The proposal to abolish multimember legislative districts could be accomplished by making section 2 of the bill section 3, and by inserting in place thereof a new section 2 as follows:

"Section 2. The right and power of the people of a State shall not be exereised to create multimember legislative districts and such existing districts are hereby abolished."

I hope that this language will be of assistance to your subcommittee and that my proposal will receive the earnest consideration of the subcommittee.

Sincerely,

JACK MILLER.

STATEMENT OF HON. GORDON ALLOTT, A U.S. SENATOR FROM THE STATE OF COLORADO

Senator ALLOTT. Thank you, Mr. Chairman. I am sorry I cannot join with you in saying that I am a former member of a legislature, but I did have the pleasure of presiding as president of the senate in Colorado for two terms. I think I gained a great deal of understanding of that situation at that time.

Senator BAYH. I am certain that that is the case. The presiding officer probably understands it better than the average member of the body.

Senator ALLOTT. I am not at all sure about this. They taught me many lessons.

First of all, I want to express my appreciation to the chairman for holding as prompt hearings and as full hearings on this as he has.

I appreciate being given this opportunity to appear as a cosponsor of S.J. Res. 2, to give you my thoughts on it. I will confess at the outset that I would prefer to see, as least for my own State, geographical, economic, and perhaps even historical factors taken into account in the composition of one body of our State legislature, but the personal feelings of any Senator as to a proper method of apportionment are not the basic point. The basic point, I believe, is whether by inaction we shall allow the Supreme Court cases of June 15, 1964, in Reynolds v. Sims and related cases, to freeze into the Constitution one political theory concerning the proper method of apportionment. As Mr. Justice Stewart phrased it in his dissent in the apportionment cases: What the Court has done is to convert a particular political philosophy into a constitutional rule, binding upon each of the 50 States, from Maine to Hawaii, from Alaska to Texas, without regard and without respect for the many individualized and differentiated characteristics of each State, characteristics stemming from each State's distinct history, distinct geography, distinct distribution of population, and distinct political heritage. My own understanding of the various theories of representative government is that no one theory has ever commanded unanimous assent among political scientists, historians, or others who have considered the problem. But even if it were thought that the rule announced today by the Court is, as a matter of political theory, the most desirable general rule which can be devised as a basis for the makeup of the representative assembly of a typical State, I could not join in the fabrication of a constitutional mandate which imports and forever freezes one theory of political thought into our Constitution.

That is exactly what the decision in the Sims case did. And, all that the Congress would do, if it passes S.J. Res. 2 by the required two-thirds in each body, is to give the people of the various States, if three-quarters of the States concur with Congress, the opportunity to use factors other than population alone in apportioning their legislatures. Representative government has historically been

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a balancing of many diverse interests and good representative govern ment must protect the rights of minorities. And, I am fearful, Mr. Chairman, that the numbers game which is required under the Supreme Court rulings will, in actual practice, leave much to be desired in protecting those minorities.

Sims and related cases are objectionable on several counts. Not only do they freeze into the Constitution one method of apportionment upon which there is no universal agreement, but I believe the decisions were made in derogation of the division of powers spelled out in the Constitution; they utilize poor scholarship to arrive at an end which is not justified by the Constitution itself, but which the majority apparently desired to reach; and despite all the protestations of the majority opinion to the contrary, the courts must, of necessity, get involved in political decisions once they enter this area.

Most of the committee, I think, would agree with me that one of the strongest points of our American form of government-perhaps the real genius of the framers of the Constitution-lies in the division of powers embodied therein. It includes in that phrase not only the division among the three branches of the Federal Government, but between the Federal Government and the States. This latter division between the Federal Government and the States is, of course, spelled out in the 10th amendment to the Constitution which states:

The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.

The Supreme Court, in the recent cases concerning apportionment of State legislatures, has transgressed on the powers reserved to the States and to the people under the 10th amendment. Let me speak specifically for a moment about the Colorado apportionment case.

I might say here I understand my colleague appeared before this committee yesterday and gave a very brilliant statement, and I am sure that he has discussed this before.

Senator BAYH. He did. I think the Colorado situation is of such significance that we are glad to have both of the distinguished Senators from Colorado express their views. It certainly is a case that is right down the gun barrel of the amendment we are studying.

Senator ALLOTT. It certainly is.

In Colorado we had a constitutional provision which had been properly implemented by the legislature, spelling out the method of apportionment in both the Colorado house and the Colorado senate. That constitutional provision had been adopted in 1962 as a constitutional amendment by a majority vote in every one of our 63 counties on a oneman-one-vote basis. That is everyone voted, and they voted either for it or against it.

