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B.A. REYNOLDS, et al.,
M.O. SIMS, et al.,
DAVID J. VANN AND ROBERT S. VANCE,
BETTYE FRINK, et al.,
JOHN W. McCONNELL, JR., et al.,
BETTYE FRINK, et al.,
Washington, D. C. The above–entitled matter came on for oral argument, pursuant to notice. BEFORE:
[*] APPEARANCES:
[*1] MR. CHIEF JUSTICE WARREN: Number 23, B. A. Reynolds, et cetera, et al., appellants, versus M.O. Sims, et al. THE CLERK: Counsel are present. MR. CHIEF JUSTICE WARREN: Mr. Pitts, you may proceed with your argument. ON BEHALF OF APPELLANT REYNOLDS, AND APPELLEES A. BAGGETT, ET AL. MR. PITTS: Mr. Chief Justice Warren and may it please the Court: It is with great humility that I appear before this Court, in view of some of the propositions that we are going to make to this Court in behalf of the appellants in this case. I would briefly go through some of the points that lead up to the decision in this case, while going through, historically, a little of the Alabama history relative to its constitutional convention and the acts of the legislature that are involved. On March the 26th, this Court gave the—handed down the decision of Baker versus Carr, which was a somewhat radical departure from the cases from 1803 to 1962. Baker represents neither the familiar pattern of judicial review and occasional negation of particular governmental policies, nor the newer pattern in some of the desegregation cases of the imposition of “duties to act,” rather than “to desist.” But both of these patterns have this much in common: They leave essentially intact the distribution and possession of political power by contract. It is my position that Baker versus Carr is an invitation to the courts to sit in judgment of the structure of political power, even to the effect of a judicial transfer of political power. Before the ink was dry on the Baker versus Carr decision—and on April the 14th, 1962—the three–judge district court issued its ultimatum to the Alabama Legislature that it must reapportion itself. On July the 12th, 1962, the Alabama Legislature produced [*2] two bills. One of them was a 67th Amendment bill, which was a constitutional amendment that was to be submitted to the people of Alabama. Then they passed the Webb–Crawford Act, which was a savings Act that would have reapportioned the 1966 legislature, provided the people of Alabama turned down the 67th Amendment Act at the polls. On July the 25th—not 13 days after the passage of the Act, of these two Acts—the Federal three–judge district court declared both of these Acts unconstitutional. And in their decision, they took the senatorial provisions of the Webb–Crawford Act, and the House provisions of the 67th Amendment Act, put the two together and legislated for the State of Alabama. Now my propositions to this Court are simply that the legislative reapportionment—four propositions I want to make to the Court: One, legislative reapportionment should be resolved without Federal interference. The Court should reconsider Baker versus Carr, or clarify Baker versus Carr, and return to the original constitutional proposition that courts do not interfere with the structure of the states. Two, the courts should limit themselves, under the time–honored constitutional provisions for checks and balances, to the function of judicial review of legislative acts. They should not invade the province of the legislature, whether it is done by exacting new laws or whether it is done by a veto power. Three, the court should not have declared invalid the proposed amendment to the Constitution of Alabama which, by the Act of the legislature, was to be submitted to the vote of the people of Alabama on a one–man, one–vote basis. Four, even under Baker versus Carr, the District Court should not have retained jurisdiction in this case, because the factual situation in the case at bar is different from the facts in the Tennessee case. Now, in order for you gentlemen to understand properly my argument, it is necessary for me to go back a little bit to the Constitutional Convention of 1901. That Convention brought together delegates in Montgomery, Alabama, who have been recognized as the greatest minds of political thought and lawyers in that State. They came up—as I heard the argument of the New York case yesterday, it brought me to mind, in reading the proceedings of the 1901 Constitutional Convention of Alabama, that practically every point that was made before this Court about the distribution of political power and districting was discussed in the 1901 Constitutional Convention of Alabama. That constitution was submitted to the people on a one–man, one–vote basis, and was adopted by the people. [*3]THE COURT: Then it wasn’t followed? MR. PITTS: Sir? THE COURT: But then it wasn’t followed by the State, was it? MR. PITTS: I’ll come on down to that in just a little bit. I’m getting to that point. In deciding to—in arriving at this, these men realized the great geographical differences that exist in the State of Alabama. Alabama is a State of great natural resources. I’m not talking for the Chamber of Commerce, but I’m just pointing this out to the Court. Alabama is a State of great natural resources. Of course in the center of the State, around the Birmingham area, we have the steel mills, coal; you go into the north and the Tennessee Valley, you run into great farming areas. Of course, now, you’ll run into [Inaudible](1), which is greatly increased in population recently. Then, in the south and this middle part of the State which is known as the “black belt” which I am from, you run into the farming and rural areas. Then as you go on down to Mobile, you run into the waterfronts—the coastal area—and, again, an industrial section. All of this was kept in mind—what I’m trying to point out to the Court—in this 1901 Constitutional Convention. We of the black belt recognize that there was malapportionment in the Alabama Legislature in 1960, and I’m not standing before this Court and saying that there was not malapportionment before in the legislature in 1960. But we certainly say that if the Legislature of Alabama is to be reapportioned, then it should be reapportioned by the Legislature of Alabama and not by a Federal court. THE COURT: How long would we have to wait from 1901, beyond 1960? MR. PITTS: We wait from 1901 until 1962, Mr. Justice Warren. But what I want to point out is—the point that we want to make is how we differ from the Tennessee case; that, although we waited from 1901 until 1962 when the District Court issued its ultimatum to the Alabama Legislature, they acted promptly and they did pass a constitutional amendment to be submitted to the people of Alabama—and even another Act, known as the Webb–Crawford Act, which is a savings Act, in the event— THE COURT: I understand, though, that you want us to say that [*4] the court had no right to coerce the legislature into doing that, although it had, for 60 years, failed to follow its own constitution. MR. PITTS: Yes. THE COURT: You want us to say that, even though it went another 60 years? MR. PITTS: Yes, sir. But I want to point out, it’s my position in this—getting back to the point of Baker versus Carr, which I believe that under the Federal Declaratory Judgment Act, I believe that the court had jurisdiction to say that it was unconstitutional, but I do not believe that the court has the power to legislate for the people of Alabama. THE COURT: You concede that it’s justiciable? The question? MR. PITTS: Yes, yes. Now, in the Constitutional Convention of 1901, the legislature was set up so that there would be a house and a senate; not more than 35 senators and not more than 135—105 members of the house. Then they proceeded to set up 35 senatorial districts and provided that each senator was to have a district. Then there is another provision of the Alabama Constitution that says that the senate shall not consist of less than one–fourth or more than one–third of the house of representatives. The house of representatives should consist of 105 members. Each county shall have at least one representative. No county shall be divided into two senatorial districts, and no district shall be made up of two or more districts not contiguous to each other. Now those are the provisions in the Alabama Constitution that the legislature was confronted with any time that it started to reapportion. There have been many bills introduced, but those were the constitutional provisions of the 1901 constitution. And the point that I’m trying to make to this Court is that it is not on a population basis. The Solicitor General, in his brief, cites percentages and figures, but actually the Alabama Legislature is not based solely on its population basis. It is based on an area basis and a population basis, so that no geographical section of the State would have a stranglehold on the Alabama Legislature. If you go strictly to a population basis, then the larger, or densely populated, counties would have a strangle–hold on the Alabama Legislature on a one–man, one–vote basis, and the people in the rural areas would not have any say–so in their own government. THE COURT: Mr. Pitts, I was wondering, if the court had the [*5] right to declare your apportionment unconstitutional, what remedy could it use in order to see that people did have their rights? MR. PITTS: I would anticipate that question, Mr. Chief Justice. THE COURT: I’m sure you must. MR. PITTS: There are times, as I see it under the Federal Declaratory Judgment Act, where the court could declare the rights. But the courts could not provide an adequate remedy. That’s my answer. THE COURT: In other words, it would be a right without a remedy? MR. PITTS: Yes, sir, I think it would be. I think you could have a right to declare it, but I don’t think that they have a right to legislate for the State of Alabama or the people of Alabama. As I take it, Baker versus Carr simply said that the Federal court, where there was invidious discrimination existing, that the courts had jurisdiction. But there was so much in Baker versus Carr that was left unsaid, and sort of guidelines to the lower court. And what was suggested in the concurring opinion of the Justices has thrown the lower courts into the midst of a political [Inaudible]. In other words, as I understand it, it was suggested there that barring the—that one of them was—that actually draw new legislative boundaries; or threaten to do so if the legislature does not act promptly, to retain jurisdiction while waiting for the legislature to act quickly. One of those two things is about the only thing that a court could do to carry out Baker versus Carr, as to just what you asked me, as I see it. One of the two. Unless they proceed to legislate for the legislature. In a way, the court, sitting waiting for the legislature to act under what they will say would be a fair apportionment statute or redistricting statute, would be a veto power in the court. THE COURT: Do you really think, therefore, that the proposition advanced by the plaintiffs in the litigation—that the Court should not itself put its stamp of approval on this design for reapportionment, but merely enjoin the election and have an election at large—that that would be more preferable than what the court did? MR. PITTS: Yes, sir. THE COURT: You don’t like what the court did. MR. PITTS: No, sir, I don’t like what the court did. But I think that it would be a more—in order to break any strangle–hold on [*6] the election of the legislature, if the court wanted to do it, I think that an election–at–large, if the court didn’t act. But I don’t like that. THE COURT: [Inaudible] MR. PITTS: Yes, I do. As I’ve just said, I think that the power of veto over a legislature transcends the separation of powers doctrine of the three branches of government—the executive, the legislative, and the judicial. THE COURT: Is this the position on which you’re arguing that this case ought to reconsider Baker versus Carr? MR. PITTS: Yes, sir, I think you should. I’m arguing that you should reconsider Baker versus Carr. And the reason I said that—that I argued that point to this Court—that, as I see it, it should be reconsidered by this Court: The principle of the separation of powers, and the three branches of American government, transcends what equity power the Court may have or may claim in order to step in and draw legislative districts’ boundaries, even if the legislature disregards their legislative responsibilities. This principle as I see it is clear in a study of the notes of the proceedings of the 1901 Alabama Constitution, and it is also clear in the notes of the secret debates of the 1787 Constitutional Convention. And, in this first Congress, these three branches of government were kept distinctly free and equal—a system of checks and balances. In going further and granting relief in that form, and barring one of the two courses in granting relief, the Court completely ignores these separation of powers and the dual system of government in the United States. I think that it’s our contention that the courts should limit themselves under these time–honored constitutional provisions for checks and balances to the function of judicial review of legislative acts. They should not invade the legislative function, whether it be done by enacting new laws through the use of judicial power, or by a veto of the legislation. I do not see how we can escape that fourth proposition. I have carefully read every word in Baker versus Carr, and particularly in view of the Alabama case. I think that the Alabama case is entirely different from any of the other apportionment cases that are pending before this Court. The Alabama case is the extreme that a court can go to, whereas the New York case that was argued yesterday is the other end of the extreme. As I see it, this points out what a terrible situation can exist that flows from Baker versus Carr. Now, I may say to this Court, while I have stood here before [*7] you and told you that I was arguing that you should reconsider Baker versus Carr, certainly if you don’t reconsider or change the rule in Baker versus Carr, you have got to give some guidelines or some limitations that can be put down to the lower courts. Because the lower courts have taken the decision of Baker versus Carr as an invitation to them to step into the shoes of the legislatures of the various states. That the legislative powers of the people can be organized according to the dictates of the Federal Judiciary is in violation that the Government shall be composed of the Executive, and the Legislative, and the Judicial branches, each of whom exercises separate but equal power. A Federal Judiciary that can dictate the organization of a state legislature can indirectly—and I think this is important, and it’s set out in our brief—that they can indirectly dictate the seats of the House of Representatives that are redistricted by the Act of the state legislature. Legislative reapportionment should be resolved without Federal interference. Now the case at bar is illustrative of the confusion that can result by the Federal Judiciary following Baker versus Carr. The soundness of the majority opinion has been questioned by members of the bar, courts, students of government, and for reasons we urge that you reconsider this decision and return to the original constitutional proposition. As I just pointed out to you, the range of action in these Federal courts has been wide. Within 6 months after Baker versus Carr, suits were filed in 31 states, 41 opinions rendered, and special sessions had been held in some 8 states. This we see from the Alabama case and the New York case, we can see the wide range of action that Baker versus Carr has caused. As I see it— THE COURT: Wouldn’t you agree, Mr. Pitts, that, conceding that Alabama’s reapportionment violated the dictates of the Federal Constitution, it would be the duty of the Federal courts to step in? MR. PITTS: Mr. Justice Harlan, that would depend upon whether there can be found anything in the Constitution— THE COURT: My question was: Assuming that that was not debatable, that everybody agreed that Alabama’s apportionment did violate the Federal Constitution, you certainly wouldn’t argue that the Federal courts would not have the duty to vindicate constitutional rights? MR. PITTS: My contention that Baker versus Carr should be reconsidered? Yes, sir. [*8]THE COURT: I’m talking about your argument. MR. PITTS: What I’m trying to point out, in answer to your question, sir—and I’m trying to answer it—is that if there is foundation in the Constitution of the United States for the Federal courts to take judicial—to take jurisdiction, then if there is malapportionment in the Alabama Legislature and it amounts to “invidious discrimination,” then the Federal court would have jurisdiction. THE COURT: Shouldn’t we do something about it? MR. PITTS: My second proposition— THE COURT: Therefore, I would think that the real answer to your argument should be whether or not the Federal Constitution does prohibit what Alabama has done. MR. PITTS: Whether or not what Alabama has done comes under the equal protection clause of the Fourteenth Amendment. Mr. Justice Harlan, I agree with your opinion, and I can find nothing in the Fourteenth Amendment that I would say that it would come under. THE COURT: I suggest that’s the real burden of your argument here. MR. PITTS: But we also say that, even if it does come under it and even if Baker versus Carr stands as the Court held, that the Federal Judiciary in Montgomery—or the District Court—exceeded its authority in striking down a constitutional amendment that was to be submitted to the people of Alabama. And that is the way their constitution is amended, except unless a constitutional convention is called. My contention is that if Baker versus Carr does, that even in view of Baker versus Carr, that the Federal court did not have the right to go as far as it went in the Alabama case. THE COURT: Mr. Pitts, do you argue that there isn’t great discrimination in Alabama? MR. PITTS: Yes, sir. Alabama’s population has changed greatly in the last—since 1901—but I don’t see that there is discrimination. I think that Alabama has a rational plan. The Legislature of Alabama has just failed to act. The system that Alabama has, which is based not only on population, but it is based on area. So I say that it’s not discrimination. It’s a rational plan that Alabama has, but they have just failed to act—the Legislature has. THE COURT: Failure of the Legislature to act is breaking no [*9] laws, despite the 25 percent of the people of the State who [Inaudible], isn’t that correct? MR. PITTS: I’ll be perfectly frank with you, Mr. Justice Goldberg, I’m not going into the mathematics of the situation. I don’t think that that has—is neither here nor there, because of the Alabama system. But I do say that, if that is true that it’s about 25 percent—I would say it may be more than that, I don’t know; I believe it’s 38 percent—I believe— THE COURT: Well, as I read the figures in the record, in 1901 about 40 percent— MR. PITTS: 44 percent. 