of these States provided that it should be the sole basis. This has been an extremely uncomfortable fact for those who contend that the very foundations of the Republic were swept away by the Supreme Court decisions of 1964.

Second, neither historically, nor intrinsically does bicameralism necessitate a different base of apportionment in each house.

Of the 36 States mentioned above, only three provide for unicameral legislatures. (Georgia, Pennsylvania, and Vermont adopted a unicameral legislature in their original constitutions and later changed to bicameral. Today, only Nebraska now operates under a unicameral legislature and it is of fairly recent vintage-1934.) A two-house legislature with a small senate and a large house of representatives-both based on population-could be expected to consider issues from different vantage points. For example, members of the smaller body would be representing a more diversified constitutency than would members of the larger body. The term of office in one body could be longer than the term in the second body and legislative terms themselves could expire at different times. These factors were all inherent in the decisions of the States in early period of our history to base both houses on population.

Third, the argument that "rural dominated" legislatures cannot and will not give proper attention to urban problems does not stand up under analysis.

It is certainly true that States have tended to neglect their responsibilities with respect to urban affairs, and this is illustrated by the fact that only a handful of States have been fit to create departments or offices of urban affairs, while sentiment in the Congress to create a Federal Department of Urban Affairs continues to mount.

However, in many States, failure to act on urban problems and to pass enabling legislation authorizing local governments in urban areas to cope with their problems has been due not to apathy or antagonism on the part of rural representatives but rather to "squabbling" between central city and suburban delegations to the legislature which quite frequently represent different political parties. One researcher pointed out a few years ago with respect to Illinois:

"It is interesting that in the 1957 house, after reapportionment had placed all Cook Mounty districts either completely inside or completely outside the city of Chicago, there were only 4 of the 332 contested rollcalls displaying a cohesion of more than 67 percent for the combined Chicago-Cook County group which had a numerical majority in the house."

Fourth, the residents in urban areas are not always desirous for equal representation in the State legislature.

In Michigan, Colorado, and California, to cite three States, the people of the State have gone to the polls in statewide elections, with "each man having one vote" and have voted solidly against basing both houses of the legislature on population, although the urban residents in two of these three States far outweigh the number of rural residents.

Fifth, in no State is it likely or even possible for legislative reapportionment based on population to result in control of a majority of the votes in the legislature by the “political machine” of a single city.

Among the arguments advanced against apportionment of State legislative bodies on the basis of population has been the allegation that to so apportion would turn over political control of the State to the party organization in the big city of the State. This was a realistic argument in some States from the late 1800's until a couple of decades ago. However, in recent years and today, the population increase is occurring principally in the suburbs. (Statistics bearing on this question are presented in the Commission's report on pages 44-48.) In terms of 1960 census data, in only two States-Arizona and New Yorkwould residents of the central cities of the standard metropolitan statistical areas in those States be able to elect a majority of representatives to the legislature. In the case of Arizona it would require an alliance between dominant political organizations of the same party in both Tucson and Phoenix in order to accomplish this objective. In the case of New York, it would require the alliance of the political leadership of two upstate cities with that of New York City in order to accomplish the objective. It might be observed at this point that recent events have demonstrated that the relationships between political leaders of New York City and the upstate cities are not exactly harmonious.

On the other hand, in 36 States the combined populations of each State's three largest cities constituted less than 30 percent of the total population of the State in 1960. Undoubtedly, with continued population growth in the suburbs, future

censuses will render the concept of single city political domination over the State legislature much more fictional than today.

The role of the people in being able to modify a "population requirement" was the major point of difference among members of the Advisory Commission when the Commission voted on the key question of whether or not apportionment of both houses of a legislature should be based on population. The majority of the Commission expressed themselves as follows:

"Equal protection of the laws' would seem to presume, and considerations of political equity demand, that the apportionment of both houses in the State legislature, be based strictly on population."

In other words, the majority of the Commission took the same position in 1962 that the majority U.S. Supreme Court took in its apportionment decisions of 1964.

However, a sizable minority of the Commission (Governor Smylie, Governor Anderson, Supervisor Donnenwirth, Governor Hollings, Mr. Don Hummel, and Senator Newell) stated:

"We would have preferred that the Commission adopt the following statement of principle: 'Equal protection of the laws' would seem to presume, and considerations of political equity demand, that the apportionment of both Houses in the State legislature be based strictly on population, unless the people directly determine otherwise."

Four members of the Commission (Senators Ervin, Mundt, and Muskie, aná Congressman Fountain) expressed individual views and these are contained on pages 74-76 of the Commission's report.

Most of the recommendations and guidelines contained in the Commission's report were concerned with procedures for apportioning seats in a State legislature. Consistent with these, a draft State constitutional amendment has been developed, and widely distributed to State and local officials, designed to establish a procedure for insuring that State legislatures are periodically reapportioned in accord with formulas meeting both State and Federal constitutional standards. State legislative committees and organizations of municipal and county officials have been making considerable use of the draft amendment. Copies of this draft material can be provided to the committee staff if you desire.

