Earl Warren: Number 23, B.A. Reynolds, etc., et al., Appellants, versus M.O. Sims, et al. Mr. Pitts, you may proceed with your argument.
W. McLean Pitts: Mr. Chief Justice Warren, may it please the Court. It is with great humility that I appear before this Court in view of some of the propositions that we are going to make to this Court in behalf of the appellants in this case. I will briefly go through some of the -- the points that lead up to the decision in this case. We'll go in to historically a little of the Alabama history relative to its constitutional convention, the Acts of the legislature that are involved. On March the 26th, this Court gave the -- handed down the decision of Baker versus Carr which was somewhat a radical departure from the cases from 1803 to 1962. Baker represents neither the familiar pattern of judicial review and occasional negation of particular governmental policies nor the newer pattern in some of the desegregation cases of impositions of -- it is to act or rather than to desist, but both of these patterns have this much in common. They leave essentially in fact the distribution and possession of political power by contrast. It is my position that Baker versus Carr is an invitation to the courts to sit in judgment of the structure of political power even to the effect of a judicial transfer of political power. Before the ink was drawn on Baker versus Carr decision and on April the 14th, 1962, the three-judge Federal District Court issued its ultimatum to the Alabama Legislature that it must reapportion itself. On July the 12th, 1962, the Alabama Legislature produced two bills. One of them was the Sixty Seventh Amendment bill which was a constitutional amendment that was to be submitted to the people of Alabama. Then they passed the Webb-Crawford Act which was a Savings Act that would have reapportioned the 1966 legislature provided that people of Alabama to hand down the Sixty Seventh Amendment Act as proposed. On July the 25th, 13 days after the passage of that -- of the Act, of these two Acts, the Federal Judge of the District Court declared both of these Acts unconstitutional. And in their decision, they took the senatorial provisions of the way of Crawford Act and the House provisions of the Sixty Seventh Amendment Act put the two together and legislated for the State of Alabama. Now, my propositions to this Court are simply that the legislative reapportionment, there are four propositions I want to make to the Court. One, legislative reapportionment should be resolved without federal interference. The Court should reconsult Baker versus Carr or clarify Baker versus Carr and return to the original Constitution, proposition that courts do not interfere with the political structure of states. Two, the courts should limit themselves under the time honored to constitutional provisions for checks and balances to the function of judicial review of Legislative Acts. They should not invade the providence of the legislature whether -- whether it is done by exacting new laws or whether it is done by a veto power. Three, the Court should not have declared in that the proposed amendment to the Constitution of Alabama which by the Acts of a legislature -- by the Act of a legislature was to be submitted to the vote of the people of Alabama on a one man, one vote basis. Four, even under Baker versus Carr, the District Court should not ever retain -- retained jurisdiction in this case because the factual situation in the case at bar is different from the facts in the Tennessee case. Now, in order for you gentlemen to understand probably my argument, it is necessary for me to go back a little bit to the Constitutional Convention of 1901. That convention brought together delegates in Montgomery, Alabama who have been recognized as the greatest minds of political thoughts and lawyers in that state. They came up and as -- as I heard the argument of the New York case yesterday, it brought me to mind in reading the proceedings of the 1901 Constitutional Convention of Alabama. That practically, every point that was made before this Court about the distribution of political power and districting was discussed in the 1901 Constitutional Convention of Alabama. That Constitution was submitted to the people on a one man, one vote basis and was adopted by the people.
Potter Stewart: But then it wasn't followed.
W. McLean Pitts: Sir?
Potter Stewart: It wasn't followed by the state during the next 60 years.
