When this question of the constitutionality of our particular system came up before the Court, one of the arguments or statements that was made was that obviously the people of the State were not eduested on the issues that were involved, because if they had been so educated on it, they would never have adopted the Federal plan as opposed to the voter plan.

How this conclusion was reached, I do not have the faintest idea, because of all the issues that were on the ballot, this was the most important one in the whole State of Colorado as far as the people of Colorado were concerned.

Senator BAYH. May I ask a question? To clarify this for me and for the record, which plan was entitled the "Fair Voter Plan” and which plan was entitled "The Federal Plan," and which one was successful? I thought I understood it at first.

Senator DOMINICK. Amendment No. 7 was called The Federal plan. This provided for a strict population basis in the house of representatives and a districting in the senate-population plus other factors.

The so-called fair voter plan with strict population in both houses of the legislature.

The Federal plan won by 2 to 1, and the fair voter plan, which was on the same ballot, in the same election, was defeated 2 to 1 in every county in the State, including the most populous counties. One of the points that I make by this is that the people of the State of Colorado tried, by their own initative-because this was not a legislative proposal put out by the State legislature-both plans were initiated by the voters-by their own initiative they tried to make this n crystal-clear decision in our State. The fair voter plan was backed, as I remember, by the AFL-CIO, the League of Women Voters, the Municipal League, and a variety of other organizations, with really strong backing-they had plenty of financing.

The Federal plan, which was the successful one, was backed, among others, by the Cattlemen's Association and the Farm Bureau and—I don't remember all the organizations, but there were other groups within the metropolitan area that were also behind it.

In terms of numbers of members, it is obvious that the fair voter plan had supposedly more strength behind it. But it was defeated 2 to 1.

Now, perhaps part of the reason was that one of the highly respected ex-members of this great body, Senator Ed Johnson, was the spearhead and one of the major spearheads behind the Federal plan.

Senator Johnson served here as a Democratic Senator for 18 years in the Senate and was also Governor twice of our State-once before he came and once after he had left here and went back—he became Governor again.

He is really a magnificent person, very, very incensed over what the Supreme Court did so far as Colorado was concerned, and has been continuing to write articles about this and the unfairness of it as far as our people are concerned.

Listening to some of the comments that were made in support of the Supreme Court's decision last year, during our session of the Senate, I remember Senator Douglas saying over and over again that it was simply not fair to do it on any other basis than a strict population basis because if you did it the other way the people would not actually have

an actual vote or an equal right to vote. And he pointed out how many years it has been since many States had created reapportionment in their own legislatures.

I have no intention of trying to embark on other States. But in our State, initiative and referendum is relatively easy, and at any time that the people of the State feel that the system which we are using constitutionally to apportion our legislature is wrong, they can go and put it on the ballot and try to get it decided again.

As I said in my statement, we have done that some seven times since 1876, and there were two of them at once on in 1962.

I do not know that there is much more to say. We are apparently operating, as are many other States, on an unconstitutional State legislature at the moment. It is unconstitutional under the State supreme court, although it has been ruled constitutional by the U.S. Supreme Court. And what do you do in a situation like that? Are the laws that are going to pass be constitutional or aren't they?

The lower Federal court has definitely said that this plan was legal and constitutional and complied with the order of the Supreme Court. The State supreme court declares it unconstitutional in trying to follow out what the U.S. Supreme Court has said we ought to do. And you get into this perfectly horrible maze where it is entirely possible that the laws that are passed by the State legislature this time may be challenged in court to determine whether or not they are constitutional, simply because the U.S. Supreme Court has taken upon itself to interfere in what are primarily and properly State affairs which can be handled by the people of the States involved.

Senator FONG. Is the State legislature now apportioned one man

one vote?

Senator DOMINICK. Yes, it is.

Senator FONG. Has the State legislature passed any resolutions or signified an intention of following the Federal referendum amendment which was voted by the people?

Senator DOMINICK. It has not passed any resolution to do this, because it would be in violation of the U.S. Supreme Court if it did. We have already been ruled that the Federal plan was unconstitutional. And then they reapportioned on their own motion.

