G. Popular approval of the apportionment.-The draft makes clear our conviction that no apportionment should be exempted from the equal population principle unless it has been fairly approved by the people of the State. The basic reasons for including some such provision are obvious; the problems concern the machinery for insuring that there will be such reliable approval. We presume that the legislature, or some committee or agency appointed by the legislature, will initiate the process of reapportionment. How that is done is a matter for State law. The important question here is what constitutional requirements, if any, should be imposed upon the popular approval carried out under State machinery.

The draft suggests that there must be approval by a majority of those voting in a referendum in which not less than 60 percent of the civilian population of voting age of the State have cast ballots. We thus reject the use of a percentage of the eligible or registered voters of the State-again obviously because of the Mississippi problem (reflected less acutely in other Southern States). We use the phrase "percentage of civilian population of voting age❞ because that is the class of data gathered by the Bureau of the Census and relied upon, for example, in the report of the President's Commission on Registration and Voting Participation in 1963.

The

There may be some question about the appropriateness of the particular figure we have selected-60 percent. Perhaps the figure seems unreasonably high-yet it obviously permits an apportionment to be approved by as little as 31 percent of the civilian population of voting age. Moreover, the census figures suggest that such a percentage is not unrealistic. In 1960, for example, there were only 16 States in which fewer than 60 percent of voting-age population turned out for the presidential election. Of those States 10 were the Southeastern and South Central States where the falling off was presumably due largely to the disfranchisement of large numbers of otherwise eligible Negroes (and it is important to note that the percentages of population voting in all these States, even Mississippi, have about doubled since 1940). other six States include Alaska and Hawaii, where the recency of statehood may have created special problems (and where the percentages were much higher in 1964) and the four border States of Kentucky, Maryland, Tennessee, and Texas, where Negro disfranchisement may also have been partly to blame. Thus, excepting Alaska and Hawaii, it appears that Negro disfranchisement is the single factor most important in keeping the other 14 States below 60 percentand the 1964 figures may well show some of those States now above the 60-percent mark because of dramatic gains in the registration of Negro voters since 1960. On the other hand, any figure below 60 percent is likely to permit the approval of an apportionment by an electorate from which a very large proportion of the State's Negroes have been excluded.

Consideration should also be given to the period for which the apportionment, once approved, is to be effective. There are problems here of both minimum and maximum periods-for on the one hand it would be undesirable (if only because of rapid population shifts in many States) to make the apportionment perpetual; and on the other hand an apportionment once approved ought to have some stability. With respect to the latter point, we have not included any provision with respect to the minimum period because (a) The State legislatures bave a substantial interest in adding such provisions to their own apportionment machinery; and (b) the setting of minimum by the States are unlikely to frusstrate the purposes either of the amendment or of the court's decisions, or to raise other constitutional problems. But if it is desired to give an approved apportionment some stability, it would be easy enough to add a provision for 2-, 4-, or 6-year moratorium in the amendment.

The more difficult question, for which we have made provision in subsection (1) of our draft, is that of the maximum effective period. In order to cover problems that may arise if the amendment passes before the 1970 census, we have first provided that a valid apportionment must have been approved by January 1, 1968 (which is simply a date of arbitrary convenience). Further, for all apportionments after 1970, we have suggested that approval should be sought within 3 years of the decennial census. This provision has the effect of requiring any referendum on the question of deviation of one house to be held while the census figures that show the effect of the existing apportionment or of any new proposal are most current. After 3 years the census figures may become stale and unreliable in States that experience rapid population shifts. We have selected the 3-year period so that a proposed reapportionment plan can be put on the ballot in the year of the presidential election, when the voter

turnout will be greatest. Thus the census figures will probable be available in time to permit a vote in the decennial year if that is the presidential year; when that is not the case, however, a referendum on apportionment will still be permitted in the year ending in “2."

Thus if the people of a State are to take advantage of the amendment for years after 1970, they must act within 3 years of the census. They may of course decide at any time that they wish to abandon a nonpopulation apportionment and return to the one-man, one-vote principle in both houses. But they may not, after the expiration of the 3-year grace period, adopt a deviant apportionment for either house until publication of the next decennial census figures.

Finally, we suggest in subsection (4) that the apportionment must be approved in a referendum in which the ballot has included as an alternative a oneman, one-vote apportionment for both houses. This is not to say that there may not be other alternatives-several formulas for the nonpopulation apportionment of the deviant house. All it requires is that every time the people of a State are called upon to decide whether to accept or perpetuate a malapportionment, they must also be given the choice of a population-based apportionment for both houses of the legislature. This does not appear to be an onerous or unreasonable requirement.