That concludes our prepared statement, Mr. Chairman, and we will be glad to try to answer any questions.

Senator BAYH. I would like to include in the record at this point the statement of Senator Clifford Case. I also would like to include in the record, before we close, a statement by the junior Senator from California, Senator Murphy. I shall ask the chief counsel to append thereto a brief note referring to an exhibit which the Senator refers to in his statement, which has already been included in the record. It is rather lengthy, and I do not think we need to duplicate it.

STATEMENT OF SENATOR CLIFFORD P. CASE

I appreciate this opportunity to present my views on S.J. Res. 2, the proposed constitutional amendment on apportionment of State legislatures.

Despite the great attention given to distracting tangential issues, the intent of the amendment is clear: It is designed to reverse the Supreme Court's historic one-man one-vote decisions of 1964.

I am opposed to this amendment. Apart from its basic philosophy, it contains two specific and fatal flaws.

The first might be called the deepfreeze. In this connection, I call attention to the provision that "the right and power to determine the composition of the legislature of a State and apportionment of the membership thereof shall remain in the people of that State."

That sentence has been interpreted by eminent constitutional authorities to mean that the courts would be frozen completely out of the picture. They could not review any apportionment. They could not correct imbalances which exist or which could be expected to arise in the future.

If a State legislature were to apportion one house on the basis of race, for instance, where could the deprived Negro citizens of that State turn for help? Certainly not to the legislature responsible for the deprivation. To the courts? Not if this amendment is adopted.

Proponents of the amendment reply. "But we have provided that the people have the right and power to determine the reapportionment plan. Doesn't this protect the public interest?"

Unfortunately, it does not. The amendment's provision for a one-shot referendum on each State's reapportionment plan would actually freeze out even the people. Once the original apportionment plan were approved, even the voters themselves could not correct it. The New York Times called this the most serious defect of the amendment, and continued:

"It permits apportionment on a nonpopulation basis in perpetuity if such a course has once been approved by referendum. But what if the majority in the future changes its mind on this issue? Any amendment on this subject should require the States to reapportion every 10 years and require a referendum each time, to make certain that a majority still favors apportioning one house on a basis other than population. Otherwise, the outrageous malapportionments that the Supreme Court finally intervened to correct could grow up all over again."

The amendment's second defect is the blank check given to the States to use any criteria in determining their reapportionment. The phrase, “upon the basis of factors other than population," gives States a completely free hand.

Recently I attended a dinner of legislative correspondents in New Jersey. They proposed a plan, drawn up to fit within the protection of this amendment, which suggests the range which the amendment would allow the New Jersey Legislature:

"Under the plan, counties would be credited with 200,000 residents for each boardwalk, 250,000 for each ferry mooring, 1.3 for each chicken, and 5.34 for each hundredweight of milk produced. The plan gives Somerset an extra 150,000 residents for its population of foxhounds, as determined under the last census by local hunt clubs. ***The U.S. Supreme Court has said legislators represent people, not acres, trees, cows, or pastures. The Court was eloquently silent on the specific questions of boardwalks, ferries, chickens, butter, and foxhounds." The plan was proposed in jest, but it illustrates an important point. If the amendment were adopted, States could and some might apportion themselves on the basis of such factors as income level, religious belief, or-most probable— color. I am sure this is not the intent of the distinguished minority leader in proposing this amendment, but recent history suggests that it could very well be the outcome. The lengths to which some Southern States have gone to prevent the Negro from voting indicate that they would not be reluctant to use this amendment as an additional weapon.

The proponents of Senate Joint Resolution 2 claim it is needed in order to "protect minority rights." The rights of minorities as well as majorities must be protected, but how this should be done is another question. The supporters of this amendment seem to think that the only way to provide adequate protection of the rights of any minority is to give that particular minority a hammerlock on the legislative process. They are usually thinking of citizens in rural or less populous areas. But if the premise is true, is not every minority entitled to the same kind of consideration? That is to say, why not give every minority a hammerlock on the legislative process? Why should one minority be more equal than any or all other minorities?

The fact is that the only reliable safeguards for any minority are to be found in the Constitution and the Bill of Rights and, even more basically, in the selfrestraint and respect for others on the part of the public in general.

I find it surprising that many individuals and groups which traditionally have opposed extensions in the power of the Federal Government are working for adoption of this amendment. If we had set out to hobble the already stumbling institution of State government, we could not have found a better way. The story of many of our State legislatures is one of stall and stalemate, indecision and inaction in the face of urgent issues.

If this amendment should pass, many of the States, already stymied in their efforts to find modern solutions to problems of growth and urbanization, will inevitably look increasingly to the Federal Government.

My colleague from Wisconsin, Senator Proxmire, has stated the issue clearly: "This amendment is calculated to assure the country that State governmentwhich has been too timid, too backward, too reluctant, and as a result has seen its power and initiative go to Washington-will be slowed down to a molasses pace indefinitely. It would do so by striking down the greatest opportunity in many years which the States have had for swift progress."

