Senator BAYH. Thank you very much. I hesitate to take longer and any more of your time.

I just received notice that I am going to have to leave to go down to the White House very shortly. I want to hear the other witnesses. Perhaps one of my colleagues will then proceed.

Let me just ask one question. When do you think the full impact of the present Court decision will be felt by the State legislatures? Mr. SHULL. It will probably take about 2 more years at the rate in which we are going. Mr. Cohen has followed it a little more closely. Will you agree? I think there are so many now that are up, so many court orders and I think the momentum is now there and it has started and I think once these are properly apportioned there won't be a turning back of the clock.

Senator BAYH. Would you have less concern if this measure were to be enacted or become effective following the full adequate reapportionment of all houses?

Mr. SHULL. As a practical matter, I would have less concern, but as a principle matter I would still be against it for the reasons we gave. We just think it is wrong. We do think the State legislatures ought to be apportioned on population and that we should write into the Federal Constitution-we shouldn't write into it on any basis.

Senator BAYH. Do you feel the enactment of the constitutional amendment by the Congress, which in all probability could not take effect until reapportionment, would have a delaying effect or a staying effect on Federal district courts?

Mr. SHULL. I would think so. I would think that it would have a delaying effect on the legislatures, too. They would find ways of dragging their feet in order not to carry out apportionment, feeling that if the amendment were going to go into effect they would be able to get a reprieve for their present system.

I am not aware and I hesitate to think as to what courts might do, therefore, I have talked with lawyers about it and they feel that it would have that effect.

Mr. COHEN. One additional point, Senator, is that some of the States appear to be reapportioning themselves following the current constitutional standard, but state that in the event of a constitutional amendment they could then reverse their current reapportionment and I think the effect of the constitutional amendment could result in malapportioned States.

Senator BAYH. Not if the amendment specified that before a referendum procedure both houses in the State legislatures had to be apportioned on a one-man, one-vote basis.

Mr. SHULL. You just stated what my other criticism was going to be of the constitutional amendment, but even so, a State could still enact a statute that would give it a right to reapportion itself once the constitutional amendment were passed and so a well apportioned legislature could go could become malapportioned as a result of the constitutional amendment, so the fact that the Supreme Court decision would even take its effect in 2 years would not be permanent under the constitutional amendment, even one so carefully drawn as you ust described.

Senator BAYH. I do not follow your reasoning, if I may say so. In other words, if the constitutional amendment were to say first, we

recognize the validity of the one-man, one-vote, and all State leg latures must be apportioned on a one-man, one-vote basis, any cont 2gencies that may have been tacked onto the States doing this would e null and void. Then, to proceed from that point forward and say that if there are circumstances such as difficulty of transportation, ar forgetting the other difficulties, quite frankly, I am not concerne that religion and financial wealth and this kind of thing which cours would still review under the 14th amendment would be a factor. The has been expressed and I am glad you did express your thoughts o that.

Then, if the State involve wanted to vary one legislature with certain bounds, how could the laws affect this?

Mr. COHEN. What happens is that even if the constitutional amend ment passes under the ground rules that you have just described, y then have the constitutional amendment on the books and the resultit can result in malapportioned State legislatures, if not 2 years free now, or even 4 years from now, 6 years from now. You are still going to be faced with the problems we described in the testimony that i can result-malapportionment can result.

Senator BAYH. One house would have less than one-man, oneratio if this met with the other criteria.

I was talking to your point that I thought there was a gimm that a legislature could enact which could make null and void tis reapportionment efforts that they make.

Mr. COHEN. I am sorry I may have misstated the position. I th those States that have some apportioned-those States that have a ready apportioned themselves would follow the statute that I scribed. Only one house could become apportioned on factors of than population.

Senator BAYH. Thank you, both of you for letting us have yo thoughts. We will consider them and it will help determine the cara of action the committee will take.

Mr. SHULL. Thank you, sir.

Senator BAYH. The next witness is Mr. Jacob Clayman, of the I: dustrial Union Department, AFL-CIO.

He is also accompanied by Marvin Caplan, legislative represen's tive and Jack Beidler, legislative director.

