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does have equal access. But in one or two instances examples have been brought to the subcommittee's attention where there is a great deal of difficulty in communicating because of geography, or particular communications systems. In the State of Colorado we have an erample where the west side of the mountain, the western slopes, have been inaccessible to television from any station in Colorado. A repre sentative representing that area has to travel long distances through rather tenuous terrain. Do you feel that this is a factor that mig: be considered or should be considered when you look at the people tha: he represents that are inaccessible. Are they getting equal representation as you see it?
Senator KENNEDY. I expect it is more of a problem in one area thar. another. I also feel that if that representative doesn't get back to the western side of Colorado, then they will find somebody else to repre sent them. It doesn't seem to me it bears on any—that it bears on these constitutional amendments.
Senator Bayh. In order to get sufficient numbers in one district. you have to cover a considerable larger terrain. It is much more difficult to cover than a well-packed area. It would seem to me that a man would have a much more difficult time of covering such ar. area.
Senator KENNEDY. The television does not go from Denver to western slopes. The fact that you have two representatives there instead of one is not really going to make much of a difference. With modern communications individuals can get around. I do not know whether the idea would be that one member of the legislature would remain in the district and the other one would in the capital. That does not make any sense, either.
If you had two people—if you are inaccessible to one person you would be equally inaccessible to the two people.
Senator Bayu. Two people can cover the district more easily.
Senator KENNEDY. Well, if you are saying the district is so large that they cannot cover the district, I think that is a different question you cannot have access to them when they are not in the capital.
Senator Bays. You cannot cover the district. The argument has been given that with modern-day television you can reach everyone
Senator KENNEDY. I do not think there is any problem in any district with communications that we have at the present time in the United States. There isn't that much of a problem, whether it is in Nebraska, Kansas, Colorado, for the member of a group-of an assembly or State senate in covering the district.
Senator Bayu. You mentioned in your opening statement that the Supreme Court certainly does allude to certain variations that permitted leeway.
Senator KENNEDY. Yes.
Senator Bayh. Do you suppose the Supreme Court would take into consideration in this particular Colorado instance, which I painted rather poorly, that it is difficult to reach both in person and by communications?
Senator KENNEDY. I expect when Colorado is going to draw its lines that may be a factor which the Court could accept. I do not think there could be any major deviation, however. Having spent a good deal of time in a number of these States and having moved around, I
think access to your constituents is not that difficult if one makes a major effort. I agree it is more difficult than if you live in a heavily populated area and it is more difficult where the communications are easier—where it is more difficult than where the communications are easier. But I think that is understood. We have been able to get by, certainly, and communications are much easier than it was a hundred years ago or 50 years ago or 25 years ago or 10 years ago—much easier now and it gets easier each decade. I do not think that is the direction We really want to move in and, again, we are talking about amending the Constitution of the United States and we are talking about all of the problems, for instance, with the Dirksen amendment and with the Javits amendment. The three major faults with the Javits amendment and five major faults with the Dirksen amendment and we are amending the Constitution, and it seems to me that although these are some of the problems of representative government that you have outlined, I think it is such a serious step that it should not be taken on the basis that there is somebody, perhaps, in Colorado, an assemblyman or State senator who has difficulty communicating sometimes with his constituents. That is not a general problem in the United States, and to write in all of these problems that we are going to face and all the difficulties and all the unfairness by accepting these amendments because this might deal with that kind of problem, I do not think the weight of evidence or the weight of our public interest is on that job. Senator Bayh. Thank you. Senator Tydings?
Senator TYDINGS. I have a couple, just along the line that the chairman, Mr. Bayh, just asked, namely, if you have a large district to represent, it might be difficult because the territory was greater and the individual constituent would have to travel farther. As a matter of fact, Senator Kennedy, to serve your constituents properly is not the most important thing how long the constituent has to wait in line to get to see you or how many telephone calls are ahead of him, and, as a matter of fact, is it not in many cases a representative of a large area, a small population group has a great deal much more time to spend with his constituents than an individual representative from a large urban area who might have, even though he lives in the very city, he might have so many people waiting in line to see him that he might not be able to give the same amount of time that a representative from large geographical area could to his constituents?
