Senator KENNEDY. That is correct.

Senator TYDINGS. And I think you covered it well in your statement that this just to emphasize for the record-the question of malapportionment of the legislatures or the actual existence which we have now is actually a comparatively recent thing-when I say recent-the only real unbalance in one house of the legislature began in the latter part of the 19th century with the urbanization of this country. And that historically in the United States, as you pointed out, we have had a population of both houses based on the number or representation in both houses of legislatures based on roughly the population of these houses?

Senator KENNEDY. That is correct.

Senator TYDINGS. Just another point.

I do not know whether you considered it or not, but in the American Revolution in the period of time preceding the American Revolution, when the actual organization of the War of Independence was taking place, would you consider that one of the factors directly leading to the War for Independence was the fact that British Parliament did not consider the 13 Colonies worthy of equal representation in the House of Commons and therefore we were subject-the original 13 Colonies were subject to taxation without fair representation in the British House of Commons, the British Parliament?

Senator KENNEDY. I understand that was one of the reasons we got involved in the dispute.

Senator TYDINGS. No further questions.

Senator BAYH. I think the Senator presented some very useful information. I thank the Senator.

I am glad you put in the concern about the taxation without representation.

Thank you, Senator Kennedy.

Do you want to introduce Mr. Feldman?

Senator KENNEDY. Mr. Justin Feldman has come from New York. He is a prominent lawyer in New York, has been interested in matters of public policy, civil liberties, and civil rights for a long period of time, and I think his testimony would be well worth while for the committee.

Senator BAYH. Let me again, on behalf of the committee, thank you for taking the time and for expanding on your very detailed original statement to let us have your thinking in some of these other areas. Thank you very much.

Senator KENNEDY. Thank you, Mr. Chairman and Senator Tydings. Senator BAYH. Mr. Feldman, we are happy to have you with us this morning.

STATEMENT OF JUSTIN N. FELDMAN

Mr. FELDMAN. My name is Justin N. Feldman. I am a member of the New York bar and I practice law in New York City. I am also chairman of a special committee on reapportionment of the Democratic State Committee of New York, and until recently, I served as counsel to the Democratic County Committee of New York County. I have been actively involved in the last few years as counsel in several cases involving legislative apportionment and congressional districting in New York. Most recently, I was counsel in the proceeding which

succeeded in invalidating the legislative apportionment scheme enacted at a special session of the New York Legislature last December after the Supreme Court decision in WMCA v. Lomenzo.

While I recognize that the history of apportionment and reapportionment in the State of New York, or for that matter any other individual State, are not necessarily relevant to the consideration of this committee in reviewing proposed amendments to the U.S. Constitution, it may perhaps furnish some perspective in the matter. The propensity of history for repetition, particularly with respect to the polítical behavior of persons or institutions seeking to aggregate or perpetuate power has often been recognized. The history of legislative apportionment and representation is no exception.

The notion that legislative apportionment should be based upon population despite the hue and cry after the 1962 and 1964 decision of the Supreme Court is not an invention of the Supreme Court. As the Court noted in Reynolds v. Sims, 377 U.S. 533 at page 573, the original constitutions of 36 States provided that representation in both houses of their legislatures be based completely or predominantly on population. Other States adopted provisions for the apportionment of both houses of their legislature on the basis of population early in their history. New York did so in 1821, and made it even more meaningful when in 1826 all property qualifications for voting were eliminated. Many of these same States, however, deviated from this principle only in more recent times, as the Senator pointed out. They did so not because the principle was erroneous or unjust or unworkable. Rather, in many cases, it was flagrant disregard of State constitutional provisions requiring apportionment of both houses substantially on the basis of population which produced the imbalances involved in some of the apportionment cases which reach the Supreme Court, including Baker v. Carr and Reynolds v. Sims.

New York is not an example of disregard of its own constitution but an example of abandonment of the principle of equal representation because of many of the same factors which are urged by the advocates of the proposals with which you in this committee are concerned. It was the adoption in 1894 of a new constitutional provision intended to provide that one house would be apportioned on the basis of population while the other would guarantee representation primarily on the basis of counties and only secondarily on the basis of population that led to its invalidation by the Supreme Court as a violation of the 14th amendment in WMCA v. Lomenzo.

