In effect, that is just about what they said. And that is what makes it not inconceivable that they may on some future occasion say—

Well, the 14th amendment does supersede these other things, it means oneman-one-vote, it was proved afterwards, and that is the later expression of the people on the subject.

That is why I would think that would be one of the greatest arguments for enabling the States to express themselves in a popular vote, so that they will say what the Constitution is.

Senator DOMINICK. I entirely agree.

Senator HRUSKA. As I remember it, this country does not belong to the Congress, to the Supreme Court, or even to the Government-it belongs to the people. We pride ourselves in having that kind of system of government.

Senator DOMINICK. I know that the great State of Nebraska has the only unicameral legislature-is it the only one?

Senator HRUSKA. Yes, it is the only one. It is about in its 30th year

now.

Senator DOMINICK. Assuming that the people in that legislature had equal population within their districts, if they are districted, and I think they are, there would be no reason, if Nebraska were satisfied with this, for her to change her system at all. But the people might want to vote on it.

Senator HRUSKA. They did vote in 1962 on a formula which gave 20 percent weight to territory and 80 percent to population. It was overwhelmingly approved and everybody understood it. Nobody contends that in Nebraska a sector of the voting population was denied the right to a ballot. They all had an opportunity to vote, and they did.

But the three-man court there said—

No, that is no good, the Supreme Court says: you people do not know what you want, you do not know what is good for you.

The Supreme Court said that.

Senate BAYH. If Senate Joint Resolution 2 becomes a part of the Constitution, this would negate the 80-20 formula, would it not? The way I understand it, this applies only to a second house of the legislature.

Senator DOMINICK. They could vote on a two-house system. Senator BAYH. Yes. But if they maintained a unicameral legislature, the one house would have to be on a population basis.

Senator HRUSKA. No, it would not. The language in the second sentence of Senate Joint Resolution 2 reads as follows:

Nothing in this Constitution shall prohibit the people from apportioning one house of a bicameral legislature upon the basis of factors other than population or from giving reasonable weight to factors other than population in apportioning a unicameral legislature.

Certainly in a State where about 25 percent of the people reside in one metropolitan county which has only 500 square miles, and the entire State has over 77,000 square miles, it can be argued that to give a 20-percent weight factor to area and 80 percent to population is entirely reasonable. It is what the people want. I believe they should be given a chance to vote that way. If they reaffirm that stand, they should be given a chance to govern themselves in that way. The same thing applies to every other State.

Senator DOMINICK. In one situation in our State, in the mountainous areas, we have one State senator, which is now required in order to get equal population, representing an area which geographically is bigger than most of the New England States. In addition to that, there is no method of travel except by going around an entire mountain range and coming up the same way, because there is no path you can get over it.

So this was required by the Supreme Court decision here when we had it before, giving a little weight to geography, so that we could have some continuity of interest and contiguity of access, and economic factors, in the district that a person was trying to represent.

Senator BAYH. If there are no further questions, I want to thank the Senator from Colorado for helping to clarify this issue.

I notice for the record the presence of the distinguished Senator from Nebraska. Do you care to make a statement at this time? Senator HRUSKA. No.

Senator BATH. The distinguished Senator from California, Senator Kuchel, is with us. We would appreciate very much if you would let us have the benefit of your wisdom on this important matter.

STATEMENT OF HON. THOMAS H. KUCHEL, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator KUCHEL. Thank you very much.

Mr. Chairman, I believe that a constitutional amendment should be submitted by Congress for ratification at the State level which would permit the people of a State to determine whether or not they desire one house of a bicameral State legislature to be apportioned on other than a strict population basis.

Let me phrase it another way. I favor a constitutional amendment giving the people of each State the continuing right at the ballot box, under continuing judicial review, to apportion one house of a bicameral legislature on factors other than population alone.

For these reasons, I have been very glad to join as a coauthor my colleague the Republican leader in the Senate in sponsoring Senate Joint Resolution 2, now sponsored by some 40 of our colleagues.

On June 15, 1964, in Reynolds v. Šims and several related cases, the Supreme Court of the United States found it had no choice and I agree it had no choice but to apply the principle of one-man-one-vote in accordance with the spirit of the equal protection of the laws clause of the 14th amendment to our Constitution. In brief, after years of failure by many State legislatures to resolve questions of malapportionment in their own State, the Court found it had no choice but to take the course which it did.