What has been done is that the State supreme court, Senator Fong, has declared us unconstitutional because we subdistricted within counties, in order to make sure that in a populous county, where you had more than two State representatives or two Senate senators, that they would be elected out of their district with equal population. And the State supreme court has held that this is unconstitutional, and that therefore everybody who is elected under this system has been unconstitutionally elected-and what happens to the legislation they pass? As I pointed out in my statement, this subdistricting was one of the suggestions, or the districting, at least, was one of the suggestions made by the U.S. Supreme Court majority opinion.

Senator BAYH. It was not one of the holdings, however, was it? Senator DOMINICK. It was not one of the holdings, that is correct. Senator DIRKSEN. Does that situation presently obtain?

Senator DOMINICK. Yes, it presently obtains. We are going to have to put a new system of apportionment on the ballot before 1966, unless we can get this constitutional provision passed, at which time I would

assume that we would be free to offer to the voters another opportunity to decide whether they wanted the so-called Federal plan or the fair voter type plan.

Senator DIRKSEN. So presently you are in a judicial fog.

Senator DOMINICK. We are in a judicial fog and legislative chaos, if I may say so, by virtue of this decision-series of decisions.

I think really that it is quite surprising, if I may continue just for a minute I think it is quite surprising that the legislature has in fact just gone ahead us as though nothing unusual has occurred-when they have been reapportioned some three or four times in the last 3 years. And yet they still manage to keep moving and try to make the wheels of government operate. I have great respect for their tenacity and ability.

Senator BAYH. Was the decision that ruled the Federal plan unconstitutional confined to the three-judge panel, or was it appealed on up the line? Did you get another Federal Court decision on that? Senator DOMINICK. It was a direct U.S. Supreme Court decision, Lucas v. Colorado.

Senator BAYH. On the plan that was finally adopted.

Senator DOMINICK. On the plan that was finally adopted.

We had a three-judge decision below which ruled that it was constitutional. Then it was taken to the Supreme Court and ruled unconstitutional. It was not a unanimous decision.

Senator TYDINGS. Senator Dominick, under which plan is your legislature now apportioned?

Senator DOMINICK. It is now under what I would propose is called the fair voter plan.

Senator TYDINGS. One man-one vote?

Senator DOMINICK. Yes.

Senator TYDINGS. Which the Supreme Court of Colorado has since ruled is unconstitutional.

Senator DOMINICK. Correct.

This is kind of ironic, I think.

Senator TYDINGS. Did you have any extreme examples of malapportionment in your State prior to the reapportionment of your legislature?

Senator DOMINICK. I would say we probably did, yes. In the State senate in particular-the house was not so bad, but the State senate in particular had some pretty glaring discrepancies between the number of people represented. We had a districting situation in both the house and in the senate by ratios. It is a pretty complicated situation and has been in effect in the State constitution since 1932, I believe it was. This was in effect when I was elected. I, for example, was one of two representing a county over 100,000 people-two State representatives. There were many counties of 10,000 people or something like that which would have one representative. So there was at least a five-to-one discrepancy.

Another interesting thing is that when the Supreme Court, the U.S. Supreme Court, declared our Federal plan unconstitutional, they automatically reinstated one which was far worse.

Senator TYDINGS. You mean the State supreme court?

Senator DOMINICK. When the Federal court overruled our Federal plan--in other words, the constitutional amendment that was adopted

in 1962-the only thing that we then had to go back on was the one of 1932 which was agreed by almost everybody to be unconstitutional. So it was far worse than the Federal plan. And that was when the legislature jumped in, even though they were unconstitutionally constituted, and went ahead and put ahead a new plan, and got into this one-voteone-man division, which the State supreme court has now declared unconstitutional.

As you can see, it is a mess.

Senator BAYH. Any further questions of Senator Dominick?

Senator DIRKSEN. I was wondering how much litigation did this develop where the enactments of the legislature were challenged? Senator DOMINICK. It has not as yet. I do not know whether or not this kind of a defense may be brought up in the future. My legislative assistant tells me that suit has been filed, but I don't know how many.