44 percent. THE COURT: —and because of the shift in population— MR. PITTS: —and it dropped down, now. This act of the Federal court has brought it back up to around 41 percent, I think. THE COURT: It’s restored the situation to what it was in— MR. PITTS: About 3 percent back—restored it back to the 1901 Constitutional Convention—I mean “constitution.” THE COURT: Mr. Pitts, going back to Justice Harlan’s question of a moment ago, going back to the basic question before we get to a matter of remedy, the basic question of constitutional violation here. As I understood him, Mr. Justice Harlan said that the basic argument for you to make was that there was no constitutional violation. But, as I read the opinion of the Three–Judge Court of July 21st, 1962, that argument is not open to you, unless I misread it, or unless the court here is misstating the facts—and I’m quoting from page 144 of the record, where the court says: It has been generally conceded throughout this litigation by all the parties that the present apportionment of both Houses of the Legislature of the State of Alabama constitutes ‘invidious discrimination’ in violation of the Equal Protection Clause of the Fourteenth Amendment. Is that factually untrue? Or is it true, this statement as to the concession by all the parties? MR. PITTS: I would like to explain to you, Mr. Justice, that I did not participate in the trial of this case. If it is in the record—if that is a true statement in the record, I will say that it is true that that was conceded by the parties. [*10]THE COURT: In dealing, of course, with a great constitutional issue of this kind, the concessions of lawyers, the concessions of parties, the views of the lower court, while they’re of course entitled to the greatest respect, are not the ultimate basis on which we have to decide this case. We’re not bound by “concessions” in constitutional cases. But I’m only suggesting that that issue wasn’t even litigated in the District Court. It seemed so clear to everybody that the issues before the court were quite different issues—i.e. as to what the remedy should be. MR. PITTS: Now the Attorney General handled that in the lower courts. B.A. Reynolds, Probate Judge of Dallas County, was a party defendant. We got into the case after the court had decided the case and we appealed it to this Court. THE COURT: May I ask: If you were to win your contention, what would be the practical result in Alabama? MR. PITTS: Mr. Justice Black, it seems to me that if we were to be successful today, then the constitutional amendment would be submitted to the people. THE COURT: Well what would be the result, with reference to the present members of the State Senate—the Legislature? MR. PITTS: You mean in the 67th Amendment Bill? THE COURT: Those that are now the members of the Legislature of the State Senate. If you win, are they properly elected? MR. PITTS: Oh, you are talking about the Legislature of Alabama? THE COURT: Yes, the practical result. MR. PITTS: Under the Federal court decree? THE COURT: Yes. If you win your contentions, what is the result, with reference to the present senate and Legislature of Alabama? MR. PITTS: I think that was a de facto Legislature, and I think that the validity of that Act will be determined by the Supreme Court of Alabama. THE COURT: Now may I ask: If you would then return, in your elections, to the old apportionment? MR. PITTS: Yes. THE COURT: Would that mean—as I read this, I’m not sure about this—that the Senator from Jefferson County where Bir–[*11]mingham is located, represents 634,000; while 1 senator from Lowndes County represents 7,000—15,417 people? MR. PITTS: If the Apportionment Act stands as it was in the 1901 constitution, what you say would be correct. THE COURT: What would be the result, if you win your case? MR. PITTS: And this Amendment would take to the people— THE COURT: I’m not talking about what “could” happen thereafter, but what do we return to if you succeed in invalidating the judgment of the Three–Judge Court? MR. PITTS: All right, sir, I think that you return to the constitutional amendment—the 67th Amendment Bill. THE COURT: You return to the apportionment as it has been? MR. PITTS: Yes, in the meantime. THE COURT: You return to the apportionment as it has been? MR. PITTS: Until that— THE COURT: Then you’d have to wait, according to your contention, for action in Alabama by a vote of the people on the amendment to the constitution? MR. PITTS: Yes. THE COURT: But, in the meantime, Jefferson County would be entitled, with a population of 650,000, to 1 senator; and Lowndes County, with 13,000, to a representation of 1 senator? MR. PITTS: Yes, sir. THE COURT: That’s typical throughout the State, is it? MR. PITTS: I would say, yes, sir, that there’s malapportionment in the Alabama Legislature, yes, sir. I would say, as it exists before the 67th Amendment Bill and the Webb–Crawford Act was passed. THE COURT: Well, that’s the practical situation which the court had to meet— MR. PITTS: Yes. THE COURT: —but you claim it didn’t have jurisdiction. It couldn’t have done it. But that’s the practical situation it had to meet if it had jurisdiction? MR. PITTS: Yes. But now the 67th Amendment Bill would have been submitted to the people immediately, because of elections [*12] coming up. And if it had failed, you would have had apportionment under the Webb–Crawford Act, which brought it back about to where the 44 percent that we were just talking about was. THE COURT: [Inaudible] MR. PITTS: Well now, Mr. Justice Goldberg, you were reading from the Webb–Crawford Act. That was the percentage you were citing. THE COURT: I was reading from the record, from testimony about the Webb–Crawford Act. MR. PITTS: Yes. You were speaking of the senate. Now the Federal District Court took the senate provisions of the Webb–Crawford Act— THE COURT: Well that doesn’t explain to me— MR. PITTS: Yes, sir. I will, we contend—and I want to make this statement, as I see that my time is about up—if this Three–Judge Federal District Court decision in this case is allowed to stand, we say that then Alabama and her sister states have been deprived of the last vestige of state sovereignty. They are no longer sovereign states. If the Federal Judiciary can sit over the legislature of a state and veto the acts of that legislature and say that that legislature cannot submit to the people of that state a constitutional amendment to their own constitution, then I say that there is no longer a sovereign state. I will retain the rest of my time in rebuttal. MR. CHIEF JUSTICE WARREN: You may. Attorney General Flowers? ATTORNEY GENERAL OF ALABAMA, PRO SE MR. FLOWERS: Mr. Chief Justice, if it pleases the Court: The former Attorney General of Alabama was a party to this suit. As I understand, he was brought in because of some ministerial duty that he had in canvassing votes. Naturally he was brought in along with some other public officials, in order for this suit to develop—for the action to lie. The former Attorney General did not appeal this decision. Thus I am here today as his successor. I do not believe that there is a citizen or an official of Alabama that could argue under any shadow of fairness or justice that apportionment of the Legislature of Alabama under the 1901 constitution, as it is here today or as when this suit started, is any–[*13]thing but unfair, unjust, and even approaches the ridiculous. On occasions, the Supreme Court of Alabama has even recognized this fact. Now we come to the proposition that the lower court has taken jurisdiction. Now, as stated in our brief, we argue under the presumption that Baker versus Carr will not be overturned. In that event, or in case Baker versus Carr were overturned or reconsidered, we would want, or expect, or ask another day in Court. But we argue here today under the presumption that it will not be overturned. If it pleases the Court, I have served a term in the State Senate of Alabama before—naturally before—I became Attorney General of that State. I represented—this may be peculiar, in that I represented a two–county district, my home county, which was the most under–represented county in the house of representatives, Houston County, the most under–represented county in the State. And I also represented an adjoining county as its senator, Henry County, which is the second most over–represented county in the State of Alabama. I think you gentlemen will admit that that’s a good job for one man to do. Now my home County of some 50,000 people—slightly over—we had one member of the house. We shared a senator with Henry County who had something over 13,000 people. They had two members of the house. Now they were only surpassed by one other County, Lowndes County, in being more over–represented than they. Lowndes has slightly over 13,000 people. They have two members of the house, but they had a senator to themselves. So, as you can see, the apportionment under the 1901 constitution at the time this started approaches the absolute ridiculous. I argue not as to the validity or just how just or fair it was in 1901, because in 1901 my home County of Houston did not even exist. We were formed after the adoption of the 1901 constitution. After the lower court took jurisdiction, then the legislature passed some acts that the Three–Judge District Court said were not acceptable. So they then wrote a temporary measure. As I understand it, they said it was a temporary measure that would serve until the legislature had passed a bill that was adequate. Now the legislature has met and failed to act, I realize, however there are reasons for that action—and I shall cover that later. But first let me state that I very strongly join the doubts that may exist here, if any, that a call for general standards to be laid down in all cases, or in all states, I believe that to be unsound. Now, while apologizing for not knowing the workings or the alleged troubles of the states, I here today represent, as I say, the State of Alabama. And I strongly feel—since I have actually en–[*14]gaged in these legislative fights—I strongly feel that our problem lies in having the one question answered: whether Alabama—whether Alabama—can meet the equal protection provisions of the Fourteenth Amendment under the State constitutional provisions or under our State constitutional provisions providing for reapportionment. For instance, as you gentlemen well know, we have one section of our constitution that states that our house shall be based on a population basis and shall be limited to 105 members, giving any new county that’s formed after the adoption of the constitution, an additional member. That’s the reason our present house consists of 106 members. We had one county—my County, the baby County of Houston—to be formed since the 1901 constitution. THE COURT: Mr. Attorney General, while you’re on the subject of your State Constitution, I wonder if you can tell me the meaning of—I’m now referring to Section 284 of Article 18 of the 1901 constitution, which says, as you’ve just told us, that representation in the legislature shall be based upon population. Now here’s my question: “And such basis of representation shall not be changed by constitutional amendment.” What is the effect of this in your State Constitution? MR. FLOWERS: I think it was well expressed in the New York case yesterday, Mr. Justice, that allows a handful of people to lock themselves into the legislature and hold control of the legislative body of Alabama. THE COURT: Can any constitution, which is subject to amendment, provide that this part of the constitution is not subject to amendment? MR. FLOWERS: As a member of the State Senate, we propounded to the supreme court an opinion of the justices on that particular point, and we received one saying that it could not be changed. To me, it’s ridiculous, but that’s your answer. THE COURT: Mr. Attorney General, I thought I read in one of the briefs that your supreme court had interpreted that to mean that, while the legislature could not submit an amendment to the constitution, it could be amended through constitutional convention. MR. FLOWERS: Yes, sir. THE COURT: That is— MR. FLOWERS: Yes, sir. THE COURT: All right, I just wanted to understand. [*15]MR. FLOWERS: And in 1955 we introduced resolutions in both houses calling for a constitutional convention. And in our 35–man senate, we mustered 16 votes which were cast for a constitutional convention. And it frightened that group so badly that when it came up in the house of 106 members, it only got 8 votes. They got more votes in the senate then they got in the house. Gentlemen, I have struggled and fought in these legislative battles for reapportionment. I’m going to cover that a little bit in just my last few remaining minutes. But this question of whether under our constitution—whether, under our constitution—we can meet the provisions, the equal protection provisions, of the Fourteenth Amendment—as, for instance as I say, one section says that our house shall be based on a population basis, shall be limited to 105 members with one new member for each county. Then, at the same time, it gives each county at least one–half member. So it shall be placed on a population basis. And then it turns right around and gives every county—the 67 we have—a house member. Then, in another section, it limits the senate to 35 members. The State practices and policies, supported by—even supported by arguments in the constitutional convention—establish the fact that no county shall have more than one senator. There has been some doubt, and some have advanced the argument, that under the section that says “no county shall be divided between two districts”—through the years, no county has had more than one senator; and I think that was the intention of that particular section, that they should not—there have been arguments advanced that this means you couldn’t take part of a county and tack it onto another one. That’s not our decision here today, but some have argued that you could have districts within a county. THE COURT: Mr. Attorney General, is it your position that the legislature could, or could not, adequately apportion, reapportion, the legislature under the 1901 constitution? MR. FLOWERS: No, sir, I believe it’s physically impossible. It’s politically impossible for the legislature to reapportion itself under the 1901 constitution. THE COURT: Under the 1901 constitution? MR. FLOWERS: Yes, sir, because there are just a handful of people who have gained control of the legislature, and naturally it’s hard to ask a man to vote himself out of power. THE COURT: Aside from political realities, is it your position that even if it were done that the resulting reapportionment would [*16] still violate the Fourteenth Amendment? MR. FLOWERS: No, sir. The Three–Judge District Court, now, has intimated in their language, they said that our apportionment could be done on a population basis, to some extent. Of course now I realize we approach the twilight zone when we say “to some extent,” but if you affirm this—and I saw, I engaged in the fights, and although I was not in the last, in the session that actually reapportioned, I was there and I saw men struggling, wanting this question answered whether, even if they did thus–and–so, would it answer the Fourteenth Amendment, and they were unable to get that answer. And under our provisions, if you feel, or you affirm, or take the attitude of