We are especially alarmed to note that proposed amendments to the Constituwhich have come to our attention would not only compromise the right to an al vote but would set no limits upon the nature and degree of the deviation in ctice from the present equal vote principle. Proposed formulas for allowing ortionment of one house of a State legislature on factors other than populaì contain no safeguards against highly arbitrary and capricious systems of resentation.

Therefore, we hold that the effort to negate or compromise the equal vote ision of the Supreme Court represents one of the most serious threats to ular government in the constitutional history of the American Nation. We e that any and all proposals to this effect be rejected.

TEMENT OF HOWARD M. SQUADRON ON BEHALF OF THE AMERICAN JEWISH CONGRESS

The American Jewish Congress is an organization of American Jews ply committed to the preservation of civil and political equality. We believe t the liberty and equality of all Americans is best insured by the guarantees bodied in the Constitution of the United States. A citizen's right to vote e of arbitrary dilution by State action has long been recognized as fundantal to the democratic form of government. Anything less than equality as a ndard for the apportionment of the membership of our State legislatures is invitation to arbitrary discrimination. For that reason, we appreciate this ortunity to present our views to this committee on the matter of legislative ortionment.

THE SUPREME COURT DECISIONS

When the Supreme Court issued its decision in Baker v. Carr in 1962 (396 §. 186), the problem of malapportionment of State legislatures had grown alarming proportions. Partly by deliberate distortion and partly by inaction, islatures in almost every State had brought about a grave disproportion of resentation of the people in their deliberations and decisions. Generally, s disproportion favored rural areas over the cities and suburbs.

n Baker v. Carr, the Supreme Court held that irrational standards of apporment causing a disproportion of representation of the voting population lated the equal protection clause of the 14th amendment. Two years later, Reynolds v. Sims, 377 U.S. 533, it held that the principle of equality embodied that amendment required that seats in both houses of a bicameral State legisare must be apportioned on the basis of population.

THE PROPOSED AMENDMENTS

This committee is now considering a number of resolutions proposing an endment to the U.S. Constitution to reverse the Supreme Court rulings, at st in part. Principal attention has been given to the resolutions introduced Senator Dirksen for himself and 37 other Senators (S.J. Res. 2), and by ators Church (S.J. Res. 37) and Javits (S.J. Res. 44).

The amendment proposed in Senate Joint Resolution 2 would state that the ver to apportion a State legislature "shall remain in the people of that State." would go on to declare that nothing in the Constitution shall prohibit apporment of one house of a bicameral legislature on the basis of factors other n population or from giving reasonable weight to such factors in apporing a unicameral legislature. It would permit such departures from the tal population principle only if the apportionment plan was approved by a jority in a popular referendum.

Senate Joint Resolution 44 is the same as Senate Joint Resolution 2 except two respects: First, it would omit the first sentence generally declaring that power to apportion remains with the people. Second, it appears to permit people, in a referendum, to direct that such apportionment be made after -h decennial census.

Senate Joint Resolution 37 provides simply that apportionment of one house any bicameral State legislature may be on any "reasonable system of repretation" other than equal representation, with the approval of a majority he electorate.

The American Jewish Congress urges rejection of these proposed amendments the simple ground that there is no reason to restore, even in part, the evil inequality of representation. We believe that equal representation is and ould be the constitutional standard for legislative apportionment and we there48-124-65--61

fore oppose any measures that would undo the rights protected by the Supe Court decisions.

The sanctity of the right to vote and the principle that one citizen carries as much weight as every other citizen's vote distinguishes our Na from the totalitarian states. We oppose any effort to amend the Cost tion to enable a State, in effect, to declare that some citizens are supera others by giving them a greater voice in the control of their government. support of our position, we propose, first, to review the evils that the Supre. Court decisions dealt with and then to argue that they would be perpen by the proposed constitutional amendments.

THE EVILS OF LEGISLATIVE MALAPPORTION MENT

At the time the Supreme Court issued its decision in Baker v. Carr, the STatic stifling of the will of the majority of the people of the several State legislatures controlled by minority interests had resulted in impotency in desi with many critical State problems, notably education, transportation, h and employment. Demands for essential legislation to meet vital urban and for new approaches to rapidly expanding suburban populations had '-. neglected in furtherance of the minority rural interests. Despite there proportionate contributions to State tax income, underrepresented city dwe e had been obliged to accept per capita returns in appropriations for legit... State functions at grossly inadequate levels.

As a result of State legislatures consistently unresponsive to the claims of underrepresented, the whole concept of federalism and our scheme of represe tive democracy had been distorted. Citizens deprived of a State forum for 'e mate claims were forced to turn to local tax levies and Federal aid to sa ment or supplant funds that should have been allocated by the State.

More fundamental than these concrete manifestations of malapportion was its basic conflict with democratic principle. The weighting of votes to a political party, a geographic area or a particular segment of the populat` the detriment or exclusion of other groups or areas is discriminatory on its! Any deliberate discrepancy in the value of an individual vote must be regar as a denial of equality.

