of population and area as the citizens of the State shall determine.") We would prefer a mandatory population-based apportionment in the unicameral Statebut we feel the problem of too limited significance to make provision for it in the present draft.

At this point we raise again the question posed earlier: Ought the amendment to specify that a deviation from population equality will be permitted only in the numerically larger house? Our feeling is that this is not a matter to which the amendment should address itself, but which should rather be left to the States in working out their own apportionment problems. There may be States in which the size of the two houses is roughly equal. In other States, nonpopulation apportionment of the larger house would not necessarily have the desired result. And in general there seems no justification for imposing upon the States any such requirement, however desirable it may be as a political and structural solution to apportionment problems.

E. The framing of standards: Population criteria.-A most important question about the drafting of an amendment concerns the desirability of imposing any ceiling or limitation on the permitted deviation from population equality. At the outset it should be noted that there are at least two distinct measures of such deviation; i.e. "malapportionment," that should be considered: the ratio between the population of the largest district and that of the smallest; and the percentage of the State's population that can theoretically elect a majority of of the chamber in question. Thus a legislative body may be seriously "malapportioned" according to one criterion but not to the other; i.e., in a chamber containing representatives of one very large and one very small district with all the other districts of roughly equal population, the ratio might show a wide disparity though election of a majority of the members would require nearly a majority of the total votes cast. Conversely, the gap between largest and smallest districts could be rather narrow but the body still be subject to theoretical control by a rather small fraction of the electorate. Moreover, the two measures of deviation bear some mathematical relationship: if n represents the factor by which population of the largest district exceed that of the smallest, then the theoretical fraction of the voters that might elect a majority of the chamber

1

would be equal to ( -).

n+12

That is, if the disparity between district size is 2:1, then the fraction of the (1) electorate theoretically able to elect a majority cannote exceed 22+1'

Similarly, where the ratio or disparity is 3:1, then as few as one-fourth of the voters might elect a majority of the legislative body, and so on. Mathematical prediction or limitation does not work in reverse, however; there is no way of determining the maximum possible ratio between largest and smallest counties from the lowest fraction of the voters that could theoretically elect a majority of the chamber.

We would tend to favor the use of a percentage limit rather than a ratio limit for two reasons: First, the kind of ratio limit that is likely to be acceptable to a large number of sponsors would have to be on the order of 2:1-5: 1. Even such a limit as this would require a drastic readjustment of districts in the California Senate, for example, involving either the abandonment of county lines as the basis for districting, or a very substantial increase in the number of seats. The population of Los Angeles County is something over 10,000 times that of Alpine County; there are 28 California counties for which the Los Angeles County ratio is at least 100: 1.) Thus the ratio ceiling approach would largely foreclose the use of county or other geographical lines where they may be special geographic or economic or demographic reasons favoring their use, and where there may be only a few counties that are drastically below the population mean.

Second, there is serious question whether the ratio accurately reflects the actual significance of a deviation from population equality. As suggested above, there may be States in which the ratio is as low as 2:1 or 3: 1 but in which as few as a third of the people can elect a majority of the legislators. Such a State Would seem more seriously malapportioned, and the possibilities of abuse more invidious, than the State in which the ratio may be much higher but the majorityrequired-percentage also somewhat higher. Thus, if any deviation limit is to be placed upon the house in which deviation is permitted, we would suggest the use of a minimum percentage rather than a maximum ratio. (This was the approach used in the only 88th Congress proposal that attempted to deal with the problem, HJ. Res. 1086: "Provided, That no less than 30 percent of the State's qualified electors could theoretically elect a majority to that house. ***")

The language of House Joint Resolution 1086 suggests one further issue. If there is to be a percentage floor, of what should it be a percentage? If as in the resolution quoted above it is "the State's qualified electors" then that effectively ties the permissible deviation to whatever disfranchisement policies the State may have pursued. (E.g., in Mississippi, where Negroes constitute 45 percent of the adult population of voting age but only about 5 percent of the registered voters, the only limit upon the deviation would be a required percentage of white citizens. Thus the apportionment might pass muster despite its drastic underrepresentation of the predominantly Negro sections of the State-an underrepresentation that would effectively deprive Negroes of their vote even if they were all to be enfranchised overnight. Thus it may be preferable to make the percentage a fraction of some body like "residents of the State of voting age" or, in the language of the Census Bureau and the President's Commission on Registration and Voting Participation, "civilian population of voting age."

