solicitor, just one such case.

And it's a case that ought to give a court force and that is the suit brought by Virginia against West Virginia which this Court dawdled over nearly 20 years because of the difficulties of seeing the end of the road in case West Virginia (Inaudible) that the Court and you couldn't cease the state house.

There's just one such case in the whole history.

I (Inaudible) you to believe you couldn't contradict that statement.

Mr. Cox: Well, Mr. Justice, there have been other cases I think where the Court had rarely had to resort to its physical power.

It's very doubtful whether the decree would ever have been made effective.

There was the decree of course which John Marshall said -- of which Andrew Jackson said John Marshall has made a decree now letting enforcement.

There'd been case -- there's a case if my memory is right where the Court --

Justice Felix Frankfurter: That's because all you're suggesting, a case where the President of United States was disobedient apart from the fact that it's very dubious whether Jackson ever said it.Nobody has been able to trace the accuracy of that statement.

Mr. Cox: There have also been cases, there was one, I think where Governor Phillips of Oklahoma was enjoined from declaring Martial Law.

I suppose if you'd really been determined to go on, he could have called out the army and stopped the building of the dam, I think it was that he was going to build.

But my point -- I'd spoke too slowly I guess because I only got about one-tenth of my answer to Your Honors' question.

I suggest that this is a legitimate consideration.

Now, I don't argue to this Court that it is the only consideration or that this is the only ground on which it might decide to exercise of the jurisdiction here.

I do stress it's important.

I do think that by and large the people in this country recognize that a representative democracy depends upon voluntary compliance with law and that once this Court or another court focus its attention on what the law is, then the chances that the legislature or other public officials will comply with it are very great and much greater than they are while the issue remains (Inaudible)

Justice William J. Brennan: Mr. Solicitor --

Mr. Cox: Now, we do have some --

Justice William J. Brennan: -- what's the record in -- in those instances where state judiciaries have intervened in that one in Minnesota, was it, or a federal district (Voice Overlap) --

Mr. Cox: The --

Justice William J. Brennan: (Inaudible) what's the record been of compliance, not necessarily with order but merely with the suggestion that this --

Mr. Cox: In the --

Justice William J. Brennan: -- was wrong and should be corrected?

Mr. Cox: The recent cases are decisions by the Federal District Court of Minnesota following which the legislature reapportionment.

It was a decision by a single district judge in Hawaii which was followed by reapportionment.

There was a decision by the Supreme Court of New Jersey which went to -- if I may speak colloquially, right down to the wire but the New Jersey legislature did reapportion.

There is also -- it's also reported, I suppose nobody can vouch for this to prove it's authenticity that the fact of the decision was five-to-four and -- four-to-three in Colegrove and Green, induced Governor Green to accept a reapportionment, prepare that the next time there might be nine members sitting.

Justice William J. Brennan: What about Wisconsin?

Mr. Cox: So that -- I don't know about the earlier cases.

Justice William J. Brennan: What about Wisconsin?

That's not too recent but --

Mr. Cox: But there have been --

Justice William J. Brennan: -- that has been --

Mr. Cox: There have been a number of state cases holding apportionment acts invalid and the state banished one way or another.

I can't give the detail (Voice Overlap) --

Justice Potter Stewart: Most of these had been under -- invalid under the state constitution and not having passed (Inaudible)

Mr. Cox: Yes, yes.

Justice Felix Frankfurter: And also the state constitutions have had a particularity, very different from the part -- unparticularity of the Fourteenth Amendment.

Mr. Cox: That -- that is -- that's -- they are more particular -- most of them are more particular, not all.

There are some states for example which have never specified in their constitution at all what the basis of apportionment as debated.

There are three or four of them.

I don't recall the exact names.

Now, I think that on the question -- the question concerned what remedies might be awarded.

I'd been trying to emphasize the flexibility that the court of equity had and the likelihood that perhaps taking jurisdiction or a decision on the merits would induce a favorable result.

Now, it seems to me that simply looking at the map of Tennessee and the facts that we have here that there are some other possibilities.

One would be to require an election at large.

Another would be to follow the suggestion of two judges in the Supreme Court of New Jersey allow the election to go forward in the existing districts but wait the votes which might be permitted to cast in the legislature.

With respect to the House, it seems to me that if I were the Chancellor, I would consider doing this.

I'd take those -- before I make a suggestion let me back up a little, the Tennessee Constitution, because it has a degree of specificity greater than the Fourteenth Amendment, does limit inevitably the possible ways of reapportionment.

It requires that the -- no county be broken up that if two counties are combined they must be adjacent.

It requires the representation in both Houses to be made according to population.

And I take it we would also agree that if a court were compelled to interfere with the way the next election is held that it should prescribe these few changes as possible.

Now, the two things which occurred to me might be done by the Court, take first the Tennessee House of Representatives.

Suppose that the Court were to enjoin the holding of another election which is -- what would violate the plaintiffs' rights unless the following steps were taken.

And then we are to prescribed that the election authorities should allocate to each of the counties in the smallest group, say having 8000 voters or less, one representative and then we are to allocate representatives to all the other counties if the relation of their population and the ratio of their population to a county, this would give you a somewhat larger legislature than Tennessee has today and somewhat larger than the constitutional limit fixed in Tennessee.

But one would then come up against this question.

Tennessee is plainly violating its own constitution today in a number of instances.

I would think that the one fixing a ceiling on the numbers was far less important than the requirement of the Fourteenth Amendment and of the Tennessee Constitution

Justice Felix Frankfurter: And you have the federal court violate a state constitution in order to correct some vio -- some other -- some violation of another provision of the state constitution, is that --

Mr. Cox: I suggest this is one possibility.

I can suggest another --

Justice William J. Brennan: Well, you are -- that's very inconsistent.

You already told us that the -- while the state constitution provides is fundamentally, fundamentally irrelevant to your argument.

Mr. Cox: Well, I would think in -- it's fundamentally irrelevant to the argument that the present system violates the Fourteenth Amendment.

Justice William J. Brennan: And it --

Mr. Cox: I assume that in framing any decree, the federal court --

Justice William J. Brennan: As a matter of colony would -- would -- would --

Mr. Cox: Would follow it.

Justice William J. Brennan: Deviate it as it was possible --

Mr. Cox: That's correct.

Justice William J. Brennan: -- possible

Mr. Cox: But in framing the remedy, of course, it's a matter of federal law.

Now, from using that --

Justice Tom C. Clark: Do you think that would be -- the Court would be reapportionment, would they follow that decision?

Mr. Cox: I take it that it in a loose -- in a loose sense, that could be said, yes.

Justice Felix Frankfurter: And --

Mr. Cox: That is what some state courts have done.

Justice Felix Frankfurter: I know but state courts have state constitutions and different conceptions of judicial powers than this Court have --

Mr. Cox: Well I --

Justice Felix Frankfurter: -- as well know -- as you well know.

Mr. Cox: I think basically here the argument does turn on a question of what is the proper scope of judicial power.

It involves the debate about that conception.

Justice Felix Frankfurter: Yes, but you can therefore invoke state courts which had advisory opinions which don't care about the standing the way this Court does, any number of limitation that this Court for very good reason in view of the nature of its jurisdiction has imposed upon itself as against the provision of many, many of state court.

Mr. Cox: It seems to me that it is proper to take account.

Its where -- if this Court is not bound by it of course to take accounts of the experience of state courts in dealing with this kind of question.

If looking at that experience shows that they have not become involved in the politics of the people, as Your Honors called it, and have not lost standing in exercising the judicial function that its some evidence half persuasive as a matter of judgment that this Court in exercising more power than was exercised in Colegrove and Green might not do any damage to the fundamental character of our institutions or to the Court.

Now may I on the matters of the remedy suggest one other possibility that is outlined in our brief in more detail and this time I refer to the Senate of Tennessee.

There are five pairs of Tennessee counties -- of Tennessee senatorial districts, excuse me.

Each of which has a representative today which if they were combined would have just about the right number of voters to entitle them to one representative.

They are adjacent.

They are each -- and in a separate district, senatorial district now.

You could put them together.

Take the five votes thus saved in the Senate and distribute them among the four heavily unrepresented senatorial districts and the result would be -- not to achieve a proper apportionment but to cure the most egregious unfairness in the present setup.

Now, I suggest that that is far from remapping Tennessee.

It takes the existing district just about as they stand except for seeing out as one does on the zoning map the lines between each of these five pairs, everything else would be just as the Tennessee legislature set it up and just as the elections have been conducted in the past.

It's neither --

Justice William J. Brennan: Well I'm not -- I'm not quite sure that I've -- perhaps you already said it and I didn't catch it, are you suggesting that if we reverse the District Court, we should make these suggestions as possible remedies?

Mr. Cox: No, I'm -- I'm going --

Justice William J. Brennan: (Voice Overlap) --

Mr. Cox: I'm going a step beyond that I think.

I'm suggesting that the decree of the District Court, if the case came to that, that the decree of the District Court could with respect to the Senate, enjoin the holding of an election in these five pairs of county except in accordance with the putting together that I suggest

Justice Felix Frankfurter: Well, they couldn't enjoin that -- could you enjoin an election before there was an appeal to this Court?

Mr. Cox: No.

Justice Felix Frankfurter: I might --

Mr. Cox: You've certainly grant a stay.

Justice Felix Frankfurter: On a -- in an -- on a foreseeable agreement without any conflict in this Court as to what we think about this regarding the Constitution of Tennessee on matters that are not before us?

Mr. Cox: I assume that any relief in a case of this kind would not become final beyond the possibility of the stay are supersedeas until this Court had acted.

Justice Hugo L. Black: Well, suppose you could --

Justice Felix Frankfurter: And do you foresee -- and do you foresee that all the 30 odd states, I think that are at least 30 are involved, would at one say, “Aye, aye”, and was one apportioned according to your theory?

Mr. Cox: Well, they -- they certainly would apportion and have great freedom to apportion according to their own pairings.

As we try to suggest in our brief, the job of making the apportionment is something which is up to the individual state legislature.

Justice William J. Brennan: Well, you're not suggesting anyway are you that this is the litany of remedies available -- to be applied in every one of these situations in a state?

Mr. Cox: No, no, all -- all I'm trying to do is to suggest that one with all the facts in front of him, it isn't hopeless to find the remedy which would not --

Justice William J. Brennan: Certainly before this case?

Justice Felix Frankfurter: Do you --

Mr. Cox: That's correct.

Justice Felix Frankfurter: Do you draw encouragement for -- for the things that you envisioned from the response that this Court has had for its decree in regard to an ever so much a simpler situation of segregation?

You ain't drawing encouragement from the -- that lesson of experience with reference to this problem?

Mr. Cox: Well, I'm not sure first that I would class that as a similar situation.

Justice Felix Frankfurter: I didn't say it's similar, I said simpler.

Mr. Cox: And I meant to say simpler.

I'm not sure that I would class it as the simpler situation by any means.

Justice Felix Frankfurter: Do you think the prejudice is on this business of urban versus rural which is just as strong in New York as it is in Tennessee?

Isn't this -- is not even more deep seated and more pervasively seated, deep-seated?

Mr. Cox: Well, I -- I would I have -- I would myself doubted that.

I maybe wrong --

Justice Felix Frankfurter: Who would doubt that?

Mr. Cox: -- that I would doubt whether it was a deep-seated.

Justice Hugo L. Black: You would probably have associates.

Justice Felix Frankfurter: Look at the alibi of Mapp for a good illustration.

Mr. Cox: But one of -- one of the parts that bothers me here, Mr. Justice, it's -- it's the converse in a sense of what I said earlier.

I spoke of the affirmative effect of a decree pointing out the constitutional duty of the legislature.

And it seems to me that when a court says, “This isn't justiceable.

We can't do anything about it.”

That it comes very close to saying in the lay mind, “Oh, this isn't a serious problem.

It shouldn't be worried about.”

I arch to saying there is since there's no remedy, there isn't any wrong at all.

Indeed, if Your Honor will forgive me, it seems to me that in speaking of the decision of the Supreme Court of Tennessee, you said since the Supreme Court of Tennessee refused to act, that established that there was no violation of the Tennessee Constitution.

Justice Felix Frankfurter: That isn't what I said.

I said that that decision isn't done nothing.

That decision says there's no legal right under that state constitution just as it said there was no legal right in the Browning case.

Mr. Cox: Well, I'm not sure even if I may that that is correct.

For example, when this Court in Giles and Harris dismissed the bill in equity, it did not, at least for all time, established the proposition that they are victim of racial discrimination with respect to a state election, had no legal right.

It is established the proposition for a time at least that there was no remedy in equity.

Very shortly later and actual damages was allowed in a substantially the same situation which established that there was a substantive right.

Justice Felix Frankfurter: So Giles and Harris didn't go on the ground -- there's no right in equity, it said the case was practically moot because the election was almost over.

Mr. Cox: I think if Your Honor runs the case down in Sheppard, you will find that Mr. Justice Brandeis often cited it for the proposition that there was no legal right of equity.

Justice Felix Frankfurter: Well, I think --

Mr. Cox: I think I'd -- I'd misspoke myself that there was no remedy in equity for that political right.

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: And --

Justice Felix Frankfurter: That isn't the way I read a case, hurry the case for an opinion to find out what the opinion said although later on it may have had a different (Inaudible)

But the case went on in Brown, didn't it?

Mr. Cox: That was one of the grounds mentioned.

I think if you read the opinion you will find that the other ground was involved, too.

I've covered my point somewhat --

Justice Felix Frankfurter: There is a different -- there is a difference, lots of -- lots of things that -- for which money damages are -- of court is available for which equitable remedies are not available, that's nothings (Inaudible)

Mr. Cox: No.

Oh, no.

Not at all, but it does establish the proposition that the in -- unavailability of an equitable remedy which was held what was not available in Tennessee does not establish the proposition that there is no substantive right which was the only point I was seeking to make.

Now, the difficulty I --

Justice Felix Frankfurter: But we have an equity -- if you go on that narrow ground, we've got an equity case here.

So, we are going to say that although Tennessee didn't give an equitable right, we will give an equitable right.

I'm not saying that's impossible.

Mr. Cox: No, but --

Justice Felix Frankfurter: All I'm saying is that the mere fact that there's a -- a rocky situation doesn't mean a court should act.

Mr. Cox: That of course is quite true.

And I am arguing that a remedy which the Tennessee court withheld should be granted in the lower court if upon further examination of this case, it appears both that relief is necessary because the state refused to act when its federal constitutional duty was pointed out and if it appears that a suitable remedy can be framed.

I do want to make just one or two further remarks about the nature of the substantive right that we're relying on here.

And of necessity, they will have to be very brief.

I want to emphasize that ours is not a purely mathematical argument.

We recognized that although one should start with equality of voting weight under our tradition that that's not the end of the question.

And in our brief, we indicated through a study of the state constitution of what other opposing desiderata have been taken into account.

As a matter of fact, they're not very numerous.

And no doubt there could be more.

And now we fully recognize that weighing and balancing such considerations is the function of the state legislature and that the arts of accommodation compromise the political maneuvers that frequently creep in are all within the political power of the state.

But we say that the fact that the state has very wide discretion in the exercise of that political power and of the fact that the Court recognizes its broad political power does not require exulting that aspect of the state's power into an absolute to quote Gomillion and Lightfoot.

Indeed, it seems to us that in principle the case of Gomillion and Lightfoot is very similar to us.

I did not see why a case should be more justiciable because it arose under the Fifteenth Amendment rather than the Fourteenth.

And it does not seem to me that the -- that the principle should be limited to racial discrimination.

There are other forms of discrimination that maybe equally invidious.

I want to say one -- one word, if I may Mr. Justice, in the case of this importance on the point of judicial philosophy that Justice Frankfurter mentioned earlier.

This is obviously a very important case one which will affect our representative institution for a long time so far as anyone could judge.

The issue is not confined to Tennessee.

It affects number of states all over the country.

Plainly, it's also a very important question for this Court in terms of this Court's place in our tripartite governmental system.

Probably, the most difficult questions are those that involve a determination of the proper limits of the judicial function.

We fully recognized that there wrongs which can be righted only by the people or by the legislature.

This Court doesn't carry the whole burden of Government and for it to rush in to try and deal -- right political wrongs instead of leaving them to the other branches, the political branches of the Government could impair its usefulness and it's usefulness in our constitutional system.

But I suggest to you that judicial inaction through excessive caution or through a fancied impotence in the face of crying necessity and very serious wrong may also do damage to our constitutional system.

They also do them indeed greater damage including the judicial prayer.

The question it seems to me, was very well put by Professor Freud in another connection where he said the question is not whether the courts -- court can do everything.

The question is whether the Court can do something.

And he went on to point out that education and self-improvement maybe fostered by judicious views of judicial power.

And the force of a court decision, I would emphasize, is not confined simply by the scope of its decree.

It has a vast influence upon the state court and upon their ability and willingness to deal with this question under the state constitution which is where very much of it should be handled.

Furthermore, the course of the decision extends because of the moral power of this Court influence, a great deal farther.

Justice Jackson just before he went out on the Court wrote, “A court which is governed by a sense of self-restraint does not thereby become parallels.

It simply conserves its strength to strike more telling blows in the course of working democracy.”

I suggest this is the occasion for such a blow.

Chief Justice Earl Warren: Mr. Wilson.

Argument of Jack Wilson

Mr. Jack Wilson: Mr. Chief Justice, may it please the Court.

I am told that a few months ago at the theological school of one of the great universities in the East, a most interesting discussion was held.

The discussion of Senator (Inaudible), the parable of the Good Samaritan and as we lawyers would say that was a particular feast of that parable under discussion.

The story is that the particular point was why did the Levite and the priest both passed by that certain man who had fallen among thieves?

A theologian of national eminence leading the discussion and evidently he was the man of the world as well as a man of the church and he gave this response.

He says, “I think the trouble was this, both the priest and the Levite were en route to a conference to discuss the question who is a Good Samaritan?”

I suggest, may it please the Court that did -- that in this most important case that the Solicitor General and the appellants are perhaps en route to a conference to discuss constitutional law.

I suggest that up to this point, they have not discussed nor touched upon some of the great principles with -- with which this Court has been concerned throughout its entire history.

Now, reference has been made here as to whether this case is justiciable.

Actually, what we are talking about when we come to that phase of the case?

Isn't it this?

Is this a case of controversies under the Constitution of the United States?

If it isn't then this Court is not concerned with it in any particular.

Now what -- what is a case of controversy?

Well, what -- why do we have that provision in the Constitution?

Isn't it this?

Were not -- were not our colonial judges concerning themselves with a great deal of matters and subjects that were not judicial in nature?

As the priest is used in the market place today, was they not politicking?

Or when they found this team to write the Constitution of the United States, they said that the judiciary would be concerned with cases and controversies unlike some of the subjects, the colonial judges were concerned with.

I wish to call this Court's attention to the complaint in this case.

And I think you test the complaint not alone by their votes but by the type of relief that is asked.

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

Featured:

Baker v. Carr - Oral Reargument, Part 2

Tue, 25 Sep 2012 22:36:40 +0000

Case:

Baker v. Carr

Media File:

6_19611009-reargument-2

Related Transcript:

6_19611009-reargument-2

Transcript:

Argument of Jack Wilson

Mr. Jack Wilson: Mr. Chief Justice, may it please the Court.

Shortly before the recess, I had stated to the Court that it was the appellee's view that in this case of great importance not only to the State of Tennessee but to the United States of America that there are law and all certain great constitutional principles here involved not mentioned by the appellants which must certainly should be considered by this Honorable Court.

I had mentioned the question of whether this case is a case or controversy whether it does present issues for this Court.

I had mentioned and I now ask the Court to consider the question of what the subject matter of this suit is.

The appellants have said in two arguments that this is a case of individual voting rights.

I take it may it please the Court that if this is not a case of individual voting rights then the appellants must concede that there is no case for this Court.

What does the complaint over here?

Well, it says it's been denied to write vote but you turnover next page and they said, "Oh no," it's -- it's an inadequate legislative representation, well, which is you turnover another page, they say it's improper and inevitable distribution of taxes.

Now, let's look at the trials of the complaint.

I think that it should be one of the surest tasks they have for the reason that a practitioner at the bar for instance does not bring a suit for damages based on negligence and free for an absolute divorce.

His trial must be consistent with his complaint.

A practitioner certainly does not ask that a written answer be reformed and then pray that a cooperation be dissolved.

Oh no, the relief ask in this case is that the Legislature of Tennessee be real portioned.

The relief asked is that an election at large be held.

Now, may it please the Court if this isn't individual voting rights case and I wish to discuss that still above in my argument a little later.

Why is there not a prayer somewhere in the complaint that these appellants be permitted to ridge to say or that these appellants permitted to put their votes in the ballot box?

Oh no, that if not in this complaint.