W. McLean Pitts: I will -- come on down to that in just a little bit of reason. I'm getting to that point. In deciding to -- in -- in arriving at this, these men realized the great geographical distant differences that exist in the State of Alabama. Alabama is a state of great natural resources. I'm not talking for the Chamber of Commerce, but I'm just pointing this out to the Court. Across the center of the state around the Birmingham area, we have steel mills, coal. You go into the North in the Tennessee Valley, you'd run into the great farming area, of course now you run into the hospitals which has greatly increased in population recently. Then in the South it was not in this middle part of the state which is known as Blytheville which I am from, you'll run into a farm and in rural area then he should go on down to the Mobile, you run into the waterfronts, the coastal area and again an industrial section. All of these were kept in mind, what I'm trying to point out to the Court in this 1901 Constitutional Convention. We of the Blytheville recognize that there was malapportionment in the Alabama Legislature in 1960 and I'm not standing before this Court in saying that there was not malapportionment before in the legislature in 1960, but we said per se that if the legislature of Alabama is to be reapportioned, then it should be reapportioned by the legislature of Alabama and not by a federal court.
Earl Warren: How long should we have to wait from 1901 beyond 1960?
W. McLean Pitts: We waited from 1901 to 1962, Mr. Justice Warren.
Earl Warren: Yes.
W. McLean Pitts: But, what I want to point out is -- the point that we want to make is that how we differ in the Tennessee case that although we waited from 1901 to 1962 when the District Court issued its ultimatum to the Alabama legislature, they acted promptly and they did pass a constitutional amendment to be submitted to the people of Alabama and even another Act known as the Webb-Crawford Act which is a Savings Act in Blytheville.
Earl Warren: Do I understand though that you want us to say that the -- that the Court had no -- had no right to the coerce the legislature into doing that although it had -- it had for 60 years failed to follow its own Constitution.
W. McLean Pitts: Yes.
Earl Warren: You honestly say that that even though it went another 60 years.
W. McLean Pitts: Yes sir, but I want to point out, it's my position in this was, getting back to the point of Baker versus Carr, which I believe, that under several Declaratory Act, I believe that the Court had jurisdiction to say that it was unconstitutional but I do not believe that the Court has the power to legislate for the people of Alabama. You again --
Earl Warren: You say that it's justiciable over the question.
W. McLean Pitts: Yes, yes. Now, in passed -- in the Constitutional Convention of 1901, the legislature was set up so that that would be as House and a Senate, not more than 35 Senators and not more than 135 -- 105 members of the House. Then they proceeded that they -- to set up 35 senatorial districts and provided that each Senator was to have a district. Then, there's another provision of Alabama Constitution that says that the Senate -- Senate shall not consist of less down one-fourth or more than one-third of the House of Representatives. The House of Representatives should consist of 105 members, each county shall have at least one representative. No county shall be divided into two senatorial districts and no district shall be made up of two or more districts not contiguous to each other and those are the provisions in the Alabama Constitution that the legislature was confronted with every time it would start to reapportion. There have been -- been many -- many others bills introduced, but those were the constitutional provisions of the 1901 Constitution and the point is that I'm trying to make this Court that it is not on a population basis. The Solicitor General in his brief cites percentages and figures but actually, the Alabama Legislature is not based solely on a population basis. It is based on an area basis and a population basis so that no geographical section of the state would have a stranglehold on the Alabama Legislature. If you go strictly to a population basis, then the larger are -- for these populated counties would have a stranglehold on the Alabama Legislature on a one man, one vote basis and the people in the rural areas would not have any say so in their own government.
Earl Warren: Mr. Pitts, I was wondering if -- if the Court had the right to declare your apportionment unconstitutional, what remedy could it use --
W. McLean Pitts: Mr. Chief --
Earl Warren: -- in order to --
W. McLean Pitts: -- Justice --
Earl Warren: -- to -- to say that people did have their rights?
W. McLean Pitts: I was anticipating that question, Mr. Chief Justice.
Earl Warren: I'm sure you were.
W. McLean Pitts: There are times that I see under the Federal Declaratory Judgment Act where the Court could declare the rights but the courts could not provide an adequate remedy. That's my answer. I think --
Earl Warren: In other words, it would be a right without a remedy.
