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Federal courts should have jurisdiction over the question of whether or not equal protection of the laws is denied by reason of legislative apportionment problems. I do not share the belief of some of our colleagues that the Supreme Court or other Federal courts have no business in this area-if that is what the Chair is getting at.

But I do want to make it clear that interpreting this section 1, the first sentence of which the chairman has just read, I think we must read what follows. I think the reading of the entire section 1 makes it quite clear that it would strain the interpretation of section 1 to suggest that there would be no judicial review in this matter.

I would say this, though, Mr. Chairman, that if there are any doubts on this subject, if there are any doubts, reasonable doubts-of course, somebody can always bring in a case—but I am talking about reasonable doubts based upon the best judgment of not only the committee staff, but also the Department of Justice--then I think that clarifying language or perhaps a change in language ought to be done.

I do not want to be a party to something that is going to provide a lot more litigation.

Now, I would like to respond, if I might, to an earlier point that the chairman made, before I leave, if I could.

There is no intention behind this second amendment that I suggested this afternoon to do away with ad hoc cases. I just want to do away with some that I believe are unnecessary in light of the Dorsey case.

The question of whether or not there is a discrimination against a racial minority or a discrimination against a political minority can involve a tremendous amount of litigation. If we can avoid that by simply saving each legislator is elected from his own legislative district by the people in that district, and the district will be composed on a one-man-one-vote basis, I think that we have done a service to

the people.

Now, there is no question but what if S.J. Res. 2 is adopted, along with my amendment, there are going to be numerous ad hoc cases, because the chairman well knows that there are all kinds of permutations and combinations in implementing the one-man-one-vote doctrine; whether or not if 47 percent of the people theoretically control one house of the legislature then that satisfies the one-man-one-vote hasis; whether or not a discrepancy of populations of the districts within one house can exceed 11/2 or 2 to 1. There are many of these hings that have to be looked at on an ad hoc basis, and no constitutsonal amendment we propose can do away with these.

Senator Bayh. I was just trying to point out it is going to be rather difficult to do anything with constitutional language that is zning to avoid all ad hoc cases. I appreciate the Senator's comment. Te would appreciate any language that you might have implementIg your proposed amendment, so that the committee might study it specifically Senator MILLER. Thank you, Mr. Chairman. I will do that. Now, may I make one more point, Mr. Chairman! Senator BAYA. Please do.

Senator MILLER. This is not contained in S.J. Res. 2. I might say that I think it should be.

difference is that freedom of worship prerails at the State, the local, the county, the city, and the Federal level. But quite obviously, the right to one man one vote does not prevail at the Federal level. Otherwise the U.S. Senate would be on a one-man-one-vote basis.

So that I would suggest to the chair that is a fundamental dif. ference between these two rights. And I think they miss their mark when they suggest that the right to have a one-man-one-vote doctrine apply in State legislative proceedings as the same—and the same category or in the same status as freedom of worship and other basic inherent rights of the people set forth in the Constitution.

If they are right, Mr. Chairman, if they are right in this, then of course we might as well all go home and have the U.S. Senate elected on a one-man-one-vote basis. And I do not know of very many people who would care to do that.

Senator BAYH. Is the Senator implying he feels there is an analogy, then, bet ween Federal representation an State representation.

Senator MILLER. I know that I have some of my colleagues who advocate S.J. Res. 2 who will disagree with me on this point. But down through the years in which I have participated in this reapportionment problem, I must say I have never been persuaded to use the Federal analogy.

I think that there is a difference. I think there is a difference between the fact that the composition of the Congress is set forth in the basic Constitution document, and the fact that the equal protection of the law's clause relates only to States, and came along later on as a constitutional amendment which relates only to States and has nothing to do with the Federal Government or the Federal Congress.

So I have never used the fact that we have one house on ares basis and one house on population in the Federal Congress as a basis for arguing that therefore we should have the same thing in the State legislatures.

Senator Bays. The Senator's argument is on a much more stable ground, if I may say so.

Let me ask one other question. In the first sentence of S.J. Res. 2 it reads as follows: The right and power to determine the composition of a legislature of a State and the apportionment of the membership thereof shall remain in the people o! that State.