So what is this lawsuit if -- if we must -- if the Court must determine whether there is a case and controversy, what is the subject matter of the lawsuit?

Well, it's legislative representation.

It's legislative representation.

And how there have the Court's turned it?

Is this something just being suggested by the appellees here?

Oh no, the District Court said this, "The question of the distribution of political strength for legislative purposes, not to vote, not the right to vote."

What did this Court say in South against Peters?

How did it turned the question?

The geographical distribution of electro restraint that is the subject matter of this suit.

Now, may it please the Court, I asked that the Court consider one of the cases that we cited in the brief Coleman against Miller in 307 U.S.

And I wish to discuss those facts a little bit later if time permits, but I called this Court's attention at this time to an opinion by one of the three judges who were sitting at that time and are now on this Court.

And that's the opinion, concurring opinion by Mr. Justice Frankfurter in which Mr. Justice Douglas and Mr. Justice Black specifically concurred and that opinion is trace the subject of the subject matter to be considered by our federal court under the constitutional provision permitting federal courts to hear cases and controversies.

Justice Felix Frankfurter: Mr. Attorney General, is the fact that I'm still allowed, that brings us to the opinion?

Mr. Jack Wilson: May it please the Court, I think that that opinion much little of the century yet to come.

Justice Felix Frankfurter: And I can --

Mr. Jack Wilson: May it please the Court in that opinion which is the opinion of three members of this Court now sitting.

The Court discusses the subject of what type matters the federal courts hear and what is the first length that said that traditional matters that was -- of concerned at the courts of Westminster, oh, at the colonial judges, the courts of England from which the columnist had come.

And what else is said in that opinion that the subject matter must held the expert field of the lawyer.

The expert field of the lawyers, as a trial lawyer in the courts of Tennessee day in and day out as one who is concern with procedure, with practice, with the weight to elegance, there are many questions in this case which concern me because they do not have the expert field of the lawyer.

What is the injury in this case incidentally?

What is the injury that survived?

The inequitable distribution of state tax bonds is that legal cloth for the judiciary to cut?

As a trial or lawyer, how would you prove in a court of equity that taxes are inequitably distributed?

In Tennessee, and our State Chancery courts and we have courts of equity, separate courts of law.

We may have a jury in the State Chancery court.

How would a trial judge charge a jury on what constitutes the inequitable distribution of state taxes?

Is this a type of issue that this Court or any federal court will have?

I suggest not.

What else has this Court said?

And it was mentioned in the period before lunch, this Court has said that it will not give the advisory opinion.

Perhaps the outstanding example in the early history of this Court and it is said out in one of the great opinions for this Court is the reply of Mr. Chief Justice Jay to President George Washington who had called upon this Honorable Court for legal advised.

The response is firmed, its accordance, its specificity.

But in short, Mr. Chief Justice Jay informed the first President of the United States that this Court was in the business to decide cases and not to give advice, and it has ever been such from that day until this day.

Now, may it please the Court another one of the great constitutional principles with which this Court is here concern is the question of sovereign immunity, sovereign immunity.

I respectfully ask the Court to turn to Page 115 of the printed record.

I believe the pages at that point are not in proper sequence but they are properly numbered, page 115.

Midway of that page begins a letter.

The letter is written by two of the counsels for the appellants in this case.

That letter is addressed to the Legislature of Tennessee.

And what does that letter say?

Watch out Mr. Members of the Legislature if you do not reapportion, we will file a lawsuit.

Members of this Court ever see such a letter?

I never saw one before.

What does that indicate to the lawyer?

What does that have to do with the expert field of a lawyer?

Why it's a legislative matter.

It's a legislative matter.

Why was this letter not addressed to the Secretary of the State of Tennessee?

Why was this letter not addressed to the Attorney General of Tennessee?

Because there's no issue with those who had issue or with any of the other appellee mount before the Court.

The issue is with the Legislature of Tennessee.

What does that mean then?

It means that this is an issue not with these appellees before the Court.

It's an issue with the sovereign State of Tennessee, one of the biggest states.

Well, count me out, count me out, what are you going to do about it?

We are doing this, may it please the Court.

We are in opposing the plea of sovereignty on behalf of the Sovereign State of Tennessee that it has not in its Constitution by statute or otherwise given its consent to be sued in the Federal District Court on a reapportion matter.

Does the Eleventh Amendment apply here?

If it does, what is its significance?

Well, I think surely on that ground alone that this suit, this appeal would have to be dismissed.

Now, may it please the Court, we come to another great constitutional principle and that is the principle of separation of powers, and that is mentioned only incidentally by the appellant, I wonder why.

Did they think it not applicable or did they wish not to bring it into the open?

It may be decisive of this case, it could be.

Now, what -- what about the separation of powers?

Well, this Court has said that the founders, the writers of the Constitution would not doctrinaires.

And I suggest Mr. Chief Justice and the members of this Honorable Court are not doctrinaires.

Let's look for a moment, a very brief moment at the declaration of independence.

Perhaps one of the greatest governmental indictments ever drawn, let's look at some of the counts in that indictment.

What did the sign has say to that?

George III is speaking of, he has called together legislative bodies and places unused.

He has dissolved representative houses repeatedly.

Oh, were the columnists concerned with someone mentally with legislative?

It seemed so, it seemed so.

Now at this point, may it please the Court, may I pause just a moment to respond to one of the appellants in systems at here that one type of relief in this case might be for this Court to remand the case to the Federal District Court and in substance do nothing.

What does that mean?

It means that the appellants would have a three judge -- three judge District Courts sitting here, eyeing 132 members of the Tennessee General -- General Assembly each seeing which will make the first move.

Is that the way this Government of ours operates?

Not under the separation of powers.

I suggest that we never reach that point, but what is that?

That's coercion and some of the newspapers of Tennessee and now editorials have said, "Yes, it's coercion and that's what we want.

That's what we must have."

Is it true?

Is it so?

If this Court will take one defends, a misdemeanor case, a felony case, and set aside the conviction because of a confession obtained by coercion, would this Court lend its sympathy to coercing a state legislative body where the rights of 3.5 million people were involved?

I suggest not, I suggest not.

What does that involve?

Does it involve the integrity and honesty of individual judges?

Oh no, oh no.

That is the question.

It involves the integrity of the judicial refinement of the United States of America.

If this is a matter with which the federal courts are concerned, let the decree be in it.

Let it be executed simply and surely, and we, in Tennessee, have great respect for our Federal District Court.

But if this is not legal calls to be cut by the federal judiciary, we respectfully suggest that the federal judiciary should not undertake to suggest to the Tennessee Legislature or to come right up to its face and say, "Watch out!"

If you don't reapportion, oh, we'll see what it would do.

I do not believe that that is the American way.

It certainly is not the judicial way of handling controversy.

What did Hamilton have to say on this subject of separation of powers?

And I invite the Court's attention to the federal released, Number 51 where Hamilton writing for the benefit of the people of the State of New York as to why they should adopt and approve the Constitution of the United States as proposed.

Hamilton said this, "Ambition must be made to counteract ambition."

And then he seemed somewhat self-conscious and his writing.

He said, oh well he says, "You know that may sound like a reflection on human nature."

And then he picked up again and he said this, "What is Government itself but the greatest of all are reflections of human nature."

And then he defined what must be true now and certainly was then in framing a Government which is to be administered by man over man, you must do two things.

First, you must enable the Government to control the Government, and in the next place oblige it to control itself.

Now, may it please the Court in the great case of Miles against United States and the Court will recall as its being the postmaster case considerable significance.

Mr. Justice Brandeis in his dissenting opinion considers it some length what the bounders had in mind in connection with the doctrine of separation of power.

And Mr. Justice Brandeis said that, "That doctrine was not to promote efficiency he got.”

Oh no, it was to prevent the exercise of arbitrary power.

And what else did he say?

He said that the doctrine of separation of powers was designed not to avoid the friction.

Oh no, but by virtue of that inevitable friction to prevent the arbitrary exercise of power.

The appellees submit in this Court -- in this case, may it please the Court as one of the equities which you'll be balanced by this Court, which is worse or the Legislature of Tennessee not to reapportion, and I am not here depending the Legislature of Tennessee in that failure, that body if not a defendant here.

Is it worse for the Legislature of Tennessee not to reapportion or is it worse for the Federal District Courts to violate the agile doctrine of separation of power?

That is one of the equity as I submit which must and should be balanced by this Honorable Court in reaching a decision.

Now, may it please the Court, it has been said and by persons with then the sound of my voice that if America is to export Democracy, America must be a democratic nation and certainly that can be no argument with that sort.

The question that follows if America is to export Democracy, what type of Democracy shall America shall export.

Will it be constitutional Democracy consistent without form of government or will it be Democracy by a pressure?

Democracy, the result of great need as this of course.

Justice Charles E. Whittaker: Mr. Wilson, may I ask you sir, do you consider it to be to use your term, "pressure" merely to say if it is in fact, that a certain system does violate federal constitutional rights?

If you just said that then nothing more, is that a pressure?

Mr. Jack Wilson: May it please the Court, that is not pressure.

The point that I would make if this Court or the District Court finds that the general assembly of Tennessee or any official of Tennessee is violating the Constitution of the United States do not simply state.

Do not write it in the find battalion hand.

Write it in a bold hand and enforce that decree if the Federal District Court is empowered to do so.

Justice Charles E. Whittaker: Do not --

Mr. Jack Wilson: I say in it --

Justice Charles E. Whittaker: Isn't that what the petition asks?

Mr. Jack Wilson: It does indeed Your Honor.

It does indeed.

That's the question -- one of the great questions to be determined by this Court.

And so I say may it please the Court that if America is to export Democracy, we must export constitutional Democracy and if is for this Court to say.

In this case above many other cases, what is a constitutional Democracy?

Now, may it please the Court Mr. Chief Justice?

It seems to me that in this case and I use this term advisably and respectfully.

But it seems to me that it has been a great deal of loose talk by the imposed and the Solicitor General as to whether the issue is here presented a political in nature.

Are they political or what difference does it make if they are?

If I may, I would like to assist the Court in putting that question in proper perspective.

I might say that I hope that no judge ever seats on an Appellate Court in the United States of America.

I hope that no justice ever seats on this High and Honorable Court who does not have a clear and real understanding of the political nature of the Government of the United States of America.

But now, does that mean that the Court considered political questions and all political questions?

Is there a dividing line?

Let's look at that a moment.

What was the growth of the common law itself?

It seems to me if I understand that the political philosophers of Greek that the growth of the common law in England was political.

Politics of the very highest tide did not the courts of England developed the law merchant from the customs in the commercial world?

Indeed, they did, legal history shows and what was that?

That was the action, the relation, the interaction of people in a society, oh yes, political.

Now, what else do we find in the common law?

Well, negligence for instance, should a husband's negligence be imputed to his wife?

Oh, what -- is that statutory?

Isn't that common law?

The interaction, the relations within a family, political, yes, must there be consideration for a contract?

All of those things grew up in the common law.

They were political.

They were political in some sort.

And then we come to the land of cases upon which the appellants rely in this case.

Nixon against Herndon, Terry against Adams, and those cases have been waived like banners in the briefs and before this Court.

Political right, yes, the right to vote, personal political right.

And this Court has held time and time again that that is a right which can be enforced.

Now, where does this Court draw the line?

Where does the federal judiciary draw the line?

Is it not at the point where a matter is to be performed by another branch of the Government?

Is not that one of the dividing line?

Is it not?

The President of the United States of America is under a constitutional duty to see that the laws of the United States are being faithfully executed.

Are the income tax laws in the State of New Mexico being enforced?

I don't know.

Would this Court inquire into it?

I suggest not and yet, that is a constitutional duty of the executive branch of the Government.

Now, this Court in the Pacific Telephone case cited in the briefs held that in the case of this time, the dividing line was simply this.

Is the attack made on the law?

For instance here is an attack made on any tax in Tennessee and they're not.

The attack is made on the Legislature which enacts the laws, which provide for the collection and distribution of those taxes.

Now, we suggest, may it please the Court, that we referred to Coleman against Miller just a little bit a go, that is a great case and that case, Mr. Justice Black wrote a separate opinion not on the subject covered by Mr. Justice Frankfurter but on the question of, "What is a political question?

What is a political question?”

And in that opinion, Mr. Justice Black said in substance this, "A political question is a question which must be left to the political department who has the duty with which the subject matter is concerned."

And in making that statement, he cited two cases which the appellees have cited in their briefs.One is the Pacific States Telephone case and the other is Luther against Borden, both involving the question of what is a Republican Reform of Government?

Now, may it please the Court, there is a question here as to what the analyst of these appellees is or -- the appellants, what use do they have here?

Is it a legal interest?

What if the case involves individual voting, I suggest that the appellants do have a personal view.

If this case involves the reapportionment of the Tennessee legislative, I suggest that the rights which these appellants claimed are the same as the citizens or all other citizens in Tennessee.

Now, may it please the Court, a question not previously mentioned I believe.

In the United States, we have room, tolerance for all religious view, racial views, opinions of all types.

Suppose a citizen in Tennessee went into the Federal District Courts to complain of over representation, over representation, might he not do so?

If the courts can hear cases on under representation might they not hear cases on over representation?

We submit and most respectfully that this is a case, a gets the state of case.

It is a case with which all the citizens and voters of Tennessee are concerned.

We suggest that under the holdings of this Court that these appellants cannot maintain action of this type, political, yes, but on the other side, they lack.

Unknown Speaker: (Inaudible)

Justice Charles E. Whittaker: Is there any allegation in this complaint that the rule legislators vote as a block or that the city ones or urban ones voted as a block?

Mr. Jack Wilson: Well that, may it please the Court, is the clear implication which is refuted by the vote on the 1959 Legislative Act for instance where the State Senate unanimously voted in favor of the measure regardless of how important, and I wish to speak about that a little later if the Court would permit me.

Now, it may please to Court, of course one of the crucial questions in this case, one of the decisive issues is whether there is any federal rights here involved.

Stated simply and I believe fairly, the issue is presented by the appellant in this fashion.

It's a personal individual right.

It involves the right to vote.

It is protected by the Fourteenth Amendment.

Now, I suppose it is the man individual right.

Suppose it doesn't concern the right to vote but concerns legislative representation, is it protected with the Fourteenth Amendment, is it?

How has this matter then presented to this Court in this case and in the other cases as a Fourteenth Amendment case?

Why just this?

And it's so simple that it's almost alarming if -- if I understand it.

It said that where you vote for Congressman or United States Senate that that ballot must be put into ballot box and that that ballot must be counted, and reliances had upon two cases, United States against Classic, United States against Saylor, both sound dependent.

What were those cases?

Indictments in criminal cases and what was the advancement, may it please the Court?

Well in the vernacular, it was stopping the ballot box, stopping the ballot box, sound cases of course.

Now, it said because of the decision of this Court in those cases, that it follows that a citizen in one of the 50 States or in all of the 50 States of the United States held the right to have equal representation in a State legislature.

What about the expert field of lawyer?

Does it follow?

Is there really any causal connection?

I suggest not.

That is still just a little bit farther and looked at those cases.

And I emphasized Mr. Chief Justice that the appellees think those cases are sound in their content.

Well, if there was an indictment somebody was arrested?

Who'd they arrest in those cases?

Legislator, legislator.

Now, they -- if those -- the rule in those cases applies here, someone in the State of Tennessee is subject to be indicted by Federal District Court, who is it -- who is it?

Well not the election official that the ballot box alleged, just (Inaudible).

Is it any of the appellees before this Court?

Indeed, not.

No wrongdoing but who would you indict?

Would it be the members of the legislature of Tennessee?

I leave it with this Honorable Court, I suggest in most respectfully that those cases sound as they are do not support legislature.

Indeed not.

Now, may it please the Court, may I speak as to this proposition of discrimination in the event that this Court should find.

And I do not see how it possibly can but in the event that it finds that this is a matter, protected by the Fourteenth Amendment, the Court must find, I take it, under the insistence of the appellants that there has been discrimination.

I don't know -- I -- I -- seriously, truthfully, I do not understand how they can say that this discrimination, it would exist, is purposeful and systematic.

They don't say any such thing.

They say it's due to the passage of time.

It's due to shifts in population.

And may it please the Court in Tennessee, we not only have the passage of time, we do indeed have shifts in population.

Within the past 25 years, there has been constructed a multiple system of dams by the Tennessee Valley authority, a great nuclear installation at Oak Bridge which 20 years, the goals is -- the top of -- of a ridge out in the mountains and hills.

Surely, that is purposeful and systematic discrimination.

Now, this Court said in Snowden against Huge where such terms were used willful and malicious discriminations.

And this Court said that doesn't add anything to it.

That doesn't add anything to it.

You still must look to see what brought it about.

And so we suggest, may it please the Court, that there is not and there cannot be any purposeful and systematic discrimination.

Now, what about the injury alleged in this case?

And I take it that the courts generally are not concern with discrimination unless there is some major.

What is the anxious here?

It's a void that there is an inequitable distribution of textbooks in the State of Tennessee.

And I want to take just a very few minutes and explain to the Court if I may what has happened in the State of Tennessee that brings this complaint about.

Tennessee's count is range in size from some half million or more to 3000, 3500 people out.

Gasoline tax funds, sales tax funds must be used with state purposes and of course distributed in part among the counties of the state.

Now, whenever this subject is brought up in Tennessee and my friend's adversaries here will bear me out on view.

Whenever this subject is brought up in Tennessee, what is said?

Shelby County, half million people them all paid so much into the State Treasurer.

What's on the (Inaudible)?

Van Buren County, Tennessee about 3000 people and I may say it to the -- to the members of this Court that Van Buren County lies almost out of the middle Tennessee, almost into East Tennessee.

The beauty of it is almost unbelievable, the valleys, the hills, the mountains, it's a mountainous camp.

And there's the trouble with Van Buren County, how do you make a living on the side of the mountain?

Well, you must make a living before you can pay taxes.

Those citizens in Van Buren County are energetic.

They are progressive, they have small industries, they have small funds but I was distressed to line just before coming here to argue this case.

Van Buren County has been classified by the Federal Government as a depressed area, a depressed area.

I regretted to hear that.

Now, how do you pay taxes to maintain school in Van Buren County?

Well, you do the best you can, and then you get what money you can from the State of Tennessee.

And remember, it is a sovereign state.

It is just a group of municipalities.

It's one of the sovereign states.

Now, the complaint is made and that's what the proof would be in this case, if it's in Van Buren.

You are sending too much money to Van Buren County.

Now, may it please the Court, what is the Legislature of Tennessee?

What is the Department of Education of Tennessee trying to do in Van Buren County?

Is it trying to give those mountain boys and girls an education so that they may come here to this great national gallery and with painting about Renoir or Van Gogh?

Is it that they may have that foolish appreciation of Beethoven's greatness owned as desirable as that might be?

Is it that they -- they may be equipped to make a living?

Well in Van, yes.

But, may it please the Court, what the State of Tennessee would like to do for these children, is to give them education and make them aware about democratic society.

Make them aware of the type of life we live in the United States of America.

Oh, the municipalities say, “We cannot do it.

We entitle the more money.”

Is this the urban view point?

The municipalities want in the Legislatures of the United States of America, God forbid.

Now, may it please the Court, how is -- why is it that at the varied time, the United States of America is concerning itself with parody, not only materially things.

We say as I understand it, we want other people, other cultures and other lands to know about our democracy, to know about our way of life.

Well, I've delivered children in Van Buren County entitled to it too, and Tennessee is fine to give too.

What does this Court say and I believe one member of the Court mentioned the adjournment of Congress a few days ago.

They do agree on certain legislation.

Do you know, may it please the Court, that the mighty mayors of this mighty cities of Tennessee, while the federal aid the education bail was pending, that they was standing almost in a trance without stretched hands.

Let us help some of the education money.

And where is it coming from?

Tennessee?

Oh, must -- it must be some other state.

Tennessee doesn't have that type.

How can they say as an injury in this case that the children of Van Buren County are not entitled to an education while they themselves are seeking these enormous bonds from the Federal Government?

May it please the Court, I suggest to this Honorable Court, that the question here presented is the broad question of the lack of Republican Form Government.

I also suggest, may it please the Court, that it is not primarily a legal method.

I suggest that it is one of the ills of our Democracy.

What has this Court said?

In the great case Youngstown Sheet & Tube against Sawyer, decided lefts in a decade ago.

In that case, whether then the Pressman sought to take over the steel industries.

Mr. Justice Douglas said this in substance, “We pay a price for our system of government and indeed we do.

It is a price that today,” meaning on that day, “may seem exorbitant to me.

I indeed, we do fail the price.”

The failure to reapportion one of them, it may be, it may be.

In the same case, Youngstown Tube and Steel Case, Mr. Justice Frankfurter said this in subject, “A constitutional Democracy like ours is perhaps the most difficult of man's social arrangements to manage success.”