F. The drafting of standards: Nonpopulation criteria.-In subsection (B), we noted the importance of preventing deviations from population equality along racially discriminatory or other constitutionally illegitimate lines. We sug gested earlier that the use of nonpopulation deviations be deterred by the formula of the draft amendment: that no apportionment shall be held to violate the equal protection clause or the guaranty clause by virtue of the fact that it does not provide for substantially equal representation in both houses. Such language might not be enough, however, to foreclose every undesirable (and otherwise unconstitutional nonpopulation factor. Some such factors could be fairly easily disposed of-an apportionment based on religious classification would presumably violate the 1st amendment's religious guarantees; without some more explicit language the 25th or 26th amendment would not be read to create so broad an exception to the 1st. Apportionments that clearly discriminate on racial grounds would still seem to be invalid under the 15th amendment (as held in Gomillion v. Lightfoot, 364 U.S. 339 (1960)), however the new amendment might limit the equal protection clause of the 14th.

The difficulty would arise from subtler forms of discrimination brought about through ostensibly reasonable deviations designed in fact for ulterior ends. Thus, district lines might be drawn by a State for the hidden purpose of debasing the vote of the lower-middle and lower classes. Such an apportionment might appear on its face to bear some relationship to geographical factors or to governmental units indeed, an apportionment scheme which represented cities and towns as units, putting smaller communities on a parity with larger communities, would very likely serve just this purpose rather deftly. The question with which we are now concerned is whether general constitutional amendment can deal with matters so subtle, and if so, whether it is worth doing so.

The desired purpose might be achieved in two distinct ways: First it might be possible simply to add a proviso to the effect that no apportionment shall be valid which deprives any person of equality on grounds or by reason of race. religion, color, national origin, economic status, etc. But there are several problems with this approach, not the least of which is the impossibility of anticipating all possible constitutional grounds on which an apportionment might be challenged. If such a proviso were truly comprehensive it might well go too far-in that almost any deviation, however benign in purpose, might be shown to have the effect of denying absolute equality to some economic or occupational or even religious or racial group. Thus, a proviso could well swallow up the very purpose of the amendment.

The other approach would be simply to impose some condition such as "reasonable" or "rational" as the canon for constitutionality of a nonpopulation apportionment scheme. But any such qualifying term would be so vague and general that it would throw almost every case into the courts and might invite a holding that any basis of apportionment other than population equality was "unreasonable" or "irrational." Thus we have concluded that it is probably better to leave out any condition of this general sort with respect to nonpopulation factors. This does not mean, however, that the amendment is thrown open to evils of the kind we have considered above, for we have included two safeguards that go a long way in the desired direction: (1) The confinement of the amendment's effect to the equal protection and guaranty clauses (which leaves the way open for attacks based upon the 1st, 15th and other constitutional provisions); and (2) the limit on the degree of statistical deviation permitted from the equal-population model in the deviant house. These safeguards, we suggest, will nquately the legiti needs involved without adding

G. Popular approval of the apportionment. The draft makes clear our conviction that no apportionment should be exempted from the equal population principle unless it has been fairly approved by the people of the State. The basic reasons for including some such provision are obvious; the problems concern the machinery for insuring that there will be such reliable approval. We presume that the legislature, or some committee or agency appointed by the legislature, will initiate the process of reapportionment. How that is done is a matter for State law. The important question here is what constitutional requirements, if any, should be imposed upon the popular approval carried out under State machinery.

The draft suggests that there must be approval by a majority of those voting in a referendum in which not less than 60 percent of the civilian population of voting age of the State have cast ballots. We thus reject the use of a percentage of the eligible or registered voters of the State-again obviously because of the Mississippi problem (reflected less acutely in other Southern States). We use the phrase "percentage of civilian population of voting age" because that is the class of data gathered by the Bureau of the Census and relied upon, for example, in the report of the President's Commission on Registration and Voting Participation in 1963.