W. McLean Pitts: Yes. I think it would. I think that they have a right to declare it but I don't think that they have a right to eventually involve the State of Alabama or the people of Alabama. As I take it, Baker versus Carr simply said that the federal court where there was invidious discrimination existing that the Court had jurisdiction, but there was so much in Baker versus Carr that was left unsaid in sort of guidelines to the lower courts and what was suggested in -- in the concurring opinion of the justices have thrown the lower courts into the midst of properly a political pick fight. In other words, and as I understand it, it was suggested there that -- for in -- the -- that one of them was that actually draw new legislative boundaries or threatened to do so if a legislature does not have performed, to retain jurisdiction while waiting for the legislature to act frequently on -- to act frequently. One of those two things is about the only thing that a court could do to carry out Baker versus Carr as just what you ask me as I see it, one of the two unless they proceed to legislate for the legislature. In a way, the court sitting, waiting for the legislature to act under what they will see would be a fair apportionment of the statute or redistricting statute would be a veto power in the courts.
Arthur J. Goldberg: Would you think therefore that the proposition was there throughout the plaintiffs in the litigation that the Court should not (Inaudible)?
W. McLean Pitts: Yes, Your Honor.
Arthur J. Goldberg: And they have no right of apportionment.
W. McLean Pitts: No sir. I don't like what the Court did but I think it would be a more -- in order to break in this stranglehold on the legislature if the Court wanted to do it. I think that in election at large if the Court didn't act but I don't like that because --
Arthur J. Goldberg: Because I said if you know (Inaudible) was concurrent that decisions to him is important. The election at large is as more consistent if the appropriate initial remedy.
W. McLean Pitts: Yes, I do. As I just said I think that the -- that -- that power of veto over legislature transcends the separation of power doctrine of the three branches of government, the Executive, the Legislature and the Judicial.
Arthur J. Goldberg: Mr. Pitts, are you arguing that this Court directly has to reconsider Baker and Carr?
W. McLean Pitts: Yes, I think they should. I'm arguing its -- that they should reconsider Baker versus Carr and as I read and I said that that would raise immunity in our argument of this Court at that point, but as I see it, it is. It should be reconsidered by this Court. The principle of the separation of powers from the three branches of American Government transcends what equity of power the Court may have had or may claim in order to step in and draw legislative districts, boundaries even if the legislature disregards their responsibility. This principle as I see it is clear in the study of the notes of the proceedings of the 1901 Alabama Constitution and it is also clear in the notes of the secret debates of 1787 Constitutional Convention and in this first Congress, this point -- these three branches of Government were kept to speak free and equal, a system of checks and balances. In Government -- in going further and granting relief in the form and borrowing one of the two courses and granting relief, the Court completely notes their separation of facts the duals and the dual system of Government in the United States. I think it’s out contention that the Court should limit themselves under this time, a lot of the constitutional provisions for checks and balances to the function of judicial review of legislative acts. They should not invade the legislative functions whether it’d be done by enacting new laws through the use of judicial power or by a veto of the legislature. I do not see how we can escape that pro -- proposition. I have carefully read every word in Baker versus Carr and particularly in view of the Alabama case, I think that the Alabama case is entirely different from any of the other apportionment cases that are pending before this Court. The Alabama case is the extreme that a court can go whereas the New York case that was argued yesterday is the other end of the extreme. As I see it, it points out these -- what a terrible situation can exist from Baker versus Carr. Now, I may say to this Court while I have stood here before you and told you that I would argue that you should reconsider Baker versus Carr. Second, if you don't reconsider or change the rule in Baker versus Carr, you have got to give some guidelines or some limitations that can be put down to the lower courts because the lower courts have taken the decision of Baker versus Carr as an invitation to them to step into the shoes of the legislature of the various states. That the legislative powers of the people can be organized according to the dictates of a federal judiciary is in there in violation that the Government shall be composed of the Executive and the Legislative and Judicial branches, each of whom exercise separate but equal power. A federal judiciary that can dictate the authorization of a state legislature can indirectly and I think this is important and it is set out in our brief, that they can indirectly dictate the seats of the House of Representatives or -- or district -- in a redistrict by Act of the state legislature. Legislative reapportionment should be resolved without federal interference. Now, the case at bar in illustrating of the confusion that can result and from -- by the federal judiciary barring Baker versus Carr. The soundness the majority opinion has been questioned by members of the bar, the Courts and students of Government and for reasons we have we urge that you reconsider this decision in that -- and return to the original constitutional proposition. As I just pointed out to you the range of action in these federal courts and the lower courts has been wide. Within six months after Baker versus Carr, suits were filed in 31 states, 41 opinions rendered and special sessions had been held at some eight states. This we see from the Alabama case and the New York case, we can see the wide range of action that Baker versus Carr has called. As I see the federal court --
Speaker: Wouldn't you agree Mr. Pitts that if the proceedings in all side in the Alabama's reapportionment by our legislative division in the Federal Constitution would be the duty of the Court system?