Is it not true, and yet we fight the wars.

We give life in order to maintain it.

What did this Court say in Colegrove against Green and that case too has been batted around and waived in the briefs and here before this Court.

In the majority of opinion in that case, there appears this thing.

Throughout our history, the most glaring disparities have prevailed as to the contours and the population of business.

There were some three or four or five other opinions in that case, but I have fixed those opinions up and down and back and forth, no member of the Court then sitting took issue with that as such, and I suggest that no issue can be taken with them, it has ever been one of the evil of our Democracy.

Now, in the Youngstown Sheet & Tube case, one of the great cases decided by this Court, it is also said not just suggested, it is said that the founders, the framers of the Constitution did not make the Supreme Court of the United States, the over sale of the entire federal establishment.

I would like to amend that if I may by saying that there is no evidence or indication either that the framers intended to make the Supreme Court of the United States the overseer of the several states of the unions and that several establishment.

Now, if this is one of the ills about moneys and the Court must decide their case from here.

What is to be done about it?

How are reforms and a democracy brought about?

Well, first I suggest, may it please the Court, that the wrongs must be real and not theoretical.

They must be real enough that they are actually hurting somebody, his pocketbook, his mentality, his disposition?

That's when the American people become aroused.

What does history show?

Is it true that the only thing that history teaches is that history teaches nothing?

What about the rights in Magna Carta?

They want theoretical work, oh no.

Well what about these rights in this -- in the indictment here, the decoration of independence?

They weren't theoretical, oh, no.

The rights determined by the immense patience proclamation were not theoretical.

When rights become concrete, when citizens are concerned with those rights, they will enforce it.

Now, how do you enforce democratic rights, political rights in a Democracy?

Well, traditionally it's done it ballot box.

The people must be educated.

They must be interested.

They must want to do something about it.

Now, may it please the Court, it said in this case, it said in this case, that the appellants have no way of getting any help of any kinds, any way.

I don't believe the members of this Honorable Court will accept that statement.

Isn't it strange that that has never to this date, then a campaign for the Office of Governor in the State of Tennessee where real apportionment was an issue?

Where do people present that issue?

They present their issues through persons who are candidates for statewide offices.

No candidate for any statewide office particularly the Governor of Tennessee has ever made that, a plank in his place.

It may happen.

And when it does, the Legislature of Tennessee may take action.

I don't know.

Is it not necessary in a Democracy of outside that this political views, they hand for the political process?

And I want to recall briefly if I may Mr. Chief Justice, as to an instance that occurred in 1953, Tennessee's Constitution had not been amended for 80 years.

The citizen said we think that it should be amended.

The Legislature authorize that the question be submitted to the people as to the vote, whether they wanted a constitution event, and then what happened?

That question was talked up and down, the life and breathe of the state.

It was discussed on the radio, through the newspaper by editorial and in my home City of Chattanooga.

I know and this is a matter of rapid, may it please the Court, groups were formed, representatives of labors thereon, representatives of industry, representatives of a Negro.

Tennessee voted for that constitutional convention and it was held.

And one of the amazing things is the way and mainly in which that convention was held.

What did Tennessee do?

Well, I'd say this first, that in choosing its delegates to that constitutional convention, that first in 80 years, it didn't go to the (Inaudible) around the City Hall.

Who composed that convention?

Former governors, former congressmen, school teachers, college professors, farmers, businessmen, some of them I suggest, the majority of them had never offered themselves at the ballot box in any type of allege.

Most of them never will again.

They sought to serve thus thing.

Now, that constitutional convention did adopt some amendments.

For instance, it increased the term of our governor from two years to four years.

It made some changes as to the way in manner in which the Constitution itself may be amended.

And this is an interesting thing and something that I think this Court should know.

That constitutional convention was not concerned alone with Government at the state.

It was dissatisfied with Government at the local level.

Listen to this.

They said, "We think there should be some means of consolidating city and county from it, whether it'd be education or whether it'd be in all services.

Now, what has happened under that?

And I think this is material to this case.

What has happened under that constitutional amendment?

This past Legislature enacted a law, committing the people of the City of Knoxville and Davidson County to set up a charter commission, to write a charter, to submit to the people of the county and the city as to whether the county and city government should be consolidated.

And as I understand it Mr. Chief Justice, the result would be something like the Government of the great city of Saint Louis or the great city County of Denver.

And if I am not misinformed, that charter commission will meet tonight for another meeting in the City of Knoxville (Inaudible).

Well, they have a label represented them on and he has that type too, that's the way he spoke.

They have an industry representative.

They have a Negro lawyer on that commission, all elements of the committee.

I am not here advocating Metropolitan Government.

I do not know whether it is good or bad.

But what I want to say to this Honorable Court is that the channels of democracy are opened in Tennessee.

Let there be no dispute about that.

And incidentally, may it please the Court, Tennessee held another constitutional convention in 1950.

Nobody has told us to go there.

We came all along more often than every six years.

Now, may it please the Court, let it not be said at the bottom of this High Court that if the people of Tennessee are interested in our reform of any type, that the challenge of Democracy are closed too.

It is not true.

Justice Felix Frankfurter: The suggestion is, Mr. Attorney General that the selfish interest of those who profit by this -- by these inequities, by this disparate, the selfish interest, the natural selfish interest, not immoral but just human nature being what it is, always will be a -- this is like a loaded guys, it will always be a loaded votes to retain the advantages they've got.

Mr. Jack Wilson: Well, may it please the Court, one of the things that --

Justice Felix Frankfurter: That's what the case did sound to you.

Mr. Jack Wilson: That's what it is but here, may it please the Court, but all humans are subject to certain lifespan.

We all subject to this world's illness and loss, perhaps that situation may appear to be true in Tennessee today, but I suggest that the matter has not yet been brought out in the political region.

May I say Mr. Justice Frankfurter, the level on which it is now being bought out in Tennessee, of course the office of the Attorney General of Tennessee is having one lawsuit houses.

How is it being bought in the political region?

The honorable mayor of the City of Nashville comes out in the newspapers of Tennessee and makes the statement.

Behold, send more county Tennessee, held more representation in the Legislature of Tennessee that a citizen of Davidson County.

Well, I don't know but that's good campaigning or not but it doesn't seem to --

Unknown Speaker: (Inaudible)

Mr. Jack Wilson: Halves may it please the Court.

And more county has another one of household counties of some 3000 population.

Perhaps that type of campaigning in Tennessee would appeal to some voters, it so far has not appealed to the majority.

Why not tell that people of Tennessee about these great constitutional principles we are discussing here today?

Why not provide them with cartoons of a type that have been published in some of the briefs submitted to this Court surprisingly?

Cartoons have their effect.

Chief Justice Earl Warren: Well Mr. Wilson, is there -- is there any remedy in the courts of Tennessee to these people if they are and they say, now the end of the road if don't -- we don't take this case?

Mr. Jack Wilson: I would say, may it please the Court, that on the present status of the case law in Tennessee and of the views held as in to the constitutional law in Tennessee that this right, alleged right is not enforceable in any of the courts of Tennessee, to any degree, whatsoever.

And I would be less and truthful to you Your Honor if I did not choose it.

Chief Justice Earl Warren: Has your -- has your Supreme Court ever held, one way or the other concerning the validity of -- of this particular law?

Mr. Jack Wilson: May it please the Court, it has not squalled, it has not.

This Court, the members of this Court are familiar with the case of Kidd against McCanless.

But the decisions of the Court of Tenne -- courts of Tennessee and other less serious matters involving the separation of powers, and many of those decisions are set out in the appellees' supplemental brief, clearly indicate at least to me as a practitioner in Tennessee that the Supreme Court of Tennessee would not entertain such an action.

Chief Justice Earl Warren: Has the question here presented ever been fairly presented to the Supreme Court of Tennessee.

Mr. Jack Wilson: I think Kidd against McCanless, may it please the Court, was fairly presented.

I think it was squarely presented.

And the meaning and the extent of that decision is of course for this Court but we think that that Court said, that while it placed its decision on the de facto, if it had not done so, it would have placed it on the doctrine of separation of powers.

I think it would have on the out concept of constitutional government in Tennessee.

Chief Justice Earl Warren: Was that -- was the question was properly raised below here?

Mr. Jack Wilson: In this case?

Chief Justice Earl Warren: But it is now before us, yes.

Mr. Jack Wilson: I think so, may it please the Court, from the standpoint of practice, I think it was properly raised.

Chief Justice Earl Warren: What did you -- how did your Court deal with it?

Mr. Jack Wilson: Well, you're speaking of the District Court then?

Chief Justice Earl Warren: No.

Mr. Jack Wilson: Kidd against McCanless?

Chief Justice Earl Warren: Yes.

Mr. Jack Wilson: Our District -- our Supreme Court did this, may it please the Court.

It said that the insistence in Kidd against McCanless was that the Act of 1901 the last Apportionment Act was unconstitutional.

Our Supreme Court said that if we hold that the Act of 1901 is unconstitutional, we, therefore, deprive the State of Tennessee of the present Legislature and we deprive the people of Tennessee of all proud Legislatures.

Because if the 1901 Act was unconstitutional, prior acts were unconstitutional and there would be no law such as in the Tuskegee case to fall back.

And our Supreme Court said the result is and must be that the State of Tennessee would be without one of its coordinate righteous of government.

That's what that case holds to mean, may it please the Court.

Justice Hugo L. Black: Mr. Attorney General may I ask you one question?

Let's assume the Legislature has divided squarely in its law, the votes, people living in rural communities are here and set out defining geographical area as rural community shall be counted in each election ten times while the -- while they're counted once in the city.

Did you say that would be a denial of equal protection?

Mr. Jack Wilson: Not Sir, I would not.

Justice Hugo L. Black: You would not?

Mr. Jack Wilson: I would not.

Justice Hugo L. Black: I would say that the irrational classification?

Mr. Jack Wilson: I would never reach the question of whether it was rational, may it please the Court.

I would say that the apportionment and distribution of legislative representatives within a state is a state map.

Justice Hugo L. Black: I understand that.

Let's assume, however, that you're taking a position there that I took in the case about the constitutional amendment as to the power of the Congress to declare that amendment.

Mr. Jack Wilson: (Inaudible)

Justice Hugo L. Black: Therefore, you're saying that it's not a justiciable matter?

Mr. Jack Wilson: Yes.

Justice Hugo L. Black: But let's assume that you were overruled on that.

Let's just assume that and if were held to be a justiciable matter and the Act were written in the form that I've stated, would you say that that should be supported as a rational classification to discrim -- to distinguish between the voters and the rural community and in the city?

Mr. Jack Wilson: It might not, may it please the Court.

It might not but I -- I think that I would have to held --

Justice Hugo L. Black: Of course, there's room for argument on both sides.

Mr. Jack Wilson: I beg your pardon?

Justice Hugo L. Black: There's room for argument on both sides.

Mr. Jack Wilson: Well, certain there is then in our Democracy, may it please the Court, on any substance.

Certainly would not deny to these appellants or anyone else their right to present their views.

I only asked that we may be allowed to present ours on one.

Justice Hugo L. Black: But if it justiciable, why is that basic, and we should not refrain by passing on it, but should pass on, why is not that substantially the issue, the question that we have?

Mr. Jack Wilson: Well, may it please the Court?

Maybe I'm too precedence but I -- I do not see that -- that the Court reaches that point without exposing of a number of others.

For instance, the question of standards which has not been --

Justice Hugo L. Black: I'm assuming now that they have standings, they have a right to bring in.

Mr. Jack Wilson: Standards, may it please the Court, standards, discrimination, contemplates on departure --

Justice Hugo L. Black: Well --

Mr. Jack Wilson: -- from some point.

Justice Hugo L. Black: -- mine was -- my question was intended to state the specifics there that the County that you're talking where you say it, and six other counties are the rural counties who have that votes counted in all elections so as to each vote overcome five votes to get and shall be added in Shelby, Tennessee, Shelby County, Tennessee.

That would be a very clear standard, but the question challenged -- it was challenged then on the basis that it denied equal protection of the law.

It was not a reasonable classification under that Amendment.

What would you say?

Mr. Jack Wilson: Well, may it please the Court, I would say that I wouldn't like it and that tomorrow, it might be wrong.

I would say that is not a legal of constitutional question there.

If there is, how is it that the great case, say, State of Pennsylvania, its Commonwealth.

The great Commonwealth essential bank provides special representation for each cities and the complaint there as I understand it is not that but that these cities want more than they have now.

Now, how much more?

Is it seven or eight as Your Honor suggest?

Is it ten to one?

Justice Hugo L. Black: I understand it that plenty of arguments about that.

But let's assume, maybe the Court will decide later on the other question.

Let's assume that all procedural hurdles and political hurdles and restraint hurdles have been old town and straight, square question before as to whether the law down there now that I see who protection of the law.

What is the difference between it supplies classification is concerned and the one which I have just stated here?

Mr. Jack Wilson: Well, I think -- I think that if the Court had proceeded to the point that it had reached the point of which Your Honor speakers, I don't believe any statement on the subject would be of much assistance to the Court.

I'm assuming as Your Honor did, if I understand Your Honor's question (Voice Overlap) --

Justice Hugo L. Black: What I'm asking -- what I'm asking is assuming that we get to the merits --

Mr. Jack Wilson: Yes.

Justice Hugo L. Black: -- of the controversies to whether giving the votes in certain locality, geographical locality, more value in all the election than the votes in ceratin other locality, the rural community over the city.

Would that be a denial of equal protection of the law if they were given the value of six to one?

Mr. Jack Wilson: I suggest that it would not, may it please the Court.

Now, I do not think that I could answer that.

Otherwise, Tennessee has some three and a half million people.

I do not know the population of the great State of Delaware.

I had been there and I do know that the side was so small that if I remember correctly, all of their telephone numbers for the entire state in less than one total.

Well, now they have two United States Senators.

Tennessee, three and a half million people, 500 violence from one corner across it to another, I wouldn't be satisfied.

I'm not satisfied now that Delaware or have many United States Senators in states.

Justice Hugo L. Black: A lot of them were not satisfied with that when the Constitution was adopted.

Mr. Jack Wilson: Yes.

Justice Hugo L. Black: It was adopted that way clearly and specifically.

Here, we have a general term in the Fourteenth Amendment about denial of equal protection of the law.

Do you think that would be a reasonable classification under that Amendment?

Mr. Jack Wilson: My answer, may it please the Court, is that it would not be a denial of due process.

Justice Felix Frankfurter: Could you -- if you start with a hypothetical case which I appreciated you're not wanting to answer specifically.

But assume you start with that hypothetical case, the Solicitor General, and correct me if I'm wrong, I didn't hear him today from my -- some others did.

But I certainly remember on his first argument, he agreed that there could be disparity between effectiveness of a rural voter and a city voter.

It make that clear as veil because it has left the vividly impression on my mind.

Now, won't agree to that but there may not be mathematical, arithmetic equality as between urban and rural voters then how can you answer hypothetically without any disparity?

It doesn't represent considerations which in a particular state of which some of us at least can't take judicial notice may not find a justification.

Mr. Jack Wilson: I think that's --

Justice Felix Frankfurter: And it maybe in New York, two to one would be alright and maybe two to one would be wrong in some other states, the distribution of the population or the economic interest of the geography or whatnot, I don't know.

Isn't that -- isn't that true?

Mr. Jack Wilson: I think it's true, may it please the Court.

Justice Felix Frankfurter: Once you deny that -- once you reject the claim that there must be numerically quality then how can any abstract consideration except for the answer, except with reference to the circumstances, the facts, the history which can't be thrown out of consideration of a particular state.

Mr. Jack Wilson: I bring it if, I may Your Honor, bring it back to the -- again, this question of the trial lawyer and the -- and the expert field lawyer.

Now, it has been said by one of the members of this Court a statement most interesting to me and that it is very pertinent on the subjects and questions just asked.

It has been said that it's possible to distinguish between double and portrait without being able to define what portrait is.

Now I suggest, may it please the Court, it may be able possible to distinguish.

But I suggest it would not be possible to tell someone else how to distinguish between --

Justice William J. Brennan: Mr. Attorney General, I wonder if I could approach some -- the subject that my brothers Black and Frankfurter discussing with you from a different angle, Moore county of rural county.

Mr. Jack Wilson: Yes Your Honor, about 3000 people.

Justice William J. Brennan: It's Sequatchie and I'd like to know if that's correct --

Mr. Jack Wilson: Very small.

Justice William J. Brennan: The Sequatchie, is that --

Mr. Jack Wilson: Yes.

Justice William J. Brennan: -- also rural?

Mr. Jack Wilson: -- yes.

Justice William J. Brennan: Well if my arithmetic is any good, based on more having a voting population of 2340, I think these are 1953 years, and Sequatchie about 600 more or 29104, it appears that Moore has a total representation that Senate and your lawyer house of two and Sequatchie, 600 larger of 0.63.

In other words Moore apparently has about three times the representation as Sequatchie although it was smaller of the two counties.

Mr. Jack Wilson: It maybe.

Justice William J. Brennan: Now what -- how -- how could that be justified if there both rural counties?

What would be the factors which perhaps you might justify a disparity rural city, but how do you it among rural counties and in fact --

Mr. Jack Wilson: May it please the Court, we have interposed a plea of sovereign immunity here and these --

Justice William J. Brennan: No, no.

Mr. Jack Wilson: This --

Justice William J. Brennan: This is on the same premise but the same premise that Mr. Justice Black's view that this is a justiciable question.

Mr. Jack Wilson: Well, may it please the Court, and even so the appellees here are not authorized to speak for the State of Tennessee or to explain or to justify why the Legislature has not done this and if I could answer Your Honor --

Justice William J. Brennan: Well, that you said you're not authorized or you couldn't or couldn't be justified?

Mr. Jack Wilson: Well, both.

Maybe it couldn't be.

I don't know but someone would have to come here and speak for the legislature.

They are not --

Justice William J. Brennan: May I ask you, what is -- what is Gibson County?

Is that a rural county?

Mr. Jack Wilson: Gibson County is -- is substantial county, city, town.

It's generally in the rural area but --

Justice William J. Brennan: How about Blount?

Mr. Jack Wilson: What, Blount --

Justice William J. Brennan: Blount.

Mr. Jack Wilson: County?

Justice William J. Brennan: The other one.

Mr. Jack Wilson: That's adjacent to one of the four largest counties.

Justice William J. Brennan: And is that largely rural or is that suburban or which?

Mr. Jack Wilson: Suburban.

Justice William J. Brennan: Well, now again, looking at these figures, Gibson apparently has a population or did have in1950, 29,832 and Blount, 30,353, about an 800 diff -- or 500 difference I guess.

And Gibson had a total representation of five and Blount have only 1.60.

Mr. Jack Wilson: Yes.

Gibson is over represented.

Justice Felix Frankfurter: Mr. Attorney General, can you tell us cities (Inaudible) whether all urban counties are the same?

Mr. Jack Wilson: In what --

Justice Felix Frankfurter: Are they -- I mean when you say urban county, is that defined -- is that a specific defined content --

Mr. Jack Wilson: It is not in Tennessee, may it please the Court.

Justice Felix Frankfurter: I don't mean to say in practice but -- but in fairness, when you say an urban county, is every urban county like every other urban county?

Mr. Jack Wilson: Not so in Tennessee.

I cannot speak for the other states that people of Tennessee are independent in nature.

They do a great deal of their own thinking and what might be the vote in Shelby or the Mississippi might not suit the citizenship, not the county at all.

So to say that an urban voter in Tennessee feels this way or that way, I think they cannot be put in the debt --

Justice Felix Frankfurter: As a matter officially I -- I'm entitled to say that -- that Tennessee is an interest in political state, can I say that?

Mr. Jack Wilson: Indeed, it is and I wish I might say it all but --

Justice William J. Brennan: Oh why didn't you tell me that Tennessee -- where is Campbell?

What Campbell County?

Mr. Jack Wilson: Campbell County is in East Tennessee, a few miles from Knoxville County, one of the full largest counties.

Justice William J. Brennan: Well apparently Campbell has a population of 17,477 or did in 1950 and more at that time, population of 2,340.

In other words, about apparently 160 size, yet more it had a total representation of two or has rather, is Campbell a representation of 0.76?

One third the representation over Campbell was apparently six times more population than Moore.

Mr. Jack Wilson: Maybe it will be Your Honor.

Maybe it will be.

Now, if the Court and I -- I say this very respectfully, those questions are fortunate.

Why not put them to the Legislature of Tennessee?

Why not sue the Legislature of Tennessee and let them act but all the all voice said, “No, no, you can't do it.”

Justice Hugo L. Black: Mr. Attorney General, may I ask you why is that argument is valuable?

We would have the right to try any cases through a man who says he'd been deprived of voting on the basis of his race?