The

There may be some question about the appropriateness of the particular figure we have selected-60 percent. Perhaps the figure seems unreasonably high-yet it obviously permits an apportionment to be approved by as little as 31 percent of the civilian population of voting age. Moreover, the census figures suggest that such a percentage is not unrealistic. In 1960, for example, there were only 16 States in which fewer than 60 percent of voting-age population turned out for the presidential election. Of those States 10 were the Southeastern and South Central States where the falling off was presumably due largely to the disfranchisement of large numbers of otherwise eligible Negroes (and it is important to note that the percentages of population voting in all these States, even Mississippi, have about doubled since 1940). other six States include Alaska and Hawaii, where the recency of statehood may have created special problems (and where the percentages were much higher in 1964) and the four border States of Kentucky, Maryland, Tennessee, and Texas, where Negro disfranchisement may also have been partly to blame. Thus, excepting Alaska and Hawaii, it appears that Negro disfranchisement is the single factor most important in keeping the other 14 States below 60 percentand the 1964 figures may well show some of those States now above the 60-percent mark because of dramatic gains in the registration of Negro voters since 1960. On the other hand, any figure below 60 percent is likely to permit the approval of an apportionment by an electorate from which a very large proportion of the State's Negroes have been excluded.

Consideration should also be given to the period for which the apportionment, once approved, is to be effective. There are problems here of both minimum and maximum periods-for on the one hand it would be undesirable (if only because of rapid population shifts in many States) to make the apportionment perpetual; and on the other hand an apportionment once approved ought to have some stability. With respect to the latter point, we have not included any provision with respect to the minimum period because (a) The State legislatures have a substantial interest in adding such provisions to their own apportionment machinery; and (b) the setting of minimum by the States are unlikely to frusstrate the purposes either of the amendment or of the court's decisions, or to raise other constitutional problems. But if it is desired to give an approved apportionment some stability, it would be easy enough to add a provision for 2. 4. or 6-year moratorium in the amendment.

The more difficult question, for which we have made provision in subsection (1) of our draft, is that of the maximum effective period. In order to cover problems that may arise if the amendment passes before the 1970 census, we have first provided that a valid apportionment must have been approved by January 1, 1968 (which is simply a date of arbitrary convenience). Further, for all apportionments after 1970, we have suggested that approval should be Sought within 3 years of the decennial census. This provision has the effect of requiring any referendum on the question of deviation of one house to be beld while the census figures that show the effect of the existing apportionment or of any new proposal are most current. After 3 years the census figures may become stale and unreliable in States that experience rapid population shifts. We have selected the 3-year period so that a proposed reapportionment plan can be put on the ballot in the year of the presidential election, when the voter

turnout will be greatest. Thus the census figures will probable be available in time to permit a vote in the decennial year if that is the presidential year; when that is not the case, however, a referendum on apportionment will still be permitted in the year ending in “2.”

Thus if the people of a State are to take advantage of the amendment for years after 1970, they must act within 3 years of the census. They may of course decide at any time that they wish to abandon a nonpopulation apportionment and return to the one-man, one-vote principle in both houses. But they may not, after the expiration of the 3-year grace period, adopt a deviant apportionment for either house until publication of the next decennial census figures.

Finally, we suggest in subsection (4) that the apportionment must be approved in a referendum in which the ballot has included as an alternative a oneman, one-vote apportionment for both houses. This is not to say that there may not be other alternatives-several formulas for the nonpopulation apportionment of the deviant house. All it requires is that every time the people of a State are called upon to decide whether to accept or perpetuate a malapportionment, they must also be given the choice of a population-based apportionment for both houses of the legislature. This does not appear to be an onerous or unreasonable requirement.

H. Judicial review.-Much of the controversy in the summer of 1964, and several of the proposed amendments, concerned the question of Federal court jurisdiction to entertain any apportionment suits, rather than questions of substantive standards. We have omitted any provision that would impair Federal court jurisdiction in this area, for several reasons: (1) Many sound policy arguments counsel against such tampering with judicial jurisdiction (these arguments have been amply explored in the debate over the Dirksen rider and the Tuck resolution during the summer of 1964, and will not be repeated here): (2) limiting the jurisdiction of the Federal courts in this field would seriously jeopardize the ability of the courts to deal with claims of racial gerrymanders and other abuses of the legislative aportionment for which the Federal courts must surely remain open; (3) in any event no curtailment of Federal jurisdiction would foreclose litigation of these questions in the State courts, but would simply send reapportionment plaintiffs across the street to another courthouse.