the Three–Judge District Court in saying: Yes, to some extent, you can, then I believe the legislature can and will move forward under the direction of the lower court, if it be your pleasure. But I believe they can and will move forward to make it. Because, otherwise, some of our constitutional provisions have to fall. And it’s my opinion—my observation—that this Court bends backward to keep from knocking down constitutional—state constitutional provisions. And if it be your attitude, or your decision that some of our, one or more of our provisions have to fall under the direction of the lower court, if it be your will, let our legislature reapportion. And in that way, let them—our people—decide which must fall, or what they should resubmit to the people in the place of it. Let them put it back to the State Legislature of Alabama. THE COURT: Hasn’t the District Court done that? Hasn’t the District Court done that—put it back to the legislature? MR. FLOWERS: Yes, sir, without their action. But it is my sincere conviction that this one question was what threw them at loggerheads in that fight—because I stood there on the floor and watched them—was whether or not, under the equal protection clause, would our provisions fit under there? Would they meet it? Would they answer the equal protection clause, this division of the house and division of the senate the way we have it, even if we put it as the District Court said, “to some extent.” And I want to agree with the counsel before me that Alabama is peculiar in that it is heavily sectionalized. It’s an economic thing. It’s not just geography. It’s sectionalized economically. The Tennessee Valley, the industrial area of Birmingham, the black belt, and my “wiregrass area,” as we call it, was ignored by the previous counsel—the port area of Mobile. It is heavily sectionalized, and I think could be districted in such a way that, if we were allowed to say “to some extent,” that it could be done where most everyone would be [*17] happy with what we did. THE COURT: You’re here basically, aren’t you, in support of the present decree of the District Court? Aren’t you? MR. FLOWERS: Yes, sir. Because I cannot see the legislature—I stood five days and nights in a sustained filibuster—with a preponderance of the State Senate voting, supporting reapportionment in Alabama—to absolutely no avail. I was a member of the State Legislature when a suit was filed, and the District Court refused to take jurisdiction, and every bill that was introduced in every way failed. They absolutely refused. A few people had the control. They would not vote themselves out. As our populations grew and theirs withdrew, their strength became more and more and more. THE COURT: Mr. Attorney General, [Inaudible], and therefore the District Court came down with a temporary order under which the election was held— MR. FLOWERS: Yes, sir. THE COURT: —and it retained jurisdiction? MR. FLOWERS: Yes, sir. THE COURT: In the event the legislature decided hereafter to amend the constitution, and therefore the District Court has the authority or jurisdiction to— MR. FLOWERS: Yes, sir, with the exception of this one question—and maybe we do not have it in—but if you could answer for them, whether or not Alabama can meet the equal protection provisions of the Fourteenth Amendment under the State constitutional provisions that we have, providing for reapportionment, if they can under the court’s—the lower court’s—guidance, I think the Legislature of Alabama could correct themselves. THE COURT: You’ve added this thought, I take it, over what you had in your brief then, I take it? MR. FLOWERS: Yes, sir. THE COURT: I gather that you thought there was nothing to decide here in your brief. And now you suggest that we really should get to whether or not the provisions in the Alabama Constitution themselves are acceptable under the Fourteenth Amendment. Isn’t that your point? MR. FLOWERS: Yes, sir. Whether they meet the provisions— THE COURT: Well let’s see if I understand that— [*18]MR. FLOWERS: It was in our brief at page 5. THE COURT: Well I understand, Mr. Flowers, what you’re suggesting is, abstractly: Would the Alabama constitutional formulation, if executed—“if executed”—satisfy the requirements of the equal protection clause? Is that it? MR. FLOWERS: Yes, sir. You see, the Three–Judge District Panel said that they felt it could, “to some extent.” THE COURT: Now even if—I gather there’s somewhat of a mystery about what the Alabama Constitution means? MR. FLOWERS: There could be some questions. There have been, in fact, every time the legislature meets and attempts to put out a constitutional amendment to the people. The 67th Amendment Bill has been put out and soundly defeated three times. THE COURT: So you really do leave us with somewhat of a problem? MR. FLOWERS: Yes, sir. I fought those fights through the night. Alabama needs reapportionment. Alabama doesn’t have reapportionment. THE COURT: But you think you know fairly enough what the Alabama Constitution means to say that the apportionment that existed before the court took action violated the Alabama Constitution? MR. FLOWERS: Before they took action? No, sir, I don’t think it violated the Alabama Constitution. THE COURT: Oh, you don’t? MR. FLOWERS: The 1901 constitution? The apportionment that they had? THE COURT: Do you think that the— MR. FLOWERS: Oh, you mean the “10–year refusal”? Why, yes, sir. Yes, sir, absolutely I do. They’re refusing to act. I don’t know if that negates the constitution, but they certainly didn’t follow the constitution, and continually refused to follow it. It wasn’t an oversight. THE COURT: And the constitution—and the Crawford–Webb Bill? Do you think that violates the existing constitution? MR. FLOWERS: I think it’s just a poor substitute, yes, sir. It wasn’t to my liking. It’s better than what we had, but if it would [*19] allow us to move on—excuse me, gentlemen. I see my time is up. MR. CHIEF JUSTICE WARREN: Mr. Morgan? MR. MORGAN: Mr. Chief Justice, may it please the Court: We have entered, in the arguments in the last day—today and yesterday—I think, the political thicket. And we’ve done this, generally, by adhering to standards of apportionment, or questioning about standards of apportionment and comments on them, which vary from the shipping interests and their representation in the legislatures, the interests of labor and business, to mathematics and formulae. And really it seems to me that, in the argument, one fact comes through. It is that the easiest, the most easily judicially maintainable standard of apportionment should certainly be population, regardless of all the problems that may develop and all the problems that may exist in many states and may exist in many different counties and many different districts. It would seem that surely the one standard that is measurable in each instance, leaving less room for doubt and less room for question insofar as each of the state legislatures of this nation are concerned, is the ascertainable standard of: How many people are there in a legislative district? Or how many people are there in a representative seat? Now in Alabama the facts have been adequately noted with respect to the existing apportionment of the legislature. We’ve had no apportionment since 1901. And the people of Alabama have no place to go in order to seek redress for their grievances other than the United States courts. The state courts of Alabama have refused to take jurisdiction. There is no initiative and referendum in the State. The legislature, for 60 years, refused to reapportion. And there is, of course, no conception that they would change their minds, except under a court order. And the constitutional convention provisions that are provided in our constitution allow the State Legislature, and provide for the State Legislature, to establish the method of representation at the convention. And it is inconceivable to me that, especially in light of the long lapse in apportionment, that were we ever to have another constitutional convention, that the legislature of Alabama would alter in its default with respect to apportionment by selecting delegates to that convention who would apportion them out of their seats. [*20]The United States District Court’s action in Montgomery, in enjoining the 67th Amendment, was to us quite proper and quite reasonable. The State Constitution says that population is the ascertainable standard and that it cannot be changed, and the Alabama Supreme Court has, in advisory opinions which are not binding upon the court and do not have the force of law but which bind only those justices who state their preferences—who do state their preferences—the court has held that that provision cannot be taken from the constitution, from Section 284. Now that provision quite clearly says that, in Alabama at least, population is the goal for which we’re working in legislative apportionment; and representation shall be based on population, and that provision should not be deleted from the constitution, even by constitutional amendment. THE COURT: Well you wouldn’t—do you think that that would bind the people of the State of Alabama if they wanted to adopt a new provision to the constitution which applied a different rule? MR. MORGAN: I don’t see how it could, but the Supreme Court of Alabama has. THE COURT: You mean they’ve said that their constitution has foreclosed the situatation in the State so that the people cannot, of their own choice, adopt a new constitutional provision contrary to the 1901 provision? Is that in there? Do you have that opinion in any part of the record? MR. MORGAN: Yes, sir, I’m sure it’s in—I’m not sure, it’s— THE COURT: At what point in the record? MR. MORGAN: Page 147. THE COURT: That says, “to withhold from the legislature the power”? MR. MORGAN: Yes, sir, that’s right. Now the people, of course, in a constitutional convention could change it, but they can’t have a constitutional convention unless the legislature calls the convention. THE COURT: The provision itself says, simply, it shall not be changed by constitutional amendment. MR. MORGAN: Right. THE COURT: By anybody, I assume? That’s what it purports to say. That was the basis of my question to the Attorney General. MR. MORGAN: While I hold no brief for the proposition, those are the mentions of it. [*21]Now the 67th Amendment, of course, also in our judgment was a great nullity. On its face it purported to provide each county, in a little Federal sort of plan, with representation in the State Senate. In the house, of the 106 members of our house of representatives, 67 of them are also allocated on the basis of political units, or on the basis of some sort of little Federal plan. Now we look at the county argument, and the use of counties and in the allocation of some weight to counties for representational purposes, and it seems to me that—as has been stated by others—that there is no comparison with the Federal Government, no proper comparison. There was no Federal compromise, with respect to counties. There is no, and never has been, any so–called “sovereignty” in the counties. They’re created by the states. The counties have only such rights as are granted by the State Legislature and by the State Constitution. And the effect of the utilization of these political units, it seems to me, would be rather disastrous as far as the government of our state legislatures is concerned. It would seem to me that over a period of history, as America developed, the United States Senate has been an effective instrumentality of government. But it’s extremely doubtful to me that, if the United States Senate were totally fragmented with fractional interests, if the Senators did not run statewide, if they did not in a State like Alabama, for instance, have to take into consideration the industrial interests of Birmingham, the shipping interests of Mobile, the farm interests, the plantation interests, and perhaps the black belt, the Tennessee Valley Authority area and the Alabama Power Company area, it would seem to me that the representation that we might get in the Senate of the United States might well be a mere blocking, rather than a useful sort of representation. But in most states in the Union, there is a divergence inside of the senatorial districts, a divergence of interests that melds itself and meshes into the Senator who comes forward. Now inside of the State the principal usage for representative districts is to break down into smaller and smaller units the area of representation and the place and the people of representation, so that one representative may at least know the will of the people whom he represents. To me, if you go into any sense of area representation, or any sense of political unit representation, you quite naturally have in it a rural bias. Because it just seems implicit to me that there is more farmland than there is city–land. And in this nation, there are fewer farmers than there are city people. And if you use land, or if you use political units without population being the guiding factor, then we must of necessity reach a representative standard which will be non–responsive to the people. And the function of [*22] government, of course, should be its response to the people whom it governs. The difference, it seems to me, boils down to the question of people. If in this country, as I think the country’s dream says, if we assume that the power of self–government is the power of people to think and to reason and to vote and to properly represent themselves and get their own representatives, then the courts, it would seem, would be the standard to protect the minority from the majority. But the majority surely should have the right to elect representatives in both houses of the legislature. If that right doesn’t exist in both houses, then they only have equal protection of one–half of the law. Now in the Alabama case—of course Baker v. Carr was decided on March 26th—on March 30th, the District Court issued an order setting a hearing on the motion for preliminary injunction we filed. The case moved rapidly, until April 14th there was a hearing, and July 16th, after a special session of the legislature, there was reapportionment. I am quite convinced, in my own mind, that in the Middle District of Alabama, the court that viewed the reapportionment case there and found an effective remedy, and under court order had an election held, fashioned a remedy perhaps better than we could dream could be fashioned from far away. I am quite certain from the opinion of the District Court that, in its mind at the moment, before your decisions on future cases, that in its mind at the moment, population is the standard which must be met as far as an apportionment is concerned. THE COURT: Mr. Morgan, is it possible, under your constitutional provision of 1901, to meet that standard? MR. MORGAN: I think it’s possible in the senate. It’s possible in the senate, if you interpret the provision which says that no county shall be divided into two districts. If you interpret that as a purely anti–gerrymandering provision—and I should think that there is some presumption in favor of the constitutionality, of course, of a state constitution—if you read it that way and say it doesn’t mean that a county may not be divided into districts, it says it may not be divided between districts and split down the center or chopped up. Now, under that assumption, your senate could be apportioned on a basis of seven senators for Jefferson County, three for Mobile, and so forth, which would be on the basis of pure population. In the house of representatives, there is no way under this constitution to have an absolute population apportionment, because of the one–per–county provision there. [*23]THE COURT: Could it be done without gross inequalities? MR. MORGAN: Yes, I think so. And the inequalities in the house, while in some instances they approach what I would consider “grossness,” of course, but I think as far as a temporary measure or a measure with respect to the usage of the State, for the next few years, it could be— THE COURT: No, I’m speaking about it permanently; because that’s the question that the Attorney General posed to us, whether—he would like to have us say, whether or not, under that constitutional provision of 1901, it is possible for the legislature to meet the standards of the Federal Constitution. MR. MORGAN: I would say—and of course our suit has gone through varying stages; you’ll understand, as we progressed with it, we’ve changed our mind as to what we think the law is—I would say that quite probably not. The provision requiring one–per–county in the house of representatives, it would seem to me, would deprive people of their vote on a population standard. If there’s to be any deviation from population, in either house, of the representatives—if that were the Court’s ruling—then it could go under the State Constitution. THE COURT: You conclude, then, that both houses have to be on a population basis? MR. MORGAN: Correct. THE COURT: As you said a moment ago, one house one way, one another, is unacceptable according to you? MR. MORGAN: I should think so, yes. THE COURT: Of course, the difficulty with the first branch of your answer to the Chief Justice’s question, with