And it's true there's a specific amendment which requires that but they claim the amendment here protects them against this kind of discrimination.

I just don't quite understand your argument since there is no standing.

Mr. Jack Wilson: Well, may it please the Court, race for instance where the White and Black.

That's something due to burn.

What about your urban voter or your rural voter?

I don't know (Voice Overlap).

He may be at Memphis for six months and then he may move to Morgan.

The State has no control over that matter.

Justice Hugo L. Black: Let's say it does have control over their apportionment law --

Mr. Jack Wilson: Well, the Legislature does --

Justice Hugo L. Black: -- justice has it -- justice has control over the law with reference to voting so far as racism.

I do not understand.

Its opinions subject to the grave, in fact man cannot claim.

It's a discriminate against in voting because it's not based on the color, that maybe the claim is unsound.

I can understand that argument but I do not understand the other one.

Mr. Jack Wilson: Well may it please the Court?

I am not the one who injected the question of color into the argument.

I believe that was mentioned --

Justice Hugo L. Black: For different religion, what's about (Inaudible)?

Mr. Jack Wilson: No, I -- I don't believe -- I don't believe that's been discussed and maybe you narrowed it that.

Justice Hugo L. Black: But I said supposed it was, whether you have outstanding duration if you'd been discriminate -- somebody had been discriminated against some kind of religion --

Mr. Jack Wilson: Well certainly --

Justice Hugo L. Black: -- or color?

Mr. Jack Wilson: -- certainly he would, may it please the Court, but not his representation in the state they claim.

I think Your Honor's --

Justice Hugo L. Black: Well, supposed

Mr. Jack Wilson: -- question --

Justice Hugo L. Black: --legislation has been written in certain way that will guarantee by reason of the population, it wasn't a case done in (Inaudible).

In certain group, either they call it their religion or call it with their color, would not be properly represented.

Would you say then it couldn't be raised?

Mr. Jack Wilson: Well, certainly it -- it could and was right, of course.

Now, may it please the Court, I wish --

Unknown Speaker: It's an honor if it's -- why -- why was (Inaudible)?

Mr. Jack Wilson: I would say, may it please the Court, that the matter had not gone beyond the theoretical and to thinking -- the theoretical and to think there was no popular demand for it.

There was no popular demand that the constitutional convention consider reapportion.

Had that been, it would have been included in what we call the call for the convention.

Justice William J. Brennan: Well, the call is by the Legislature --

Mr. Jack Wilson: Indeed, it did.

Justice William J. Brennan: Well, what was this -- I was curious, you said there had been what a state wide referendum sought by the Legislature whether the Legislature should call.

Mr. Jack Wilson: No, may it please the Court.

The Legislature submitted to the people under the Constitution of Tennessee whether the people decide to hold a constitutional convention.

Justice William J. Brennan: Well now, do I understand?

I just don't.

What is your law?

May the legislature convene a constitutional convention whether the people decide or not?

Mr. Jack Wilson: No, may it please the Court.

There are two ways of amending our Constitution.

And the Constitution may be amended by the Legislature itself by action of two successive legislatures.

Then our Constitution provides that the Legislature may submit to the people of the state at any given general election.

The question of whether the Constitution of Tennessee shall be amended altered or abolish.

Unknown Speaker: (Inaudible)

Mr. Jack Wilson: Yes, may it please the Court.

Justice Felix Frankfurter: Must -- when the Legislature submits a call for a constitutional convention, does it also submits the specific subject matter of the constitutional convention?

Mr. Jack Wilson: It made -- it is required that it did so.

In other words, you do not call a constitutional convention any more than you call an extra session of the Legislature in Tennessee without defining its scope.

Justice William J. Brennan: And you -- your point is that reapportionment was not included in the call because there was no statewide demand that --

Mr. Jack Wilson: Indeed so, indeed so.

Now, may it please --

Justice William J. Brennan: It might -- it might be another reason I suppose.

Mr. Jack Wilson: Yes, it might be.

Yes.

Indeed so, Your Honor.

Justice Felix Frankfurter: Is the -- is the scope of the proposed constitutional convention of subject matter for discussion in the Legislature?

Mr. Jack Wilson: Yes, Your Honor.

Debating justice --

Justice Felix Frankfurter: In other words -- in other words, when this call for the 1953 and 1959 Convention was up and it must have been, wasn't it?

Mr. Jack Wilson: Yes.

Justice Felix Frankfurter: When this -- when this proposal in the form of a resolution or whatever the technical form, what is it?

Mr. Jack Wilson: Resolution.

Justice Felix Frankfurter: A resolution.

When that resolution was up, was it opened to the representatives of Memphis to say, “We ought to include the question of apportion?”

Mr. Jack Wilson: Indeed so Your Honor, indeed so.

And I -- it may have been raised at that time Mr. Justice Brennan.

I'm not prepared to say --

Justice William J. Brennan: I mean Memphis may have asked (Voice Overlap) --

Mr. Jack Wilson: May have done though, but I do not deny it.

What I am saying is there was not sufficient public interest in our democratic system.

Justice William J. Brennan: Well, not sufficient votes to the Legislature but really (Voice Overlap) --

Mr. Jack Wilson: Yes, that's -- that's true, may it please the Court.

But you get votes in the Legislature when the people demand it.

Justice Hugo L. Black: How many counties in Tennessee?

Mr. Jack Wilson: 95, Your Honor.

Justice Hugo L. Black: How many would you classify as urban in the general acceptation of that?

Mr. Jack Wilson: Perhaps half dozen and I would not want to slice it.

Justice Hugo L. Black: You have about 90 to 1?

Mr. Jack Wilson: Something.

Justice Hugo L. Black: And how many members of the Legislature come from five urban counties?

Mr. Jack Wilson: May it please the Court, I cannot give you those figures off hands there.

In the charts, I -- I'm sorry that I do not have them in mind.

I think the short of the matter is and -- and I think there's no need to quibble about it.

The urban counties ought to have more representation.

I am not here arguing that.

Oh no, I'm here arguing this lawsuit.

Justice Hugo L. Black: What I'm -- what I asked you the question for was to find out whether there was any real genuine chance after what you've said about the Legislature columnist, whether there was any real genuine chance to vote down probably to 85 counties by five counties.

Mr. Jack Wilson: Well, may it please the Court, the only thing I could say and I say this with the great deal of respect would be to invite Your Honor to come to Tennessee and observe Tennessee powers.

Justice Hugo L. Black: I know a little about it.

Mr. Jack Wilson: Now, may it please the Court --

Justice Felix Frankfurter: I think before -- before we leave this interesting subject, you answered did you not in before new -- before lunch a question of the Chief Justice, which I'd like to understand.

Is Memphis and the other portion of this always voted down when they propose something?

Mr. Jack Wilson: Oh no Your Honor.

Oh no, that -- that isn't true.

I could name numerous -- this matter --

Justice Felix Frankfurter: I mean other than that we should have a Holiday on the given day or --

Mr. Jack Wilson: Oh no, Your Honor.

This matter of legislative committee is no different in Tennessee than in the Congress of the United States.

We may be a peculiar people as to our legislature and reapportionment but we are not otherwise cute.

Chief Justice Earl Warren: Well, Mr. Wilson, you can't you tell us approximately how many rural and how many urban members there are of your Legislature?

Mr. Jack Wilson: May it please the Court, I -- I would like to do this.

I would like to ask my associates --

Chief Justice Earl Warren: Oh, you may do that.

Yes.

Mr. Jack Wilson: -- if they will make an estimate while I cover two remaining points.

Chief Justice Earl Warren: Oh, yes certainly.

Mr. Jack Wilson: And try to give you those figures if I may.

Unknown Speaker: Just one matter --

Mr. Jack Wilson: Now -- one matter of information.

Unknown Speaker: -- is your Legislature (Inaudible)?

Mr. Jack Wilson: They keep a journal, may it please the Court.

Unknown Speaker: (Inaudible)

Mr. Jack Wilson: (Inaudible) indeed so.

Justice William J. Brennan: Well, now a journal would not include.

Would it all the offers of subjects to be included on a constitutional convention call?

Mr. Jack Wilson: May it please the Court, it would show motions made, the action on those motions.

It would show amendments.

It would show the members of each House who voted for and against, rather complete and they, I am sure and this Court's liable.

Now, may it please the Court some two or three other subjects I wish to discuss within the time remaining.

This suit is the second reinforcement suit in Tennessee, although we will have many others, I do not know.

I personally had rather not make it real of reapportionment litigation.

But what is happening in Tennessee as a result of this lawsuit?

Well, we are hearing rumors that the municipal barns may not be able to sell it, and Tennessee has no great financial status.

Many municipal bonds are sold locally.

But the truth to the matter is and I hate -- hate to say it before this Honorable Court, but if the 1901 Act in Tennessee is unconstitutional, each and every one of these four urban cities doesn't exist.

There have to be no odds here and they would create by a virtue of legislative act.

I don't know if they know that much but that's so.

Justice William J. Brennan: Do you have such a rule (Inaudible) de facto official bodies?

Mr. Jack Wilson: In certain instances, may it please the Court.

Now may -- if I may --

Chief Justice Earl Warren: Certainly.

Mr. Jack Wilson: continue -- there is this question, some two or three years ago, we had a criminal judge in Tennessee who it was said had forgotten the duties of his House and the Legislature of Tennessee.

And they said dominated with the rural element, call that judge in.

The House of Representatives impeached.

The State Senate tried to convict him.

He's not on a bench (Inaudible).

Not long after that judge was tried and convicted, the Bar Association of Tennessee filed disbarment proceedings against.

And the Chief ground of -- the disbarment proceedings' was his impeachment as the trial judge in Tennessee.

That case has been through the trial courts of Tennessee through Tennessee as intermediate appellant court.

It will be heard before the Supreme Court of Tennessee, a week from today, and one of the issues in it, isn't that Legislature which tried and convicted that criminal judge was illegally constituted.

The question is being raised, not theoretically.

It's in the court papers.

What else is happening in Tennessee?

From day-to-day, the lawyers on the step, the Attorney General of Tennessee are confronted with habeas corpus petition, averring.

They had been convicted on the unconstitutional law because the Legislature was improperly constituted.

When I was instituted before this Court in April, I raised the question of what the situation would be if the District Court entered a decree declaring the Government of Tennessee operating unconstitutionally, whether that Government then so constituted could execute criminal.

Some of adversaries my appraisers say, “Oh, he's putting the ox in the ditch, so he can take him out.”

Now may it please the Court, I stand before you today in the month of October, in the maximum security ability at the State of Penitentiary at National, as I speak now, sit eight condemned men, condemned to death, maybe the largest number of Tennessee has had in sometime if not at any time.

Those men have been convicted of rape, had been convicted of murder, other capital crimes.

One of those men has filed a petition for writ of habeas corpus asserting that death by electrocution based on law that was inactive by a Legislature improperly constitute.

I assume that case will come to this Court and I will not discuss it further.

But I will say to this Court that the Governor of Tennessee, our Chief Executive, has announced and has acted, he has suspended the executions in all criminal cases including these eight men, until it is determined whether Tennessee may lawfully execute criminals by the electric chair.

Unknown Speaker: (Inaudible)

Mr. Jack Wilson: I beg your pardon?

Unknown Speaker: (Inaudible)

Mr. Jack Wilson: Well, I don't think the Court can and -- and I think the matter may be determined and rapidly and should be that this District Court will not interfere with the Government of Tennessee.

Now, what else is happening in Tennessee may it please the Court that is on the certiorari docket of this Court is not disposed off today.

Codes number 342 (Inaudible) against State of Tennessee, I will not of course discuss that case.

But counsel for the State of Tennessee in that case, Senate Counsel table and one of the questions varied to is that Legislature of Tennessee illegally constituted and acted -- enacted a law under which that taken which the petitioner was convicted.

Now, I will not repeat at this time a discussion given in April as to the possible effect upon the operations in the Government of Tennessee in the event this Honorable Court authorizes the District Court to enter a decree of unconstitutionality.

But I do want to discuss and most briefly the question of, "What would be the general effect of an adverse ruling in this case?"

Justice William J. Brennan: May I ask this question Mr. Attorney General, why mislead the holding in Kidd and McCanless that is by your Tennessee's Supreme Court to be that the points you're now raising as to the effect upon past statutes and the life, would not ensue one told of the date of a judicial declaration of invalidity and then only perspectively?

Mr. Jack Wilson: No, may it please the Court.

If this Court follows the case of Luther against Borden and there is --

Justice William J. Brennan: No, no.

I'm speaking of your own Tennessee Supreme Court.

Mr. Jack Wilson: Upon the declaration being made --

Justice William J. Brennan: Yes.

Mr. Jack Wilson: Yes Your Honor.

Justice William J. Brennan: But that means perspectively then nothing -- in other words, all these past events?

Mr. Jack Wilson: No, I do not so interpret it Your Honor.

The Court --

Justice William J. Brennan: It is susceptible of that interpretation?

Mr. Jack Wilson: I think it is, may it please the Court, because they say and very specifically that if it is held that this Act is unconstitutional then this Legislature doesn't exist and prior legislatures, I think it could not have insisted.

Justice William J. Brennan: Well, it's not ladder whether or not.

Mr. Jack Wilson: Well now, what -- what might be the general effect of an adverse decision in this case?

As I understand it, there are some 40 states concerned with this problem.

There are some 20 states who -- which are in a riffs, their reapportion.

Is this Court to authorize the several District Courts of United States to get busy straighten up the State Governments -- submit to State Governments, would not that result follow?

Now, may it please the Court, it isn't just a question of whether a Legislature had failed to apportionment.

Oh no, if I understand the New York case in which a three-judge District Court had been convened, it is not a followed, it is not insistent that the Legislature of New York has failed to apportionment, oh no.

It is insisted that under a valid apportionment, constitutionally valid in accordance with their constitution, there is inadequate representation of certain aliens.

Must that not follow?

Must that not follow if this Court is to enter the field?

And as was suggested a little while ago, does it really make any difference what the constitution provides?

Doesn't it really?

Would not this ruling, may it please the Court, would not this ruling applied to all city counsel all over the United States would not interplay to the districts and the counties and parishes' all over the United States equality of representation?

And I regret to have -- to have to tell this Court that in the City of Nashville, whose male is (Inaudible) all in this case.

Citizens are plummeting for more equal representation on the city counsel.

And what does the Honorable Mayor said?

“We are worth it.

We are worth it.”

Now answering your question if I may, my associates advised me that in their opinion and some half of the voters of the State would be considered urban voters under their calculations and of course that can be no more than -- than rough calculations.

Justice Hugo L. Black: How about the number of county?

Mr. Jack Wilson: Roughly had, may it please the Court.

Justice Hugo L. Black: Roughly had the counties or have the voters?

Mr. Jack Wilson: Yes Your Honor.

Justice Hugo L. Black: That's it?

Which one?

Mr. Jack Wilson: I beg your pardon?

Justice Hugo L. Black: Which one?

As I understood you.

Mr. Jack Wilson: Counties, may it please the Court, counties.

Justice Hugo L. Black: You mean half the counties --

Mr. Jack Wilson: Yes Your Honor.

Justice Hugo L. Black: -- that are urban counties.

Mr. Jack Wilson: Now, let me put it this way.

My time is quite limited.

If the members or any member of this Court desires a memorandum on that subject or any other, we will make every effort to furnish it.

But I -- I cannot give a more definite answer to Your Honor at this time.

Chief Justice Earl Warren: Well, Mr. Wilson that isn't the question I asked at all.

I asked you, what representation the rural counties had in your Legislature and what representation the urban counties and you said your associates.

The Attorney General would supply that information to it.

It doesn't seem to be a very difficult question to answer.

Mr. Jack Wilson: May it please the Court Mr. McCanless, the Attorney General of Tennessee, tells me that his estimate is that the rural vote in the general assembly of Tennessee is approximately two thirds.

And I apologize to you Your Honor if we did not understand the question.

Chief Justice Earl Warren: Does that answer my question?

Mr. Jack Wilson: Well, may it please the Court, that's the best answer I could give that they have to --

Chief Justice Earl Warren: I didn't ask you what the population was.

You've given us that now, approximately two thirds rural.

Now, how much representation do the rural counties have in your Legislature and how much representation do the urban counties have?

Mr. Jack Wilson: Well, may it please the Court, it was our intention to answer that as I did and we -- we believe that it is approximately two thirds to one urban county.

Members -- members, may it please the Court.

Justice William J. Brennan: That means two thirds of the 99 and the lower house would be -- or 66 might be called rural and 33 urban, is that it?

Mr. Jack Wilson: That's correct.

Justice William J. Brennan: And then the upper house, 22 rural and 11.

Mr. Jack Wilson: Approximately, yes Your Honor.

Chief Justice Earl Warren: Alright, now how is the population divided between urban and rural owner?

Mr. Jack Wilson: That's roughly half and half, perhaps predominantly urban.

Chief Justice Earl Warren: Very well, that's the answer of my question.

Mr. Jack Wilson: And I'm sorry I didn't get you.

Now, may it please the Court, closing.

It seems I believe that the Court must and should balance the default of the Legislature of Tennessee as to each constitution with the question of whether this Court, in view of the plea of sovereign immunity, in view of the question of its being a State Legislature will for the first time step over into the state figure.

And we think that that is one of the serious and one of the important questions to be determined by the Court.

Now, may it please the Court, this case is most important to Tennessee, most important to the states of the United States and we feel that if a large major, the future of the Government of the State of Tennessee rests in the hands of this Court, and indeed we feel that in an enlargement future of constitutional government in the United States of America rests with this Court.

Justice Potter Stewart: General Wilson just before you sit down, one of the questions in this case, a question which to be sure would not be raised and until or unless certain other questions are answered in certain -- a certain here way.

One of those questions, one of the possible questions in this case is a question of a remedy.

And that as Mr. Justice One of those questions, one of the possible questions in this case is a question of a remedy and that, as Mr. Justice Rutledge pointed out that Colegrove against Green involves practical considerations.

It's with that in mind that I'd like to ask you, one or two just practical factual questions.

When is the next general election in Tennessee of the Legislature?

Mr. Jack Wilson: The next general election will be held on August the 4th of next year.

That is the first Thursday of August 4th, that's -- of August.

That is the primary election for the members of the Legislature.

It is a general election for the election of such judges as ought to be elected.

Justice Potter Stewart: That is --

Mr. Jack Wilson: Then -- then the general election for the members of the Legislature would be the following November of next year.

Justice Potter Stewart: Then we're not speaking about 1962.

Mr. Jack Wilson: Yes Your Honor.

Justice Potter Stewart: August 1962 would be the primary election.

Mr. Jack Wilson: Yes Your Honor.

Justice Potter Stewart: Is the Legislature now in session?

Mr. Jack Wilson: No Your Honor, it's during the -- in March of this year.

Justice Potter Stewart: Will it -- the ordinary course of events be in session between now and next August?

Mr. Jack Wilson: It will not, unless called into special session by the Governor and that is the only mode in which it maybe called and inspected session.

Justice Potter Stewart: It cannot on its own motion (Voice Overlap) --

Mr. Jack Wilson: No Your Honor, not on that Constitution.

Justice Potter Stewart: It has to be called by the Government.

Mr. Jack Wilson: Yes.

Justice Potter Stewart: And then can the Governor limit the agenda of a special session by his call?

Mr. Jack Wilson: He must do so.

Justice Potter Stewart: He must do so.

Mr. Jack Wilson: Yes Your Honor.

Justice Potter Stewart: And this can be done by the Governor at anytime and as frequently as he liked.

Mr. Jack Wilson: In fair -- not in recent years but in the history of the state and in the recent past history of the state, presidents during World War II when times prior to that, an extra session was not of use.

Justice Potter Stewart: That's all I want, thank you.

Mr. Jack Wilson: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Osborne.

Argument of Z. T. Osborn, Jr.

Mr. Z. T. Osborn, Jr.: Mr. Chief Justice, may it please the Court.

The Attorney General of Tennessee envisions a situation in which the State Legislature and the United States District Court tie each other and to say, “Who will make the first move?”

March of -- a considerable part of the argument that the Court has so patiently heard has been of that -- of that type.

That is this conjectural or speculated matters.

What would happen then?

Now, we would like on behalf of the appellants to say, that we seek a decoration that an Act of Apportionment which indirectly but very effectively gives some voters in time as much representation as others is unconstitutional.

We seek then, we think that the history of the matter is that these speculations that the Legislature might say denies the District Court are out of order.

They're not born out but what actually has happened where reinforcement has been ordered or where an active apportionment has been held unconstitutional.

And in effect, they are a departure from the judicial presumption which is that other officials will follow the law if the law is laid down too.

In a substantial way, they slander the people of Tennessee might next elect to its legislature and so we say that the -- these matters that are pointed up, they're not supported by a presumption.