It was sometimes claimed that basing representation strictly on pope's" would create distortions, since small city areas would have the same or gres strength in the government as large out-State areas. But area as such does ** deserve representation in legislatures. It is the people who must be representi In fact, this argument disguises, but imperfectly, an entirely different cept that rural voters should be given extra legislative strength because of th inherent superiority, on various counts, over urban voters. While this just: tion is rarely offered explicitly, the veil has occasionally been lifted. This of the delegates to the New York State Constitutional Convention of 1894, w adopted the malapportionment system later stricken down by the courts, 1 "*** the average citizen in the rural district is superior in intelliger superior in morality, superior in self-government, to the average citizen 4” great cities ***"

We submit that it is manifestly improper, in a democracy, for the Govern to make such judgments as to the respective value of its citizens. It is to prese just such judgments that our system of government embodies what Ja Cardozo once described as "the mandates of equality and liberty that officials everywhere." Niron v. Condon, 286 U.S. 73, 88 (1932).

THE EFFECT OF THE PROPOSED AMENDMENTS

The proposed amendments would preserve, at least in part, a status quo loc in need of change. They would, at the same time, invite further encroac?ne. on constitutional principles.

To begin with, both Senate Joint Resolution 2 and Senate Joint Resolution 4 would permit the States to apportion one house of a bicameral legislature on a" basis whatever, no matter how unreasonable. They place no limits on ↑ provide no safeguards against, completely arbitrary apportionment. (This made clear by the fact that, in both resolutions, it is specified that, in ape** tioning a unicameral legislature, only "reasonable" weight may be give factors other than population. The clear implication is that, as to one be» of a bicameral legislature, use of such factors could be entirely unreasonabe

One result of this, of course, is that apportionment could be based on income, ownership of land, sex, religion, or even race. Commenting on this aspect of the Dirksen amendment, the Committee on Federal Legislation of the Association of the Bar of the City of New York has said (committee report, published in "The Record of the Association of the Bar of the City of New York," vol. 20, No. 4, p. 229, at p. 235):

The amendment might thus invite attempts at districting based on racial criteria or arbitrary criteria having racial or other discriminatory overtones. It is patently undesirable to have an amendment which might, for example, be relied on to undermine the safeguards of the 15th amendment *

(The limitations of the 14th, 15th and 19th amendments would have no effect since the most recently adopted amendment would supersede them.)1 But even if no new form of malapportionment were introduced, perpetuation of the old evils would be bad enough.

It is no answer to say that the evils would be partly corrected since at least one house of the legislature would reflect the interests that have previously been shortchanged. Legislatures representing a majority of the voters would still have a veto power over all legislative action. There is no reason in justice or principles for such an arrangement.

ARGUMENTS FOR THE AMENDMENTS

One argument often offered for allowing one house of a legislature to be apportioned unequally is what is familiarly referred to as the "Federal analogy." It rests on the fact that the U.S. Congress is composed of a House of Representatives based on population and a Senate composed of two Members from each State. The analogy has no application to State legislatures. As a historical matter, the constitutional provisions pertaining to the Senate were the result of a compromise to induce the States to cede up a measure of their sovereignty to a Federal Union. Under that compromise, each State retained an equal voice in one House of the Congress. The Senate organization was a specific exception to the principle of equality. The analogy has no validity because the foundation of the senatorial compromise is State sovereignty, whereas counties and towns have no sovereignty existence apart from the State, which created them and can alter or eliminate them in whole or in part.

It is also argued that the Supreme Court decisions defied history and nullified practices long sanctioned by tradition, that they had the effect of destroying local governmental subdivisions and ignoring essential economic, geographic, and other elements of practical politics. But if it is tradition we are serving, there is a more venerable tradition to honor. James Madison, in his "Memorial and Remonstrance Against Religious Assessments" to the General Assembly of the Commonwealth of Virginia said, "But the representation must be made equal, before the voice either of the representatives or of the counties, will be that of the people." Thomas Jefferson similarly denounced inequality of representation under the Virginia constitution and consistently supported the principle of apportionment on the basis of population, as did the Northwest Ordinance of 1787 by providing for apportionment of seats in the territorial legislatures on that basis alone.

Finally, it is argued that any malapportionment is permissible if it is approved by a majority of the people; accordingly, Senate Joint Resolutions 2, 37, and 44 all provide for submission of unequal apportionment measures to popular referendum. This argument is contrary to fundamental constitutional principles. The purpose of embedding rights and guarantees in a written constitution is to make sure that they are not abrogated by majority vote.

Thus, our system of government does not permit suspension of freedom of speech or freedom of religion by popular vote. Racial segregation cannot be imposed by majority will. The right to an equal share in the selection of those by whom we are governed must similarly be protected against arbitrary action.'

S.J. Res. 37 would presumably avoid this result by permitting only "another reasonable System of representation." This leaves a large area of doubt as to the effect of the amendment.

Moreover, a referendum may be only a choice between evils which does not and cannot show majority support for unequal representation as such. As the New York City Bar Association Committee report referred to above points out (at p. 235):

⚫ voter approval may indicate, not satisfaction with the apportionment proposed, but simply that it is regarded as an improvement over the existing apportionment."