respect to the 1901 constitutional provision affecting the State Senate, is: The State of Alabama has construed that constitutional provision to mean something other than what you say. MR. MORGAN: Well, there are other factors. THE COURT: It’s construed it to mean, as I understand it, that there shall be no more than one senator in each county. MR. MORGAN: Yes. And I might add this— THE COURT: And aren’t we bound by that, as a matter of accepted— MR. MORGAN: Well, I don’t think so, when you have a state legislature that hasn’t abided by anything else in the same provision, or anything else in the constitution, because— [*24]THE COURT: Well, aren’t we, this—at least as I understand it; you tell me if I’m wrong—this has been clearly construed to mean what I say. This rather ambiguous language of your constitution has been construed in your State to mean: no more than one senator from any county. Is that right, or not, as a matter of fact? MR. MORGAN: I would say that, as far as common parlance is concerned, and legislators talking, and that sort of thing— THE COURT: How about the judiciary? Has it spoken? MR. MORGAN: No, no. And the only construction, I think, with force of law would be the failure of the legislature to utilize the provisions and to bring about more than one senator. I must say, in all candor, that in the history of Alabama there has not been any senatorial district which has had more than one senator. THE COURT: So, in practice as well as in talk, that’s the way it’s been construed? MR. MORGAN: In practice, and prior to the filing of this suit I would say it was commonly accepted that Jefferson County could only have one senator. THE COURT: No county could have more than one? MR. MORGAN: That’s right. THE COURT: Didn’t the District Court, as I understand it, [Inaudible]. MR. MORGAN: That’s correct, yes. THE COURT: He started this? MR. MORGAN: Yes. Yes, and we are joined in this by intervenors Farr and others. I’m satisfied to leave this matter to this District Court, yes, sir. THE COURT: [Inaudible] MR. MORGAN: No, sir, I do not. Gentlemen, in conclusion I would— THE COURT: May I ask you if this constitutional provision has been interpreted by the court in a regular lawsuit, or only by statements of the judges? MR. MORGAN: Only by—there’s been adversary proceeding involved at all—the statements by the judges, except in, I would say probably in the case of Waid v. Pool, where they did say that the legislature was malapportioned, but that they weren’t going to [*25] take jurisdiction. There was not a specific interpretation of this provision at all. THE COURT: As I recall, statements by the judges in answer to an inquiry under the statute are not binding as court decisions. MR. MORGAN: They are not; they’re purely advisory opinions. THE COURT: Purely voluntary. MR. MORGAN: And each of the justices could change their mind on the next one. THE COURT: That is the way, isn’t it, that the court originally sustained the constitutionality of the State Act which had authorized inquiries to be made of the court? They sustained it, did they not, on the basis that it would not be binding decisions as in a controversy or case, but merely the individual views of the judges who voluntarily gave them? MR. MORGAN: Yes, sir, that’s correct. In conclusion, we simply state that we do think the District Court is competent to handle the matter and has exhibited a great deal of speed in doing so; and we feel that the rights of all Alabamans and all Americans rest upon the decision of this Court with respect to whether or not people do have, on the basis that this country was founded, for each man one vote. MR. CHIEF JUSTICE WARREN: Mr. Vann? BEHALF OF APPELLANTS IN NO. 27 MR. VANN: Mr. Chief Justice, may it please the Court: We are intervenors in the case below; and in the court below we joined with the plaintiffs, and I believe all of the intervenors, in proposing to the court below that this case had reached a stage where the remedy of provisional reapportionment, as we proposed it, was the only effective way in which the court could deal with the matter. Previously, there were three remedies considered by the court below: One was requiring an election–at–large after the legislature had failed to act; there was a remedy proposed of proportional voting of existing legislators; and there was the remedy of provisional reapportionment—all of which we felt were within the discretion of equity. However, in practical impact, it was our contention that for the court to set up a temporary plan which the legislature itself could change, either before a legislature was elected under that plan or after a legislature was elected under that plan, gave to the [*26] State and to the legislature the full range of discretion; and, at the same time, gave the litigants a full opportunity and full protection for their constitutional standards. However, as you have noted from our appeal, we are here in this Court, unlike Mr. Morgan, to say that we feel that action by this Court at this time is necessary in this case. And that is the subject that I want to discuss with you. Now we come from a State that has 10 percent of the natural resources of America—mainland America. This State has been locked in an impass for the expression of the popular will of the people for over 60 years. In this case, while this case was pending, we attempted to utilize every single way that was open to us. We backed—the Jefferson County Democratic Campaign Committee and others—we backed proposals in the legislature. We petitioned the legislature. When the legislature passed the Crawford–Webb Bill, we even asked the Governor to veto it and use his power of amendment. MR. CHIEF JUSTICE WARREN: We’ll recess now, Mr. Vann. [Whereupon, argument in the above–entitled matter was recessed, to reconvene in the afternoon of the same day.] BEHALF OF APPELLANTS IN NO. 27—Resumed MR. VANN: As I was saying before the lunch hour, our purpose in being in this appeal is because we feel that additional relief in this case is necessary now. THE COURT: Just before we recessed for lunch, you said that you had made various efforts in the Legislature of Alabama? MR. VANN: That is correct. THE COURT: And I think the last thing you said was that you urged the Governor to veto the—what do you call it?—the Crawford Bill, and to amend the legislation. What does that mean? MR. VANN: Well we have, under the Alabama Constitution, a procedure of “Executive amendment.” The Executive can veto a bill and propose an amendment to the bill, which if accepted by the legislature, would avoid his veto. And we asked the Governor to amend the Crawford–Webb Bill to provide for proper reapportionment, and submit it back to the legislature with an Executive amendment. The Governor refused to do so. [*27]THE COURT: So this provision means, in effect, that the Governor has a substantial amount of potential legislative power. Is that correct? MR. VANN: Yes. But the Governor’s veto in Alabama can be overridden by a simple majority. So it’s not as effective a veto as you have in some other states and in the Federal system. THE COURT: But it’s a talking veto? A speaking veto? MR. VANN: That’s right, a “talking veto.” And when you have a position, as we were in, Justice Stewart, where in the State Senate, with 20 percent of the people, we only had—we had less than 3 percent of the representation, although we were in near–majority status with other counties affected, we couldn’t even effectively use those legislative devices used to protect minorities. We don’t have enough power to even use minority protection in the State Senate, at the present time. For example, the filibuster. THE COURT: You mean a negative kind of protection? MR. VANN: That’s right. The majority can’t even effectively utilize normal minority protections. THE COURT: [Inaudible] MR. VANN: In our judgment, no. And that is one of the points that I would like to cover in the very short time that I have. One, I’d like to say we feel additional relief is needed. And we have asked, in effect alternatively, for a direction to the District Court to provide at least substantially population reapportionment in the State Senate; or, we’ve asked for a declaration from the court. A declaration—well, either remedy, we think, might result in a legislative result before the District Court could handle it. It would give the District Court another opportunity, if the legislature again failed to act. Now we have this situation: The senate, as provided for in the order below, does not even eliminate the most egregious discrimination in the senate. In other words, the fact that our county with 20 percent of the people, means that we have one–seventh of the voice that our population would entitle us to in the State Senate. The Senate District of Bibb and Perry has 20 times the voice of my county. Mobile County, which Mr. McConnell comes from, only has a third of the voice that its population would entitle it to; and Bibb and Perry Counties have 10 times the voice of Mobile’s. Now this produces a very serious problem, and it has very [*28] immediate, and very practical results. A member of the legislature is more than a person to vote. A member of the State Senate is on committees; he’s chairman of committees; he has powers beyond his vote in the channeling of legislation. The existence of representation affects your area’s relationship with the State Executive And our county, if it please the Court, has been generally regarded by the State as the pool from which the taxes should come and the place to which very little of the money should return. We’d have State aid to small counties, without the consent of the payer for that aid. Now, coming to the point—and I think the crucial point—is that pointed out by Attorney General Richmond Flowers. The crucial point that I think has caused the legislature to be at logger–heads—it was the crucial point that I think disturbed the District Court below—was the provision of Section 200 of the State Constitution which says: No county shall be divided between two districts, and no district shall be made up of more than two counties not contiguous to each other. Now the first line there: “No county shall be divided between two districts,” is the point that has troubled people. Now the appellants get around that by simply changing the language when they quote the constitution. In their brief, at page 15 and 18, they simply change the word “between” to “into.” This was the way they argued it this morning, the assuming of what that word “between” means by changing it to “into.” The Solicitor General, in his brief, merely casts this vital point off by assuming, in his statement of facts, that this means “into” instead of “between.” The Solicitor General, in his brief, treats this in his footnote on page 6 by saying that this has been interpreted by apportionment under the 1901 constitution. Well, in the first place, until the Crawford–Webb Bill was passed, there had never been an apportionment statute. You are cited to Code provisions in the 1940 Code which appear to be a legislative apportionment of some kind. Well, now the Legislature of Alabama reapportioned itself almost faithfully, every 10 years, from 1920 through 1892, and the Code in existence in 1901 had a Code section in it which set out the latest apportionment under the 1892 bill. When the Code was revised in 1903, and again in 1923, the Code committee simply wrote the constitutional provisions in instead of that inaccurate Code section, which of course no longer applied. The only semblance of anything is incorporation into the Code of our constitution itself by our Code commit–[*29]tee. There’s never been a legislative act interpreting it. The question has never been ruled on by the Supreme Court of Alabama. That was another thing we did. We asked the Governor, who had a right to ask for advisory opinions, we asked him to submit this question to the Alabama Supreme Court, which he refused to do; because this has been the point: When you have a group of people who hold legislative power, they hold it in a minority basis. They’re being asked to vote themselves out of power or to reduce their power. They don’t want to give away any more power than they have to. Now I think the Legislature of Alabama—I know many members—is basically a fair–minded body. I think if they knew what the standard was, we would have an excellent chance of getting a proper bill from the Legislature. But, as long as this point—and we attempted to get it ruled on in the court below—as long as this point is in doubt, I think it’s almost impossible to get relief from the legislature; and therefore I think that it is of vital importance. THE COURT: How do you interpret that? MR. VANN: All right, that’s what I wanted to tell you, sir. The constitution, in five or six places, including this provision in 284 which says population shall not be removed by constitutional amendment, which is as strong a statement as the constitutional convention could have made, repeatedly states that population is the standard, is their goal and is their guideline. Now in interpreting the instrument within its four corners, as in accordance with Alabama practice and the cases which we have cited in our brief to you, this provision would be interpreted as being in line with that statement; and that would make it a provision which is a provision against gerrymandering, which is very reasonable, because you’ve got a group of Republican voters, or a group of pink people, or blue people, or green people—you can’t divide them up and tack them onto additional counties by dividing a county into fragments. Now this provision originally came into the Constitution of Alabama in substance in the original constitution. And there was never any discussion of it on the floor of any subsequent constitutional convention. The language got changed several times in re–drafting, but it’s been there from the first. Now as it was originally worded in the constitution of 1819, it said, “When a senatorial district shall be composed of two or more counties, no county shall be divided in forming a district,” which is exactly the interpretation which we think the Court should place upon it today. [*30]Now this is an interpretation within the framework entirely of Alabama law. Now we feel that in dealing with an historic document of people such as the Constitution of Alabama—and it is one of those more ancient in its origins of those of the 50 states—that the Court should deal with it most tenderly. We believe this: We believe that population is the standard of the Fourteenth Amendment, and we believe the Court should place an interpretation upon our State Constitution so as to make that Constitution—or rather as to prevent the Constitution, from reaching a constitutional issue that would strike its provision down unnecessarily—if this rule of construction is applied, the Court would still adopt our interpretation. THE COURT: When and why did they change that 1814 provision you just read? MR. VANN: Well, I believe it was first changed in the period during the Civil War. We had quite a series of constitutional conventions. We had one right at the first of the Civil War, where they wrote secession into the constitution. Then we had one under the military government at the end of the Civil War, where they wrote abolition of slavery into the State Constitution. And this was submitted to a vote of the people and it didn’t pass, but the military government certified it did and we had a bunch of confusion about that. So they came back the next year, I think, and had another constitution. During this time, this thing does not change. Then, following the last carpetbagger constitution—if you’ll pardon me—is what we call it in Alabama, the court, after the Tilden election, had another convention—and I might say, that no one that attended any of the previous conventions was at the constitution of 1875—and wrote another constitution. And it was at that time, with no discussion, that this change was made. And it was incorporated, without comment, into the constitution of 1901. Now I have to say this, that no county has ever had two senators. But, at no time since 1901, has the failure to give a county two senators produced serious ratios. There were times when someone might be entitled to two; but 1901 was the time of the industrialization of Jefferson County. Our City, Birmingham, did not exist at the time of the Civil War. We had this massive growth in the 1880s, and really massive after 1901. So the problem did not attain its serious proportions until after 1901. THE COURT: When did the supreme court give its advisory opinion that it meant that you couldn’t have two counties in one— [*31]MR. VANN: It never has. This question has never been submitted. THE COURT: That wasn’t submitted? MR. VANN: No. We asked the Governor to submit it. THE COURT: I see, yes. MR. VANN: We asked the legislature to submit it, and they all refused to submit it. I think they were afraid of what might be said; and they thought they would just go along with this one senator. THE COURT: Why do you ask this Court to pass on it? MR. VANN: Well, you might say—you might say it leaned heavily. And I’ve read it that way, and I’ve also read it to say just