We're not entitled to presume that the State Legislature would if this Act of Apportionment were struck down that it would sit and refuse to do anything.

Justice Felix Frankfurter: May we presume that it will sell its clothes the line of selfishness as it's think it justifies.

Mr. Z. T. Osborn, Jr.: Unless the --

Justice Felix Frankfurter: -- to have or make a change from say from two thirds -- from two-thirds and one-third and three-fifths and two-thirds and you will then be here again, wouldn't you?

Mr. Z. T. Osborn, Jr.: Well --

Justice Felix Frankfurter: Wouldn't you?

Mr. Z. T. Osborn, Jr.: -- if employed to come, yes.

Justice Felix Frankfurter: I never -- I don't -- I don't know of a federal basis on which can employ and bring a lawsuit.

Mr. Z. T. Osborn, Jr.: Yes, if --

Justice Felix Frankfurter: Could you be here again?

Mr. Z. T. Osborn, Jr.: We would try to be here again because as the Attorney General says, this is a longstanding, a continuing evil and the weakness in our system of government.

Justice Felix Frankfurter: Yes, but if you -- if you start with your assumption with which Mr. Solicitor General -- Mr. General of the United States does it that there may be differentiation and not equality between urban and rural representation then the Tennessee Legislature may act on that assumption and think three fifths of against -- as against two thirds might satisfy the Supreme Court of United States, couldn't then conscience he thinks that?

Mr. Z. T. Osborn, Jr.: He says only rational differentiations as you have seen from the questions asked for -- other of your associates, in this particular apportionment.

No rational basis can be discovered.

Justice Felix Frankfurter: I understand that --

Mr. Z. T. Osborn, Jr.: Yes.

Justice Felix Frankfurter: -- and I accept that.

And I assume it struck down when it goes back to the Legislature and under the -- that will known difference that the witness to the south in many states, they would had once obeyed the law of this -- the petition of this Court, they would pass a new Apportionment Act, changing the present proportion of two thirds and one third to three fifths and two thirds.

You would then be here because I'm conferencing what you employed and wouldn't you?

Mr. Z. T. Osborn, Jr.: Yes we would.

Justice Felix Frankfurter: But could no Legislature conscientiously think if there maybe, it please a loading of urban as against rural -- against -- rural as against urban that it is not at all democracy that -- that have been one vote, one man throughout the state.

They may make a change which would again call it to pray this process of mitigation, wouldn't it?

Mr. Z. T. Osborn, Jr.: I have no doubted that yet and yet -- against that you have this Your Honor that the Rotenberg had game entered, it can never be defended by someone who believes then the Fourteenth Amendment to the United States Constitution and I (Voice Overlap) --

Justice Felix Frankfurter: I know but then what your conception is of the function of a court.

Mr. Z. T. Osborn, Jr.: Yes.

My conception being this that if an unconstitutional act was placed, it is the --

Justice Felix Frankfurter: Yes, but it is the question when you said unconstitutional.

It may be unconstitutional under the law of Tennessee non-concept therefore that it's unconstitutional leaving the Fourteenth Amendment so as to give this Court power to knock it down from a very different problem.

Mr. Z. T. Osborn, Jr.: The language of the Fourteenth Amendment itself suggest to the contrary.

It says that, “No state shall enact to its citizen's equal protection of law and it specifically prohibits an abridgment of the right to vote for members of the Legislature.”

Justice Felix Frankfurter: Do you agree with the Solicitor General don't you that there maybe inequality as between urban and rural protest that do not conflict with the Fourteenth Amendment?

Mr. Z. T. Osborn, Jr.: I do not agree in that.

Justice Felix Frankfurter: Well, you don't have (Voice Overlap) --

Mr. Z. T. Osborn, Jr.: Well, I agree that there may be in equality --

Justice William J. Brennan: Well Mr. Osborn, --

Mr. Z. T. Osborn, Jr.: Yes.

Justice William J. Brennan: -- there's more here as I understand it and then equality between urban and -- and rural voter.

Mr. Z. T. Osborn, Jr.: Well, of course (Voice Overlap) --

Justice William J. Brennan: But apparently, inequalities among rural counties, between rural counties with the same size and different sizes.

Mr. Z. T. Osborn, Jr.: It was a club that was organized in (Inaudible) and -- and that is all that it matters to it.

Justice Felix Frankfurter: But my question wasn't -- or to accept that you succeed in having this statute declared unconstitutional.

My question was before seeing the next step, couldn't your Legislature with entire conscientiousness then they could pass an reapportionment statutes which from your point of view would raise the same question which is not altered here.

Mr. Z. T. Osborn, Jr.: No, they could not with --

Justice Felix Frankfurter: They could not.

Mr. Z. T. Osborn, Jr.: -- with good conscience, and --

Justice Felix Frankfurter: Not with your conscience

Mr. Z. T. Osborn, Jr.: -- accept by rational basis.

Justice Felix Frankfurter: -- not with your conscience but their conscience.

Mr. Z. T. Osborn, Jr.: No, both of us are supposed to have the conscience provided for in the Fourteenth Amendment to the United States Constitution.

Justice Felix Frankfurter: And then there would -- will be difference of opinion on this Court if you were right.

Justice Hugo L. Black: Can you --

Mr. Z. T. Osborn, Jr.: Thank you Your Honor.

Justice Hugo L. Black: -- imagine any case where we hold a law unconstitutional whether they decide its settlement against what we hold in the community as the Legislature wouldn't try to pass another and (Inaudible) as much as possible?

Mr. Z. T. Osborn, Jr.: Always they have done that.

Justice Hugo L. Black: Is that (Inaudible) the reason why we shouldn't hold them unconstitutional if they are?

Mr. Z. T. Osborn, Jr.: Never has this Court failed -- have the courage to do what its conscious mind.

Justice Hugo L. Black: I would like to get your view on one thing (Voice Overlap) --

Mr. Z. T. Osborn, Jr.: Yes, Your Honor.

Justice Hugo L. Black: Adversary says that the Legislature couldn't meet.

He said that it was illegal, it couldn't meet and that you couldn't elect a new legislature because if -- if only apportionment lawyer have is what you have.

What do you say to that?

Mr. Z. T. Osborn, Jr.: Well --

Justice Hugo L. Black: How could you get a constitutional legislature under his argument?

Mr. Z. T. Osborn, Jr.: May I answer and not take too long because I appreciate the -- the time of course given to me.

In the first place, the de facto doctrine is not as described by the Supreme Court of Tennessee and -- and the special ruling was handed down by the Supreme Court of Tennessee in Kidd vs McCanless on the de facto doctrine in which they departed from theirs -- their earlier pronouncements.

But in -- in good legal logic, you actually never reach the defect of doctrine because the Constitution of United States, the Constitution of every state in the union gives exclusive jurisdiction of the right of a person sit in a Legislature, the right of individual person now to sit in that Legislature to the legislative body itself.

That is --

Justice Hugo L. Black: Suppose the legislative body is unconstitutional.

Mr. Z. T. Osborn, Jr.: Well, the -- the -- we're -- we're seeking now to the same thing (Inaudible) thing.

We're saying an Act of Apportionment is unconstitutional, not that the Legislature is unconstitutional.

The Legislature exists independently of any of its own acts.

It is the creature of the constitution and the fact that the Legislature passed an unlawful Act of Apportionment, could not destroy it.

It has no power to destroy itself, and none of its Acts would by any Court of any of the states be construed in such basis as to destroy the Legislature.

Justice Hugo L. Black: You mean you're invoking the de facto idea?

Mr. Z. T. Osborn, Jr.: I'm invoking really a more basic doctrine meant.

Let's take the Tennessee Legislature.

It consists of 20 people from the urban area, the halves.

The balance of the 99 members comes probably what we have called the non-urban communities.

The Supreme Court of Tennessee would never examine an act on the question of its constitutionality to see whether people who came from too smaller district voted for or against that act.

I'm saying that their acts are not subject to attack all their thinking.

Justice William J. Brennan: Well the fact -- Mr. Osborn, supposed -- supposed this that the Apportionment Act itself were declared unconstitutional.

Mr. Z. T. Osborn, Jr.: Yes Your honor.

Justice William J. Brennan: Suppose my reading of Kidd and McCanless as I read it, as I suggested to rather said all that has said is the current legislature.

Mr. Z. T. Osborn, Jr.: Yes sir.

Justice William J. Brennan: Would not be validly constituted that not that any of the actions of earlier legislatures would be invalid (Voice Overlap) --

Mr. Z. T. Osborn, Jr.: They did not.

Justice William J. Brennan: Let's -- and suppose it's not limited but then your Tennessee Supreme Court would set while the action of the federal courts invalidating the Apportionment Act, does have the effect invalidating the current legislature.

Would that be a matter of state law or would that be something which we could review?

Mr. Z. T. Osborn, Jr.: Your Honors would review that.

Justice Hugo L. Black: Well --

Justice William J. Brennan: Well, how?

Mr. Z. T. Osborn, Jr.: Well, Your Honor would -- would always review and -- the question and the extent of the affect of a ruling by this Honorable Court.

One of the things that this Court has to do is interpret its opinion.

Justice Felix Frankfurter: I have no doubt about that -- I have no doubt about that.

But suppose the state -- suppose the Tennessee Court doesn't say we construe the decree of the federal court but we construe Tennessee law.

You mean that if the apportionment has been illegal since 1901 or consequences would have never been a valid legislature, would that be a federal question?

As the -- the case that was put to you by my brother Brennan, specifically inserted that the State Court would be the -- in construing the federal degree and I agree with you that that was solved and he would really --

Mr. Z. T. Osborn, Jr.: When you have review that.

Justice Felix Frankfurter: But suppose they don't make any reference with the federal decree and say Tennessee law as such.

Mr. Z. T. Osborn, Jr.: Well, that --

Justice Felix Frankfurter: That's a different problem isn't it?

That's all you have to say.

Mr. Z. T. Osborn, Jr.: That's a hard question and --

Justice Felix Frankfurter: You want me to put you an easy ones?

Mr. Z. T. Osborn, Jr.: No.

But it is -- it comes down of this, so first it would suppose that Tennessee Supreme Court would say, "Well, since there were probably apportioned, there's been no legislature, and everything is invalid and there's no way to establish new legislature."

Well, it would depart from every press of them and yet if they did that, we would -- we would be in bad effects of this as we are with the Legislature that refuses to apportionment.

We might be in bad effects without a legislature as we are by the ones we have.

I say that.

Justice Charles E. Whittaker: Isn't that what -- Mr. Osborne --

Mr. Z. T. Osborn, Jr.: Yes Your Honor.

Justice Charles E. Whittaker: Is not that what they did say in Kidd against McCanless?

The Supreme Court?

Mr. Z. T. Osborn, Jr.: Yes, to be frank, they did as what they (Inaudible) to say.

They said, "Chaos was dissolved, it will destroy the State Government."

Justice Charles E. Whittaker: Right, now, that's a matter of state law --

Mr. Z. T. Osborn, Jr.: Yes.

Justice Charles E. Whittaker: -- and they don't take it back, where do we go from there?

Mr. Z. T. Osborn, Jr.: Well, it might have been quite possible and observant was done in all of the cases that have come before this Court involving individual human rights.

Well, not those -- Supreme Court Tennessee is fiat justitia ruat caelum, let justice be done if the skies should fall.

And yet that same Supreme Court with that same motto wrote the decision in Kidd vs McCanless.

And I am certain that when the state held that it was alright to exclude Negroes neighborhoods from (Inaudible) some judge wrote that that was perfectly alright and could destroy the state if it was not to the contrary.

And so on those arguments would have to be met one at a time.

We cannot say -- we cannot batch for the -- the wisdom nor for the judicial integrity or the legislative integrity of everyone but we do say, the presumption is that others will follow the law.

The presumption is that upon a declaration of the invalidity of this unconstitutional act, the Legislature would follow the law.

We have no other place to go.

We are at the capital of the world.

Justice William J. Brennan: But what you're telling is then is if the 1901 Act is invalidated, we ought to count on the existing and as the legislatives then enacting an Apportionment Act which does comply with the, is that it?

Mr. Z. T. Osborn, Jr.: That's what we should --

Justice William J. Brennan: And then I take it and you're saying that if someone is going to challenge that on the ground that the Legislature itself to invalid body, let's wait till that happens.

Mr. Z. T. Osborn, Jr.: Well, the Supreme Court of Tennessee has -- has twice held that it would not entertain such a challenge.

Every state in the union that has had the question before it is held that they would not entertain such a challenge.

So I say that we have very strong precedent, never reaching the de facto doctrine for the refusal reports.

Thank you very much.

Chief Justice Earl Warren: We'll recess now.

Featured:

Baker v. Carr - Oral Argument, Part 1

Tue, 25 Sep 2012 22:36:39 +0000

Case:

Baker v. Carr

Media File:

6_19610419-argument-1

Related Transcript:

6_19610419-argument-1

Transcript:

Argument of Charles S. Rhyne

Chief Justice Earl Warren: Number 103, Charles W. Baker et al., Appellants versus Joe C. Carr et al.

Mr. Rhyne.

Mr. Charles S. Rhyne: Mr. Chief Justice, may it please the Court.

This is an individual voting rights case brought by 11 qualified voters in the State of Tennessee.

In their complaint, they alleged in substance that by an affirmative purposeful and systematic plan embodied in a 1901 Act of the Legislature, their voting rights have been diluted and the base to the point of nullification.

A United States -- the District Court, three-judge court, dismissed their complaint on the ground that it had no power to protect their voting rights under the Fourteenth Amendment.

Our position is that that decision was error, that there exist no judicial, no man's land in connection with constitutional rights of individual on the Fourteenth Amendment.

Now, the facts alleged in the complaint were of course admitted by the motion to dismiss and they are in substance, this, Tennessee's Constitution which was adopted in 1870, provided that in 1871 and in each 10-year -- every 10 years thereafter, there should be an enumeration of qualified voters and then the House of Representatives and Senate should be reapportioned according to the number of qualified voters in each county or district.

There are -- under the Constitution, 99 seats in the House of Representatives.

And so -- and if you reapportion the House according to the number of enumerated qualified voters under the constitutional formula in Tennessee, you divide 99 into the number of qualified voters, which in 18 and -- or in 1900 was about 487,000.

There are around two million today.

The House has one peculiar provision that doesn't apply to the Senate and that is provided that in reapportioning the House, every county that has the required -- two-thirds of the required ratio is entitled to a Representative, they're 95 counties.

And in reapportioning the Senate in a fraction of representation that is lost in the House, shall be made up as near as maybe practicable.

So it's quite obvious that this is a -- a mathematical formula designed to ensure majority control in -- in Tennessee and to -- right into the fundamental law, this requirement of equality of representation.

Justice William O. Douglas: This is not a -- inequality based on racial distinction, is it?

Mr. Charles S. Rhyne: No, no, Your Honor.

It -- it's not.

It's -- it's based upon a discrimination --

Justice William O. Douglas: Unlike -- yes, unlike the Tuskegee case and it's this --

Mr. Charles S. Rhyne: Well --

Justice William O. Douglas: -- straight across the Boards.

Mr. Charles S. Rhyne: It's -- it's straight across the Boards, but even in Tuskegee, you had the discrimination based on race, in which we think exist here.

But this is not a racial case, Mr. Justice Douglas.

Justice Potter Stewart: No Fifteenth Amendment claim here at all.

Mr. Charles S. Rhyne: No, this is a Fourteenth Amendment, Mr. Justice --

Justice Potter Stewart: And you're not -- just so I'll understand.

You're not attacking are you, this peculiar provision of the Tennessee Constitution which gives one representative to each county if it has as much as two-thirds of its -- of its voters.

Mr. Charles S. Rhyne: No, we -- we're relying on that because -- Mr. Justice Stewart --

Justice Potter Stewart: Although, that itself embodies some inequality, does it not?

Mr. Charles S. Rhyne: Well, it involves a -- a slight amount, but then you see the -- the very unusual provision of making it up --

Justice Potter Stewart: (Voice Overlap) it's not going to make it up --

Mr. Charles S. Rhyne: -- in the Senate and then this periodic reexaminations every 10 years, which rights into the fundamental law of Tennessee, this requirement of equal representation in the Legislature.

But that is not all that's in the -- the Tennessee Constitution, on this subject of equality, of voting rights, because the Constitution specifically provides this and I quote, “Election shall be free and equal.”

And that the right of suffrage shall never be denied to any person entitled thereto.

And in the Constitution of Tennessee, it's provided that every person, 21 years or over, who resides in the State of one year or in a county for three months, is entitled to vote.

Now, as against this mandatory constitutional provision, the Tennessee Legislature has not reapportioned itself for 60 years.

Its last reapportionment was in 1901 and when in 1901, they reapportioned, they did not do it according to an enumeration of qualified voters so some counties immediately had more representation they were entitled to and 11 had less.

So we find that even the last time they tried it in 1901, they didn't do it properly under the constitutional formula.

And of course since that time, they haven't done anything but vote down every bill that has proposed the reapportionment of the State.

Justice Felix Frankfurter: Mr. Rhyne, what's the bearing of these provisions in the -- in the Tennessee Constitution, the federal question which is (Voice Overlap) --

Mr. Charles S. Rhyne: Well, the -- the right to vote Mr. Justice Frankfurter is created by the State and this defines the -- the right to vote.

It's a vote given in inequality, insofar as representation --

Justice Felix Frankfurter: Voted for a statute, would it make any difference?

Voted for statute in the -- instead of the Constitution?

Mr. Charles S. Rhyne: Well, I think that it -- if it was a statute conferring the right to vote inequality and then there were some state action that came along and wiped it out.

See, what we have there is a constitutional provision --

Justice Felix Frankfurter: Well, I know that.

That's my --

Mr. Charles S. Rhyne: And then we have a --

Justice Felix Frankfurter: -- that's my question.

What difference does it make whether it's in the Constitution or in any other expression or action by the State?

Mr. Charles S. Rhyne: I think it makes a lot of difference Mr. Justice Frankfurter, because the Legislature comes along by this 1901 statute and takes away what the Constitution gave to the people of Tennessee.

Justice Felix Frankfurter: Well, suppose they see it, if it doesn't offend the Federal Constitution, it doesn't make no difference that offends the State Constitution.

Mr. Charles S. Rhyne: Well --

Justice Felix Frankfurter: I'm not denying that it doesn't.

All I'm saying is you stressed the fact that is incorporated in the State Constitution.

Mr. Charles S. Rhyne: Well, I think if Your Honor please, that it does offend the equal protection of the laws clause of the Fourteenth Amendment, I'm --

Justice Felix Frankfurter: That's what we're arguing --

Mr. Charles S. Rhyne: Yes.

Justice Felix Frankfurter: -- but just -- I just --

Mr. Charles S. Rhyne: And I think it's quite important that's in the -- the Constitution of Tennessee and that we have a statute that takes away what the people gave to themselves in Tennessee.

Now, since 1901 when this last reapportionment took place, the State of Tennessee population has grown tremendously and it's grown unevenly and there have been shifts of populations so that the -- the city, so the large cities have grown and grown and grown and the 1901 Act which is still the one that reapportioned the Legislature, brings about these rather growth test results.

In the County of -- of Davidson, of -- that's Nashville where Mayor Ben West, one of the plaintiff's lives.

The -- the qualified voting population is grown from 33,000 to 242,000.

Under the 1901 Act, Davidson County has six Representatives in the House of Representatives, but under the constitutional formula is entitled to 10.

They have two Senators, they're entitled to three.

In Shelby County where the appellant Baker lives, the voting population has grown from 48,000 to 359,000.

They have seven Representatives under the 1901 Act and under the constitutional formula entitled to 15.

They have three Senators and are entitled to five.

And so it goes in -- in Knox County, the growth is from 19,000 to 151,000 that's where Knoxville is -- is located.

They have three Representatives and they're entitled to seven.

Now, I could go on and on, giving illustrations, showing how this has worsened with the increase in population in cities and how still the legislators have perpetrated themselves in office and maintained their control through this 1901 Act.

Just to illustrate, just how gross this situation is, the complaint has attached to it a number of the charts and one of them shows that -- it's on page 231 of the record, Exhibit 4.

That there are 23 counties that have 25 Representatives, whereas under the constitutional formula, they're entitled two.

Now, what does this mean in -- in voting strength?

This -- and insofar as this equality requirement is concerned.

In Shelby County which I referred, it takes 20 votes to equal the weight of a voter in Moore County and that comes about in this way with the -- the 359,000 qualified voters.

In -- in Shelby County, they are entitled to elect 15 Representatives and now, elect seven.

Moore County only has 200 -- 2340 qualified voters, but they elect one.

So it's about 20 to 1.

The overall average of the dilution of the strength of -- of the vote of appellants is about one-tenth.

They have about one-tenth the vote of the people who live in these favored counties in Tennessee.