Mr. CLAYMAN. We wanted to outnumber you this morning.
Senator BAYH. In addition to outthinking me.

Mr. CLAYMAN. Not that, but the other; yes.

Senator BAYH. Before you start, I am extremely glad that y found time to present your views before the committee and we are art ious to have you.

Mr. CLAYMAN. Thank you very much, Senator.

STATEMENT OF JACOB CLAYMAN, ADMINISTRATIVE DIRECTO INDUSTRIAL UNION DEPARTMENT, AFL-CIO; ACCOMPANIED JACK BEIDLER, LEGISLATIVE DIRECTOR, AND MARVIN CAPLA LEGISLATIVE REPRESENTATIVE

Mr. CLAYMAN. Mr. Chairman, my name is Jacob Clayman. I administrative director of the Industrial Union Department, AF CIO. I am appearing today to express the opposition of our orga

zation to S.J. Res. 2, the proposal for a constitutional amendment that would permit a State to apportion one house of a bicameral legislature on factors other than population.

Let me say a word about the great State of Ohio that borders your good State and I will insert here, because you may have to leave, I gather.

I suspect the assumption is that there is a popular will around the country that is demanding some kind of legislation or constitutional amendment that reflects Senator Dirksen's point of view. I can't speak to that popular will. I don't know whether it exists or not. I do know that yesterday they had a small test in Ohio. The administration in Ohio submitted-the State administration in Ohio submitted to the people a decision on reapportionment of their State legislature, not predicated on the issue on one man, one vote, and in the campaign the issue, however, was sharply framed. The opposition said one man, one vote one man, one vote one man, one vote.

The people of Ohio yesterday responded and 678,000-plus said no to a form of amendment and reapportionment in that State that does not reflect, at least in their judgment, the decision of the Supreme Court of the United States and 592,000 said yes.

The interesting fact is, Senator, that the rural counties did not respond in the fashion that normally we think they would respond. The rural counties in the main, very closely, very close vote said, yes, or no, there was no overwhelming sweep.

In the rural counties for the kind of apportionment suggested by the State administration and so, if we are looking for scientific tests, do the people want this kind of drastic legislation, upsetting the Supreme Court decision? At least we are confronted now by one small accurate test or reasonably accurate as accurate as a political election can be, which says in effect, in my judgment, we want one man, one

vote.

We see in this proposal a move to fix in our Constitution a system or representation that has led to malapportioned State legislatures. We believe its effect will be to curtail the voting rights of minorities under the guise of giving expression to the will of the majority.

While this may sound pretty general and fuzzy, this really is the heart of our opposition. It may not be stated eloquently, but here it is.

At the very heart of our earnest opposition to S.J. Res. 2, it is our belief that in a democratic society every man's vote should weigh the same that its content, its meaning should be exactly identicalthat no man's vote should count less or more because of wealth, property, education, or situs of home.

The tide of history flows irrevocably toward this assumption. There was a day when only property holders could vote. This has been expunged from our laws. There was a time when only free men could vote. This was altered in the bloody crucible of war. was a long dim period of American history when only males could Vore. This prohibition too came to an end.

There

In short, the historical American political decision has been to democratize our democracy. I suggest that S.J. Res. 2 is a roadblock in the path of developing tradition which has emphasized equality in the ballot box.

This may sound kind of philosophical and I am afraid it makes sOLLÆ material sense.

As we examine our society, even superficially, it is abundantly ap parent that the factors which set apart and discriminate against to great a number of our citizens are many and varied. The factors of education, training, wealth, color-all these mark some for financia success and personal fulfillment, while poverty, the pigmentation of one's skin, the lack of education, and so forth, places the cruel star of failure on others.

The point is that there are enough natural forces in life which ar discriminatory against people without adding artificial standards of citizenship which demean and depreciate a citizen's vote.

What I am saying is that there ought tobe some small area of Amer can life where there is genuine equality and I am saying, hease. knows there are enough other areas.

Senator BAYH. May I interrupt you just a moment to ask-p** out that the distinguished Senator from Maryland, Senator Tyding, is going to sit here in disservice to another committee which he ie, to assist us.

