POSSIBLE ALTERNATIVE ACTIONS RELATED TO THE DIRKSEN PROPOSAL

1. Work for the defeat of the Dirksen amendment and similar proposals. (Some people fear that without any congressional action at all that a sufficient number of States will vote in favor of a constitutional convention to take it out of the hands of the Congress entirely, and that the resulting product of a cuestitutional convention could be even worse than congressional legislation.) 2. Work to modify the Dirksen proposal by including certain safeguards such

as:

(a) Insuring that apportionment should be subject to the initiative process of the voters in every State.

(b) Provision that if a second chamber is not ratified by the public within 4 years both houses must be apportioned on a population basis at the next regular legislative session.

(c) Provision that continuation of the apportionment formula in use shocid be subject to public reapproval every 10 (or at most every 20) years.

(d) Provide for provision for judicial review and include wording which would expressly limit such apportionment from circumventing civil and other similar constitutional rights.

(e) Safeguards against the legislature's ability to veto all change and to impose a formula for all time.

3. Urge a postponement of such legislation pending further study of the prob lem of what constitutes fair and effective representation for all citizens, taking into account both the principle of the "equal vote and factors other than popula tion." Such a study to be carried out by direction of the Congress by politica. scientists and other qualified people.

REFERENCES

1. "Reapportionment," editorial Research Reports, vol. 11, 1964: September 30

1964.

2. "Controversy Over Supreme Court Decisions on Apportionment of State Legislatures Pro and Con." Congressional Digest, January 1965.

3. "The Supreme Court Is Defying the People." Senator Everett McKinley Dirksen, Saturday Evening Post, September 12, 1964.

4. "One Man, One Vote-Yes or No?" by Andrew Hacker. New York Times November 8, 1964.

5. "Apportionment Facts," by William J. D. Boyd, National Civic Review November 1964.

6. Editorial "On Amending the Constitution," National Civic Review, October 1964.

7. "Reapportionment: What the Court Didn't Do." Robert G. Dixon, Jr. The Reporter, October 8, 1964.

8. "The Supreme Court in the Republic," by Felix Morley, Fortune, August 1964

APPENDIX

SUPREME COURT OF THE UNITED STATES

23

Nos. 23, 27 AND 41.-OCTOBER TERM, 1963.

B. A. Reynolds, etc., et al.,

Appellants,

V.

M. O. Sims et al.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

Involved in these cases are an appeal and two crossappeals from a decision of the Federal District Court for the Middle District of Alabama holding invalid, under the Equal Protection Clause of the Federal Constitution, the existing and two legislatively proposed plans for the apportionment of seats in the two houses of the Alabama Legislature, and ordering into effect a temporary reapportionment plan comprised of parts of the proposed but judicially disapproved measures.1

I.

On August 26, 1961, the original plaintiffs (appellees in No. 23), residents, taxpayers and voters of Jefferson

1 Sims v. Frink, 208 F. Supp. 431 (D. C. M. D. Ala. 1962). All decisions of the District Court in this litigation are reported sub nom. Sims v. Frink.

Reproduced by the Library of Congress, Legislative Reference Service, February 24, 1965.

County, Alabama, filed a complaint in the United States District Court for the Middle District of Alabama, in their own behalf and on behalf of all similarly situated Alabama voters, challenging the apportionment of the Alabama Legislature. Defendants below (appellants in No. 23), sued in their representative capacities, were various state and political party officials charged with the performance of certain duties in connection with state elections. The complaint alleged a deprivation of rights under the Alabama Constitution and under the Equal Protection Clause of the Fourteenth Amendment, and asserted that the District Court had jurisdiction under provisions of the Civil Rights Act, 42 U. S. C. §§ 1983, 1988, as well as under 28 U. S. C. § 1343 (3).

The complaint stated that the Alabama Legislature was composed of a Senate of 35 members and a House of Representatives of 106 members. It set out relevant. portions of the 1901 Alabama Constitution, which prescribe the number of members of the two bodies of the State Legislature and the method of apportioning the seats among the State's 67 counties, and provide as follows:

"Art. IV, Sec. 50. The legislature shall consist of not more than thirty-five senators, and not more than one hundred and five members of the house of representatives, to be apportioned among the several districts and counties, as prescribed in this Constitution; provided that in addition to the above number of representatives, each new county hereafter created shall be entitled to one representative.

2 Included among the defendants were the Secretary of State and the Attorney General of Alabama, the Chairmen and Secretaries of the Alabama State Democratic Executive Committee and the State Republican Executive Committee, and three Judges of Probate of three counties, as representatives of all the probate judges of Alabama.

"Art. IX, Sec. 197. The whole number of senators shall be not less than one-fourth or more than one-third of the whole number of representatives.

"Art. IX, Sec. 198. The house of representatives shall consist of not more than one hundred and five members, unless new counties shall be created, in which event each new county shall be entitled to one representative. The members of the house of representatives shall be apportioned by the legislature among the several counties of the state, according to the number of inhabitants in them, respectively, as ascertained by the decennial census of the United States, which apportionment, when made, shall not be subject to alteration until the next session of the legislature after the next decennial census of the United States shall have been taken.

"Art. IX, Sec. 199. It shall be the duty of the legislature at its first session after the taking of the decennial census of the United States in the year nineteen hundred and ten, and after each subsequent decennial census, to fix by law the number of representatives and apportion them among the several counties of the state, according to the number of inhabitants in them, respectively; provided, that each county shall be entitled to at least one representative.

"Art. IX, Sec. 200. It shall be the duty of the legislature at its first session after taking of the decennial census of the United States in the year nineteen hundred and ten, and after each subsequent decennial census, to fix by law the number of senators, and to divide the state into as many senatorial districts as there are senators, which districts shall be as nearly equal to each other in the number of inhabitants as may be, and each shall be entitled to one

senator, and no more; and such districts, when formed, shall not be changed until the next apportioning session of the legislature, after the next decennial census of the United States shall have been taken; provided, that counties created after the next preceding apportioning session of the legislature may be attached to senatorial districts. 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.

"Art. XVIII, Sec. 284.

.. Representation in

the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendments."

The maximum size of the Alabama House was increased from 105 to 106 with the creation of a new county in 1903, pursuant to the constitutional provision which states that, in addition to the prescribed 105 House seats, each county thereafter created shall be entitled to one representative. Article IX, §§ 202 and 203, of the Alabama Constitution established precisely the boundaries of the State's senatorial and representative districts until the enactment of a new reapportionment plan by the legislature. These 1901 constitutional provisions, specifically describing the composition of the senatorial districts and detailing the number of House seats allocated to each county, were periodically enacted as statutory measures by the Alabama Legislature, as modified only by the creation of an additional county in 1903, and provided the plan of legislative apportionment existing at the time this litigation was commenced.'

Provisions virtually identical to those contained in Art. IX, §§ 202 and 203, were enacted into the Alabama Codes of 1907 and 1923, and were most recently reenacted as statutory provisions in §§ 1 and 2 of Tit. 32 of the 1940 Alabama Code (as recompiled in 1958).