There has been some testimony to the effect that this could be interpreted as removing all right of judicial review for apportionment-even to the one house that would be required on the one-manone-vote basis.

First of all, does the Senator so interpret this sentence in that war, and if so, does he feel that it should be changed? How does the Senator feel about that?

Senator MILLER. Well, Mr. Chairman, if I had felt that that would be the interpretation of it, I would not have my name appended to this resolution.

Senator BAYH. The Senator still feels that there should be judicial review, particularly as far as the one house that is one man, one vote. and even after the adoption of S.J. Res. 2?

Senator Miller. Oh, yes; I might say, Mr. Chairman, that I am one of the many members of the Congress who has believed that the

do

Federal courts should have jurisdiction over the question of whether or not equal protection of the laws is denied by reason of legislative apportionment problems. I do not share the belief of some of our colleagues that the Supreme Court or other Federal courts have no business in this area-if that is what the Chair is getting at.

But I do want to make it clear that interpreting this section 1, the first sentence of which the chairman has just read, I think we must read what follows. I think the reading of the entire section 1 makes it quite clear that it would strain the interpretation of section 1 to suggest that there would be no judicial review in this matter.

I would say this, though, Mr. Chairman, that if there are any doubts on this subject, if there are any doubts, reasonable doubts-of course, somebody can always bring in a case-but I am talking about reasonable doubts based upon the best judgment of not only the committee staff, but also the Department of Justice—then I think that clarifying language or perhaps a change in language ought to be done.

I do not want to be a party to something that is going to provide a lot more litigation.

Now, I would like to respond, if I might, to an earlier point that the chairman made, before I leave, if I could.

There is no intention behind this second amendment that I sugvested this afternoon to do away with ad hoc cases. I just want to

away with some that I believe are unnecessary in light of the Dorsey case.

The question of whether or not there is a discrimination against a racial minority or a discrimination against a political minority can involve a tremendous amount of litigation. If we can avoid that by simply saying each legislator is elected from his own legislative district by the people in that district, and the district will be composed on a one-man-one-vote basis, I think that we have done a service to the people.

Now, there is no question but what if S.J. Res. 2 is adopted, along with my amendment, there are going to be numerous ad hoc cases, because the chairman well knows that there are all kinds of permutations and combinations in implementing the one-man-one-vote doctrine; whether or not if 47 percent of the people theoretically control one house of the legislature then that satisfies the one-man-one-vote basis; whether or not a discrepancy of populations of the districts within one house can exceed 11 or 2 to 1. There are many of these things that have to be looked at on an ad hoc basis, and no constitutional amendment we propose can do away with these.

Senator Bays. I was just trying to point out it is going to be rather difficult to do anything with constitutional language that is going to avoid all ad hoc cases. I appreciate the Senator's comment. We would appreciate any language that you might have implementing your proposed amendment, so that the committee might study it specifically.

Senator MILLER. Thank you, Mr. Chairman. I will do that.
Now, may I make one more point, Mr. Chairman?
Senator Bays. Please do.

Senator MILLER. This is not contained in S.J. Res. 2. I might say that I think it should be.

There ought to be some kind of a precaution cranked into this legi: lation so that there will be an opportunity for periodic consideratia or review. Whether this should be after every decennial census, don't know.

Now, in my own State of Iowa, I think we do have a check on thi by the fact that every 10 years automatically on the ballot in the ger eral elections the proposition of whether or not we shall have a cor stitutional convention comes up. Now, that might serve as a safet valve so that if, due to population shifts and changes in politic affiliation and the like, the one-man-one-vote doctrine at least in or house might appear to be in process of being violated, or wheth there might appear to be a general dissatisfaction with the compos tion of the second house which, let's say the people, as they did in th State of Colorado, have decided should be on something other tha strict population-it seems to me there ought to be some way so thi after a number of years, perhaps every 10 years, the people have a opportunity to look at this again. They may at one time have decide that they wanted to give extra weight to a certain geographical distr bution in their State. Abuses may have arisen as a result of thi Unless they have the initiative and referendum whereby they ca undertake to change that, then I can see where we might have son difficulties.