The 1962 amendment was submitted to the people as an initiated law at a general election, which can be done under the constitution and statutes of the State of Colorado. The amendment which was adopted was titled, on the ballot, No. 7, and was popularly called the Federal Plan for Reapportionment. It was adopted statewide by a vote of 305,700 to 172,725. Every county in the State passed the amendment, including those counties which, according to the Supreme Court, are underrepresented. In that same year, on the same ballot, there was another amendment titled No. 8, which would have reapportioned the

legislature on a straight population basis-that is, it would have conformed to the Supreme Court ruling of one-man-one-vote. Amendment No. 8 was defeated by a vote of 311,749 to 149,222.

What I am saying is that in 1962 the people of Colorado, on an initiated law, in every single county in the State, turned down the theory which the Supreme Court has arrogated to itself under the Sims decision by a vote of over 2 to 1; and by a vote of almost 2 to 1 adopted the principle that our State has maintained throughout its life since 1876. It was this constitutional provision which the Supreme Court struck down in its decision of June 15, 1964, in the Colorado

case.

As to the scholarship, or lack of it, demonstrated by the majority of the court in the Sims case, let me quote Mr. Justice Harlan in his dis

sent:

Had the Court paused to probe more deeply into the matter, it would have found that the equal protection clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures. This is shown by the language of the 14th amendment taken as a whole, by the understanding of those who proposed and ratified it, and by the political practices of the States at the time the amendment was adopted. It is confirmed by numerous State and congressional actions since the adoption of the 14th amendment, and by the common understanding of the amendments as evidenced by subsequent constitutional amendments and decisions of this Court before Baker v. Carr-made an abrupt break with the past in 1962.

The failure of the Court to consider any of these matters cannot be excused or explained by any concept of developing constitutionalism. It is meaningless to speak of constitutional development when both the language and history of the controlling provisions of the Constitution are wholly ignored. Since it can, I think, be shown beyond doubt that State legislative apportionments, as such, are wholly free of constitutional limitations, save such as may be imposed by the republican form of government clause (Constitution, art. IV, sec. 4), the Court's action now bringing them within the purview of the 14th amendment amounts to nothing less than an exercise of the amending power by this Court.

Mr. Chairman, let me urge that all members of this committee, if they have not already done so, read Mr. Justice Harlan's opiniondissenting opinion in those cases of June 15, 1962. Justice Harlan certainly proves to my satisfaction that the majority opinion disregards both the logical construction of the 14th amendment by ignoring section 2 thereof and by ignoring history-both legislative and generalsurrounding the 14th amendment.

Justice Harlan also discusses the political ramifications when the judiciary gets involved in the question of apportionment. He speaks of the difficulties which courts are likely to encounter in this field, and

says:

Generalities cannot obscure the cold truth that cases of this type are not amenable to the development of judicial standards. No set of standards can guide a court which had to decide how many legislative districts a State shall have, or what the shape of the districts shall be, or where to draw a particular district line. No judicially manageable standard can determine whether a State should have single-member districts or multimember districts or some combination of both. No such standard can control the balance between keeping up with population shifts and having stable districts. In all these respects, the courts will be called upon to make particular decisions with respect to which a principle of equally populated districts will be of no assistance whatsoever. Quite obviously, there are limitless possibilities for districting consistent with such a principle. Nor can these problems be avoided by judicial reliance on legislative judgments so far as possible. Reshaping or combining one or two districts, or modifying just a few district lines, is no less a matter of choosing

among many possible solutions, with varying political consequences, than reapportionment broadside.

It is interesting to draw a parallel between the language in Mr. Justice Harlan's dissent and the majority opinion in the case of MacDougall v. Green, decided in 1948, in which the Court said:

It would be strange indeed, and doctrinaire, for this Court, applying such broad constitutional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between the thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former. The Constitution—a practical instrument of Government-makes no such demands on the States.

Along this line, let me refer once again to the Colorado case, where the electorate of Colorado, in free and open general elections, had rejected the one-man-one-vote theory and adopted a different theory as a part of its constitution. Mr. Justice Stewart, in discussing the Colorado situation had this to say:

In the Colorado House, the majority unquestionably rules supreme, with the population factor untempered by other considerations. In the senate rural minorities do not have effective control, and therefore do not have even a veto power over the will of the urban majorities. It is true that, as a matter of theoretical arithmetic a minority of 36 percent of the voters could elect a majority of the senate, but this percentage has no real meaning in terms of the legislative process. Under the Colorado plan, no possible combination of Colorado senators from rural districts, even assuming arguendo that they would vote as a bloc, could control the senate. To arrive at the 36-percent figure, one must include with the rural districts a substantial number of urban districts, districts with substantially dissimilar interests. There is absolutely no reason to assume that this theoretical majority would ever vote together on any issue so as to thwart the wishes of the majority of the voters of Colorado. Indeed, when we eschew the world of numbers, and look to the real world of effective representation, the simple fact of the matter is that Colorado's three metropolitan areas: Denver, Pueblo, and Colorado Springs, elect a majority of the senate.