Senator KENNEDY. Well, it is possible. I do not know what the exact answer to that would be. I think, as I say—
Senator TYDINGS. Let me ask you one or two other questions. You touched somewhat in your statement on the historical or some of the historical arguments. "Is this not the first time the Constitution would have been amended or attempted to be amended since the inception of this Republic to limit the franchise of individuals? Senator KENNEDY. I believe that is true. Senator TYDINGS. You stated on page 3—page 4 that 36 of the 50 States provided for equal population representation in both houses. As a matter of fact, under the adoption of the Northwest Ordinance, is it not a fact that every State admitted to the Union under the terms of the Northwest Ordinance had to have equal representation or that his representation according to population in both houses?
Senator KENNEDY. That is correct.
Senator TYDINGS. And I think you covered it well in your statement that this
just to emphasize for the record the question of malapportionment of the legislatures or the actual existence which we have now is actually a comparatively recent thing—when I say recent—the only real unbalance in one house of the legislature began in the latter part of the 19th century with the urbanization of this country. And that historically in the United States, as you pointed out, we have had population of both houses based on the number or representation in both houses of legislatures based on roughly the population of these houses?
Senator KENNEDY. That is correct.
I do not know whether you considered it or not, but in the American Revolution in the period of time preceding the American Revolution, when the actual organization of the War of Independence was taking place, would you consider that one of the factors directly leading to the War for Independence was the fact that British Parliament did Det consider the 13 Colonies worthy of equal representation in the Hous of Commons and therefore we were subject--the original 13 Colonies were subject—to taxation without fair representation in the British House of Commons, the British Parliament?
Senator KENNEDY. I understand that was one of the reasons we get involved in the dispute.
Senator TYDINGS. No further questions.
Senator BAYH. I think the Senator presented some very useful itformation. I thank the Senator.
I am glad you put in the concern about the taxation without representation.
Thank you, Senator Kennedy.
Senator KENNEDY. Mr. Justin Feldman has come from New York, He is a prominent lawyer in New York, has been interested in matter of public policy, civil liberties, and civil rights for a long period of time, and I think his testimony would be well worth while for the committee.
Senator Bayh. Let me again, on behalf of the committee, thank yor for taking the time and for expanding on your very detailed origina. statement to let us have your thinking in some of these other areas.
Thank you very much.
Senator Bayh. Mr. Feldman, we are happy to have you with 13 this morning
STATEMENT OF JUSTIN N. FELDMAN
Mr. FELDMAX. My name is Justin X. Feldman. I am a member of the New York bar and I practice law in New York City. I am also chairman of a special committee on reapportionment of the Democraty State (Committee of New York, and until recently, I served as counsel to the Democratic County Committee of New York County. I have been actively involved in the last few years as counsel in several cases involving legislative apportionment and congressional districting in New York. Most recently, I was counsel in the proceeding which
succeeded in invalidating the legislative apportionment scheme enacted at a special session of the New York Legislature last December after the Supreme Court decision in WMCA v. Lomenzo.
While I recognize that the history of apportionment and reapportionment in the State of New York, or for that matter any other individual State, are not necessarily relevant to the consideration of this committee in reviewing proposed amendments to the U.S. Constitution, it may perhaps furnish some perspective in the matter. The propensity of history for repetition, particularly with respect to the polítical behavior of persons or institutions seeking to aggregate or perpetuate power has often been recognized. The history of legislative apportionment and representation is no exception.
The notion that legislative apportionment should be based upon population despite the hue and cry after the 1962 and 1964 decision of the Supreme Court is not an invention of the Supreme Court. As the Court noted in Reynolds v. Sims, 377 U.S. 533 at page 573, the original constitutions of 36 States provided that representation in both houses of their legislatures be based completely or predominantly on population. Other States adopted provisions for the apportionment of both houses of their legislature on the basis of population early in their history. New York did so in 1821, and made it even more meaningful when in 1826 all property qualifications for voting were eliminated. Many of these same States, however, deviated from this principle only in more recent times, as the Senator pointed out. They did so not because the principle was erroneous or unjust or unworkable. Rather, in many cases, it was flagrant disregard of State constitutional provisions requiring apportionment of both houses substantially on the basis of population which produced the imbalances involved in some of the apportionment cases which reach the Supreme Court, including Baker v. Carr and Reynolds v. Sims.