If this amendment should pass, we will have set the wheels of progress turning backward for State governments. In an age of increasing urbanization and urban problems, in a period when many citizens are la nenting the growth of the Federal Government, we cannot afford to take such shortsighted action.

STATEMENT OF SENATOR GEORGE MURPHY

As a cosponsor of S.J. Res. 2, which would grant to the people in each State the right to decide whether they wish to be represented in one house of the State legislature on factors other than population, I am pleased to testify before this distinguished committee.

The Supreme Court on June 15, 1964, in Reynolds v. Sims ruled that both houses of a State legislature must be apportioned on the basis of population. This was a precedent-shattering and a far-reaching decision-one I believe that goes to the very foundation of our system of free government. No decision since the birth of the Republic portends greater disruption and alteration of our State legislatures.

To implement the Court's decision would in my opinion result in a devastating blow to representative government and bring an unwanted end to the time-tested and successful tradition of our balanced bicameral State legislature a system under which the States have prospered and grown, a system under which the many interests of our many people have been accommodated, and a system under which the will of the majority has prevailed and the rights of the minority have been protected.

The United States has changed drastically since its founding. From the 13 original States of approximately 3 million rural people engaged mainly in agriculture, we have developed into a mighty Nation of 190 million people spanning the continent and reaching many miles into the Pacific to Hawaii. During this development the face of the Nation has changed. Unlike the rural agricultural society of our forebears we became an industrial, urban society. Because of this remarkable growth, it is obvious that the State legislatures have served the people well. True, the work of society is not completed; yet one can discern a steady forward advance of this great Nation. It is readily admitted that in many cases the legislators failed to reapportion the lower house to reflect the population changes.

Since reapportioning may unseat present law makers, it is understandable that they would be reluctant to reapportion. As in many other areas, this demonstrates that when States failed to meet their responsibilities. Federal encroachment upon areas better reserved for the States is invited.

In ruling that both houses must be apportioned on the basis of population, the Court plunged headlong into what Justice Frankfurter described as the "political thicket." This decision shook the Nation like an earthquake. Many earlier supporters of the Baker v. Carr decision now deserted the Court.

Should factors other than population be considered in the apportioning of one house in the State legislature? Surely no one would dispute that the 3 million American farmers are disproportionately more important to our society than their numbers. Why then should it not be possible, if the people so desire, for such interest to be given greater weight in one legislative body? The present Chief Justice of the Supreme Court, Mr. Warren, apparently had this in mind when he declared in 1948, when he was governor of California: "Many California counties are far more important in the life of the State than their population bears to the entire population of the State. It is for this reason that I have never been in favor of restricting the representation in the (State) senate to a strictly population basis."

Opponents of this resolution maintain that the present system perpetuates the "rotten-borough" system. One may very well find cases illustrating the rural domination of State legislatures has thwarted the people's will, but I would point out history is more replete with examples of corruption and bossism resulting from city political machines. State legislatures patterned after the Federal system provide a balance between the extremes of rural domination and city domination. This balanced structure has blended remarkably well the diverse interests of our Nation. This system by achieving a concensus among the many groups of people has produced effective and fair representation in the proper interest of all.

Many foresee inevitable conflict between rural and urban America. I do not share their fears, for Americans historically have been sympathetic to their fellow citizens' problems. Americans realize that the rural and urban interests complement and are interdependent of each other.

To illustrate this fact, I would like to have incorporated a study prepared by the staff of the California State Legislature outlining the record of the California State Senate on urban legislation. A reading of this document will completely dispose of the myth that one body of the State legislature based on factors other than population will be unsympathetic to the needs of the urban areas. (See exhibit appearing on p. 389.)

States should be permitted to organize their government in the manner desired by the people. S.J. Res. 2 would establish broad guidelines which would require that one house be truly based on population and at the same time permit the upper house, if the people desired, to be based on factors other than population. Frequently opponents of S.J. Res. 2 also rely on the catchy euphonic one-manone-vote slogan. Yet, supporters of the one-man-one-vote decision by their very opposition seem to fear the result of allowing the citizens such a vote, for one man, one vote is exactly what this resolution commends. Every voter would voice through the ballot box his choice whether he wished to be represented in one house of a bicameral legislature on factors other than population. It allows people to determine whether the State's unique characteristics require that representation in the upper house be based on factors such as geography, economics, area and local political subdivisions.

I wish to make it clear that this is no effort to undermine the Supreme Court. Decisions of the Supreme Court, like the operations of the other great branches of our Government, properly remain accountable to the people, the ultimate source of political power in our free society. The courts do not have the final word in constitutional law. Our founding fathers wisely established an amending procedure giving the people the final verdict. I for one believe the people have the right and they should be given the opportunity to express their decision on this most fundamental question of representation in the State legislature. I urge immediate favorable action by this subcommittee.

Senator BAYH. We are now in adjournment until 10 o'clock on March 17.

(Whereupon, at 5:22 p.m., the committee recessed, to reconvene at 10:00 a.m., on Wednesday, Mar. 17, 1965.)