Could I ask for about a 2-minute recess?

(A short recess was taken.)

Senator TYDINGS (presiding). Mr. Clayman, I think you unde stand the circumstances under which Senator Bayh has to leave I think we can continue with your statement.

Mr. CLAYMAN. Thank you.

In your absence, and while the Senator was still here, I took occas to point out a little interesting development in the State of O yesterday. The State of Ohio is very much like the State of Indian same kind of population complex and in Ohio yesterday the voters of that State said "No" to a reapportionment suggestion which did v‹lence to one-man, one-vote.

Senator TYDINGS. That is right.

Mr. CLAYMAN. At least I am pleased, too, that there is significan in our relationship to discussion today. The interesting thing Senator and I didn't say this in the presence of Senator Bayh, tha a the news media in the State, all the respectability of the State w behind this and lined up on this issue, wanting to essentially ret the same kind of legislative controls that have been traditional in .. State and many other States and only the labor movement lined up the other side and so the results are kind of extraordinary and I s pleased to believe represent some deep concern in the minds of *** voters of that State and while I am still making the record on t Ohio story, three other issues were on the ballot. There were fou altogether. Yet three other issues passed overwhelmingly. The issue pertaining to one-man, one-vote, as I simplify the issue fa of passage.

I had been making the point as you came in, Senator, that there enough areas of life in our American society where people are criminated against for a variety of reasons and this seems to be " natural course of events and I was pointing out that there ought to w at least one area where this does not transpire, that there ought to " one area where every man counts the same, and in our judgment,!

is the area, and this is the arena, and this is the form which every man should count the same.

To repeat again and again, it is our view that every vote should enjoy complete equality. Whether city dweller or country squire, factory worker or dirt farmer, slum or country mansion occupant, rich or poor, Ph. D. or unlettered-evey vote must be given the same quantitative and qualitative significance. The scales must not be loaded to weigh unevenly. In our judgment, this is the meaning of democratic political morality.

One argument that supporters of this resolution make is that it will not affect the power of the Supreme Court. They say that if this amendment became part of the Constitution and a State proceeded to apportion one house on a basis other than population, the Court could still examine every facet of the State's action to see if there had been compliance with the Constitution. The trouble with this is it makes judicial review practically meaningless. The Court has said clearly and unequivocally that "as a basic constitutional standard, the equal protection clause requires that the seats in both houses of a bicameral State legislature must be apportioned on a population basis." But S.J. Res. 2 would upset this and provide that any basis for apportionment is in compliance with the Constitution. If that's so, and we believe it is so, what point is there to a Court review since even if the Court felt the new basis resulted in injustices it might not be able to do anything about it?

Another matter that gives us grave concern is the threat this amendment poses to rights of minorities, labor's long struggle to establish its own rights makes us sensitive to the rights of other minority groups in our society.

We in the labor movement have watched malapportioned legislatures in many States pass laws that make it difficult for us to win rights for our members and block laws that would improve the general welfare. It has been State legislatures, dominated by small groups hostile to labor, that have succeeded in having the right-to-work laws enacted, laws that outlawed union shops.

It has been legislatures unrepresentative of large sections of the publie and insensitive to the needs of people living in the cities that have been or may be able to veto badly needed programs in such areas as education, mass transportation, minimum wages, sanitation, housing, city planning, and State cooperation in Federal poverty programs. If factors other than one-man, one-vote were used to determine representation, many disadvantaged minority groups would suffer. It has been suggested, for instance, that apportionment be based on the number of voters in a district instead of on the number of people. But the result of this, as the citizen's committee on reapportionment has pointed out, "could well be that a person living in a populous area with a small proportion of regular voters would enjoy only half the representation of a person living in an area 50-percent less populated but having the same number of voters."

In New York City many Negroes, many Puerto Ricans who are unable to vote because literacy tests are given in English and others from poorly educated, low-income groups would be disfranchised nder such a system as this amendment would permit. We cannot believe the Constitution sanctions this denial of their right to repre