Senator HRUSKA. Mr. Chairman, I would like to ask the witness— Senate Joint Resolution No. 2 which you have characterized as a resolution that will give the people of each State a chance to decide whether the legislative checks and balance system will serve them. In other words, the resolution does not change the rule enunciated by the Supreme Court, does it?

Senator DOMINICK. NO.

Senator HRUSKA. It simply enables the people of each State to decide whether they want to change it.

Senator DOMINICK. Correct, Senator Hruska. And this is one of the things that I thought was never really clearly brought out in the conversations last year on the floor of the Senate. It was assumed that if Senate Joint Resolution No. 2 was passed, that the decision of the U.S. Supreme Court, or the rule that they had laid down, would automatically be changed in every State. That simply would not be true. The people would have the right to vote on what system they wanted at that point.

Senator HRUSKA. The vote would be a popular vote, not a vote of the legislature, but popular vote.

People who oppose this resolution have been characterized as being in a rather awkward position, because they are such fans and enthusiasts for one-man one-vote. In opposing something which would give the people a chance to vote, they are denying them any vote. Isn't that the real position they take? We don't want them to vote on this issue. Isn't that about the sum and substance of it?

Senator DOMINICK. It seems to me it certainly can be characterized that way, yes.

I do not want to inject other ideas in here necessarily, but if the Supreme Court decision should be followed down to its logical conclusion, it seems to me that this would be another basic reason for doing something very drastic about the electoral college situation, because our electoral college most certainly does not fit in with any one-man one-vote concept.

I do not know whether anybody has gone into this in any depth, because I do not know how many of these amendments are before you at this time. But certainly it seems to me that we have a problem there as well.

Senator HRUSKA. It has been argued that the Court could not touch the electoral system, nor could it touch the representation in the Senate, for example, because the body of the Constitution provides two Senators for each State. There is a further provision that that particular apportionment cannot be changed without a vote of the State. However, isn't it true that the Supreme Court, dependent on the 14th amendment, could conceivably say in the future, "Yes, all of these substantive rules are contained in the Constitution, but they were al changed and modified by the later approved 14th amendment, and therefore the Senate of the United States should be one-man one-vote. Is that conceivable?

Senator DOMINICK. I think it is entirely conceivable. It makes an argument that follows right along in historical sequence. I cannot conceive of any court doing this. But I could not conceive of them jumping into the middle of our State legislative problems, either. So I could be wrong.

Senate BAYH. Let me ask my colleagues to let me have the benefit of their thinking.

Aren't we dealing with-to use a discussion that the Senator from Nebraska and I have had before-aren't we in the apportionment of U.S. Senators dealing with a specific reference in the Constitution, whereas in the 14th amendment we are dealing with a more general broad principle as far as representation is concerned? And it seems to me rather difficult to assume that a broad general reference could be used to negate a specific reference that had been made in the original Constitution concerning the fact that there were two U.S. Senators. and this was part of the compromise in which the smaller States gave up their sovereignty in joining in the great Union and the larger States did too.

Senator DIRKSEN. The only problem there is the dissenting opinion of Justice Harlan-he goes back and picks up the debate in both the House and Senate in connection with the 14th amendment. And if anything was lucid and perfectly clear as to what the framers of that amendment intended, they made it clear in the Congress of that time. That is the reason such severe language was used in connection with those dissenting views. I can well understand what possessed them, after reading that dissenting opinion, and the implications of the language of the 14th amendment, as the framers at that time intended it should be construed.

Senator BAYH. Yes. But they did not intend in the 14th amendment to deal with the possibility of putting the U.S. Senate on a one-man one-vote basis.

Senator DIRKSEN. That is quite correct.

Senator HRUSKA. But isn't it true that they did make crystal clear, and repeated it several times, that this 14th amendment was not to apply to State legislatures? Now, that was expressed. There isn't any question---because the print is on the pages. It is perfectly plain. Now, that is as express, it seems to me, as any provision in the Constitution itself. Yet it was totally disregarded. The Supreme Court said

Well, they didn't know what they were doing, and even if they did, we know better now ired years later,