the opposite; that’s a very confusing paragraph. It seems to me in one way the court says that we ought to do that, but, if we did it, we would give the people with a majority of the citizens a majority of the votes in the senate—as if that’s some horrible result. And, with that statement, it sort of disturbs me. THE COURT: [Inaudible] MR. VANN: That’s right. They say “if,” if we do this, we would have to rule this; but we’re not satisfied we should do so. THE COURT: [Inaudible] MR. VANN: Well, now, this is the point the Solicitor General makes—that this is a “temporary order.” This is not a temporary order, in my estimation. In fact, I believe that if this was a temporary order, at least one of the appeals would not be properly before this Court. I think we have to treat this as a final order below. THE COURT: How can you say that this is not a temporary order, when the court states it to be? MR. VANN: Well, it said it is a “provisional order.” THE COURT: Well, what is a provisional order if it isn’t temporary? MR. VANN: A provisional order is one which remains in effect until changed. Now basically the court is seeking change, Your Honor, by the legislature, of course. The legislature, of course, has many more tools available to deal with reapportionment. They can change the sizes, if they’re not seriously affecting the representa–[*32]tion of some other county. They can deal with these problems of economy, and so forth, and maybe shift counties around without—where there’s no discrimination resulting. I would concede that courts can’t do that. The court merely wants to put a plan—now I would do this: I would call the Court’s attention to Moss against Burkhart, which will be before the Court, I understand, later in the year. And I feel that the court below should have done what Murrows said in that case: That if the court is going to enter a provisional order, it should enter one that protects our constitutional rights. As you said in the Watson case, Your Honor, constitutional rights are for here and now, and there must be some overwhelming reason for not doing so. Well, now at the time this order was entered, the legislature had recognized, I think, that it could not—that its bills were not good, because they not only passed the constitutional amendment, they not only passed the Crawford–Webb Bill, they passed the Special Primary Act. And they said: If the legislature is reapportioned by a court—they set up a whole special elections system, anticipating an order from the court. The whole reapportionment of the legislature, as it now sits, went through without one single hitch, without—none of the boogeymen that have been raised opposing the court dealing with this question arose. They set up a special Act. We elected the new legislature. It’s now in session. But the senate provisions are the provisions which the court itself held were unconstitutional—and they’re not just a little unconstitutional. They did not remove any of the most egregious remedies. Now, on its face, it appears to do more than it does, because the Special Primary Act said, at the same time, that if a new district has within it someone who’s already been nominated in our May primary, he will be the nominee and there will be no election. And the legislature has framed the whole Crawford–Webb Bill around the existing members of the senate. So, while on its surface it appears to make steps removing egregious discrimination, the two bills, in pare materia, sitting side by side, meant that there was no change in the senate at all. THE COURT: That’s precisely what the District Court said. The District Court said—the court said—they certainly knew what they were doing. They didn’t make any permanent reapportioning. In other words, they were setting up a temporary system for the election—for the ’62 election. MR. VANN: Correct. [*33]THE COURT: But they retained jurisdiction. But, they said, what we have set up does not meet our standards. MR. VANN: Correct. THE COURT: We want the legislature to go ahead and meet our standards; and, if the legislature doesn’t, we will do something further. MR. VANN: Now I said this—and let me emphasize—the legislature has many tools to deal with reapportionment. They set up a plan under which we are denied the equal protection of the laws, and representation, in the forming of a permanent plan. In other words, the court has set it up leaving in control the same people who don’t want to give up the power. And they’re going to—we must assume, under the natural course of events—they are going to devise a permanent plan, if they do, which limits us just as much as they think they can get away with in this Court. I mean, we have to make this assumption, I believe; and I believe that we’re entitled to equal protection in the formation of that plan, and that’s the reason I— THE COURT: What was your proposed remedy to the court? What would you have the lower court do? MR. VANN: I would have the court—the court below, I think, would have one of several choices. And I think that the discretion of that court should be recognized. THE COURT: Could the court order an election–at–large, pending— MR. VANN: The court needs to order no election. I don’t believe the court should order an election–at–large, because I believe this is a chaotic form of election where you’re electing 105 members of one house, 135 of others. You’ll have many areas of the State with no representation at all. I could go on. These are the reasons I object to election–at–large, and feel that this is a much more conservative remedy; but they could treat that. They could modify this. We have a special election procedure, for instance, if the appellants should win in this case and if you were to unseat by reversal the 10 new legislators from my county, there would be vacancies. The law provides the Governor shall call a special election to fill the vacancies in the legislature. If the court below gave us the proper representation, the laws of Alabama are in existence. The court has to do nothing but require the Governor to call a special election to fill those vacancies. You can, without disruption, without any court supervision of elections or anything of that nature, make the correction. [*34]Or, the other remedy which was rejected below: that you could use proportional voting in the present legislature, without affecting its members at all. Since the next election is a long way off, you could give the one senator from Jefferson County seven votes in this matter, and effect equal proportions by proportional voting. This was a remedy suggested by amicus brief below. THE COURT: Would you multiply his committee assignments by seven? MR. VANN: We couldn’t do that. And this is the reason we objected to proportional voting, below, and that we felt with an election coming on that this was impractical, since he couldn’t serve on any more committees than he had time to serve on. THE COURT: May I ask you: An election was held in 1962? MR. VANN: That’s correct. THE COURT: Under this court order? I mean in conformity with this? MR. VANN: It was held under this Special Primary Act, and it was a regular general election. THE COURT: But the apportionment was as created by this District Court’s decree, wasn’t it? MR. VANN: That’s correct. THE COURT: An election in conformity with that. Now what are the terms of the legislature? How long are they going to sit—is that legislature going to sit? MR. VANN: All members serve for four years. THE COURT: Four years, both house and senate? MR. VANN: They have three more years to serve. This is a long time. THE COURT: Both house and senate? MR. VANN: That’s right. They’ve already passed more taxes than any other legislature in history. MR. CHIEF JUSTICE WARREN: Very well. Mr. McConnell? ON BEHALF OF APPELLANTS IN NO. 41 MR. McCONNELL: Mr. Chief Justice, may it please this Court: [*35]We, as appellants, were also intervenors as plaintiffs in the action below. We have brought this appeal for the simple and sole purpose of, as we stated in our brief, of what the lower court did not say rather than what it did say. It may have been intimated, and perhaps implicit, on some of these things such as the question of dividing a county to give more equality of representation in the senate, but we feel that the Court—this Court—should set out guidelines for either the lower court or the legislature. We believe—and I think the appearance here of the Attorney General intimates—that whatever the Court gives as a minimum apportionment will be the maximum apportionment that you receive in the legislature. We believe that it needs guidelines and standards. Now we’ve been here for two days talking on this problem. Many interesting questions have arisen. And I would like to take the brief time that has been allotted to this appellant to perhaps answer some of those questions. First, we are here as individual citizens. I do not claim to represent an urban area, a certain occupation within that. I am first a citizen of the State of Alabama. I am second, a lawyer. Someone else may be first a citizen, and second a banker. But what we are talking about here is protection of individual, civil, private rights. We think there’s a difference between apportionment and selection of the unit to be represented. We believe—and I believe it was Mr. Justice Brandeis that said—that one of the strengths and advantages of our system was that we had 50 laboratories in which various political theories could be tried. And we think that that should be strengthened, and that no restriction should be placed on the individual states working out their own form of government. But, within constitutional standards and limitations, you may have experimentation—I believe it was Mr. Justice Stewart asked us yesterday—experimentation in the unit of representation. But once that unit is determined, there can be no experimentation in the equality of representation from that unit. I believe it was Mr. Justice Stewart who asked yesterday about a six–house legislature. We are talking here governmental processes. We are asking for equality in the governmental process. We say you may have a multi–number executive, a council, so long as each individual citizen has equality of representation in each of the members of that multi–number executive. THE COURT: Are there any states which, in fact, have governor’s councils which are appointive rather than elective, and which have considerable legislative power? [*36]MR. McCONNEL: I recall the question yesterday, Mr. Justice Stewart, and I’m not aware or familiar with one that does, that has any legislative power. But again— THE COURT: I don’t know. The New England states, a good many of them, have governor’s councils—they’re called by various names—with more or less political power, and I think, legislative power. MR. McCONNELL: Well, again now, we would not say that that would be unconstitutional. I would have to look at the method of selection and the voice that that council has. Because—well, take in Gray versus Sanders, where you say it’s a unit–wide election, it’s an election of statewide officials. You say that the vote must count equal. Let’s just say that there had been nothing but direct counting. Then you remove it one process and you have a counting of votes; and then you have a second counting in which the first votes are changed into a new ratio. Now I think you could apply that to your council that you’re speaking of, if the Governor, say, who was elected directly by everyone—statewide vote—should select half of those council members, and the other half were hereditary, then that council would not be constitutional because the citizens who had an equal voice in the selection of the Governor only had an equal voice in the selection of half of the members of that council; the other half, he had no participation. Now our point here, and our sole point on appeal, is that we think that population must be the initial controlling guide; and that that must be in every stage of the legislative process. If it’s unicameral, it’s satisfied if you have equal voice in one house. If it’s bicameral, such as it is in Alabama, there must be equality in each house, because both houses are necessary to enact laws. If we have equal voice in only one house, and no voice, and your question happens to be home rule—if you had home rule for Mobile County that I represent here, if there was just one right such as Congressional redistricting which will face this Court in the next few days—that is done by the State Legislature. We would be deprived, in Mobile County, of our equality in the legislative process if, simply because we had home rule on everything but Congressional districting, did not have an equal voice in the legislature in the districting of the State for Congressional elections. THE COURT: Does your argument lead to this: that if a state wanted also to pursue the policy of guaranteeing as a unit every county a seat in the legislature, the legislature would have to be large enough so that the population could mathematically prevail? [*37]MR. McCONNELL: Your Honor, That’s our point. And that’s the reason that we are not even satisfied. Now the other appellants are here principally because of the senate. We concur in what they say in the senate, but we also do not believe that the apportionment of the house of representatives in Alabama allowing one representative per county first will give us equality in the legislative process. The figures—I think there may be a conflict—but it’s roughly a little better than 40 percent, which is about what New York is arguing here on theirs. But that’s after the lower court did comply with our constitutional provisions, and we say that it’s not necessarily gross. We say you start with population. But we recognize—and without disagreeing with Mr. Justice Stewart—it may not be eighth grade arithmetic on the first part, but I believe that eighth grade arithmetic will determine the ratio. Now which ratio, and where you stop, we recognize this point that Mr. Justice Goldberg just raised: the size of the house—if in Alabama you take 106, we have 3,200,000 people. You divide it. You get a ratio of about 30,000 per representative. Now we recognize that there will have to be administrative deviations from an exact 30,800 per representative, and that there is leeway there; but we won’t go so far as to say that that leeway must be gross before the court will strike it down. You’ll look at why the leeway, and if it’s simply to keep one precinct from one county from being taken out of the county and put in another to equalize the districts, you may say that that’s all right. But it doesn’t have to become what, in the past, we have termed “gross” for the court to act. The question of proportional voting: We feel that the State could establish, constitutionally, proportional voting. We feel that they could establish a three–house legislature, one on geography, one on occupation, one on something else. But in each house, where it’s proportional also, it would have to be that each voter or each citizen in the State would have to have equality in the representative in each house. You mentioned management and labor. If you could divide the State of Alabama into two groups in which management was two–thirds and labor was one–third, you could have a house made up of occupations. But two–thirds would have to be elected by management and one–third by the other. THE COURT: Could a State, under the Constitution under the Fourteenth Amendment, just say: We’re not going to have any legislative assembly; we’re going to give all our legislative power to the governor? MR. McCONNELL: It gets then—and that’s also an important [*38] question here, of this checks and balances. I don’t think there’s anything necessarily in the Fourteenth Amendment that would say that you had to have separation of powers that we’ve traditionally had between executive and legislature. But it would say that, if you put that power in one, each citizen in the state must have equality in the selection and in the voice of that particular representative, be it governor or if you gave the administrative powers to the legislature. THE COURT: Presumably, under Gray against Sanders, there would be a statewide general election for governor? MR. McCONNELL: Yes, sir. THE COURT: Every person’s vote counting equally, every qualified voter’s vote counting equally, you think under the Constitution a state could say: You have all the legislative power and all the executive power in this state? MR. McCONNELL: I haven’t actually checked into that, but it does come back to the question that was raised yesterday. If I might answer it this way—and I agree with Mr. Justice Goldberg—that I think that the republican guarantee clause does have a place here. Now we don’t want to make a case of this republican guarantee, recognizing the past decisions of the Court as to justiciability, but we do believe that, in answer to Mr. Justice Harlan, where do we find this in the Constitution? The Federal Constitution mentions only one form of government. You can check, from the beginning to the end, and that is the republican form. Now we say, having mentioned that, then we can look back, regardless of the question of whether it’s a guarantee or not. We’re not