H. Judicial review.-Much of the controversy in the summer of 1964, and several of the proposed amendments, concerned the question of Federal court jurisdiction to entertain any apportionment suits, rather than questions of substantive standards. We have omitted any provision that would impair Federal court jurisdiction in this area, for several reasons: (1) Many sound policy arguments counsel against such tampering with judicial jurisdiction (these arguments have been amply explored in the debate over the Dirksen rider and the Tuck resolution during the summer of 1964, and will not be repeated here); (2) limiting the jurisdiction of the Federal courts in this field would seriously jeopardize the ability of the courts to deal with claims of racial gerrymanders and other abuses of the legislative aportionment for which the Federal courts must surely remain open; (3) in any event no curtailment of Federal jurisdiction would foreclose litigation of these questions in the State courts, but would simply send reapportionment plaintiffs across the street to another courthouse.

Thus our draft implicitly gives the Federal courts continuing jurisdiction of three types: (1) To determine that there has been compliance with the amendment itself in any popular referendum on apportionment questions; (2) to determine that deviation from the one-man, one-vote principle is not used for unconstitutional purposes such as racial or religious discrimination, etc.; and (3) to insure that the apportionment of the other house adheres as closely as possible to the one-man, one-vote formula. We feel that the Federal courts should have continuing jurisdiction of all three types, and we therefore reject any provision designed to curtail jurisdiction. We assume that apportionment suits in the Federal courts would continue to be governed by the principles set down in Baker v. Carr and applicable Federal statutes.

1. Ratification of the amendment.-Much concern has been expressed that an amendment, if rushed through Congress, could be ratified by the very State legislatures whose malapportionment posses the issue. Some have even suggested that such self-perpetuating action would be unconstitutional and would nullify ratification. We reject that view, however, because there has been no suggestion in any of the cases that the malapportioned legislature at least one that is not doing business in open defiance of a court order to reapportion—is unable to act de jure as well as de facto. We have not considered whether ratification by legislature that is defying a court order would be valid. But we do recall the U.S. Supreme Court's refusal, in Coleman v. Miller, 307 U.S. 433 (1939), to look behind a State's process for ratifying Federal constitutional amendments. Even though the decision in Baker v. Carr may have undermined Coleman v. Miller, what remains of that case would give to Congress rather than the courts the responsibility for scrutinizing the regularity of ratification.

Even though a malapportioned legislature might legally ratify the amendment, there is some question whether it is wise to permit them to do so. While we have included no provision respecting the course of ratification, we mention two possible approaches: One, perhaps the most obvious, would be to require (as Congress may do under its article V power to prescribe the "mode of ratification") that the amendment be submitted to State ratifying conventions elected by statewide general elections, the amendment to become effective only when acepted by three-quarters of such conventions. While this formula appears never to have been used in the past, it is theoretically available.

The other approach would be to build in a timelag which would allow time for court-ordered reapportionments in many States to take effect. That is, the amendment might provide that no ratification would be valid that occurred before February 1, 1967-giving time for new legislatures elected in 1966, many of them presumably already reapportioned, to take office and act upon the question. Either of the two methods suggested here would guard to some degree against the possibility of self-serving ratifications, by already malapportioned legislatures, of an amendment that would permit at least partial perpetuation of the malapportionment.

Senator KUCHEL. I simply say in regard to the specific language I suggested that it was prepared by the staff of the legislative counsel, and I give it to you because it is their labor. But I do sincerely believe that in some fashion or other, the committee might wish to include in the constitutional amendment, introduced by the distinguished and able Senator from Illinois, to give consideration to language which would vest in the people the right to initiate on their own part apportionment proposals as well as to pass judgment on such proposals as the State legislatures might theretofore have recommended.

Senator BAYH. Does anyone have any questions of the Senator from California?

Senator HRUSKA. In regard to the ratification of any proposed amendments to the Federal constitution, I would like to ask the Senator to consider with me the language of article V of our present Constitution, where any proposed amendment "shall become valid for all intents and purposes as a part of the Constitution and ratified by the legislatures of three-fourths thereof as the one or the other mode of ratification may be proposed by the Congress."

Now, the Senator from California proposes a third method of ratification.

Senator KUCHEL. No, sir; my language was inelegant-I suggest the second proposal, when I say the people-I refer to the second.

Senator HRUSKA. To the second method, whereby the people will elect delegates to a convention called for that specific purpose. Senator KUCHEL. Yes, sir.

Senator HRUSKA. I thought perhaps you were thinking in terms of invoking the referendum on that by popular referendum directly to the amendment itself. But that is not your proposal.

Senator KUCHEL. No; Senator, when I use the word "referendum" earlier, I referred to legislative referendum within each State, along the lines that we have had in my State of California, where the legislature suggests an amendment to the constitution, but thereafter it is referred to the people, and the term we use to describe that operation is "referendum."

Senator BAYH. Would the Senator's language be limited to cases of apportionment-referendum procedure for apportionment only? Senator KUCHEL. Yes, sir.

Senator BAYH. And not to broaden the referendum provision or establish referendum provisions in States that do not have them for other areas?