MALAPPORTIONMENT PERPETUATED

There is no blinking the fact that much of the drive for these proposed con stitutional amendments come from those elements in the population that an threatened with loss of power because of the Supreme Court decisions. The irony of the present situation is that, if Congress were to approve one of the resolutions and send it to the States for ratification, it would be passed on the legislatures of the States, many of which are still unrepresentative. Th the determination whether malapportionment is to continue would be made by legislatures distorted by malapportionment. Reform would be blocked by the very agencies in need of reform.

Much of the effort to press one of these amendments through at this sessi of Congress is attributable to the fact that it is regarded as essential to pise it before the State legislatures before they are brought into conformity will constitutional requirements. To submit an amendment to the Constitution fist ratification by the same legislators who are struggling to survive in the face d imminent loss of power is either cynical or naive. We submit that the prese State legislatures have too direct an interest in the issue to pass on it obje tively.

The validity of this point is established by an examination of the States that have adopted resolutions memorializing Congress to call a convention to amed the Constitution along the lines proposed in the pending resolution. All but 1d the 19 States in which such a resolution has been passed by both houses of the legislatures are presently represented by malapportioned legislatures, which w have to be redistricted to provide equal representation-unless the Constitution is so amended. The extent to which each of those 18 State legislatures DW depart from the standard of population equality in their districts is demonstratet most graphically by examining (a) the percentage of each State's populate that can elect a majority to control one house of the legislature, and (3) the disparity between the population figures for the most populous and least populo districts in each State. The figures are as follows:

The Dirksen, Church, and Javits amendments would introduce into the US Constitution for the first time, a guarantee of inequality. That would be 1 complete repudiation of all our Government has stood for since the year of its independence. The proposed amendments would approve and place beyou! challenge any system of representation that singled out some classes of citize as less worthy of a voice in public affairs than others. That, too, would give the lie to our Declaration, almost two centuries ago, that "all men are created equal."

The exception is Oklahoma, where the legislature was reapportioned before the resolution was adopted.

The American Jewish Congress respectfully suggests that the Supreme Court decisions in the apportionment cases were right, that they strengthen our democratic system and that they increase the effectiveness of our Federal form of government. Recourse to constitutional amendment is a grave step to be taken only when the need is clear. No such clear case for the proposed amendment has been made.

Hon. BIRCH BAYH,

HOWARD M. SQUADRON,

Chairman, Commission on Law and Social Action,
American Jewish Congress.

AMERICAN VETERANS COMMITTEE, INC.,
Washington, D.C., May 12, 1965.

Chairman, Subcommittee on Constitutional Amendments, Committee on the Judiciary, U.S. Senate.

DEAR MR. CHAIRMAN: AVC is an organization of veterans of World War I, World War II, and the Korean war. Its program is built around its credo that PX-servicemen are citizens first, veterans second.

We deeply appreciate the opportunity of presenting our views on the apportionment of State legislatures. I am particularly pleased to present these views to you, Senator Bayh, distinguished chairman of the subcommittee, and fellow alumnus of the Indiana University School of Law, because I know of your deep personal commitment to carefully weighing the arguments and statements presented on both sides.

The American Veterans Committee believes that the Congress of the United States should adopt a resolution. This resolution should commend the Federal judiciary for restoring meaning to the phrase "government of the people, by the people, and for the people." Government is neither of nor by the people and is oftentimes not for the people when representation is based on something other than population, which is another way of saying people.

AVC will not repeat the facts showing how some votes count 2, 5, 10, 100, or even 1,000 times that of another vote. This practice is just as corrosive of democracy and representative government as miscounting votes cast, or stuffing ballot boxes.

We believe that certain constitutional rights are so basic to our concept of freedom that they are not subject to the whims and caprices of temporary plurality in a referendum. These include the right of free speech, the right to peaceably assemble and petition your government for a redress of grievances, the right of religious freedom, and the right of the people, not area or political subdivision, but people to elect their officials including their legislative representatives. Many fine and thoughtful Members of the Senate and the House, as well as others, including members of State legislative bodies, have long expressed alarm at the increasing rate that our people go directly to the Federal Government to solve their problems. Some of this, of course, can be said to be the result of the increasing complexity of the nature of our problems, and the need for seeking national or regional solutions rather than meeting those needs on a State-to-State basis. There are many problems now being brought to Washington that could be handled in Indianapolis, Annapolis, Springfield, Albany, and other capitals. However, city and suburban area officials and residents have learned to turn away from the State house and look to Washington because they have not been fairly represented and dealt with in their own States. Nothing in our history has more hope for the future vitality of State and local government than has Baker v. Carr. and the reapportionment cases that have followed.

We urge your subcommittee, the full committee, the Senate, and the Congress not to doom the future of State governments by permitting any limitation on equal representation or the Court's power to enforce it.

Once again, the American Veterans Committee thanks you for the opportunity of presenting its views.

Sincerely yours,

J. ARNOLD FELDMAN.