At the risk of appearing provincial, I find the analogy to be drawn between the situation confronting us today nationally and the background for adoption and operation of that amendment to our New York State Constitution in 1894 most illuminating.

First, as the law now requires by virtue of the Supreme Court decisions, our State law then required that both houses of the legislature be apportioned on the basis of population.

Second, there was an increasing trend to urbanization, as there is in many States today, coupled with a strong movement toward industrialization and a shift away from the rural and agrarian basis of the State's economy.

Third, there was a strong and natural fear that the influx of new voters-immigrants who would soon be citizens and who would be

exercising their franchise for the first time-might disturb the status quo ante and the familiar patterns of political power.

While I do not for a moment believe that any of the sponsors of the constitutional amendments with respect to legislature apportionment being considered by this subcommittee subscribe to such views, a review of the debate held at New York's Constitutional Convention of 1894 discloses the importance of this last factor in the minds of some of the delegates a fear not too different from the fears one hears expressed about the new voting patterns which may emerge from the enactment of a voting rights bill. It was expressed very frankly and very boldly by one of the delegates to that 1894 constitutional convention who said:

* the average citizen in the rural districts is superior in intelligence, superior in morality, superior in self-government, to the average citizen of the great cities. *** the lower strata of society in the great cities is such that (the city citizen) is not a citizen so well worthy of confidence as the average citizen in the rural districts * * * your Government will be safer in (the rural citizen's) hands than in the hands of the average citizen of the great cities.

Conjuring up pictures of city radicals destroying property and killing citizens, the delegate went on to warn :

Then you will cry for help. And to whom? You will then turn your eyes to the green fields of Oneida and Herkimer and Jefferson and St. Lawrence.

The formulas adopted for the apportionment of both the New York Senate and the Assembly in 1894, despite the view of the delegate whom I have just quoted, were not intended by the convention to be grossly unfair. The formula for the senate was essentially to be one of equal population. However, it contained certain limitations upon the socalled populous counties-those which at that time contained at least 6 percent of the State population. The formula for the assembly gave consideration to population, but like the amendments which this committee is considering, permitted the use of other factors such as the guarantee to each county of at least one representative regardless of population.

As in the case of the amendments before this committee, the formula, prior to its enactment, had to be submitted to a referendum and had to be adopted by a majority of the people. It was so adopted. Not just because most of the people who would be adversely affected weren't yet voters, but because (a) the formulas were extremely complicated, and (b) the population disparities between districts as of that time were not too severe. The plan did not seem unfair on its face. The average citizen population of senate districts in the populous or urban counties in 1894 as a result of the application of this formula, was 120,000 as against an average citizen population in the under-6-percent counties of 12,000-a ratio of 100 to 107. By the time this formula was applied to our 1953 reapportionment in New York, however, based upon the 1950 census, the average citizen population of senate districts in the populous or urban counties was 301,000 and in the nonpopulous counties, 195,000-a ratio of 100 to 154. Had the Supreme Court not upset this formula by its decision in WMCA v. Lomenzo, the same relative figures based upon the 1960 census would have been 366,000 for the urban and suburban senate districts to 216,000 for the average rural senate district-a ratio of 100 to 169. Similarly, the ratio in the assembly in 1894 as a result of the formula

was 100 to 113 as between the so-called populous and nonpopulous counties, but based upon the 1960 census it would have been 100 to 206, with a disparity between the smallest rural district and the largest urban district of about 15 to 1.

Therefore, despite the referendum, similar in nature to that proposed by Senator Dirksen and the other sponsors in Senate Joint Resolution 2, and despite the fact that we had subsequent constitutional conventions and subsequent referendums as contemplated by Senator Javits' and Senator Church's proposals, the formula was not changed and despite many attempts it could not be changed. Hence, a formula using factors other than population which resulted in only minor disparities in 1894 produced gross inequities in 1964. As a result, on innumerable occasions, the majority of both houses were elected by a minority of the total votes cast.