I interpolate, for example, Mr. Chairman, that when the Supreme Court of the State of Alabama found that the Legislature of Alabama had for over half a century and more failed, neglected, or refused to reapportion its legislative branch, in accordance with the provisions of the Alabama State constitution, but that it went on to find that there was nothing which the State supreme court of their State could do, you had a glaring and regrettable example of a wrong without a remedy, which as an American citizen I am glad the U.S. Supreme Court corrected.

A constitutional vacuum clearly existed, as that great document did not specify the representational relationship which should exist between the citizens of a State and its State legislature.

I have long been impressed with the wisdom uttered by Justice. Brandeis when he dissented in New State Ice Co. v. Liebmann (285 U.S. 262 (1932)):

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the Federal system that a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.

Both in governmental organization and in the policies which it seeks to carry out, a State should have the opportunity, if its people so desire, to serve as a laboratory and to experiment with the relationship between the elected and the electorate which might best fit its needs. Thus, Congress has a duty to render a decision on basic policy by submitting a constitutional amendment dealing with apportionment to permit the people in each State to decide on a continuing basis what form of legislative representation they desire.

The people may, if they desire, choose the criterion of one-man-onevote. It is possible that because of overriding historic, geographic, economic, and other factors in their State, that they would wish to select a system of apportionment which adequately takes such factors into account. But let the choice be the peoples', provided, of course, that the system selected does not violate other constitutional and statutory guarantees such as those prohibiting discrimination because of race, color, religion, national origin, or sex, among others. Any reapportionment provision of the Constitution must, of course, continue to be subject to judicial review in its use by the people of the several States as to reasonableness and as to fidelity with constitutional guarantees.

Difficult questions arise as to the application of the one-man-one-vote principle below the State legislative level (such as a county board of supervisors or local school board) and deviation from its application in a unicameral situation. I do not believe any amendment we submit to the States should prohibit this principle from being applied in these situations.

While I recognize the desire for stability in governmental institutions, my personal view is that we should not limit the time period during which the people of a State would have the opportunity to decide or to reconsider the advisability of apportioning one house on other than a population basis or of reconstituting the legislative districts. Practically, the decennial census will largely limit such considerations.

In California and other Western States, the initiative and referendum provide a means by which the people can decide fundamental issues such as the one now before us. An initiative measure, designed

either to amend the California constitution or simply to enact legislation, is placed on the ballot by the secretary of state when its backers secure the signatures of 8 percent of the number voting for Governor in the last general election on a petition which sets forth in full the proposed amendment or law. The question is then decided by a majority vote at the next general election or at any special statewide election.

In California, the compulsory constitutional referendum, provides that, following approval by two-thirds of both houses, a legislative act to amend the constitution is submitted to the people and is agreed to if favored by a majority of those voting. The State constitution also provides that

if any provision or provisions of two or more measures, approved by the electors at the same election, conflict, the provision or provisions of the measure receiving the highest affirmative vote shall prevail. (Article IV, section 1.)

I believe that this committee, in the interest of uniformity of the way in which the people in each State might best make known their will on apportioning their legislature, and have the potential of expressing their views on the issue should a sufficient number desire it, may wish to consider the possibility of a uniform initiative and referendum procedure to apply in each State on this question.

I have talked with my Republican leader about what I had intended today to suggest I hope constructively to this committee.

Thus, language might be added to a joint resolution reported by this committee which would provide:

In any State in which the membership of any portion of its legislature is allocated pursuant to any plan upon a basis other than population, such plan shall be resubmitted to the qualified electors of that State for approval or disapproval, by a majority of the votes cast upon such plan in a general or special election or in a referendum conducted under the law of that State, either by the legislature or upon the filing with the chief election officer of that State of a petition for such resubmittal which bears the duly certified names of qualified electors of that State in number at least equal to 5 per centum of the number of all votes cast for all candidates for the office of Governor at the last preceding general election at which a Governor of that State was elected.

