With these interests in mind, when the reapportionment cases were before the Court, the ACLU, along with the American Jewish Congress and the National Association for the Advancement of Colored People Legal Defense and Educa tional Fund, Inc., filed a brief amici curiae in the cases from Alabama, Maryland, New York, and Virginia, urging the view that the equal protection clause of the 14th amendment be interpreted to require representation substantially in accordance with population in both houses of each bicameral State legislature. Reminder is scarcely necessary that that is exactly what the Supreme Court did. The ACLU fully supports that result and the reasons stated in the several opinions by Chief Justice Warren for the majority of the Court. Accordingly, we believe strongly that the equal-population principle, as the Supreme Court called it, should be implemented by the State legislatures rather than reversed or diluted by constitutional amendment.

The proposals before the 89th Congress, and thus before this subcommittee. vary greatly in scope and content, but all have in common the aim of reversing in whole or in part the Supreme Court decisions in the reapportionment cases. Because we believe those decisions are correct and that no persuasive arguments have been advanced to cast doubt on their correctness, I shall confine my remarks almost entirely to the merits of the rule ordained in those cases and an attempted answer to the critics of that rule.

I do not propose to test your patience by recounting once more the completely sound reasons why the Congress should not withdraw from the Federal courts the power to review questions of State legislative apportionment. I do not be lieve that such an exercise in petulance is seriously contemplated. This sub committee has already recognized that this debate involves a great constitutional issue that should be decided on the merits with full accountability to the public. Nor do I intend to rehearse the points which have already been made by competent witnesses preceding me in objecting to the details of the proposals advanced by Senators Dirksen, Javits, and Church, to list only the resolutions most prominently supported. I am willing to assume that this subcommittee conid draft a constitutional amendment which would avoid some or all of the rather substantial technical objections to which they are subject in their present form These difficulties of language and ambiguities of meaning have been persuasively stated in the report of the Committee on Federal Legislation of the Association of the Bar of the City of New York. I believe it has been placed in the record, so I will not here cover that same ground.

I wish to address my remarks, then, to the principle at issue which is summarized in the resolution adopted by the house of delegates of the American Bar Association at its midwinter meeting in February 1965. By a vote of 115 to 94 the American Bar Association endorsed a constitutional amendment to the effect that one house of a bicameral State legislature may be apportioned in part by reference to geography, county and city lines, economic conditions, history, and other factors in addition to population, provided that such a plan of apportionment is approved by a majority of the voters of the State.

We believe that this proposal is premised on a mistaken notion of American history, grounded on long-discarded political theories, and utterly disruptive of the main theme of representative democracy in the United States. To adopt this proposal would, in our judgment, dangerously submerge the distinctively Amer ican themes of liberty, equality, and majority. I should like to develop some of these ideas in a more concrete manner, but first this general reminder.

The equal-population principle, or as it is more popularly known, the concept of one man one vote is now part of the Constitution of the United States. Whether the Supreme Court decision was right or not is a relatively abstract question which can only be answered in rather subjective manner. That is em phatically not the issue now before Congress. Rather the question is whether the constitutional requirement of substantial population equality among legisla tive representation districts in both houses of a bicameral legislature is so intolerable as to require resort to the drastic and seldom-exercised device of constitutional amendment.

Accordingly, the burden of persuasion rests heavily upon the proponents of this sweeping charge. That obligation is reinforced in this instance by the specifically antidemocratic character of the proposal which quite frankly suggests the permissibility-indeed, desirability-of subverting majority rule. As I shall later note, the requirement that such a plan be approved by a majority of the voters of the State is not in fact, but only in form, a deference to true majority sentiment.

The central feature of all the proposals is the reliance on interest groups as units of representation. However disguised by reference to history, geography, or political subdivisions, the bare fact is that the proponents of these amendments advocate restraint of majority rule by allowing the retention of a veto power in the hands of minority interest groups. The principle of retained minority control is not diminished by the fact that presumably only one house would be based on nonpopulation factors. The power of the veto is the significant restraint; the danger is that its exercise might well lead to stalemate government where the basis for representation is radically different in the two houses. The only difference would be that, if both houses could be based on nonpopulation factors—as was the case in a number of States before the decision in the reapporronment cases the minority group interests would have the affirmative legislafive power and not merely the power of veto.