saying “enforce the guarantee here,” but as a measure, a standard of what type of government, of what type of equal protection are we talking about in the Fourteenth? We can look back to the only form that the Constitution has mentioned. And I don’t believe that you’ll find in the Federalist Papers others. You will find a discussion, under the guarantee clause there, the question of equal representation. I don’t believe we find a question there of division of powers between the executive and the legislature. But you will find—and that was not quoted, though, in the Appendix B that the Solicitor General has filed in the Maryland case—Federalist Paper No. 39, I believe it is that he quotes, does not quote an earlier paragraph in there relative to equal representation. But that is our position: That you can experiment on the different forms, but there can be no experimentation in which the equality is diluted or taken away; that in the governmental process—now we’re only talking about one, here, that’s the legislative [*39] process—but to us, it’s unthinkable that we can speak of equal protection of the laws in which the citizen does not have equal participation in that law. And we also wish to emphasize here that there’s a difference between affirmative and negative powers of government. As we’ve pointed out in our brief, we feel that a government that is not able to act is not a just government. We’ve seen what happened in Alabama, the failure to act, for 60 years. What may have been just in 1901 is no longer just now. But what we have here is not protection of the minority against the abuses of the majority. You have minority control, so that there can be no affirmative action. Now we think that there’s room for experimentation on the checks and balances of extraordinary majorities, under certain circumstances, of providing even that a bill would have to pass, say, two legislatures in order to provide time for consideration. But don’t put it in a straitjacket so that even when a majority do want a particular governmental policy that that majority is not able to transmit its desire into law. And we say that this is not protection of minorities; it’s actually giving the minorities process, which we say is not due process. THE COURT: At this point, you’re arguing to the effect that the failure of a state to take affirmative action is a denial of equal protection of the law? The failure denies equal protection. Is that correct? MR. McCONNELL: Yes, sir, we most certainly do. When the effect of that failure to act results in what it has resulted in in Alabama, it’s certainly a denial of equal protection. And, as I said, we believe that the equal protection clause of the Fourteenth Amendment applies to the entire legislative process, which in Alabama is both houses. As we pointed out, you can initiate legislation in either house—except tax measures—but it requires both houses to affirmatively adopt any bill; and therefore to give equality in one house, and to deny equality in the second house, is to deny equality in the entire legislative process; because one–half of equality does not give you equality. THE COURT: Would you have equality under the 1901 provision, Mr. McConnell? MR. McCONNELL: You mean if we followed the wording of the 1901 constitution? THE COURT: Yes. MR. McCONNELL: We maintain that you could not, Your Honor, in the house. [*40]Now we concur in the other appellants’ argument of the interpretation that could be given to the senate provisions, which we think would square that without declaring it unconstitutional; but, in the house, where you have a provision that each county must have at least one representative, then we maintain—and as the Attorney General pointed out, that he gave—that he followed a method that we think is fair: the method of equal proportions in allotting the representatives to the house of representatives. But even then, Houston County had 1 representative for 50,000; Coosa County, with only 10,000 population, has 1 representative. That’s the worst, 5 to 1 ratio, even with what we say is a fair method. But once you start by giving 67 representatives to the existing 67 counties, one to each, then you make it impossible to give equality of representation in the remaining seats. Now we also pointed out in our brief the fact that the legislature can achieve the 67th senatorial amendment simply by legislative act. The constitution provides an upper limit on the size of the house, but no lower limit. They could provide, therefore, a house of 67 members, in which then each county would be entitled to 1. You would end up with a 67–member house, in which the largest would have a population of 634,000; the smallest, 10,000. Now we believe that the constitutional convention in 1901 in Alabama, if you look at the proceedings—and we’ve cited them in a footnote in our brief, the pages to the constitutional convention—if you look at the provisions themselves, throughout the delegates to that convention recognized the fairness of population. Every provision even down to the formation of new counties, they had a provision in there that no county could be formed unless it had enough people in the new county to the ratio of population to get it one representative; or that left the old county, or counties from which it was taken with a ratio of representation entitling it to one. So that they even thought about this thing of taking in new counties. They couldn’t dilute the vote unless that new county came in with a population sufficient to entitle it to at least one representative. But to your question, Mr. Chief Justice: We do not believe that, on the house, that a conformity with the provisions of the Alabama Constitution would meet the constitutional standards of the Fourteenth Amendment. Now we, as I said, asked the lower court to declare this in our original petition—to declare these guidelines—because, as the Attorney General has pointed out here, there is—well, and we’ve seen and the State of Alabama in its brief, in its brief here, has pointed out—that one session of the legislature has gone by with this reapportioned legislature that didn’t get anywhere with a further reapportionment. Now we believe that not only is further ac–[*41]tion necessary—and we do recognize the concluding paragraph of the court that the court, in about as strong language as it could, stated that it was going to do something if the legislature didn’t—but we do believe that either the lower court or the legislature needs a guideline, a criteria, a standard by which to measure what they do and what they must do in order to conform to the requirements of the Fourteenth Amendment. We think that the wording, as contained in this section of the Alabama Constitution, and by constitutional amendments, and what they wrote in, that population shall be the basis of representation, and that it cannot be changed by constitutional amendment—in there it says, “as nearly as may be”—and we think that, although we are arguing numbers, numbers is a safe guide here for determining whether or not we meet that standard. But we don’t say mathematical exactitude is necessary. In other words, “as nearly as may be.” In the perfect set–up, in an election–at–large, every man’s vote counts once. If you break into that down into two districts— THE COURT: Are you suggesting that that would be the perfect set–up for electing an assembly—all of them to be elected at–large? MR. McCONNELL: No, sir. I didn’t mean that in applying to—I agree with the others, that we would have chaos if you had to elect 106 members of the house and 35 members of the senate. THE COURT: And what you’d probably have, all of them—all of them representing a couple of the big counties. MR. McCONNELL: Well of course there—and this is another reason that we emphasize, and it ran through the thread of the New York case—I can only speak for Alabama, but we emphasize that we’re here for individuals. There are many people in my County, many people in Jefferson County, who are happy with the rural domination of the legislature. So we’re not unanimous. THE COURT: In other words, you’re saying that those rural legislators more truly represent some of the voters in Birmingham than does your own representative? MR. McCONNELL: Well, I say “more truly represent.” They don’t like these taxes that come out; but they may like some of the other things. Now we pay more than our share of taxes than does the rest of the State; but that’s just the sort of tribute you pay to get other types of laws with which they do agree—but that’s just facing the practicalities of the situation. Now, if you got into proportional representation which you mentioned, there might be some way. I say that you can experiment [*42] there but, regardless of how you do it, you’ve still got to end up—when the representative gets there, he must represent either an equal number, or each person must have an equal share of the representative; either way you want to put it. Now this proportional voting that you mentioned that was proposed, the court asked amicus to brief this, on proportional voting in the legislature. We opposed it for the simple reason that you asked about: committee assignments; others are filibuster. There are many ways. By the same token, we think that it would be unfair if you gave Jefferson County and Mobile County the proper number of representatives and senators, then after they got there you told them they had to vote by county. Suppose we got seven, and then you say: All right, now, you can go to your committees, you can filibuster, but when it comes to voting we’re going to have a “unit rule”—which we think is a perfect illustration of what we say is a denial of equality in the legislative process. But we think that it has to be there in both houses. And although we do not like to argue that our constitutional provision violates the Fourteenth Amendment we do believe that there is not any one principle that can apply in the State of Alabama. We don’t have near the urban characteristics of New York. As was pointed out in the Solicitor General’s brief, the 9 largest counties here in Alabama have just about 50 percent of the population; and those 9 are from one end of the State to the other and do not necessarily represent common interests or common views and would probably not act together, or would rarely act together. But we believe that the present constitutional provisions, with regard to the house of representatives in Alabama, do not meet the standards required by the Fourteenth Amendment. And we believe that either this Court should so declare or for the lower court then to act—now we, my particular appellants, recommend a solution there: It’s an experimentation in the type of unit, but it ends up with equality of representation. It may be a little difficult to administer, but we think there’s even a way that you can conform to the Alabama requirements and give equality in the house of representatives. But we say, what we ask here is, that this Court set out the standard and the guidelines for either the legislature or the lower court to follow in apportionment, but that basic to it must be—and this was the thing that worries me, when they cited Fortson, a Georgia case, and even Scholle versus Hare, and others—a question in the court’s mind as to whether or not both houses of a bicameral legislature had to be apportioned to give equality of representation in each house. And it was that type of language, that concern by the lower court was the principal reason why I appealed [*43] here, because we believe that you do not satisfy it in a bicameral legislature unless you have quality of representation in both. Now we take it, from Gray versus Sanders, that it starts out with the idea of one man–one vote, and statewide. But we do not believe that, simply by raising it to another level—to a representative—that you can dilute that equality that you started with in the governmental process—here, the legislative process—dilute it by passing it through something that makes it come out with a different ratio or a different percentage at the next level. Just as the county unit, after all—suppose they had elected people statewide, just like the electors on the Federal level. Those electors then, in Georgia, would have had a certain number of votes based on the county units. The Georgia voter would have had equality in selecting the electors, but that equality in the final analysis would have been taken away. But we urge the Fourteenth Amendment applies to both houses of a bicameral legislature. THE COURT: If I get your argument, what you’re really saying is, Gray against Sanders determines this case. MR. McCONNELL: No, sir, I don’t say I was glad to see Gray versus Sanders. THE COURT: Naturally. MR. McCONNELL: I won’t say it determines it, but I certainly think that, if you start with the proposition there that in a statewide office that each vote should count as one, I think that it applies. Because that’s basic, in the idea of self–government or a representative government, that each citizen is equal in that participation. And the only way you can carry that over into the legislature is to make that equality start with the vote for the representative and in the voice of the representative in the legislature. THE COURT: A legislator, an individual legislator, has a constituency which is not statewide. MR. McCONNELL: That’s right, sir. THE COURT: He’s not a statewide officer. MR. McCONNELL: But Gray versus Sanders says that you must give each constituent— THE COURT: “Within any given constituency,” and in that case it was the State. MR. McCONNELL: But, as I said, I am a citizen of the State of Alabama. I may live in the County of Mobile. I am represented in a legislature that makes laws for the entire State. Now, if my voice— [*44]THE COURT: But you have one or more representatives, with respect to your constituency. MR. McCONNELL: I have representatives. But when they get to the law–making body in Montgomery, they speak with a voice unequal to that of the adjacent county. I can move across the county line, and suddenly my participation changes materially. But I am first a citizen of the State of Alabama. I am subject to laws made by one legislature, and all I ask as a citizen is equal participation in that lawmaking process. I believe my time is up—Yes, sir? THE COURT: [Inaudible] MR. McCONNELL: Well, I would like, first, Mr. Justice White, that this Court declare that the Fourteenth Amendment sets up first a standard of population, which can be deviated from only under the most compelling—and I would even— THE COURT: [Inaudible] MR. McCONNELL: No, sir. I don’t think it went far enough. I think that, as Mr. Vann said earlier— THE COURT: [Inaudible] MR. McCONNELL: Not to go back to the one prior to that, but to go forward to one that would comply with a guideline that this Court would set out, namely that— THE COURT: [Inaudible] MR. McCONNELL: Yes, sir, that is what we would ask. Population equal as to both houses, yes, sir. THE COURT: [Inaudible] MR. McCONNELL: I certainly do, Your Honor. I do, because in the house it will still give only 40 percent. And if you look at the tables attached to the court’s opinion, it shows a trend of population that is going to get worse rather than better, and that this 40 percent may go down. THE COURT: [Inaudible] MR. McCONNELL: Oh, yes, sir; yes, sir, I agree, and I commend the court. After all, it was pioneering in a new field. And I’m not criticizing the court for not going any farther. I want it to, and I want this Court to because—simply because it didn’t go far enough. But—I approve of what they did, but ask for more. THE COURT: [Inaudible] [*45]MR. McCONNELL: Yes, sir, to this extent: Under the law that Mr. Vann mentioned—and it’s interesting. If you look, they provided machinery for just this thing. So that if there are any vacancies you simply have an election in those counties, the district in which they are, so there wouldn’t be a complete turnover. In fact, the invalidation of the Webb–Crawford in the senate, resulted in only one election for the senate. THE COURT: Special election? MR. McCONNELL: Special election. THE COURT: [Inaudible] MR. McCONNELL: That’s right. Subsequent to the meeting of the legislature, no, Your Honor; the legislature adjourned in September. This case had already been set down. And, as far as I know, no effort has been made in the lower court since the adjournment of the last legislature. THE COURT: Mr. McConnell, do you read the court’s opinion below as accepting as a part of a future permanent remedy the 67th amendment provisions with regard to the house? When the court gets around to a permanent, to a permanent solution, do you feel from its opinion—does the opinion seem to you that it would start by accepting that 67th amendment for the house? MR. McCONNELL: That is what troubled us, Your Honor, because, if you notice on page 151 of the record, it says: “The result may well be that representation according to population to some extent”—and the court italicized that in its opinion—“to some extent must be required in both houses”—and it italicized “both.” This is in the middle of the page there—“if invidious discrimination in the legislative systems as a whole”—now we agree with that “as