Thus our draft implicitly gives the Federal courts continuing jurisdiction of three types: (1) To determine that there has been compliance with the amendment itself in any popular referendum on apportionment questions; (2) to determine that deviation from the one-man, one-vote principle is not used for unconstitutional purposes such as racial or religious discrimination, etc.; and (3) to insure that the apportionment of the other house adheres as closely as possible to the one-man, one-vote formula. We feel that the Federal courts should have continuing jurisdiction of all three types, and we therefore reject any provision designed to curtail jurisdiction. We assume that apportionment suits in the Federal courts would continue to be governed by the principles set down in Baker v. Carr and applicable Federal statutes.

1. Ratification of the amendment.-Much concern has been expressed that an amendment, if rushed through Congress, could be ratified by the very State legislatures whose malapportionment posses the issue. Some have even suggested that such self-perpetuating action would be unconstitutional and would nullify ratification. We reject that view, however, because there has been no suggestion in any of the cases that the malapportioned legislature—at least one that is not doing business in open defiance of a court order to reapportion-is unable to act de jure as well as de facto. We have not considered whether ratification by legislature that is defying a court order would be valid. But we do recall the U.S. Supreme Court's refusal, in Coleman v. Miller, 307 U.S. 433 (1939), to look behind a State's process for ratifying Federal constitutional amendments. Even though the decision in Baker v. Carr may have undermined Coleman v. Miller, what remains of that case would give to Congress rather than the courts the responsibility for scrutinizing the regularity of ratification.

Even though a malapportioned legislature might legally ratify the amendment, there is some question whether it is wise to permit them to do so. While we have included no provision respecting the course of ratification, we mention two possible approaches: One, perhaps the most obvious, would be to require (as Congress may do under its article V power to prescribe the "mode of ratification") that the amendment be submitted to State ratifying conventions elected by statewide general elections, the amendment to become effective only when acepted by three-quarters of such conventions. While this formula appears never to have been used in the past, it is theoretically available.

The other approach would be to build in a timelag which would allow time for court-ordered reapportionments in many States to take effect. That is, the amendment might provide that no ratification would be valid that occurred before February 1, 1967-giving time for new legislatures elected in 1966, many of them presumably already reapportioned, to take office and act upon the question. Either of the two methods suggested here would guard to some degree against the possibility of self-serving ratifications, by already malapportioned legislatures, of an amendment that would permit at least partial perpetuation of the malapportionment.

Senator KUCHEL. I simply say in regard to the specific language I suggested that it was prepared by the staff of the legislative counsel, and I give it to you because it is their labor. But I do sincerely believe that in some fashion or other, the committee might wish to include in the constitutional amendment, introduced by the distinguished and able Senator from Illinois, to give consideration to language which would vest in the people the right to initiate on their own part apportionment proposals as well as to pass judgment on such proposals as the State legislatures might theretofore have recommended.

Senator BAYH. Does anyone have any questions of the Senator from California?

Senator HRUSKA. In regard to the ratification of any proposed amendments to the Federal constitution, I would like to ask the Senator to consider with me the language of article V of our present Constitution, where any proposed amendment "shall become valid for all intents and purposes as a part of the Constitution and ratified by the legislatures of three-fourths thereof as the one or the other mode of ratification may be proposed by the Congress."

Now, the Senator from California proposes a third method of ratification.

Senator KUCHEL. No, sir; my language was inelegant-I suggest the second proposal, when I say the people-I refer to the second. Senator HRUSKA. To the second method, whereby the people will elect delegates to a convention called for that specific purpose. Senator KUCHEL. Yes, sir.

Senator HRUSKA. I thought perhaps you were thinking in terms of invoking the referendum on that-by popular referendum directly to the amendment itself. But that is not your proposal.

Senator KUCHEL. No; Senator, when I use the word "referendum" earlier, I referred to legislative referendum within each State, along the lines that we have had in my State of California, where the legislature suggests an amendment to the constitution, but thereafter it is referred to the people, and the term we use to describe that operation is "referendum."

Senator BAYH. Would the Senator's language be limited to cases of apportionment-referendum procedure for apportionment only? Senator KUCHEL. Yes, sir.

Senator BAYH. And not to broaden the referendum provision or establish referendum provisions in States that do not have them for other areas?

Senator KUCHEL. Yes, sir, it would. We are talking here entirely about one specific problem, and in that connection I would hope that the committee might consider giving the people, through these two techniques, similar to those we have in my State, the initiation by the people of legislation, and the referendum of proposed State constitu