Nor is it a sufficient answer to say that we have always accorded minorities special protections against majorities and that majority rule is thus not even a part of our political tradition. The obvious answer is that there are some values which we have ranked as fundamental in our society and thus assured to all regardless of the momentary heedlessness of the majority. Thus, by constitutional command we protect freedom of speech, press, and religion from conformity that might otherwise be required by an unthinking majority. Similarly, we require certain minimum standards of fairness in criminal proceedings, however unpopular or even guilty the defendant may be. And we make sure that racial discrimination may not be dictated by majority vote.

To urge, however, that the popular majority should in all matters be restrained from fulfilling its goals because of the objections of economic or social interest minority groups is to confuse high principle with cynical expediency.

Yet that is exactly what those dissatisfied with the equal-population principle have urged. Mr. Justice Harlan, dissenting in Reynolds v. Sims, argued that "legislators can represent their electors only by speaking for their interestseconomic, social, political ***." 377 U.S. 533, 623–24. Similarly, Mr. Justice Stewart wrote that "population factors must often to some degree be subordinated in devising a legislative apportionment plan which is to achieve the important goal of ensuring a fair, effective, and balanced representation of the regional, social, and economic interests within a State ***" Id. at 749-51. And Prof. Alexander Bickel has offered a frank justification for ethnic-group constituents as follows: "I believe the Silk Stockings should be represented by a man specially responsive and congenial to them, ***. I think the same of Negroes, Puerto Ricans, farmers, and other distinguishable groups of reasonable size." Letter to Editor, 36 Commentary 394 (1963).

There are, however, at least two important reasons why businessmen cannot always be represented by a businessman, dairy farmers by one of their own, Negroes by a Negro, and Lutherans by a member of that denomination. In the first place, no individual is just a businessman, dairy farmer, Negro, or Lutheran. He may be all of those or none of those; but surely no one of those groups as such, simply because it is less than a majority, is entitled to exercise a veto over decisions made by representatives of the majority. Moreover, members of these alleged interest groups ordinarily do not isolate themselves in particular geographical areas around which election district lines can be drawn. The heterogeneous community is the genius of the American political system in which businessmen, dairy farmers, Negroes, and Lutherans can all live together and somehow come to a viable consensus through their elected representatives. The idea of representation of interest groups was long ago rejected in England with the demise of the rotton boroughs, which had just that justification. In this country John Calhoun's theory of the concurrent majority was another such exercise in political futility. In the early decades of the 19th century he advocated that government should act only with the consent of the interest groups affected, if necessary in disregard of the contrary wishes of the actual majority; but his theory proved unacceptable then, and it should not be revived in the 20th century. See Auerbach. The Reapportionment Cases: One Vote, One Value, 194 Supreme Court Review 1, 30-61.

The simple truth is that the opinions in the reapportionment cases reaffirmed the basic ideals of a representative democracy in which universal suffrage is the nearly realized objective. As Professor Auerbach has observed: "Nothing is more fundamental to representative government-and therefore more constitutional-than the rules governing the electoral process itself * * *. No reason consistent with the democratic ideals of equality and majority-or minori

ties' rule has been advanced for not effectuating" the equal-population prin ciple. Id. at 66-67.

The only other justification that is commonly advanced as a basis for rejeting majority rule in favor of interest-group representation depends on a mis ceived reliance on history. The argument is that population has customari been subordinated in one house of most State legislatures, on the model of Cot gress, and that the principle must accordingly be justifiable. That view of his tory is not sound, and in any event the conclusion does not follow.