a whole,” but this “to some extent” worries me; because I think that the court may be, as the Attorney General would be, satisfied with the house being apportioned in accordance with the requirements of the 1901 constitution and the Webb–Crawford and the 67th amendment provision. I would read that as “not clear,” but I think it’s open to that inference. THE COURT: Mr. McConnell, how many counties would there be, in the event your view prevailed, that did not have a representative? MR. McCONNELL: Well, Mr. Justice Clark, in one of the footnotes, we just point out that out of the 67 counties only 27 have a population in excess of the ratio of 30,000 per representative. If you divide 106 into our population, only 27 would be entitled to 1. [*46] The remaining 40, except for a few—some of them are close to the line and you might, for administrative reasons— THE COURT: They’d be floating districts? MR. McCONNELL: They would have to be floating districts—so it would be over half of the counties. THE COURT: That would not have a representative? MR. McCONNELL: Would not have a single— THE COURT: I mean, a single one? MR. McCONNELL: They would have a representative, but not elected by them, solely. MR. CHIEF JUSTICE WARREN: Thank you, Mr. McConnell. Mr. Solicitor General? BEHALF OF THE UNITED STATES AS AMICUS CURIAE, URGING AFFIRMANCE MR. COX: Mr. Chief Justice, may it please the Court: Before I come to my argument proper, I want to comment very briefly on two points with respect to which our brief may be misleading. First is this question concerning the interpretation of the provision in the State Constitution: “No county shall be divided between two districts, and no district shall be made up of two or more counties not contiguous to each other.” It’s the first half of that that we’re concerned with. We have assumed in our brief that this meant that no county could have more than one senator. Now I did not—we made the assumption, partly because it seemed to make the case hardest against us; we made the assumption also because we understood, perhaps wrongly, that that was the interpretation people in Alabama put on it—I did not mean to be arguing that that was the right interpretation. Indeed, as I read it as an outsider, it seemed to me it was an extraordinary interpretation and that I would have read it the other way. THE COURT: This goes harder against you? MR. COX: I thought it made it a somewhat harder case for us, yes. THE COURT: Why was that? MR. COX: To read it the way they do? Because— THE COURT: You say that one county, that you assume at least one county per senator? Or one senator per county? MR. COX: Yes. [*47]THE COURT: It’s easier for you. MR. COX: Well, I didn’t think so, but maybe I’m wrong. I thought, at least reading it that way, Alabama could say that in the Crawford–Webb Act, and some of these things, it was conforming to its own constitution; and it also could cite as support for what it’s doing the provisions in a good many state constitutions that do say that a county can have only one senator. And it seemed to me that those things cut against us. The only point I’m really trying to make is that I do not want to seem to be expressing a considered view on this question. It’s a question of Alabama law. And I’m one of the least–equipped, by background or experience or anything else, to have a view on it. I just wanted to make it plain that we don’t argue either way. THE COURT: Your view does seem to be, though, Mr. Solicitor General, unless you’ve changed it—I’m reading from the footnote 13 at the bottom of page 22, the very last clause after “Senator,” and you said that, “The State’s own interpretation is to the contrary.” That is, the State’s own interpretation is that there should be no more than one senator in any one county; and it’s plainly controlling. Now have you changed that view, as to how the State has— MR. COX: After listening to what has been said here about the Alabama understanding and Alabama practice, I’m bound to say that that raises some question in my mind as to whether that is the State’s own interpretation. That was the point I was trying to make. You bring it out very well. The other point on which I think I was guilty of some misunderstanding is in those statements in which I said that it was questionable whether the Crawford–Webb Act had become effective. Upon rethinking that, it seems to me that it is quite clear that it would become effective as of the 1966 election; and that the statements that say that this was intended to take effect only if the constitutional amendment were voted down, are inconsistent with the words of the Crawford–Webb Act. It says it shall take effect as of the 1966 election, with no “ifs, ands, or buts.” So that the constitutional amendment, I take it, would be sort of a condition subsequent, rather than its defeat being a condition precedent. I don’t think these are matters, either of them, matters that go to the essence. But I didn’t want to be guilty of misleading the Court. Now I do come to the points that we wanted to develop. Our position, as stated in the brief, is that the judgment below should be affirmed. There are a number of issues of the case—three on ap–[*48]portionment. But I think it all falls easily into place, if we take up the questions in the same sequence in which they came before the District Court, that they had to face them. And I shall attempt to relate each of those issues to the basic thesis that I sought expound yesterday. The first question in the District Court was whether the apportionment in effect in Alabama then—the 1901 apportionment—violated the equal protection clause. It’s quite plain, I think, and you see that it is hardly argued that that apportionment violated the equal protection clause, under the second principle that I sought to state yesterday, in other words, that it discriminates between people. They stand unequally before the election law, without any rhyme or reason, without any justification for the inequality. And under Baker and Carr, the Court has power to adjudicate that—and would, we should think, without any question, hold that that apportionment is unconstitutional. We’ve given the evidence that it’s a crazy–quilt in our brief. I see no need to take the time to give the Court a mass of figures here. The question then arose: What remedy should the District Court direct? The legislature had already considered this question, by reason of the fact that the District Court, before it made a firm adjudication, had indicated its views in an opinion, and the legislature had done three things: First, it had provided no role for the November 1962 election, and there was a legislature to be elected then. It did pass a law indicating that if the court should direct an apportionment, then the State election would be conducted in accordance with that apportionment, which in effect indicated that the State was prepared to fit in with what the court must do. Second, the legislature put up to the people the so–called “67–senator amendment,” to be voted in November 1962. And, third, it enacted the Crawford–Webb Act that I referred to earlier. Now it would seem to me that, at this point, the District Court was required to consider the 67–senator amendment, not as an effective provision—because it hadn’t been ratified by the people; and I suppose ordinarily a court wouldn’t pass on, a Federal court wouldn’t pass on the constitutionality of something that hadn’t become effective law—but here the court was under an obligation to shape any decree it might enter as closely to the desire of the people of Alabama, as expressed through their public organs, as it was able. And the prime rating, if I may use that expression, that the legislature—the best authority in Alabama, subject to criticism as it might be, as unrepresentative—had indicated that the apportionment in the 67–senator amendment was the one that it thought was most desirable. And if that did not infringe on the plaintiffs’ con–[*49]stitutional rights, then I would think that it would have been an error of law for the District Court not to have incorporated that in its decree, or at least permit the election to have been conducted in accordance with that apportionment. So the court was obliged to consider whether the 67–senator amendment would infringe upon the plaintiffs’ constitutional rights. It was obliged to consider the Crawford–Webb Act for the same reason. Now, of course, the 1962 election has been held. But the Crawford–Webb Act is still a reality with respect to the 1966 election, and therefore would have to be considered. So I think that both those apportionments are before the Court properly for consideration, just as if they were effective law. The 67–senator amendment, we say, is invalid because it makes classifications or differentiations that, within the usual equal protection standards, are arbitrary and capricious. I point out that something may be arbitrary or capricious for at least three reasons that correspond to the second, third, and fourth of the propositions I outlined yesterday. Something may be arbitrary and capricious because there’s no intelligible foundation; it’s just as if you threw dice or had some other system like that. That’s not applicable to the 67–senator amendment. It does have a rule, both with respect to the senate and with respect to the house of representatives. The rule in the senate, you’ll recall, is, “one from each county”; the rule in the house is, “one from each county,” and then the rest according to population. THE COURT: Does this mean it does not violate the “crazy–quilt” doctrine? MR. COX: I think it does not violate the “crazy–quilt” doctrine. THE COURT: You do? MR. COX: Yes. That doesn’t mean it’s good, but it’s not bad, on that ground. THE COURT: It doesn’t violate the “crazy–quilt” doctrine? MR. COX: Right. I think, in addition, Mr. Justice Stewart, that it does not violate the doctrine that I stressed yesterday in the New York case. THE COURT: The no–rhyme–or–reason doctrine? MR. COX: No, that’s the “crazy–quilt” doctrine. THE COURT: Oh. They’re synonymous? MR. COX: They’re identical. They’re just two ways of saying the same thing. [*50]Let me just intrude two or three sentences. Perhaps I can manage to make what I’ve been trying to say clear. I take it that something may be arbitrary and capricious, even though intelligible, in the sense that the lines that it draws, the differentiation, has no relation to any, no rational relationship, to any permissible legislative purpose. That is true in Brown against Board of Education. It's ture in any number of cases, that there is an intelligible differentiation, a pattern. And I say that if there is a pattern, while it does not violate the “crazy–quilt” doctrine, still it is an irrational differentiation if the criteria bear no rational relationship to a permissible legislative purpose. Now we say that the New York apportionment of the senate bore no rational relationship, when you examined it closely, to any permissible legislative purpose. Because the purposes that were claimed for it—keeping the size of the counties small; giving people access to their representatives; and so forth—were purposes that it had no tendency to accomplish it, when you examined it. The districts were getting bigger. What it did was create a class society in a political sense. It attempted to say that one class of people should have more votes than another. And that was its only function. And that, we say, is a denial of equal protection. It is not related to any permissible legislative purpose. Now the 67–senator amendment is not bad, on this ground, Mr. Justice, in our view. It has a rational tendency to do two things, or three things, I suppose. It does—it has a tendency to assure that each county will have at least one representative, while at the same time the legislature does not get so big as to be unmanageable. And I have assumed that those are not only intelligible, but permissible purposes of legislative apportionment. And in the case of the one senator for each county, it again tends to do the same thing. So the question arises, at this point— THE COURT: With respect to the senate, that’s the limit of what it proposes? One senator for each county? MR. COX: That’s all, yes. Now the house, it really combines two things: population, and one for each county. THE COURT: In the house, it gives one member to each county, then the overflow in population? MR. COX: The overflow in population, that’s right. THE COURT: And the limit is on the total size, of what, 135? [*51]MR. COX: 105. THE COURT: 105. MR. COX: And 67 of them are distributed, 1 for each county, which leaves you another 38 to distribute by population. It results, as I’ll point out in a moment, in—the majority might be elected by, I think it is 41 percent, by counties having 41 percent of the population. In the senate, it’s much, much smaller. The senate is less than 20 percent. This brings us to a further sense in which I think something may be an unreasonable or arbitrary and capricious differentiation, and that is when the objectives, to put it generally, that the law seeks to accomplish are so trivial, so inconsequential, in relation to the interests that are being sacrificed, that anyone would say that that is an unreasonable and arbitrary balance that has been struck. And, in an effort to incorporate that into language suitable to the apportionment problems, we suggested as our fourth proposition that the equal protection clause is violated by an apportionment which subordinates the principle of popular representation and majority rule to other permissible objectives of apportionment to such a degree as to create gross inequalities in per capita representation and give control of the legislature to representatives chosen by very small minorities of the people. In applying this principle, the legislature, we think, must be judged as a whole. One must have a rule that would be applicable to a unicameral legislature. There, clearly, you would judge it as a whole. On the other hand, I think, in attempting to give more meaning to that general statement, it’s appropriate to take into account that it will generally have to be applied to bicameral legislatures in this country—not invariably, but generally. And it’s appropriate to see how it would apply to them. So that we suggest two subordinate comments to the generalization. First, we assume, because there’s no need to hold otherwise in these cases, that when one house of the legislature is apportioned substantially according to population, then we assume that the Fourteenth Amendment may leave considerable room in the other house for taking these other permissible purposes into account. On the other hand, we submit that it would require the very strongest kind of showing of other purposes, the need for fulfilling them, and their importance, to justify substantial departures from per capita equality and the sacrifice of majority rule in both houses of the legislature. THE COURT: [Inaudible] [*52]MR. COX: Well, I would think that majority rule will not operate 100 percent unless you have per capita equality in both houses. That’s quite clear. But I was not suggesting that there must be majority rule in the legislature; I was saying that you couldn’t subordinate it too far to these other objectives. THE COURT: What’s “too far”? MR. COX: Well, I think that is something—without sounding facetious—I think that has to be decided in each case. In these cases, it is “very, very far,” as I will attempt to show; and it is in both houses. THE COURT: [Inaudible] MR. COX: I would think there was no denial of equal protection. I haven’t thought of the case before, but it seems to me that all voters, all population, are being treated alike. It would be a peculiarly negative form of government, but I don’t see immediately any respect in which people are being classified, or voters are being classified. Equally—I don’t want to divert too far, but I do hope to deal with the question sometime—I suppose abolishing the legislature doesn’t violate the equal protection clause. The question is: If you have a legislature and give people the right to use it, just as if you have a court system and give people access to the courts, then what does equal protection require? Well, Mr. Justice Goldberg, I suggest the answer is a question of degree. Let me make just one further answer to this: Like all questions of degree, it’s hard to get a fixed rule; but I think sometimes we can clarify our thinking by articulating the generalization, loose as it may be, in different ways. And it occurred to me that the proposition I have formulated might be put in somewhat different language this way: Looking at the balance that the State has struck between these other purposes—like not–too–large districts, recognition of the county or town, as an entity, is what it has—looking at it, does one get the conviction that what it has done is strike a balance between the notion of per capita equality and majority rule, and these other competing considerations that require some modification? Or is what it has done to weight some areas or some classes—people who live in some areas, or some categories of people—as more important in the political world than others? When