Therefore, I would hope that the committee might give some col sideration to some provision which would assure the people that the would have an opportunity to consider the situation periodically.

I think the Supreme Court has indicated for purposes of the on man-one-vote doctrine that they would not envision a change in tl house every other year, and that possibly a change after every dece nial census might suffice for that purpose. That might be an approa that could be used for this purpose.

Senator Bayh. Thank you. That is a suggestion very well take
Senator MILLER. Thank you, Mr. Chairman.
Senator Bays. Thank you, Senator Miller, for your contributia
Senator MILLER. Thank you.

Senator Bays. The next witness is the distinguished Senator fra Colorado, who has been more than patient, not only in understandii our time problem this morning, but in waiting to testify this afternoo

I will ask, if there are no objections, that any additional commer which Senator Miller offers to the subcommittee be inserted at tl point in the record so that there will be a continuity that is easy follow for those who shall read this record.

(The subcommittee subsequently received the following letter fra Senator Miller:)

U.S. SENATE, COMMITTEE ON ARMED SERVICES,

March 9, 1965 Re S.J. Res. 2. Senator BIRCH BAYH, Subcommittee on Constitutional Amendments, New Senate Office Buildi

Washington, D.O. DEAR SENATOR: At the time of giving my testimony before your subcommitt on March 4, 1965, I indicated in response to your request that I would be har to furnish you with proposed language to accomplish the abolition of ma member legislative districts.

[graphic]

The proposal to abolish multimember legislative districts could be accomplished hr making section 2 of the bill section 3, and by inserting in place thereof a new section 2 as follows:

“Section 2. The right and power of the people of a State shall not be exercised to create multimember legislative districts and such existing districts are hereby abolished.”

I hope that this language will be of assistance to your subcommittee and that me proposal will re ve the earnest consideration of the subcon aittee. Sincerely,

JACK MILLER.

STATEMENT OF HON. GORDON ALLOTT, A U.S. SENATOR FROM THE

STATE OF COLORADO

Senator ALLOTT. Thank you, Mr. Chairman. I am sorry I cannot join with you in saying that I am a former member of a legislature, but I did have the pleasure of presiding as president of the senate in Colorado for two terms. I think I gained a great deal of understanding of that situation at that time.

Senator Bayu. I am certain that that is the case. The presiding officer probably understands it better than the average member of the body.

Senator ALLOTT. I am not at all sure about this. They taught me many lessons.

First of all, I want to express my appreciation to the chairman for holding as prompt hearings and as full hearings on this as he has.

I appreciate being given this opportunity to appear as a cosponsor of S.J. Res. 2, to give you my thoughts on it. I will confess at the outset that I would prefer to see, as least for my own State, geographical, economic, and perhaps even historical factors taken into account in the composition of one body of our State legislature, but the personal feelings of any Senator as to a proper method of apportionment are not the basic point. The basic point, I believe, is whether by inaction we shall allow the Supreme Court cases of June 15, 1964, in Reynolds 5. Sims and related cases, to freeze into the Constitution one political theory concerning the proper method of apportionment. As Mr. Justice Stewart phrased it in his dissent in the apportionment cases:

What the Court has done is to convert a particular political philosophy into a constitutional rule, binding upon each of the 50 States, from Maine to Hawaii, from Alaska to Texas, without regard and without respect for the many indiäidualized and differentiated characteristics of each State, characteristics spoming from each State's distinct history, distinct geography, distinct distritation of population, and distinct political heritage. My own understanding If the various theories of representative government is that no one theory has frer commanded unanimous assent among political scientists, historians, or chers who have considered the problem. But even if it were thought that the male announced today by the Court is, as a matter of political theory, the most desirable general rule which can be devised as a basis for the makeup of the representative assembly of a typical State, I could not join in the fabrication of 2 constitutional mandate which imports and forever freezes one theory of jnlitical thought into our Constitution.

That is exactly what the decision in the Sims case did. And, all that the Congress would do, if it passes S.J. Res. 2 by the required two-thirds in each body, is to give the people of the various Sates, if three-quarters of the States concur with Congress, the opportunity to use factors other than population alone in apportioning 'seir legislatures. Representative government has historically been

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