Senator KUCHEL. Yes, sir, it would. We are talking here entirely about one specific problem, and in that connection I would hope that the committee might consider giving the people, through these two techniques, similar to those we have in my State, the initiation by the people of legislation, and the referendum of proposed State constitu

tional proposals to the people by the legislature be considered in connection with this amendment.

Senator BAYH. On the matter of apportionment.

Senator KUCHEL. Yes, sir.

Senator BAYH. I trust there are no further questions. I want to thank the Senator from California for letting us have the benefit of his knowledge.

Senator KUCHEL. Thank you, sir.

Senator BAYH. Congressman McCulloch, who was originally scheduled to be a witness this morning, has a conflicting committee meeting in the House, and will be unable to be with us.

There are some members of the subcommittee who have found it impossible to be here, but who would like to submit statements. I would like to ask my colleagues to give their consent at this time to have those placed in the record at an appropriate place.

If there are no further questions and no further business to transact

Senator DIRKSEN. Mr. Chairman, I would suggest that the text of the four joint resolutions before the subcommittee be made a part of the record.

Senator BAYH. I ask that they appear at an appropriate place.

Senator DIRKSEN. I think we probably ought to include the Supreme Court decision in the case of Reynolds v. Sims as an appendix to the record.

Senator BAYH. Without objection, it is so ordered.

I would like to also ask unanimous consent to have the testimony of the distinguished Senator from Pennsylvania, Senator Scott, put into the record at this time.

(The statement of Senator Scott follows:)

MARCH 3. 1965.

SENATOR SCOTT TESTIFIES ON LEGISLATIVE REAPPORTION MENT

Mr. Chairman, I appreciate being afforded this opportunity to testify in behalf of proposals to amend the Constitution of the United States to permit one house of a State legislature to be based in part at least on factors other than population, particularly if that be the desire of the State's citizens as expressed by majority vote in a statewide referendum.

A constitutional amendment embodying the principle just enunciated is necessary because of the Supreme Court's rulings last June that both houses of a bicameral State legislature must be elected from districts of substantially equal population, that is to say, on the basis of "one man, one vote." I dispute these decisions because they amount to an invasion and transgression of the right of the people of a State to determine how they want to be represented in their legislatures. While seductively appealing as a slogan and as an ideological battle cry, "one man, one vote" suggests that people be treated as numbers and statistics instead of as individual human beings.

What is at stake here is not equal representation, as suggested by the slogan "one man, one vote," but fair representation. Not only do individuals per se deserve representation, but individuals in the context of the areas wherein they reside. I am not asking that trees and open fields be represented on a par with people, but I am suggesting that people in certain areas and the problems and interests they share cannot be ignored in constructing a system of fair representation. This principle underlies our Federal system of representation whereby the U.S. House of Representatives is apportioned on the basis of population whereas the U.S. Senate is based on area considerations.

The American system of representative Government is far more complex than the simple structure suggested by the slogan "one man, one vote." Given the many interests and groupings and shades of opinion present in our pluralistic

society, achieving fair representation of all these elements is not an easy undertaking. Equality as an abstract ideal may be noble. In the practical world of our political system, however, fairness must be the standard in developing system of representation for our people. That surely was the standard guiding the drafters of the Constitution as they considered the structure of the Congress of the United States.

Prof. Robert G. Dixon, Jr., of the George Washingon University Law School, cogently summarized the case of fair representation in testimony last August before the House Committee on the Judiciary. He said:

"The difficulty is that reapportionment has been approached on too simple a basis and the basic issue has been mischaracterized. The aim should be to achieve fairness, balance, and diversity in representation, along with majority rule. But the Supreme Court has tended to view reapportionment cases as being simple civil rights cases involving the personalized right of the individual voter to cast a vote which will have 'equal weight' with the votes of all other voters. In a sense, of course, these cases do involve voting. But this simple characterization by the Court misses the crucial point that in apportionment cases the personal civil right of the voter is intertwined with large, overriding questions concerning representation; i.e., concerning political philosophies and practices of representation in a dynamically democratic public order, in which groups are as relevant as individuals."

And so, Mr. Chairman, I urge approval of a constitutional amendment embodying the principle enunciated at the outset of my statement and contained in several of the amendments pending before this subcommittee. I happen to be a cosponsor of Senate Joint Resolution 2, introduced by Senator Dirksen, but I want it clearly understood that I am not wedded to every word therein. In fact, I would like to see the first sentence of the Dirksen resolution eliminated since I construe it to mean that the courts have no jurisdiction in apportionment cases. I reject that notion and endorse the Supreme Court's holding in Baker v. Carr. But I strongly support the principle enunciated in the Dirksen and other pending resolutions, and for that reason, I hope that the subcommittee will favorably report a proposed amendment to the Constitution.

Senator BAYH. We will stand aside, then, if there is no objection, until 10 o'clock tomorrow, when we will continue with the hearings. (Whereupon, at 11:30 a.m., the committee was recessed, to reconvene at 10 a.m., Thursday, March 4, 1965.)