If there is anything in the history of Colorado which can be described as a longstanding antipathy, the struggle between urban centers of population and the predominantly rural balance of the State would fit this description. I can testify, Mr. Chairman, that the Colorado plan adopted by the voters, struck a reasonable balance between rural and urban interests, with neither group having a clear overriding balance of power. But when the State is apportioned solely on population, we find that the Denver metropolitan area alone, composed of Denver, Adams, Arapahoe, Boulder, and Jefferson Counties, can impose its wishes in the whole of the State. This area accounts for only 3.5 percent of the land in the State, but it contains 53 percent of the State's population. The vote of the city and county of Denver alone is sufficient to offset 55 other counties' votes, out of a total of 63 counties in the State. This situation could lead to absurb results.

I just want to take an absurb situation here to illustrate it. Assume that a new agricultural facility is planned for the State-perhaps a retraining school for agriculture workers. Is 16th and California Streets in downtown Denver the best location? Obviously, not, but Metropolitan Denver could force that decision on the State.

I do not really believe that legislators from the urban areas would insist on this type of legislation, but I do believe that the hypothesis demonstrates what the supporters of one man, one vote have ignored. Those people cry loudly that we are now in a position to break the stranglehold which the rural areas have imposed on State legislatures.

They assume that rural legislators will ignore the needs of urban areas, and at the same time they seem to assume that urban legislators will be somehow fairer and wiser in treating all the problems of all the people in a State. I do not go along with that assumption. I agree, rather, with John Adams, who said in 1789, "The essence of a free government consists in an effectual control of rivalries." This we had in Colorado, our own solution worked out by our own people, adopted in free elections and enshrined in our constitution.

Yet, after the voters had adopted this constitutional provision and the legislature had implemented it, an opponent of the Federal plan filed suit in the Federal Court for the District of Colorado, claiming violation of his constitutional rights. The three-judge district court convened to hear the case, held that the Colorado plan of apportionment was not violative of the U.S. Constitution, but when the case was appealed to the U.S. Supreme Court, the case was reversed and remanded to the district court.

Thereafter, we had the following sequence of events: The district court decreed that reapportionment must be accomplished by July 15, under threat of the court itself accomplishing the reapportionment if the legislature was unable to do so. The Governor called the legislature into a special session, and it proceeded to devise a new plan on the guidelines of the Colorado constitution as it stood before the amendment of 1962. The new plan adopted by the legislature provided for subdistricting of multimember districts, such as the city and county of Denver. This plan was approved by the three-judge Federal court and signed by the Governor. Immediately thereafter suit was filed in the Colorado Supreme Court attacking the new apportionment plan on the basis that provision for subdistricting contravened the old Colorado constitutional provisions. Simultaneously, the backers of the Federal plan of apportionment appealed the district court's decision that amendment No. 7 was not severable.

The Colorado Supreme Court held that the old constitutional provision on apportionment prohibited the division of the counties into districts for the election of senators and representatives and held, therefore, that the whole Apportionment Act, approved by the Federal district court, was invalid. Nevertheless, they permitted elections to be held in the fall of 1964 under the invalid act. Subsequently, on February 1 this year, the U.S. Supreme Court ruled on the appeal from the district court, and in a per curiam opinion said:

Insofar as the judgment of the district court decides Federal questions, it is affirmed. Insofar as the judgment decides other questions, it is vacated and the cause is remanded for further consideration in light of the supervening decision of the Colorado Supreme Court.

Four Justices, in a concurring opinion, said:

It is our understanding that the court's disposition of this case leaves it open to the district court to abstain on the question as to the severability of the various provisions of amendment No. 7 pending resolution of that issue with reasonable promptitude in further State court proceedings. We deem it appropriate explicitly to state our view that this is the course which the district court should follow. On this basis we join the court's opinion.

The members of this committee are certainly aware of some of the difficulties involved in determining what is a Federal question. It seems to me that this latest decision of the supreme court in the Colorado situation points up the near impossibility of laying down guide