New York is not an example of disregard of its own constitution but an example of abandonment of the principle of equal representation because of many of the same factors which are urged by the advocates of the proposals with which you in this committee are concerned. It was the adoption in 1894 of a new constitutional provision intended to provide that one house would be apportioned on the basis of population while the other would guarantee representation primarily on the basis of counties and only secondarily on the basis of population that led to its invalidation by the Supreme Court as a violation of the 14th amendment in WMCA v. Lomenzo.
At the risk of appearing provincial, I find the analogy to be drawn between the situation confronting us today nationally and the background for adoption and operation of that amendment to our New York State Constitution in 1894 most illuminating.
First, as the law now requires by virtue of the Supreme Court decisions, our State law then required that both houses of the legislature be apportioned on the basis of population.
Second, there was an increasing trend to urbanization, as there is in many States today, coupled with a strong movement toward industrialization and a shift away from the rural and agrarian basis of the State's economy.
Third, there was a strong and natural fear that the influx of new voters-immigrants who would soon be citizens and who would be
exercising their franchise for the first time-might disturb the status quo ante and the familiar patterns of political power.
While I do not for a moment believe that any of the sponsors of the constitutional amendments with respect to legislature apportionmen: being considered by this subcommittee subscribe to such views, STE view of the debate held at New York's Constitutional Convention of 1894 discloses the importance of this last factor in the minds of some of the delegates—a fear not too different from the fears one hear expressed about the new voting patterns which may emerge from the enactment of a voting rights bill. It was expressed very frankly am very boldly by one of the delegates to that 1894 constitutional conten tion who said:
** the average citizen in the rural districts is superior in intelligen superior in morality, superior in self-government, to the average citizen of the great cities. * the lower strata of society in the great cities is such that (the city citizen) is not a citizen so well worthy of confidence as the averas citizen in the rural districts * * * your Government will be safer in (the rural citizen's) hands than in the hands of the average citizen of the great citie
Conjuring up pictures of city radicals destroying property an killing citizens, the delegate went on to warn:
Then you will cry for help. And to whom? You will then turn your eyes to the green fields of Oneida and Herkimer and Jefferson and St. Lawrence
The formulas adopted for the apportionment of both the New York Senate and the Assembly in 1894, despite the view of the delegate whor I have just quoted, were not intended by the convention to be groeslo unfair. The formula for the senate was essentially to be one of equa population. However, it contained certain limitations upon the called populous counties—those which at that time contained at least percent of the State population. The formula for the assembly gar consideration to population, but like the amendments which this committee is considering, permitted the use of other factors such as the guarantee to each county of at least one representative regardless o population.
As in the case of the amendments before this committee, the formula. prior to its enactment, had to be submitted to a referendum and had to be adopted by a majority of the people. It was so adopted. Vn just because most of the people who would be adversely affected weren't yet voters, but because (a) the formulas were extremely com plicated, and (6) the population disparities between districts as of that time were not too severe. The plan did not seem unfair on its face. The average citizen population of senate districts in the populous or urban counties in 1894 as a result of the application of the formula, was 120,000 as against an average citizen population in the under-6-percent counties of 12,000—a ratio of 100 to 107. By the time this formula was applied to our 1953 reapportionment in New York however, based upon the 1950 census, the average citizen populatior. of senate districts in the populous or urban counties was 301,000 anu in the nonpopulous counties, 195,000—a ratio of 100 to 154. Had th: Supreme Court not upset this formula by its decision in WMCA Lomenzo, the same relative figures based upon the 1960 census woulu have been 366,000 for the urban and suburban senate districts to 216,000 for the average rural senate district-a ratio of 100 to 16! Similarly, the ratio in the assembly in 1894 as a result of the formula