Finally, I believe this committee should give careful consideration to the method the States should use in ratifying any proposed amendment submitted to them by Congress. Certainly, it would not be in the public interest to have a State legislature, malapportioned on a rotten-borough basis, itself approve such ratification. One could argue, however, that even if this situation did occur, the implementation of such an amendment would be inoperable in the State, until the people of that State themselves, at the ballot box, had passed judgment on the question.

When the several decisions were rendered last year, I saw fit to make some comments in the Senate because I did believe that the question of American policy is one which the Congress must accept as a burden and I did feel that there was a need for the Congress to adopt a proposal along the lines of my colleague. At that I contacted all the law schools in my State, Mr. Chairman, and asked the deans of the law schools to make recommendations to my office, to try to develop some constructive thinking on the part of my office and of myself.

I have a memorandum which I am going to ask just to insert in the record, which I think all you gentlemen will find interesting, prepared by some of the law school people in my State on the subject.

Senator BAYH. Without objection, that will be placed in the record. (The document referred to follows:)

MEMORANDUM FROM ROBERT M. O'NEIL, ACTING ASSOCIATE PROFESSOR OF LAW AND SEVERAL OTHER PROFESSORS OF LAW AT UNIVERSITY OF CALIFORNIA, BERKELEY, CALIFORNIA

THE REAPPORTION MENT DECISIONS: PROPOSAL FOR A CONSTITUTIONAL AMENDMENT

I. General considerations and theory of apportionment

Since June 15, 1964, it has been clear that the Federal Constitution requires both houses of every State legislature to be apportioned on the sole basis of equality of population. Any doubts about the application of this principle to particular States, because of peculiar local conditions or history, have since been put to rest. On December 3, for example, a three-judge Federal district court in Los Angeles applied the one-man-one-vote principle to the California Senate, and declined to require reapportionment of the assembly only because that question was not before it.

Lawyers, scholars, and political scientists will no doubt continue to dispute the soundness of the Supreme Court's construction of the equal protection clause. For us, however, that issue seems a fruitless one, at least for the moment. Far more important is the qestion of what might be done to reverse or limit the trend which the Supreme Court has set in motion. Short of open defiance of judicial decree, there seems no viable way of checking that trend other than to amend the Federal Constitution. Problems that may arise in the drafting of such an amendment are the central concerns of this memorandum. We begin with (a) background discussion of the nature and functions of legislative apportionment. A. Objections to population as the sole criterion of apportionment. It is not the purpose of this memorandum to question the constitutional theory underlying the Supreme Court's decision. Nor is it immediately relevant whether the constitutional requirement set forth in the apportionment cases is a wise one for securing some of the most fundamental ends of a democratic society-i.e., (1) for insuring that all men are equally represented in the legislature; (2) for accommodating competing interests within the States; and (3) for protecting society against the threat of tyranny, whether by the majoriy or minority. The question is whether that requirement is the only permissible means by which those ends may be achieved. In this light the rules of the apportionment cases are most vulnerable.

They are vulnerable not because one man, one vote is not a desirable method of providing for equitable representation within State governments, but because it is not the only way and perhaps not the best way of providing such representation. And its elevation to constitutional status effectively forecloses the use of other means for securing the same ends. Many States, for example, have developed complex and delicate mechanisms for resolving problems of representation and accommodation, and the sudden imposition of a one-man-one-vote standard may well cause those mechanisms to go awry without providing the degree of protection and effectiveness they offer.

A basic problem with exclusive reliance on the one-man-one-vote principle is that it fails to take into account, and in some cases precludes use of, methods developed through the political process to insure that our democratic institutions remain viable and that all men are adequately represented in the legislative process. The one-man-one-vote principle seems to assume that the most important and effective method of providing equal representation involves a direct relationship between voter and legislator. This assumption is, however, questionable. In terms of effective representation the voter-legislator relationship is at best tenuous. But, all people may be represented indirectly and effectively through one or more groups, the most important of which are the political parties, whatever the apportionment formula.

Thus, in California, while the northern farmer's vote may be weighted as much as five times that of a southern businessman, the businessman may in fact have superior representation because of his affiliation with the controlling political party or with a manufacturer's association or an urban renewal league or a chamber of commerce or, on some issues, his employees' union, all of which may be highly influential in affecting the political process.

Moreover, both the farmer and the businessman will be represented on a broad spectrum of issues through numerous other affiliations, whether through