Or to put it in another way, 37% of the people of the State elect and control 20 of the 33 Senators, 40% of the voters of Tennessee elect in control 63 of the 99 legislators.

So you have in effect, one-third of the people controlling two-thirds of the Legislature.

Justice Potter Stewart: Mr. Rhyne, I gather as the -- in chart page 231 that each county now under the 19 -- 1901 Act, these counties have at least one Representative, is that it, because each -- this apparently --

Mr. Charles S. Rhyne: Yes.

Justice Potter Stewart: (Voice Overlap) the smaller counties --

Mr. Charles S. Rhyne: Yes.

Actual numbers of Representatives in the last columns, Mr. Justice Stewart.

Justice Potter Stewart: Each county in the State --

Mr. Charles S. Rhyne: Yes.

Justice Potter Stewart: -- has at least one?

Mr. Charles S. Rhyne: No.

No, you'll find some charts Mr. Justice Stewart that showed the -- the actual representation as exhibits to the -- the complaint.

Each county doesn't have.

Justice Potter Stewart: Does not --

Mr. Charles S. Rhyne: Some of them are put together in -- in districts because you see, there -- there are 95 counties and there are 99 counties.

Justice Potter Stewart: Or 95 counties that was going to be (Inaudible) --

Mr. Charles S. Rhyne: And -- and some of the counties has -- have more than one.

Justice Potter Stewart: I'd -- I'd assume that the least or perhaps the smaller counties, that each of these have at least one.

Mr. Charles S. Rhyne: Well, they are as you -- you're right.

If they are the smallest counties, but -- but of course --

Justice Potter Stewart: But there some counties that don't have -- that are not a district in --

Mr. Charles S. Rhyne: Well, I put together to -- two are put together and they -- they make a -- a voting district.

Justice Potter Stewart: Fine, thank you.

Mr. Charles S. Rhyne: Now, because a county only gets a -- a full representative, Mr. Justice Stewart when they have two-thirds of the ratio, but dividing 99 into the (Voice Overlap) --

Justice Potter Stewart: Under the Constitution, I know that's true, but I'm talking about the facts under --

Mr. Charles S. Rhyne: Well --

Justice Potter Stewart: -- 1901 legislation.

Mr. Charles S. Rhyne: That's right.

Justice Charles E. Whittaker: I -- I understand that there never could be a split of a county -- you take a whole county into a district or none of it, is that right?

Mr. Charles S. Rhyne: The Constitution so provide and that is the -- the reason, I take it that they provide for the making up of any representation that might be lost in the House and the Senate.

Justice Charles E. Whittaker: Well, you don't content I would suppose then that there has to be exact equality.

Mr. Charles S. Rhyne: Oh, no.

No, no, the Constitution has said -- itself says as near as maybe practical.

So no, no.

We don't content that you have to have the exact mathematical equality at all, but as near as maybe practical and certainly the -- the picture that is presented there now, Mr. Justice Whittaker isn't as near as maybe practical according to enumeration of the qualified voters.

Justice Charles E. Whittaker: (Inaudible) three-judge court judgment (Inaudible)

Mr. Charles S. Rhyne: That is -- that is true.

That was a decision of -- of the three-judge court that it had no power to enforce or protect the voting rights of these individual plaintiffs who are here.

Justice Charles E. Whittaker: Does this tax under (Inaudible)

Mr. Charles S. Rhyne: Yes, they do.

They do by the motion to dismiss.

Now, just to show how it's practically impossible to expect the State legislator, after 60 years of doing nothing to act, now, they set forth in the complaint, these plaintiffs do.

Many facts showing how -- that the -- the Legislature controlled by the -- the rural areas, favor themselves, they'll adopt a -- a general statute and then they exempt the favored counties out.

So that as a result, you have a situation where -- with respect to a state allocation of school funds, on an average, the -- the favored counties get $152.

The unfavored get $107.

Or -- and these were all set forth in rather voluminous exhibits attached to -- to the complaint and you have things like this, Pickett County gets $226 per pupil, Shelby County gets $95.

So we set forth these facts showing how they have used their power to discriminate in their favor merely to illustrate the impossibility of expecting those who benefit, those who have usurped these power to ever turn it loose.

Justice Potter Stewart: Under the constitutional -- Tennessee constitutional formula Mr. Rhyne, would the Legislature be dominated by Representatives of urban areas or would it be about in ballots?

Mr. Charles S. Rhyne: I would -- would say that it would come close to be in about in -- in ballots.

So I think that -- that if there's anything that this -- this formula would result in, it would certainly result if carried out in majority rule.

And it's true, there's been this great shift of population to the -- to the cities, but I haven't personally figured out.

Justice Potter Stewart: I wondered if they were a charge here showing (Voice Overlap) --

Mr. Charles S. Rhyne: There are some charges attached to the compliant showing what would happen if the State were redistrict according to the constitutional formula or you look at the -- the Exhibit F to the complaint, it shows -- it's on page 30 of the record.

And it shows how that the -- the Senate would -- would look at -- we had a -- a redistribution according to the constitutional formula and then in Exhibit E on page 28 of the complaint, we show how the House would look if redistributed according to the constitutional formula.

Justice Potter Stewart: As I remember the Constitution of -- well, I don't.

I've been told about the constitutional -- Constitution of Tennessee, the State for some purposes, is divided into three grand divisions and for purposes of their State Supreme Court and their various other purposes.

And the three urban areas, speaking generally, are Memphis in the west -- in the west on the river and the national area in the center and Jacksonville and Chattanooga to the east.

And the latter has grown tremendously with the atomic industrial program down there, is that it?

Mr. Charles S. Rhyne: I'm told by my distinguished senior counsel, Mr. Chandler here, that -- that Knoxville and Chattanooga are included in the eastern district --

Justice Potter Stewart: In the east.

Mr. Charles S. Rhyne: -- but substance here --

Justice Potter Stewart: Nashville in the center and Memphis in the west.

Mr. Charles S. Rhyne: Yes, sir.

Justice Potter Stewart: And that are those the three -- those are the three main urban areas in the State, aren't they?

Mr. Charles S. Rhyne: Yes, they are.

Justice Potter Stewart: The urban areas.

Mr. Charles S. Rhyne: Yes, they are.

And -- and I -- I think that --

Justice Tom C. Clark: (Voice Overlap) -- would represent the (Inaudible)

Mr. Charles S. Rhyne: They would have about 40%, Mr. Justice Clark.

Justice Tom C. Clark: (Inaudible)

Mr. Charles S. Rhyne: Of the overall of the representation, the urban area that we're talking about --

Justice Tom C. Clark: To what extent is the urban area now, I mean the rural level (Inaudible)

Mr. Charles S. Rhyne: Well, it's two-thirds to one-third.

The representation not -- not population, the representation in this Legislature of course is controlled by this 1901 Act, which we say was invalid when adopted in the -- and has grown more invalid all the time because they didn't -- they have never done anything about it since that time.

Now, in connection with the facts --

Chief Justice Earl Warren: Mr. Rhyne, may I ask before you go on to another -- another question, if these differences in -- in educational subsidies depend entirely upon this -- we have upon this apportionment --

Mr. Charles S. Rhyne: No --

Chief Justice Earl Warren: Are there other factors that are involved in them?

Mr. Charles S. Rhyne: There are other factors, Mr. Chief Justice.

The education law which we have set forth here in the --

Chief Justice Earl Warren: Well, as long as there are factors that are --

Mr. Charles S. Rhyne: Yes, there are -- in it's -- it's I say, it's about 100 pages of the record here.

Chief Justice Earl Warren: Yes.

Mr. Charles S. Rhyne: But there are the factors.

But chiefly, I say they exempt themselves from the State formula and by being exempt, they get certain favored treatment.

That was the -- the point I was making and we're -- we're not asking for any money back.

We're just pointing that out --

Chief Justice Earl Warren: Yes.

Mr. Charles S. Rhyne: -- to show how it works and how they are favoring themselves.

Now, all avenues of State relief are absolutely closed to these appellants.

I have referred to the -- the State Legislature, we have set forth here in an exhibit on page 126 to 160, the record of every proposal for reapportionment in the Tennessee Legislature and that shows that over and over again, every bill for reapportionment since 1901 has voted down that in the Senate, no such bill has ever received more than 13 of the 33 votes and in the House, no bill has ever received more than 36 of the 99 votes.

So I think that it's almost beyond question that the Legislature itself is not going to change this situation.

Now, with respect to the Tennessee courts, the state courts, the Supreme Court has held that it will not grant any relief here because to do so according to their view, would destroy the Legislature and destroy the Government of Tennessee.

And without discussing the merits of that at this point, I say that -- that demonstrates that relief through the state courts is absolutely impossible in the State of Tennessee.

Now, how about the Governor?

The Governor -- the Governors I should say, have repeatedly in their messages, the Legislature called attention to this shocking situation and asked the Legislature to reapportion itself.

And as I pointed out just a moment ago, the most they have ever gotten were 13 votes in the Senate and 36 votes in the House.

So -- and the Governor can do nothing about it, but call it to the attention of the Legislature.

And they have -- have done that over and over again as this exhibit attached to the complaint shows without results.

Now, as for the people themselves, there is no initiative and referendum in Tennessee and so the people can do nothing.

What about constitutional amendment?

The constitutional amendment requires this.

It requires that a -- an amendment passed, the State Legislature wants and then be advertised six months before the next meeting of the Legislature, it passed the first time by majority vote.

But the second time, it must pass by two-thirds vote and of course these legislators obviously, are not going to vote any constitutional amendment that will take care of this situation because they control the Legislature.

Justice Charles E. Whittaker: Well even if they did, wouldn't you then have just what you have now?

Mr. Charles S. Rhyne: I would say if they did it, we have -- just what we have now, Mr. Justice Whittaker.

Justice Charles E. Whittaker: Well, how would that help?

Mr. Charles S. Rhyne: It wouldn't help.

I'm merely illustrating it to show that it's no avenue of relief for us, that we have no way to turn under the State Government and I would also point out that a constitutional convention wouldn't help us because a constitutional convention is selected the same way as the legislators.

So there is no way, no action that we can get on the state level that will do anything about this inequity of giving us on an average of about one-tenth of a vote or the people or appellants and the favored few, a full vote.

Now --

Chief Justice Earl Warren: What is the -- what is the situation so far as congressional representation is concerned?

Mr. Charles S. Rhyne: In Tennessee?

Chief Justice Earl Warren: Yes.

Mr. Charles S. Rhyne: I'll have to ask Mr. Chandler to answer that question.

Chief Justice Earl Warren: Well --

Mr. Charles S. Rhyne: But I'm not quite -- there's no controversy on -- on redistricting insofar as a congressional --

Chief Justice Earl Warren: Would that mean they do that adequately and fairly?

Mr. Charles S. Rhyne: Yes.

Every 10 years --

Chief Justice Earl Warren: Evenly?

Mr. Charles S. Rhyne: -- without any -- any difficulty according to Mr. Chandler here.

Chief Justice Earl Warren: Is that called by for your Constitution, too?

Mr. Charles S. Rhyne: No.

No, that's merely done when the numbers of Representatives are certified to the State.

So I -- the Constitution itself doesn't have any provision that relates to congressional representation.

Now, Mr. Chief Justice, in ordering the three-judge hearing in this case, Judge Miller said after reviewing the facts that I have reviewed here, that it's quite obvious if judicial assistance, federal judicial assistance is not available to these plaintiffs, no remedy, no practical remedy exist at all.

And when these facts were -- before the -- the three-judge court, they said this that, "This is a clear violation" and I'm quoting, “of the State Constitution and the rights of appellants.”

And then they said further, “The evil is a serious one which should be corrected without further delay,” but “the federal rule as enunciated and applied by the Supreme Court,” causes them to hope that they have no power to do anything about protecting and enforcing the voting rights of these plaintiffs.

Justice Potter Stewart: Of course, Mr. Rhyne, if this is truly an equal protection denial -- denial of equal protection of the laws, I suppose the Congress of the United States under Section 5 with the Fourteenth Amendment, could do something about it, couldn't it?

Mr. Charles S. Rhyne: Mr. Justice Stewart, that particular part of the Section 5 of the Fourteenth Amendment has never been tried with respect to the malapportionment of State Legislatures.

It's true that, in times, gone by and I refer to that in discussing Smiley versus Holm and some of the case in a few moments.

They did require equality in congressional districts, but I have some trouble with the Fourteenth Amendment provision that you refer to because in the Fourteenth Amendment, it only provides that you can deny representation to any state, a certain amount that discriminates against anyone on account of a violation of equal protection or anything else.

So it's not clear that -- that the Congress itself, could adopt the law requiring State Legislatures to reapportion.

I -- I think that -- that there would be a -- a great deal of doubt as to whether that legislation that they referred to in Section 5, was intended to encompass this kind of thing.

I think it was more having reference to the congressional rather than to the state malapportionment picture.

I think the -- it's -- it's a fair summary of the facts to -- to say as Mr. Chandler has said so many times that the real question here is whether or not, you're going to have two classes of citizenship in Tennessee, half slave and half free, or at least one-third free and two-thirds slave, because there is no way that you can get out of this illegal straightjacket without some federal assistance.

Now, our first point in support of our complaint is this, that these appellants have proper standing to maintain this suit for redress of their -- or deprivation of their -- their voting rights.

That a voting right is a civil right and under their Ku Klux Act of 1871, this is one of the civil rights that is referred to there, rights under the Fourteenth Amendment that a state may not deny under color of -- of state authority.

We think that the right to a full vote rather than a fractional vote is recognized and guaranteed not only by the Constitution of the State of Tennessee, but by the Constitution of the United States.

The -- the right to vote is certainly the most basic or one of the most basic rights that Americans posses.

It's a very heart of our system and this Court has time and time again, upheld complaints by individual voters to either secure damages for deprivation of their voting rights and it has also ordered injunctions to issue, to protect voting rights.

Now, the violation of the Fourteenth Amendment here by giving these appellants only a fraction of a vote, is a personal private wrong to them.

This is not a public wrong or -- or a contention that you have bad government in Tennessee or that we have an own -- own interest of that kind, our complaint is based not on any abstract right, but on the right to equal representation, to an equal vote given to the State of Tennessee and protected by the Fourteenth Amendment.

Now, in Smiley versus Holm, this Court allowed a citizen, elector and taxpayer to attack malapportionment of the congressional districting in -- in Minnesota.

And the same is true in New York in Koenig versus Flynn and in Missouri in Carroll versus Becker.

They -- you reviewed such attacks on the merits and we feel that there can't be any real question about the standing of these individuals to come into a federal court, rely on the statute, 42 U.S.C. 1983, contend that they have been deprived of one of their civil rights and then rely for jurisdiction of the Court upon 20 or -- or 28 U.S.C. 1343 which gives the Federal District Courts original jurisdiction to redress deprivations of civil rights and then in 1957, the Congress made it quite clear by an amendment that they interpret civil right to include voting right all this Court had time and time again, prior to that also included voting rights as a -- one of the civil rights that the -- anyone was entitled to sue on for deprivation of, under the so-called Ku Klux Act.

So when the Congress in -- in 1957 and again in 1960 in the Civil Rights Act, it -- it defined both areas any action to make a vote effective.

This Congress, we feel has established a policy or tried to establish a policy of judicial action not in action in this field.

And that the -- there can't be any question about the jurisdiction of federal courts under the Civil Rights Act.

Now, there has been no case that I can find by this Court that really flatly holds that federal courts have no jurisdiction to protect voting rights such as this.

In Smiley versus Holm, Carroll versus Becker, I've just referred to.

The Court did order this -- this protection.

Now, we recognize that in Colegrove versus Green, we have a major problem of -- of distinguishing what we considered to be a misunderstood decision.

There, as the Court will recall, there was a claim that Illinois, if had not reapportioned its congressional districts since I believe in 1901, at that time, this case is dated 1946, was required to -- to do so under the Fourteenth Amendment or because in -- you had some congressional districts where you had 900,000 people and others with only 100,000.

And this Court voted one to one to three.

And the -- the real decision was that -- that no relief would -- would be granted, but on the jurisdictional point, Mr. Justice Rutledge joined with Mr. Justice Black, who had written the judgment for three who thought jurisdiction exist and held that the Court did have jurisdiction, but he thought it shouldn't be exercised because of the eminence of the election which was in contest there.

And it's true that Mr. Justice Frankfurter in -- in his opinion after citing Wood versus Broom, which it held that there was no longer any requirement, any federal law requirement that these congressional districts be substantial equally that had been removed in 1929, although it existed in the 1911 Act.

So that as Mr. Justice Frankfurter said there, “The legal merits of this controversy were -- were really settled in that case."

That's Wood versus Broom which eliminated the requirement of the equality among congressional districts.

Now, we have a different situation here because we have a constitutional provision in Tennessee that requires equality in this House of Representatives' counties and districts and in the senatorial districts in the Senate.

So the fundamental law that applied -- the requirement that applied in the Colegrove case was different.

From here, there was no fundamental law requiring equality of congressional districts there.

The next point of Mr. Justice Frankfurter's opinion was that Congress had exclusive power to order these congressional districts to be equal.

Now, we feel that no such exclusive power exists in the Congress with respect to reapportionment of state legislatives.

So our interpretation of Colegrove simply is that it is not a decision against this on jurisdiction, but it's for us on jurisdiction that the decision of this Court was not against jurisdiction, but for a jurisdiction.

And therefore, we distinguish it and we say that the lower court here and the other courts that have cited it as holding that no jurisdiction exists are in error.

Justice Felix Frankfurter: Does that imply Mr. Rhyne that the Congress of the -- that according -- that as to of federal voting rights, it would not be unconstitutional to there what you call, second class citizens?

Mr. Charles S. Rhyne: No.

Justice Felix Frankfurter: There's a greater constitutional protection for State -- in state voting than federal?

Mr. Charles S. Rhyne: I'm -- I'm not trying to distinguish between a -- a federal law voting right and a -- and a state voting right, because we have a state voting right here.

Justice Felix Frankfurter: I understand that.

Mr. Charles S. Rhyne: And I'm merely saying that --

Justice Felix Frankfurter: You're suggesting that there would be exclusive remedies in Congress.

Does that mean that the Congress can establish second-rate voters with reference to national interest?

Mr. Charles S. Rhyne: I'm not agreeing with your opinion.

I'm merely distinguishing it from this case, Mr. Justice Frankfurter.

Justice Felix Frankfurter: I'm -- I'm merely suggesting the implication of your -- of your distinguishing.

Mr. Charles S. Rhyne: Well, I would say that -- that I -- I don't intend to -- to distinguish it on that basis.

I think that all voters should be equal in federal elections and in state elections.

Justice Felix Frankfurter: I can understand your saying we should -- if decision is wrong, it should be rejected.

I can understand the distinction you made, because it wouldn't be for that conclusion.

That under the United States Constitution, Congress would have power to differentiate in voting rights, but the state voters have greater rights than anybody has under the Federal Constitution, with reference to federal rights.

Mr. Charles S. Rhyne: Well, I -- I --

Justice Hugo L. Black: I understood you.

Mr. Charles S. Rhyne: -- don't come to that --

Justice Hugo L. Black: I understood to distinguish it on the ground that there're only three members of the Court that have read the -- that idea.

Mr. Charles S. Rhyne: That's it.

Justice Hugo L. Black: And four members thought there was jurisdiction, but one of the four thought that it should -- relief should not be granted on equitable ground.

Mr. Charles S. Rhyne: That's true.

Justice Felix Frankfurter: You said that, but you also said that I relied on the -- the opinion relied on the exclusiveness congressional power.

Mr. Charles S. Rhyne: And -- and it did.

It referred to this --

Justice Felix Frankfurter: And you reject -- and you said that differentiates from yours.

Now --

Mr. Charles S. Rhyne: Well --

Justice Felix Frankfurter: -- as to that argument --

Mr. Charles S. Rhyne: I'm -- I didn't --

Justice Felix Frankfurter: I don't mind --

Mr. Charles S. Rhyne: -- to say all have been that --

Justice Felix Frankfurter: -- objecting on good round, but not on bad grounds.

[Laughter]

Mr. Charles S. Rhyne: Well, I would say that insofar as -- as Colegrove is concerned then I will just make the -- the one distinction that it did vote 4 to 3 --

Justice Felix Frankfurter: Alright.

Mr. Charles S. Rhyne: -- a far jurisdiction.

Justice Felix Frankfurter: I know four is more than three that I can understand, I wouldn't confer.

[Laughter]

Mr. Charles S. Rhyne: Now, in the Gomillion case, it's true that -- that Colegrove was distinguished on the basis that you had affirmative action in Gomillion.

Now, we have affirmative action here.

This 1901 Act was invalid, when it was adopted and over and over again, since 1901, the Tennessee Legislature has rejected any reapportionment time and time again.