Except for the occasional political upheaval and a landslide such as we saw in 1964, domination of the legislature by one party representing only a minority of our citizens was virtually guaranteed in perpetuity. An amendment to the formula could only be initiated by the malapportioned legislature itself, or by delegates to a constitutional convention who were elected from such malapportioned legislative districts. The requirement that constitutional changes be submitted to a referendum was also meaningless. Complicated apportionment formulas are not easily understood by a majority of the voters, and the persons most adversely affected by formulas based upon factors other than population for reasons well known to all of us do not participate in the electoral process in the same proportion as do those interested in denying equal representation.

The effect of a formula which uses factors other than population in apportioning the seats in the State legislature has been significant in other ways as well, and affects the national interest. Despite the grant of equal voting power to every citizen of our State, the right to vote of an urban citizen is severely abridged when his vote doesn't count as much as that of his rural counterpart. This has left control of our State legislature traditionally in rural hands. As a result the State government not only in New York, but in every State where this has occurred, has generally failed to meet and solve the problems arising from urban living. This has generally necessitated Federal action. Federal programs and Federal grants-in-aid in many areas of our urban life are required simply because malapportioned State legislatures have been unwilling to assume many of their proper burdens. It would seem to me that in considering these proposed amendments to the Constitution the nature and quality of the support and opposition to their enactment as well as the effect of the amendments should be relevant. I respectfully suggest that on any analysis. their adoption would be a serious mistake. As near as I can determine much of the support for these amendments comes from persons or groups who genuinely feel that the Supreme Court was wrong in entering what Mr. Justice Frankfurter called the political thicket. Others merely believe that the Supreme Court reached the wrong result in one or more of its reapportionment decisions. Some are perhaps, I regret to say, are a bit more disingenuous and are merely fearful that the apportionment of both houses of a State legislature or of a unicameral legislature on the basis of population will

disturb their own role in the power structure of their State. They have a vested interest in maintaining the status quo. Many have a sincere fear of what has been called the tyranny of the majority. Some of these latter persons or groups hold their view because of a sincere belief that apportionment of at least one house of a bicameral legislature on the basis of factors other than population will guarantee minority rights, but others I suspect may be motivated by the attitudes of the delegate to New York's 1894 Constitutional Convention: namely, that equal representation and the democratic process cannot be entrusted to all of the people.

But apart from motivation I submit that the issue presented by the proposed amendments, as recently stated by the Association of the Bar of the City of New York, is not whether the Supreme Court was right or wrong in its apportionment decision. Rather *** the proposals [these amendments] must be judged by whether or not they measure up to sound constitutional standards, whether, in attempting to deal with one issue, they introduce various problems and potential abuses, and whether they permit or inhibit the kind of flexibility which a constitution should afford. Therefore, let us look at the amendments themselves.

Admittedly, the proposals of Senator Dirksen and his cosponsors, and those submitted by Senator Javits and Senator Church do not, at least on their face, appear to be directed at depriving the Supreme Court or of the Federal courts of jurisdiction. They therefore do not at first blush fall into the category of many of the proposals for amendment to the Constitution introduced in the House of Representatives this year or suggested by the Council of State Governments in 1962, or of the bill introduced by Congressman Tuck which passed the House of Representatives last year, or of Senator Dirksen's rider to the foreign aid bill last year. Quaere: However, whether the first sentence of Senator Dirksen's proposal which is omitted from Senator Javits' and Senator Church's may not be read to deny the Federal judiciary, and perhaps to permit a State to deny to its judiciary, the power to consider any question with respect to the composition or apportionment of a State legislature.

I believe that most responsible observers would agree that if the purpose of these proposals was merely an indirect attempt to deprive the Supreme Court of jurisdiction in the same spirit in which the Congress acted during the Reconstruction or as was attempted when Senator Jenner made his proposal in the civil rights field in 1957 it would create a precedent with severe consequences to the preservation of constitutional rights in the future. Assuming, however, that this is not either the intention or purpose of the proposed amendments, it is difficult to determine upon a reading and analysis just what the purpose may be other than ultimate destruction of the concept of majority rule. If the States in determining the composition or apportionment of State legislatures as proposed by Senator Dirksen and his cosponsors, or merely apportionment as suggested by Senator Javits in Senate Joint Resolution 44, or Senator Church in Senate Joint Resolution 38. are to use factors other than population, we may find ourselves confronted with the States apportioning on the basis of giving representation to minorities as such-whether it be urban minorities, rural minorities, ethnic minorities, or economic minorities. Will not the use