you look at it, which conviction are you left with? If you’re left with the conviction that this involves creating preferred political classes, and subordinate political classes, then it violates the equal protection clause. If you’re left with the conviction that the legislature focused on what I would define as its job, and struck [*53] this balance, while we might not agree, still it seems to have done it conscientiously, then I think it might satisfy my test—that’s, again, not precise. Let me come to this particular case, because the 67–senator amendment is, I think, most egregious in this respect—and Maryland is most egregious in this respect. And these are really the only two instances—indeed, I don’t think you have to face it in Maryland—in which this question of degree does have to be faced, so that I don’t have to fix, and the Court doesn’t have to fix, the line. I think it would be wise not to fix the line, at least until there’s some pretty clear view as to where it would be. THE COURT: In New York, you told us— MR. COX: In New York, I don’t have to reach this proposition. In New York, the rule that New York apportions its senate on has no relation to any permissible legislative purpose. Let me put an illustration like this, Mr. Justice Stewart, which is not any of these cases, though it’s close to the Virginia case. Suppose that, in New York, the people of Erie County—which is Buffalo, one of the big counties—were given only one representative and only one senator, and the rest of the State was apportioned according to population. I take it that the State would look pretty good, in terms of the smallest minority that could control the legislature in either house in terms of majority rule, but there would be a clear and irrational—indeed, an invidious—discrimination against that county; and the matter of majority rule wouldn’t have to be looked at at all. So, in the New York case, if you examine it closely—we suggest this in our brief; we didn’t do as good a job as we might have—but, if you examine it closely, you will see that the discrimination between the counties over 6 percent, or “three–fiftieths,” as the Deputy Attorney General insisted we must say instead of 6 percent, does not tend to accomplish any of the purposes of keeping counties small. The counties have been getting bigger. The people who have been benefiting—excuse me, the districts have been getting bigger. The counties haven’t been changing—the senate districts. The people who have been benefiting are the people in multi–districts, multi–senatorial district counties with less than three–fiftieths; so that we say it falls under my second one. It has no rational tendency to accomplish any permissible purpose. You don’t have to consider the third one. THE COURT: Mr. Solicitor, may I get back a moment to the 67–senator amendment? MR. COX: Yes. [*54]THE COURT: I gather, if I understand your brief correctly, your difficulty is that there is not only one senator for each of the 67 counties, but also at least one representative for each of the 67 counties, leaving in the lower house only some 39 seats to be apportioned on population. MR. COX: Yes. THE COURT: Are you suggesting that—let me put the question this way: If the entire lower house was apportioned in terms of population, would you have any difficulty? MR. COX: Yes. Oh, well, excuse me. I spoke too quickly. I lay that question to one side, and I say it would be a much harder question than the Court has to decide now. THE COURT: But it might still give you trouble? MR. COX: I think if the majority—if the inequalities in the senate are very, very great and the majority—and the proportion of people who can elect a majority in the senate is very, very small, then the fact that the other house is apportioned according to population, I would say, should not be enough to save it. I’m under no necessity of arguing that, though. THE COURT: There would have to be some kind of population basis? MR. COX: Yes. To illustrate the principle and not to lay any emphasis on the figure, I should think one might well say that, if you have population in the lower house, and in the upper house it would take 33 percent of the people to elect a majority of the senators, and there wasn’t too gross an inequality between the counties, that that would do. But, if it got way down below 20 percent as it does in Alabama, that that wouldn’t do. In other words, I think it’s not just answerable in terms of the two houses. Also, I point out here that you don’t have to go that far. THE COURT: I would suppose, then, it might also follow that if, in the upper house, it took, say, 55 percent to elect the majority of the senators— MR. COX: 50. THE COURT: Let’s assume it’s better than 50. MR. COX: I don’t think it’s true. THE COURT: Well, all right; 50, whatever it is. It’s got to be a very high figure, anyway. [*55]MR. COX: Yes. THE COURT: And you might still say that the requirement of a single senator, of one assemblyman in the lower house, might still be— MR. COX: Oh, no. I think it would be a very freak situation. If you have one assemblyman in the lower house, plus a remainder distributed according to population, the percentages will not drop very, very low. They’ll drop down to around 25— THE COURT: Suppose we assume an upper house with 50 percent can elect a majority. But you had a lower house, out of 105 as here, with only 39–odd, if my arithmetic is any good, apportioned to population; but you had an upper house, say, of 150. So that you had 75 or 80, according to population, even though there was one assured to each county in the lower house. MR. COX: Then I think you come out with very nearly substantial per capita equality in both houses. But I think my answer is that if one is substantial equality, then the other can drop fairly low. If they both start dropping below substantial equality, they’ve got to— I do want to emphasize again—I guess I’ve said it too much— that, here, neither house is anywhere near equality. THE COURT: But, if one house is on population and the other one drops below, as you put it, you would require that the reasons for its dropping below be something other, I suppose, than simply preferring urban against rural, or rural against urban? MR. COX: Oh, I think those are absolutely irrelevant; that they may not enter into the scales at all. There may be these things I tried to state yesterday as “permissible purposes,” but urban against rural, or management against labor, or anything that involves what I think can fairly be called “class distinctions” in the political world, are out. That seems to me to be the essence of what equal protection means; that you can’t set up political classes. THE COURT: So that if the State comes to us here and says: We would like to have one house vary from population; the reason is to keep nine cities from having control—you would say that was unacceptable? MR. COX: I would say that that was not acceptable, yes. Because Your Honor put the point very well yesterday when you talked about keeping nine cities who are the majority from having control. You are necessarily saying, we’re going to turn control over to a [*56] minority. And I—whether the majority may be trusted or not—I see no greater reason to trust the minority. And the hypothesis of our Constitution is that one is neither better nor worse than the other. So that would be my answer to that line of argument. THE COURT: [Inaudible] MR. COX: Well, I would say—no, I don’t think so. I think that some of these things are very real. My political experience is limited to having been a town official, where the “town” is the unit, in Massachusetts. And I think it was very real that the people in the legislature, the General Court, looked to the people who were the town officials to know pretty well what was going on in that town, what its people thought, what its needs were. And I think this is something which can be, I assume, can be taken into effect. I think it’s a real argument. It’s a different kind of argument, at least, than the arguments that are made about rural against urban. Now to this extent, Mr. Justice Goldberg, I of course would have to agree with you: I assume that, as happens in a great many instances in legislation—we both know in the labor field—that one reason will be given, and another reason is in people’s minds. But as long as the Court—and this allows some play in the joints; I think it is a good thing—as long as the good reason is available to justify it, I don’t see how the Court can go behind it and say that they’ve taken these other things into account. That’s why, a moment ago, in trying to rearticulate my test in a way I spoke not of the purpose of the legislation, but of what the legislation, what its function was, what—looked at objectively—it seemed to do. Did it create “preferred classes,” or was it something that, looking at it, could honestly be judged the other way? May I say just one sentence, Mr. Chief Justice? With respect to the decree below, it seems to us that the court, the District Court, for reasons that it very well articulated, made a wise exercise of its discretion here. It concluded that the decree would enable the legislature to reapportion itself. It retained jurisdiction to act, if it had to. And, bearing in mind the delicate interplay between the State and the Federal courts, between the political function and the judicial function, it seems to us that that was clearly not an abuse of discretion. MR. CHIEF JUSTICE WARREN: Mr. Pitts? ON BEHALF OF APPELLANT REYNOLDS IN NO. 23 MR. PITTS: Mr. Chief Justice, may it please the Court: [*57]I have listened with interest to the argument of opposing counsel, and I must turn to this proposition. I would like to call the Court’s attention—this is in the dissenting opinion of Mr. Justice Harlan, which I view the same way and which he asked me before: I can find nothing in the equal protection clause or elsewhere in the Federal Constitution which expressly or impliedly supports the view that state legislatures must be constructed as to reflect with approximate equality the voice of every voter. Not only is that proposition refused by history, but it strikes deep to the heart of our Federal system. Its acceptance would require us to turn our backs on the regard which this Court has always shown for the judgment of state legislatures and courts on matters basically of local concern. Now that was Justice Harlan’s, taken from Justice Harlan’s dissenting opinion in Baker versus Carr, which is our position in this case here. He asked me, in my opening argument, whether or not I subscribed to it, whether I found anything—the way he put it was that, necessarily, I must believe— THE COURT: It might be better if you found something in the case which comes from the majority. MR. PITTS: Yes, that’s right. [General laughter.] MR. PITTS: I agree with you, Mr. Justice. But I want to get back to this proposition. I wish that was in the majority opinion. If we, as I see this case here, if it’s got to be invidious discrimination before it can violate the Fourteenth Amendment, the equal protection clause. Now if it’s merely because of proportions, population, then we must look to the United States Senate. If we look to the United States Senate, you can see where, according to the 1960 Census, here are the following figures: 31 million people in the 26 most–populous states, representing 17 percent of the population of the United States, had 52 percent of the representation in the United States Senate. Now is the Fourteenth Amendment going to afford more protection to the voters than it would—to state voters—than it would to Federal voters? Now that’s the proposition that seems to me that this Court faces. The other proposition is: In history—I believe I’m correct in stating this—that under our system of Electoral College, I believe [*58] that there has been a person elected that didn’t receive the popular vote, majority of the popular vote, but received a majority in the Electoral College. Now if our system in Alabama is so discriminatory that it violates the equal protection clause, then why don’t those two provisions there provide us some protection under the Constitution? Why don’t we get some protection from these other states in the Federal elections, in the Senate? Now we contend that the Alabama Constitution was a rational plan. By putting certain checks in there about not having over 105, it kept the house to the lowest—35 senators—and then you had to form your senatorial districts. We contend that that was not any discrimination there in the constitution itself. But it was because the legislature had failed to act, over a period of 60 years, and when they did submit the 67–senator amendment bill, or tried to submit it to the people, before the people ever had a chance to vote on it it was struck down by our Federal court. THE COURT: Is the Crawford–Webb Act now—it’s in effect, isn’t it? MR. PITTS: The Webb–Crawford Bill? THE COURT: Yes. THE COURT: Well, it’s not in effect because the Federal District Court has knocked it out. THE COURT: I know, but there was nothing—there was nothing left to happen for it to come into effect? MR. PITTS: No, sir. It came in effect in 1966. THE COURT: If the court hadn’t acted, it would have— MR. PITTS: Yes, sir. If the court hadn’t acted, the Webb–Crawford Bill would have gone into law in 1966. THE COURT: But the only apportionment system that is given effect, that would be in effect if the court’s order did not stand, is the old one? MR. PITTS: Would be the old system, yes, sir. But— THE COURT: Without either the constitutional amendment, or the Webb–Crawford Act? MR. PITTS: You mean if this Court should reverse the decision? I would say that the 67— THE COURT: If there was just an out–and–out reversal, the only apportionment system that would be in effect— [*59]MR. PITTS: —would be the 67–senator amendment bill and the Webb–Crawford Act. THE COURT: That never passed. That never passed. MR. PITTS: Sir? THE COURT: The people have never voted on this. MR. PITTS: Yes, sir, but it would then be submitted to the people by special election. THE COURT: Well, I know, but as of now, as of now there wouldn’t be— MR. PITTS: As of now, yes, sir. But the Webb–Crawford Bill would be back on the books then. THE COURT: I understand, but not until ’66. MR. PITTS: That’s right. And the 67–senator amendment bill could be submitted to the people as a constitutional amendment. THE COURT: If—actually, the legislature that’s been elected, the current legislature, wasn’t elected on the old apportionment, was it? MR. PITTS: No, sir. The current legislature was elected under the court— THE COURT: Interim order. MR. PITTS: Yes, sir. In the court’s decree, the two bills, put together—the 67–senator bill and the Webb–Crawford Bill—taking the provisions of the house from the 67–senator and the provisions of the senate from the Webb–Crawford, the two put together; that is what the Federal Court decreed. We submit to the Court that the people of Alabama should have a right to vote on their own constitutional amendments, which their legislature has passed. They should be given the right, and have the opportunity, of voting to see whether or not they would reapportion the Legislature of Alabama. Now, even though that may not meet the requirements of what the attorneys for the appellees desire, still it would be a reapportionment. And I do not believe, under Baker versus Carr that it would be any invidious discrimination there, that there is a rational plan. And, for that reason, we say that then we’d have a reapportioned legislature that would meet the requirements of the test that has been laid down by this Court. As to what this Court could do, it could be reversed—the matter could—several things. It could be reversed, and the legisla–[*60]ture could be forced to submit, or to require all of the members to run on a State, at–large basis. I don’t think the Legislature of Alabama, as evidenced by the Attorney General’s statement and the other attorneys for the appellees, that the Legislature of Alabama would ever allow that to happen. I think that they would pass some type of reapportionment bill that would reapportion the State of Alabama. But, to place what these gentlemen want, the attorneys for the appellees, on the basis that they want reapportionment, is strictly having both houses on a population basis, then we are going to have a big majority of the State of Alabama that is not going to have any representation, but is going to be under the thumb of the dense areas where population has grown because of the industrial areas. And we submit that it’s just as bad to have people living under those conditions as it is to be having a minority ruling a majority. We believe that the Constitution of Alabama has set a system of checks and balances, and has stated how it should be; and that the constitution, in providing for representation in the houses of the legislature, is reasonable, rational, and can be followed. We respectfully submit to this Court that this case should be reversed and the opinion of the District Court reversed. [Whereupon, oral argument in the above–entitled matter was concluded.] 1 Because of an imperfect taping system and aging tapes, some passages are inaudible. |