Justice Charles E. Whittaker: (Inaudible) would make this bill affirmative actions or non-action?

Mr. Charles S. Rhyne: As to jurisdiction Mr. Justice Whittaker, I -- I would agree that it doesn't make any difference.

I think that non-action can be just as bad as affirmative action, but that distinction was made in -- in Gomillion and I just wanted to point out that we do have the affirmative action here in -- in this case.

Now, we -- we feel that -- that jurisdiction exists and that it should be exercised, because this record presents one of the -- the clearest denials of constitutional rights.

We feel that's ever been brought before this Court, we have this mathematical standard that guarantees equality.

We have the periodic reexamination to be sure that the -- the equality is maintained.

We have the qualifications for voters established by Tennessee and they must treat everyone who'd come within those qualifications equally, and they're not doing it by willful, purposeful discrimination.

They are not giving to the appellants here and those similar situated a full vote.

There is no rationale basis for this discrimination on the basis of residents or geography, anymore than there's any rational basis for discrimination on the base of race, color, creed and certainly the Fourteenth Amendment is not exhausted in the race area.

It reaches other forms of discrimination and we think that it certainly reaches this discrimination which is presented in this case.

Because as Mr. Justice Holm said in Nixon versus Herndon, “All persons whether colored or white shall stand equal before the laws of the State.”

So without further discussion of the -- of the merits because I've read the statement by the three-judge court which said that, “We were right on the merits that our rights were denied and had been denied and that something should be done about this.”

I move along to an area where there is some dispute at least between us and our distinguished adversary, the Attorney General of -- of Tennessee and -- and his associates on the nature of the remedy.

Now, we feel that we brought here a -- a case or controversy that is right for judicial determination and which calls for a judicial remedy.

And we want to demonstrate that the relief that we seek is within the historical remedies of a court of equity.

The state courts have given it in the past and it's not beyond the reach of a court, a federal court of equity.

We are asking this Court to -- to reverse and remand to the District Court, so it can perform its equity judicial duty.

Now, what do we suggest as -- as a first step?

We say that if this Court finds that jurisdiction exists, it should reverse and remand to the District Court.

And that on that point alone -- on that action alone, we feel that the Legislature of -- of Tennessee must be presumed once this Court has declared the law to -- to follow that law and it -- then it will go ahead and perform its legislative function.

Now, we have some history to back us up recently in -- in New Jersey, the New Jersey Supreme Court held that it had jurisdiction and it waited to enter its order until the Legislature could act and the Legislature did act.

In Minnesota, Federal District Court held that it had jurisdiction and that wait for the Legislature to act and the Legislature did act.

Justice Hugo L. Black: What case was that?

Mr. Charles S. Rhyne: In Magraw versus Donovan, it's cited in our -- our brief, Mr. Justice Black.

Now, we feel --

Justice Felix Frankfurter: You might cite Illinois too, you might cite Illinois, too.

Mr. Charles S. Rhyne: Well, they haven't done so well in Illinois, Mr. Justice Frankfurter.

Justice Felix Frankfurter: They reapportioned.

Mr. Charles S. Rhyne: Well, I could cite --

Justice Felix Frankfurter: I think they've done --

Mr. Charles S. Rhyne: -- some others like Wisconsin, yes.

Justice Felix Frankfurter: I think they've done just as well as these other States?

Mr. Charles S. Rhyne: Yes.

Well, in Wisconsin and -- and in the other States, it's true.

That -- that some of them have, but if on finding that jurisdiction exists and reversing the District Court, there's any further relief that is -- is required.

We feel that there are several other alternative steps that we merely want to mention because to demonstrate to this Court that they are judicial things that can be done to hear this malignant cancer that exists in this field.

And the first thing that we would --- would suggest is that all of the state officials who have anything to do with elections, be enjoined from conducting any further elections on the 1901 Act.

We're not asking for ouster of the current Legislature or anything like that.

We just prevent him from continued use of the 1901 Act and then we think that the Governor would call him in the special session and they would go ahead and perform there legislative function.

Justice John M. Harlan: Supposing they don't that, then --

Mr. Charles S. Rhyne: Well --

Justice John M. Harlan: -- what will the Court do?

Mr. Charles S. Rhyne: -- in tandem with that Mr. Justice Harlan, we would suggest the possibility of a declaratory judgment that 1901 Act is invalid.

Then if you coupled the two together, we certainly think that the Legislature would act.

Justice Charles E. Whittaker: What about the suggestions that will be time enough to meet that situation if it arises?

Mr. Charles S. Rhyne: I like that suggestion, Mr. Justice Whittaker.

I'm merely mentioning now some of the things that would be considered not but you, but by the District Court to demonstrate that there is a reasonable way that this can be worked out on the remedy field and that there is no uncertainty about a court of equity fashioning a remedy that would meet the -- the facts of this situation.

And they could take this step-by-step.

Justice Hugo L. Black: So why do we have to anticipate what steps that would take it all?

Mr. Charles S. Rhyne: I don't think you do, Mr. Justice Black.

Justice Hugo L. Black: Just believe you (Voice Overlap) --

Mr. Charles S. Rhyne: I think that all you need to do is -- is reverse and remand.

I say I'm merely mentioning these to demonstrate that there are a lot of things that a court of equity can do to cure this situation or to assist the Legislature in moving to do its duty.

Another thing that -- that we mentioned in our brief that could be done is the Court could appoint a master to conduct an election under the constitutional formula, or order the state officials to come up with the plan which under the constitutional formula, which it could approve or disapprove.

We also mentioned the possibility of an election at large.

This Court in Smiley versus Holm and other cases that order elections at large for congressional Representatives and we think that you could do the same thing here, because in Kidd versus McCanless, they said you couldn't have an election at large, but when it comes down to whether or not, a federally protected right is to be enforced or destroyed.

This Court can take its own view of the remedy and it need not follow the view of the -- of Tennessee court.

And we also have the fact that the Tennessee Constitution has almost identical provision with those relied upon by Mr. Chief Justice Hughes in Smiley versus Holm, when he ordered this election at large out in -- in Minnesota.

Now, I mentioned these remedies and the distinguished Solicitor General will probably mention these and others, but I merely wanted to demonstrate that these things would be temporary that these are -- are judicial things -- these are things that courts can do, and that the courts are not helpless.

That this, we just cannot accept the view that the federal courts are -- are helpless to prevent the very flagrant and gross violation of the Fourteenth Amendment of which we have demonstrated here in -- in this case.

Now, Mr. Chief Justice, I'd like to reserve the balance of my time for response.

Chief Justice Earl Warren: You may.

Mr. Solicitor General.

Argument of Cox

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

The United States appears in this case as amicus curiae partly because it involves the constitutional rights of the large number of citizens, both in Tennessee and elsewhere, but also because it raises issues that lie very close to the heart -- our system of government.

It involves not only the integrity of the electoral process, but also of course, a difficult and delicate question concerning the proper role of the judiciary in securing voters' fair representation in their State Legislature.

I shall devote my argument to three propositions.

The first is that the complaint alleges a deprivation of rights under the Fourteenth Amendment, the right to be free from arbitrary discrimination in the exercise of the franchise which is sufficiently personal to give the victims of the discrimination standing to sue.

Under the general jurisdictional statutes of course, the federal courts do have a right to hear cases, to remedy alleged depravations of rights under the Fourteenth Amendment.

Our second proposition is that a complaint alleging the deprivation of constitutional rights through malapportoinment presents a justiciable controversy.

In the sense that the courts do have jurisdiction over the subject matter to hear the case, adjudicate its merits and grant equitable relief under appropriate circumstances also under other circumstances, they might in the exercise of the discretion of an equity court, dismissed the complaint on the ground that there was no useful relief which the Court could administer.

Our third proposition is that at this stage of the case, there is at least enough likelihood that the court below sitting as court of equity, could find some administrable form of relief to make it improper, to dismiss the complaint at the very outset before the facts had been fully with the appellant.

It seems --

Justice Potter Stewart: That one of yours -- as I heard it, neither none of your three points had to do with the basic substance of this case, whether or not this is a -- a violation of the Fourteenth Amendment.

Mr. Cox: Well, I think that's about to this extent.

The court below -- of course, the court below had jurisdiction.

If the complaint states a claim under the Fourteenth Amendment --

Justice Potter Stewart: Yes.

Mr. Cox: -- whether the complaint is well founded or not.

Justice Potter Stewart: Yes.

Mr. Cox: At least if it's not patently frivolous.

We think the point is involved at least to the extent that we should show that this isn't a feudal suing client, but it does not seem necessary or indeed, not even appropriate for the Court to rule now, whether there has or has not been a violation to Fourteenth Amendment.

If it decides that there is a substantial claim --

Justice Potter Stewart: What --

Mr. Cox: -- then there was jurisdiction and there ought to be a ruling by the lower court.

Justice Potter Stewart: Well, that's right.

But there has to be implicitly a ruling that the allegations of this complaint alleged a violation of the Fourteenth Amendment.

Mr. Cox: There has to be an allegation that they --

Justice Potter Stewart: In fact --

Mr. Cox: -- alleged a violation, but not a determination that what they alleged is a violation, if I may put it that way.

In other words, the -- the question whether this complaint states a cause of action is different from the question whether the court had jurisdiction over the subject matter.

This -- this was the first case I think of is an opinion of Justice Holmes in Hart against Keith Vaudeville Exchange, where he does say, “If you state a claim even if it's not well-founded of federal right, the Court has jurisdiction at least where the claim isn't patently frivolous.”

Now, I do propose to show that the -- to argue that on the face of the complaint --

Justice Potter Stewart: It is not patently frivolous.

Mr. Cox: It is not patently frivolous and of course, in doing that, I shall be in effect, directed myself to the proposition that there is a prima facie violation.

Justice Potter Stewart: Yes.

Mr. Cox: So, it comes to the same thing.

Justice Charles E. Whittaker: Mr. Solicitor, if we should take your view, need we do more than call that the complaint states a cause of action and that the District Court must exercise it?

Mr. Cox: They must exercise its jurisdiction.

Justice Charles E. Whittaker: Yes.

Mr. Cox: I think all you need hold is that the case is within the jurisdiction of the federal courts and that the court below must go on and determine whether this complaint States a cause of action.

And in other words, adjudicate the merits of the claim that is a violation under the Fourteenth Amendment.

Justice Charles E. Whittaker: Alright.

Mr. Cox: Let me -- let me perhaps by using an example, I can make a little clear the point that I have in mind.

Let us suppose that the apportionment in Vermont were such that it was in proportion to population, except that every town, they have the New England system of town government, was entitled to at least one representative, because of the present distribution of population, that that would not result in an equitable -- it would not result in an -- representation in ratio to the population.

Such an -- an allegation that this violated the Fourteenth Amendment would be within the jurisdiction of the federal court, but it might well be held when one got to the merits on that the Fourteenth Amendment didn't require an absolutely equal apportionment of seats and that there, although the complaint was within the court's jurisdiction, each shouldn't be dismissed on the merit.

Now, as I said to Justice Stewart, I do want to repeat that I am arguing here of course that this isn't a frivolous complaint and the thrust of my argument is necessarily that there is on the face of the complaint, a violation of the Fourteenth Amendment.

We think it's quite --

Chief Justice Earl Warren: Well, didn't the -- oh, didn't the court below hold both -- both that we have no jurisdiction -- it had no jurisdiction and also that it did not state the cause of action?

Mr. Cox: I thought that --

Chief Justice Earl Warren: You do?

Mr. Cox: -- Mr. Chief Justice.

I thought the court did rest on two grounds which it didn't clearly distinguish.

One, that there was no jurisdiction.

Chief Justice Earl Warren: Yes.

Mr. Cox: And two that even if there was federal jurisdiction, jurisdiction over the subject matter --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- that this was not an appropriate case for the exercise of powers of the court of equity.

Here again [Laughs] I have another --

Chief Justice Earl Warren: (Inaudible) line.

Mr. Cox: Yes.

They were together and yet if I might refer that for a moment --

Chief Justice Earl Warren: Yes, yes.

Mr. Cox: -- I think that the difference does go to the heart of this case.

I was about to develop my part that the complaint does sufficiently allege a deprivation of Fourteenth Amendment rights, under color of state law to bring the case within the general jurisdictional statute.

The right to be free from hostile or capricious discrimination by a state in defining the class of people entitled to vote or in the exercise of the franchise, is a federal right protected by the Fourteenth Amendment.

It's also a right enforceable by the courts.

Both points have been adjudicated on many occasions, in cases such as Nixon and Herndon, the Texas Jaybird case and others of that type.

The closest precedents do involve racial discrimination, but I suggest that the Fourteenth Amendment prescribes other arbitrary and capricious distinctions affecting the right to vote.

Certainly, a statute that said that redheaded women should not be permitted to vote or that no one who had ever visited the British Commonwealth should permitted to vote, would be a violation of the Fourteenth Amendment.

And I take it, we would also agree with the illustration that Mr. Justice Black has used in dissenting opinions that if a statute give the voters in the west half of the State, 25 votes and the voters in the east half of the State, only one vote, that there would be a violation of the Fourteenth Amendment.

Now, where the apportionment statute has the same effect as allowing the voters in the sparsely settled west half to elect five Representatives for everyone that the populous county in the east half can elect.

Thereto, it would seem, the result is the same and that there must equally be a violation of the Fourteenth Amendment.

Justice Potter Stewart: Mr. Cox --

Mr. Cox: That were --

Justice Potter Stewart: -- one of the State with 95 counties saying, which had very desperate populations as Tennessee does, Shelby County I suppose has what?

A million people or many hundred thousand and while these counties has 5000, what if a State with 95 counties decided to set up a unicameral legislature, giving simply one Representative to each county.

Will that -- would that -- could that --

Mr. Cox: Well, I think --

Justice Potter Stewart: -- will attack under the Fourteenth Amendment?

Mr. Cox: I think that a -- a question under the Fourteenth Amendment would be presented.

I am not suggesting, clearly not suggesting -- intending to suggest that the Fourteenth Amendment requires the apportionment of Representatives in both houses of the Legislature, in the ratio to the population.

It's quite plain to mean that that is not the Fourteenth Amendment requirement.

Our history makes it plain that other considerations, geographical distribution, historic association of political subdivisions and things of that kind, may be taken into consideration.

Certainly in one house and I would assume for present purposes, maybe taken into account in both houses.

The point that I do insist on --

Justice Potter Stewart: A State doesn't have to have two houses, does it?

Mr. Cox: Doesn't have to have two.

Justice Potter Stewart: I think Nebraska does not, does it?

Obsess me to hear to there, but --

Mr. Cox: I -- I --

Justice Potter Stewart: -- but you would agree that a State doesn't have to have to two --

Mr. Cox: I would agree it doesn't have to have two (Voice Overlap) --

Justice Potter Stewart: At one, you can have the same I suppose.

Mr. Cox: And I would assume for present purposes that there's only one, that there did not have to be an exactly mathematical apportionment in terms of the population.

What I do insist on, is that the State must have some rational basis for its apportionment.

And I think that the case we have here is one where it appears at least that the States that there is no rational basis for the apportionment.

The Tennessee Constitution requires apportionment in the ratio to the population, in both houses of the Legislature.

The apportionment is so -- the ratio is so out of proportion today that a vote in some counties is worth 20 times a vote in other counties.

Now, I say that where the apportionment that the State has departs from the only ostensible basis on which the apportionment is based, by that degree -- that this is such an egregious error that it stands on the face of it as arbitrary and capricious.

Justice William J. Brennan: (Inaudible)

Mr. Cox: That's true.

Justice William J. Brennan: The basis for apportionment so that it did hand it so far (Inaudible)

Mr. Cox: Well, no.

I don't think I even have to go quite that far.

I think if Tennessee came in at the trial on the merits of this case and show to some other rational foundation for what it is done, that then the complaint -- I don't like as a -- amicus to talk my friend on the Court, [Laughs] but at least my argument would be consistent with dismissing the complaint at that stage.

All I say is that where you have an ostensible basis and what you do comes up with no resemblance to it that that at least, puts the burden on you of coming forward with an explanation.

Now, let me make it plain that this is not a claim that there is a federal right to have Tennessee follow the Tennessee Constitution.

The only federal right that I'm speaking to is the right to have some rational basis for the apportionment and we say at this stage, that on the face of it, this is so egregious, crazy.

Justice William J. Brennan: (Inaudible)

Mr. Cox: On the face of what we have in front of this at this stage is I think what I --

Justice Felix Frankfurter: You've had a case in this Court Mr. Solicitor in which it was conceded that there was a complete departure from the expressed and explicit and formally define terms of the Tennessee Constitution as to taxation, in making a difference between railroad and other properties for purpose of taxation.

And this Court said that doesn't make any good.

So that the fact that Tennessee has written something into its Constitution, doesn't give it less power than if it deleted this from the Constitution and then came here.

Mr. Cox: Except that -- it would seem to me that here Tennessee, at least I had urged on Your Honor that the ostensible basis was following the Tennessee Constitution.

Tennessee has --

Justice Felix Frankfurter: So it has in the tax -- in the tax case.

Mr. Cox: Well, if --

Justice Felix Frankfurter: It stopped for a time, then it became settled practice to disregard the provision in the -- in the Tennessee Constitution, that's the Browning case, if we have it in 10.

Mr. Cox: I regret that I'm not familiar with it.

I would surmise that there must have been some other rational basis.

It was pointed out in argument to this Court for the tax classification and so here, if some other rational basis is pointed out at some stage of the case, that would present a different issue, then I say the Court has behind it -- before it.

At this stage, whether they're simply considering, whether this jurisdiction of the subject matter.

Justice Felix Frankfurter: But if according to your statement, Tennessee has a right to be irrational for not having anything in its Constitution and making differentiation as a matter of history, you use the word, history a little while ago, then I don't see what difference it makes that it's written in the Constitution, but disregarded its own Constitution.

Mr. Cox: It gave -- well, I would argue that one could infer from that, but this hadn't been done rationally.

That's what it was it boils down to where the --

Justice Felix Frankfurter: History, very often isn't irrational.

Mr. Cox: Well, perhaps where it's entirely irrational, it –- the results don't conform to the Fourteenth Amendment.

Justice Charles E. Whittaker: Do I properly gather that the arguments you've been making (Inaudible) your answer to Mr. Justice Stewart (Inaudible) you're proceeding on the due process basis.

Mr. Cox: I hadn't sought to distinguish between due process and equal protection.

That would seem to me the requirement of a rational basis for the discrimination, goes to the Equal Protection Clause and if there is a bad enough lack of rationality, then as I understand it, it goes to due process too.

The complaint makes claims under both clauses.

Justice Charles E. Whittaker: (Inaudible) Equal Protection Clause.

Mr. Cox: Well, under equal – I didn't intend to – the Equal Protection Clause requires a reasonable classification.

And I suppose that means when it has something rational behind it.

And I was seeking to argue that here, on the basis of what we have, there is a not frivolous claim, that this classification running against the voters in the under represented county is not a rational classification.

I would think it was also bad enough to violate the Due Process Clause.

But I don't think there's any difference between Mr. Rhyne and myself on that point.

I'd like to go on now to consider the justiciably -- justiciability of this claim of unconstitutional apportionment.

And to begin by drawing the distinction to which I adverted in a discussion with the Chief Justice a moment ago.

The distinction seems to me to be exemplified by the difference between the opinions of Justice Frankfurter and Justice Rutledge in the case of Colegrove and Green.

It's one thing I think, to hold that the courts have no jurisdiction over claims of malapportionment.

Meaning, that there is no power to deal with the subject matter, because it – because it presents a nonjusticiable political question.

And it's quite another to hold that there is jurisdiction of the subject matter that the Court has the right to adjudicate merits and then to go on and consider whether this case is one in which it can appropriately frame a relief, and then to decide as it goes through the case, at any appropriate state of whether equity should act or whether equity should decline the Act.

Now, this is something quite familiar in private law and it was imported by Justice Rutledge's opinion following an earlier concurring opinion in Wood and Broom into the law -- into the law of this Court in dealing with this kind of case.

There are, I think, two very important differences between the two approaches.

A denial of jurisdiction over the subject matter would exclude all malapportionment cases from judicial consideration as category, without regard to the seriousness of the constitutional wrong, without regard to the ability of the Court to grant relief or indeed necessarily without regard to any other considerations.

On the other hand, if the Court has jurisdiction of the subject matter and they followed Justice Rutledge's analysis, then of course it may examine the merits as whether equity can usefully act and provide flexible treatment according to the necessities of the particular case.

The other difference is one which was suggested by some of Justice Whittaker's remark.

If there is jurisdiction of the – if there is no jurisdiction of the subject matter, the complaint must be dismissed at the outset.

That's that.

If there is power to deal with the question, but this is a matter of equitable discretion, then the Court may postpone examining the question of whether it could afford a proper remedy.