The notion of interest-group representation is entirely foreign to the Americas system of legislative representation, with the single exception that separate representation has sometimes been given to the political subdivisions of a State. But certainly the States have not adopted systems of representation based on economic status, ethnic groupings, or historical considerations. Indeed, to have done so would have been to defy American tradition. But all these would be possible under the proposed amendments. They are in fact advocated with more candor than good sense by some of the proponents of the various amendments. A word should be said about representation based on political subdivisions. allegedly on the congressional model. The first thing to be said is that Congress is not an apt model. The formula for representation in the U.S. Senate is speci fied in the Constitution as the result of a compromise that recognized the sovereig! identity of the several States. The local political subdivisions of the States, of the other hand, the counties, towns, cities, and villages, are not sovereign but are creatures of the State legislatures, subject to enlargement, contraction, of elimination; and they have no guaranteed residual authority as have the States Moreover, the State districting and apportionment processes are subject to the equal protection clause of the 14th amendment which does seem to ordain equality. Since the 14th amendment was added to the Constitution only in 1868, it is relevant to observe practice before that date. The story revealed by tha! investigation is very interesting. Although several of the Original Thirteen States adopted apportionment formulas which today produce substantial in equality among election districts, it is clear that they did not act on the model of Congress. In fact, the original State constitutions predated the Federal Constitution, which in turn was not copied from their example. Moreover, the popula tion at the time these formulas were approved was much more evenly spread among the counties that were given equal representation (as in Delaware an! New Jersey) and among the towns that were given equal representation casi Connecticut and Rhode Island) than today when the situation has been vastly altered by the shift of population to the great urban centers.

Even more significant is the fact that between 1790, when Vermont was admitted, and 1889, when Montana was admitted almost 100 years later, every State admitted to the Union entered with a constitution providing for representa tion based principally on population in both houses of the legislature. Indeed, the original constitutions in 36 of the 50 States provided for representation largely in accordance with population in both houses of the legislature. Advisory Commission on Intergovernmental Relations, Report on Apportionment of State Legislatures, 10–11, 35, 69 (1962). It was not until late in the 19th century tha the States began the movement away from representation in accordance with population, sometimes by a change in formula and sometimes simply by failing to live up to their own constitutional requirements. By the time Baker v. Cart, 369 U.S. 186, was decided in 1962, the movement was virtually complete. Malap portionment was king nearly everywhere. But even by that date no more than 10 States had formulas even roughly comparable to the alleged congressional model, and even those differed somewhat from Congress and from each other. In short, as the Court noted in rejecting the so-called Federal analogy, reliance on it was an "after-the-fact rationalization offered in defense of maladjusted State apportionment arrangements." Reynolds v. Sims, 377 U.S. 533, 573 (1964). The proposed amendments also present difficulties of timing. Unquestionably implementation of the reapportionment cases requires substantial adjustment of apportionment formulas in many States. But the Supreme Court made it clear in the original decisions that there is considerable room for variation of formula depending, for example, on the governmental role played by local political subdivisions in the various States. Clearly, mathematical precision is not required. The recent decision in Fortson v. Dorsey (85 Sup. Ct. 498 (1965)), reinforces that conclusion, for there the Court upheld the Georgia formula calling for multimember election districts in the populous areas and single-member districts elsewhere.

Reaction of the general public to the decisions has been favorable (3 to 2 in upport, according to an August 1964 Gallup poll), as well it should be. After l, the complaint to which Reynolds was addressed was that of the underreprented voters, who constituted the majority of all voters in every State whose se was presented to the Supreme Court. Perhaps spurred by this majority timent the State legislatures have shown an almost surprising willingness to et on with the job, most often in apparently good faith compliance with the nstitutional requirement. It is especially significant to note that individual tates have found in the rule the flexibility that the Court said was there. hus, in both Oklahoma and Wisconsin the reapportionment has been accomished without crossing county lines, while other States have replaced their d schemes altogether with new formulas designed to achieve more effective epresentation. The point here is simply that it is too soon to call a halt to a oble experiment in application of majority rule, an experiment which I believe Show in the process of being proved eminently workable.

The timing is also bad in another, more cynical way. The only reason readily erceivable for great haste in securing constitutional amendment is to seek ratition in some cases by legislative bodies not yet reapportioned, and thus by glators who have at stake a personal self-interest that is on this issue likely be inconsistent with the interest of their constituents.