It may proceed step by step judging according to the cases it develops.

And in this kind of case, I suggest that in accordance with the response of the State Legislature or other state authorities, what action if any, should be taken.

As I read this Court's opinions, the Court has never held that it lacks power to deal with controversies over apportionment.

It adjudicated such cases in Smiley and Holm, Carroll and Becker, Koenig and Flynn and then of course later in Wood and Broom.

Of the concurring opinion in Wood and Broom is too short to be absolutely sure, but it seems to me to go on the ground that the Court should decline to exercise its equitable discretion rather than on the ground that it had no power to act.

In the later case of Colegrove and Green, as Mr. Rhyne pointed out, a majority of the judges who participated held that there was jurisdiction over the subject matter.

And in -- there's nothing in the subsequent cases which is inconsistent with that conclusion.

It would seem to me that there are not only many distinctions between this case and Colegrove and Green, in terms of the propriety of exercising equitable jurisdiction, but that there are also two that go to the question whether there is jurisdiction of the subject matter.

Colegrove and Green dealt with the apportionment of congressional districts and the opinion relied very heavily upon the power of the House of Representative under Article 1, Section 5 to judge the qualifications of its members and on the power of Congress under Article 1, Section 4 to regulate the time, place and manner of holding elections.

And then the opinion says, the short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House, unless to the House of Representatives determination whether the States have fulfilled their responsibility.

In the present case, we're dealing of course, with the right to effective representation in a State Government.

The powers of Congress under Article 1 are manifestly irrelevant.

Furthermore, the relation of the Tennessee Legislature to the apportionment of the seats of all its members seems to me, to be quite different from the relation of the Congress to the apportionment of congressional districts in a single state.

Because the way the State -- where the State Legislature is involved, a reapportionment would mean in fact, if my count is correct, that of the 50 members who control the lower house, at least 17 couldn't come back the next time.

That sort of problem is not involved when you're looking at asking Congress to deal with the problem of apportionment in a single State Legislature.

Now, it's true as Justice Stewart pointed out that there remains the possible remedy of going to Congress and seeking to have it act under its power to enact legislation to carry up the Fourteenth Amendment.

I think two things are pertinent to consider in that affection.

One is of course that the Court in other cases under the Fourteenth Amendment has never allowed itself to be deterred from action by the fact that Congress might act.

The second is that congressional action in this field it seems to me, could only result in putting the matter right back in the courts.

It's hardly practicable indeed, I'm not sure it would be constitutional power for Congress to hold a hearing on the apportionment in Tennessee.

So the most it could do would be to lay down a general rule and then to confirm the jurisdiction of the Court to hear such cases.

If we are right, that jurisdiction already exists.

Furthermore, we do –-

Justice Potter Stewart: We don't -- I still don't quite understand any articulation of the general rule.

Mr. Cox: No.

I don't think, but I -- I'd suggest that – that there is no articulation of the general rule by Congress.

The part I was trying to suggest was that the general rule couldn't be much different from what the Fourteenth Amendment already says.

So that --

Justice Potter Stewart: It doesn't have to (Voice Overlap) --

Mr. Cox: -- there would be nothing to gain by – by Congress enacted.

Justice Potter Stewart: I -- I just read it again and it doesn't say anything about apportionment within the States.

Mr. Cox: No.

[Laughs]

Justice Potter Stewart: And Congress could?

Mr. Cox: But if Congress – if Congress said that in apportioning seats in the State Legislature, no person shall be denied due process of law or the equal protection of the laws.

It really wouldn't have added anything thus we see it to what the Fourteenth Amendment already required.

And indeed if the Fourteenth Amendment doesn't already require it, then Congress would now have no power to pass such legislations.

Justice Potter Stewart: Suppose though Congress could arguably and theoretically, I will grant, pass legislation along the lines that no state shall dilute anybody's vote -- more than one-half or something like that.

Mr. Cox: Well, I think – I think that Congress probably could articulate with somewhat more particularity.

They rule that there must – that forbids arbitrary and capricious discrimination.

And I would concede that in theory, Congress could add more.

I am trying to suggest first as I said, the Court has never been deterred by this and I submit that it shouldn't be deterred here.

Second, that the Congress really couldn't add very much and that it would end putting the problem of passing on questions of degree in the federal courts.

Now, we have some indication although not explicitly dealing with cases of state apportionment, that Congress is not reluctant to have the federal court safeguard voting rights.

In the Civil Rights Acts of 1957 and 1959, Congress did act not in relation to state apportionment, but in relation to the right to vote and generally speaking what it did was to direct the federal courts to deal with the matter.

Justice William J. Brennan: (Inaudible)

Mr. Cox: Under the general jurisdictional – or it is labeled under 1983 too, yes.

Justice William J. Brennan: Well that, that (Inaudible)

Mr. Cox: I guess so, yes.

Justice William J. Brennan: That's though I gathered (Inaudible)

Mr. Cox: Well, it's done a good deal of it, certainly yes.

I think it has though.

I do think the civil -- that the enactment of the Civil Rights Act is further indication of a congressional additive.

Justice William J. Brennan: The recent --

Mr. Cox: The recent acts, yes.

And that they are -- while they don't precisely deal with our problem, we can't assign jurisdiction under them.

I think they do show a congressional attitude toward this problem which the Court should take into account in dealing with this kind of case.

I would like to turn now to the question whether the Court should exercise the equitable discretion which we submit exists or whether the case should be dismissed as happened in Colegrove and Green, for what of equitable jurisdiction, although the case was within the subject – within the power of the federal court to decide.

In our opinion, there are here, sufficiently compelling circumstances.

It would make it improper to dismiss the bill at this early stage of the case.

I would like to take those compelling circumstances up one by one.

First, I suggest, is that this is not a very troublesome case for adjudication on the merits.

As I suggested earlier, we do have in the Tennessee Constitution, the only ostensible basis for an apportionment.

And the existing apportionment clearly, egregiously departs from that standard.

In the absence of any other standard, then it should not be hard to decide whether this is or is not arbitrary and capricious and of course, we suggest that it is.

Second is the seriousness of the wrong.

Here, the apportionment results in giving roughly a third of the people of Tennessee, the power in both Houses in the Legislature to control the other two-thirds.

A vote in some counties and -- is worth 19 or 20 times a vote in other counties.

The serious consequences of this kind of maldistribution are discussed in our brief, also in the appellant's brief, but I don't intend to recount them all here.

I would emphasize, however, that this kind of wrong is peculiarly one which calls for judicial intervention.

We've often been reminded and quite right that the ultimate safeguard of constitutional rights is a vigilant electorate.

But where the wrong goes to the existence or distribution of the franchise, then the electorate can do nothing to protect itself.

No matter how vigilant the majority of the people of Tennessee are, there is nothing that they can do under these circumstances to assert their constitutional rights.

The only power to reapportion is in the Legislature.

There is no provision for initiative or referendum.

The only power that can call a constitutional convention is the Legislature.

The Legislature of Tennessee has failed to act for 60 years and the Tennessee court has refused to act.

The short of this case is as Judge Miller pointed out in his opinion convening the three-judge court that either there is a remedy in the federal court or there is no remedy at all.

So this is not a question where one can look to the working of the political process to solve the violation of a constitutional right.

The third point which should be emphasized and I really just spoke to it a moment ago is that there is no other remedy that the plaintiffs have here.

I've outlined the lack of a remedy in Tennessee and discussed earlier, the lack of a remedy, a practical remedy in Congress and also the fact that the Court has never withheld its hand under the Fourteenth Amendment waiting for Congress to act and is therefore no need to re-elaborate those propositions.

Justice Potter Stewart: You -- you're suggesting, Mr. Solicitor that as to good many things if we – if we agreed with you, we should decline to decide here, but shouldn't – should send them back to the three-judge District Court for decision, as I – as I understand it.

Mr. Cox: That's correct.

Justice Potter Stewart: But you are suggesting that we should decide, I suppose that this is a case in which equitable jurisdiction should be exercised, should be invoked (Voice Overlap) --

Mr. Cox: That's what I am suggesting.

Justice Potter Stewart: Well, are you suggesting that – that if the Court after a hearing finds that all these things that you tell us are true, then there it should – that we should say then, it should exercise equitable jurisdiction.

Or --

Mr. Cox: I think you -- all you need (Voice Overlap) --

Justice Potter Stewart: -- are you suggesting that we leave it all up to the District Court.

Mr. Cox: Well, I think – I think the two possible views and I would press both on the Court, the normal practice is, of course, to consider the question of remedies after you've dealt with the merits as Justice Whittaker suggested.

And it would seem to me entirely proper for the Court to say there is jurisdiction of the subject matter.

We don't need to go beyond that now.

Now, in a number of cases, including Colegrove and Green and no doubt some of the per curiams, although I can only speculate about them, the Court has gone ahead and said, “Is there so little chance that an equity court could usefully contribute here, that the bill should be dismissed for want of jurisdiction, now.

And I wouldn't object very much to anyone who's taking that view.

That is if there's clearly nothing the Court could usefully do, it might as well say so and be done with it.

But I think all we need to show at this stage is that one can't properly come to the conclusion that there's clearly nothing the Court can do at this stage.

That may turn out later and that brings me to the question, what can the Court do which should be weighed, I think, in with the need for action.

After all, whether you –

Justice William J. Brennan: (Inaudible)

Mr. Cox: That something I've lost to let –-

Justice William J. Brennan: (Inaudible)

Mr. Cox: I would say – I was urging that – no, I'm not pressing quite that far.

I would say that it shows that something should be done if possible, but that the Court should not finally determine at this stage whether it is possible.

Justice Charles E. Whittaker: Mr. Solicitor, specifically, are you urging that if there is jurisdiction in the District Court as you contend there is, then this is not a proper case for it to withhold the hand of equity?

Mr. Cox: I'm urging that this is not a proper case for it to rule now, that it should withhold the hand of equity.

It does -- what -- what I'm suggesting is this, that here, the proceedings in the District Court after all, may go through a number of stages.

And you'll first, be ruling on jurisdiction, then one might deal with the merits.

And there might be a hearing on the -- what relief if any was appropriate.

I think the Court has power at anyone of those stages, to say, “Now, that all the facts have been laid in front of us and we have studied them, we know more than we did before about the possibilities of granting relief.”

That I would say it was possible at any of those stages and the Court shouldn't prejudge the question that -- that the District Court would conclude that there wasn't any useful relief that could be administered.

I don't think it'll turn out that way, but I don't see any occasion to decide that in advance.

Justice Charles E. Whittaker: Well, if there is a clear constitutional right that's being violated and if these parties have standing to raise the question, then is there not both power and duty in the courts to enforce that constitutional right?

Mr. Cox: Yes.

Justice Charles E. Whittaker: Well, if there is –-

Mr. Cox: If --

Justice Charles E. Whittaker: -- if there is then, once you concede the power, then how could there be a case of justifiable equitable withholding of the hand?

Mr. Cox: Well, because there maybe a case where the court of equity just couldn't work out any sensible form of equitable relief.

Justice Potter Stewart: Majority of the Court in Colegrove against Green (Voice Overlap) --

Mr. Cox: I was just going to say, let me use Colegrove and Green as an example.

In Colegrove and Green, there were apparently only two choices.

One would be to hold the election at large.

Now, there, the disease might well be worst than the cure --

Justice Potter Stewart: Of course --

Mr. Cox: But [Laughs] well, it's enough that it'd be words.

Justice Hugo L. Black: You haven't been so held in it.

Mr. Cox: [Laughs] I mean --

Justice Hugo L. Black: It hadn't been so (Voice Overlap) --

[Laughter]

Mr. Cox: I think my point --

Justice Hugo L. Black: And --

Mr. Cox: -- has been made for me.

Justice Hugo L. Black: I want to find out that, I thought in the Broom case that they gave some kind of relief like this.

Mr. Cox: Not my recollection, Mr. Justice Black.

In Wood and Broom?

I don't think so.

Justice Hugo L. Black: What was the relief there that you said could be granted?

Mr. Cox: I thought in Wood and Broom, the complaint was dismissed.

It was held that the –- that the 1911 was an apportionment act, did not require an equitable division of the districts within the State.

I suggest you must be thinking –-

Justice Hugo L. Black: What -– what was the argument about the electing from the State at large there?

Mr. Cox: In Wood and Broom?

Justice Hugo L. Black: Yes.

Mr. Cox: Well, the complainants were challenging.

I guess I'd -- I guess the answer is I don't remember.

Justice Hugo L. Black: Alright.

Mr. Cox: The other possible remedy in Colegrove and Green would have been to redraw the Illinois congressional districts on the man.

Now, I don't see how a court could embark on such a test as that.

That it -- it -- there are just too many possibilities, that it's too much involved in the political process, that it is something that the Court really shouldn't undertake to do.

Justice Charles E. Whittaker: What is -– what is too much involved in the (Inaudible) process of the Fourteenth Amendment?

Mr. Cox: Attempting to layout 30 equally apportioned -- whatever the number is 30 districts for the election of congressional Representatives on the map of Illinois with nothing to start with except the outline of the map and the figures on the voting population.

Justice Hugo L. Black: May I ask you with reference to your suggestion to this point that might occur, we merely hold that this – we whether hold that jurisdiction would stop there, without saying that there was enough stated that is required trial.

Next thing would be that it would be right back up, on the basis of a motion to dismiss on the ground that failed to state the cause of action.

Do I understand that is your suggestion that we stop short of holding that this -- there's enough alleged in here to justify relief if –- if the facts are established and --

Mr. Cox: As --

Justice Hugo L. Black: -- as we hold the jurisdiction?

Mr. Cox: Well, my suggestion was that the Court did not have to rule on that question at this stage, that it could send it back for the guidance of the lower court and I presume that the Court could decide whether it wished to decide it on the papers or whether it wished to take further testimony.

Justice Hugo L. Black: What if -- there'd still be the question of the -- whether it stated a cause of action, the two things are different, jurisdiction in the stating cause of action.

Mr. Cox: Are different.

Yes.

Justice Hugo L. Black: Yes.

Mr. Cox: I think that question does not need to be determined now, if the Court is –-

Justice Hugo L. Black: But if we did -- if we didn't, what (Voice Overlap) --

Mr. Cox: It would be -- it be argued in detail, in the three-judge court.

Justice Hugo L. Black: And if it was dismissed on that ground, it has to come back?

Mr. Cox: That it will – whichever way it went, it might well come back to.

Justice Hugo L. Black: Not whichever way it went --

Mr. Cox: And therefore -- what?

Justice Hugo L. Black: Not whichever way it went, because if they held it stated the cause of action –-

Mr. Cox: It could come back (Voice Overlap) –-

Justice Hugo L. Black: And had a trial.

Mr. Cox: That's correct.

Justice Hugo L. Black: If they would hold it, done straight the cause of action, which seems to be the claim of the plaintiffs here, then it would be dismissed and come right back.

Mr. Cox: It could come back immediately --

Justice Hugo L. Black: That's right.

Mr. Cox: -- only if it were dismissed below, which seems unlikely on the basis of the Court's opinion, but I don't think that it fully went into this question.

And this Court -- what I was trying to suggest earlier was that this Court might want the benefit of a full exploration of the point by the three-judge court before it decided.

I would think this was a matter –- this Court should determine on the basis of how sure it feels or what doubts it has about whether the complaint does state a cause of action.

The point that I was seeking to make, Justice Whittaker, is that the problem of the remedy here differs very greatly from case-to-case.

That there maybe cases dealing with apportionment where we could -- could see – let me say simply for the purposes of argument as you will, that it would be so far removed from a judicial function that the Court should not embark on the test.

We do not think that this is such a case.

The time is so short that I can't go into it, but there are four and I suggest a fifth factor in the present situation that sharply distinguishes Colegrove and Green.

In the first place, the Tennessee Constitution requires an apportionment in the relation to population.

Second, it says that it must be by counties, where possible.

Third, no county may be divided.

Fourth, when counties are put together, they must be adjacent.

And then I would add that if the Court were driven to the point where it must intervene, that I think we would all agree that there should be as little disturbance of the existing districts for the House and Senate as possible.

Now, taking the map with respect to the Senate, one can remove the most glaring of the inequities, simply by merging five existing pairs of senatorial districts and allocating the Senators say, if -- if I may put it that way, to the Chattanooga area, the Knoxville area, the Nashville area and the Memphis area.

This doesn't seem to me to involve any of the difficulties, at least in anything like the same degree that there were in Colegrove and Green.

One can accomplish much of the same thing by putting 11 pairs of adjacent counties together in the House of Representatives.

So that the range of discretion and the degree of interference which would be involved, if the Court were forced to go this far would be very small indeed.

Now, I'd like to make one more point with respect to the remedy.

It's quite clear of course, that what is most to be desired is that the Tennessee Legislature and the people of Tennessee will themselves correct this.

And one of the advantages of a court of equity is that it can proceed slowly and a step at a time.

Up to this point, the Tennessee authorities have simply taken the position as I understand it, well nobody touches.

If the federal court takes jurisdiction, that in itself will generate great forces for a change.

If the Court goes on to the merits and holds that there is an unconstitutional apportionment, I should be amazed if the Tennessee Legislature didn't act.

After all, the force of the principle of legitimacy, the solemn adjudication that there is a constitutional obligation carries a great effect with most of the people in this country.

So that at that stage, as happened in New Jersey, there's a very good chance that the legislature would act.

Finally, there are these remedies and others are outlined in our brief, if the Court were driven to it.

Chief Justice Earl Warren: Mr. Glasgow.

Argument of James M. Glasgow

Mr. James M. Glasgow: Mr. Chief Justice, may it please the Court.

This is an appeal from a three-judge District Court sitting in the Middle District of Tennessee, dismissing a complaint which was filed for the purpose of obtaining the reapportionment of general assembly districts within the State.

There are certain observations in regard to the pleadings which I think are pertinent and should be discussed at the outset.

First of all, the 11 plaintiffs who bring this suit alleged that they do so, on behalf of all of the voters of Tennessee.

They also alleged that they bring it as a class action in the sense that they say that they have been discriminated against because their votes count less than those of their country cousins.

They alleged further that they're entitled to maintain this suit as a voting rights case.

The defendants on the other hand are certain state administrative and judicial officials.

The truth of the situation is in regard to those defendants and I don't understand that there are any substantial allegations to the contrary.

These defendants have very little to do with what the Legislature may ultimately do with regard to this issue of reapportionment.

It is alleged in the complaint that they do have certain functions to perform in regard to this proposition of elections.

But in either event, it seems to us that there is a lack of parties here to properly present this question.

We -– there's no county election commission that's brought before the Court in regard to holding elections.

The general assembly wasn't attempted and it's brought before the Court in regard to the reapportioning of the State.

We think that in view of the situation in regard to these parties that the complaint is bad.

Now, very rapidly, I want to summarize the allegations in regard to the -- what they predicate their claim upon.

First of all, they say that the 1901 Act apportioning the State of Tennessee is unconstitutional because it interferes with their voting rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

They have heard that their voting rights have been debased.

They claim that as a result of the Tennessee apportionment formula in the Constitution that they are entitled to have the courts examine this question and find and declare that those provisions are mandatory and self-executions.

Now, they make these general affirmance in regard to the provisions being mandatory and being self-executing and we suggest to the Court that those are nothing more than a – the conclusions of the pleading.

They also assert that the 1901 apportionment statute became obsolete in 1911 and therefore it would become unconstitutional.

They set -- also assert that the failure to reapportion has been purposely and systematically handled by the Legislature in such a way as to be a denial of their rights.

They point to population growths and shifts and use the census figures in order to support their contentions.

They charged that there's a discrimination in the allocation and distribution of state aid funds, particularly with reference to gasoline taxes and the general education appropriations.

They imply that there would be a different distribution.

In the event, the Court grants them relief.

It held substantially three prayers in their complaint.

The first one is that the apportionment statutes be declared unconstitutional.

Then they say that these appellees should be enjoined from doing various the acts which they do in regard to elections.

And they should not do any of those things until the State is reapportioned in -- in accordance with the constitutional formula.

Then they finally assert that the appellees should be directed to hold a next election at large, for the members of the general assembly in Tennessee.

Now, in the District Court, the complaint was met with a motion to dismiss.

It was –- the motion to dismiss is on three grounds.

First of all that the Court lacks jurisdiction of the subject matter, secondly, the complaint fails to state a claim upon which relief maybe granted and third, that there was a failure to join indispensable parties.

After the case was heard, a number of intervenors were permitted to come into the case including the Mayor of the City of Nashville and the Cities of Knoxville and Chattanooga.

The three-judge court held that either on account of elect – of jurisdiction of the subject matter or the inappropriateness of the subject matter, it felt that it was bound by the prior decisions of this Court and relied upon Colegrove versus Green and the other cases which have been eluded to.

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

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