The short of the American Civil Liberties Union position is that the reapporment cases have made it possible for State legislatures to return to their htfully proud position in which they can voice a confident consensus of State lion that will represent again, as once before, the wishes of the majority. Senator BAYн. Our last witness is Mr. William G. Colman, execue director of the Advisory Commission on Intergovernmental Relations.

Mr. Colman, we are extremely grateful to you, not only for taking The time to let us have your thoughts, but also for your patience in waiting so long.

I understand that accompanying you is Mr. Stuart Urbach, an nalyst on the staff of the Commission.

We appreciate you gentlemen being present.

STATEMENT OF WILLIAM G. COLMAN, EXECUTIVE DIRECTOR, ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS; ACCOMPANIED BY STUART URBACH, SENIOR ANALYST

Mr. COLMAN. Mr. Chairman and Senator Hruska, our purpose in ppearing before your subcommittee is not to be an advocate or an ponent of the proposed constitutional amendments that are before . Rather, our purpose is to present to your committee some facal, technical and procedural aspects of this apportionment problem. Our remarks stem from a comprehensive research project on this bject which the Commission undertook in 1962, and upon which ir report, Apportionment of State Legislatures, is based. This report has been used as a sort of fact book throughout the country by th plaintiff and defense attorneys in reapportionment cases and by Federal and State judges in rendering decisions thereon. Copies of the report have already been made available to the members of this committee and its staff.

Senator BAYH. We are extremely grateful for this fact. I think the fact that both plaintiff and defense attorneys in this area have d it is pretty good evidence of the comprehensive nature of the

report.

Mr. COLMAN. I shall try to summarize our statements, Mr. Chair

nan.

But before getting into the substantive aspects, perhaps I should say a few words about the Advisory Commission.

It is a bipartisan body created by Congress in 1959, charged with examining and making recommendations with regard to problems of Federal-State-local relations and to strengthening our overall Federa system of Government under the Constitution. We have been in actual operation a little more than 5 years, and we have gotten into a number of specific issues of intergovernmental relations.

The Commission consists of 26 members, coming from all levels of government. Three come from the general public. Of the remaining 23, 14 come from State and local government and only 3 from the national government; of these 9, 6 come from the Congress and 3 from the executive branch.

In a practical sense, the Commission is a national body that is r sponsive and responsible to the various levels of government. It not under the thumb of any one level of government.

The members of the Commission, at the time of the adoption of our Report on Apportionment, appear on page 3 of the statement.

In view of the widely varying backgrounds, it might seem surprising that all but one of our recommendations dealing with apportionment met with unanimous adoption on the part of the Commission. Before getting into the pros and cons of one-man, one-vote, let u summarize the major recommendations of the Commission with regard to the apportionment procedure.

First, apportionment of seats in State legislative bodies is a basic factor of representative government and provisions relating thereto should be clearly specified in State constitutions.

Second, the apportionment formula for each body of the Star legislature should be spelled out in clear and sufficient detail so that there can be no question as to the meaning of the formula.

Third, the State constitution should specify the frequency of State reapportionment.

Fourth, the State constitution should specify the body or officer hav ing a responsibility for apportioning seats in the State legislature. Fifth, the Commission recommended that State courts be consti tutionally provided with approprate jurisdiction and remedies to in sure that State officials comply with their apportionment responsibil ities.

Finally, the actual apportionment of a State legislature, including, as it must, many elements of negotiation and accommodation tha do not lend themselves to adversary proceedings, should be accom plished by the legislative or other specified nonjudicial body or officer

In other words, Mr. Chairman, the Commission was saving th it did not believe that State and Federal courts should be in the business of drawing district lines; rather, the Commission expressed the view that the judicial role here should be one of ruling upon the constitutionality or lack of constitutionality of plans that were dra" up by the legislative body or other body charged with apportionment In one of the preceding recommendations that I have just read we pointed out that there was much to be said for placing responsibili for apportionment with the legislature in the first instance, but pro viding in the constitution that if a legislature failed to act, then nonlegislative body would step in and would actually make the apportionment.