W. McLean Pitts: Mr. Justice Harlan that would depend upon whether there can be found anything in the Constitution.
Speaker: My question was, assuming that that could not stated and everybody agreed that the Alabama's apportionment did violate the Federal Constitution. You certainly wouldn't argue that the federal courts would not have the duty to vindicate your constitutional right.
W. McLean Pitts: My contention that Baker versus Carr should be reconsidered, yes Your Honor.
Speaker: I probably --
W. McLean Pitts: Well -- well I'm trying to point out -- what I'm trying to point out in answer to your question sir, I'm trying to answer is, that if there is foundation in the Constitution of the United States and what the federal court dictate judicial -- dictate jurisdiction then if they had malapportionment in the Alabama Legislature and it amounts to invidious discrimination, then the federal court would have jurisdiction.
Speaker: Yes, you should do something about it.
W. McLean Pitts: And my second proposition to you --
Speaker: Therefore, I would attempt the real essence of your argument should be whether or not the Federal Constitution does (Inaudible)
W. McLean Pitts: And whether or not what Alabama has done comes under the Equal Protection Clause of the Fourteenth Amendment. Well Mr. Justice Harlan, I agree with your opinion and I can find nothing in the Fourteenth Amendment but I would say that it would come under it.
Speaker: I think that's the real burden in your -- your argument.
W. McLean Pitts: Yes sir.
Speaker: (Inaudible)
W. McLean Pitts: But we also say that even if it does come under it and even if Baker versus Carr stands and if the Court has that the federal judiciary in Montgomery or the District Court exceeded its authority in striking down a constitutional amendment that was to be submitted to the people of Alabama and that is the way their Constitution is amended except unless a constitutional convention is called. My contention is that if Baker versus Carr does even in view of Baker verus Carr that the federal court did not have the right to go as far as it went in the Alabama case.
Arthur J. Goldberg: Do you -- do you argue that during the discrimination provision (Inaudible) the malapportionment in (Inaudible) or the old apportionment of them both I (Inaudible) do not represent (Inaudible) whether or not equivalent of your Constitution.
W. McLean Pitts: Yes sir.
Arthur J. Goldberg: As a matter of fact, even though this discrimination was (Inaudible) different distributions (Inaudible)
W. McLean Pitts: Yes sir. Alabama's population has changed greatly in the last -- since 1901 but I don't say that there is discrimination. I think that Alabama has a rational plan. The legislature of Alabama has just failed to act. The system that Alabama has which is based not only of -- on population but it is based on area. So I say that -- that is not discrimination, it's a rational plan that Alabama have but they have just failed to act or the legislature had --
Arthur J. Goldberg: The legislature is asking (Inaudible)
W. McLean Pitts: I'll be perfectly frank with you, Mr. Goldberg, I meant Mr. Justice Goldberg. I'm not going in to the mathematics of the situation. I don't think that that has -- is neither here nor there because of the Alabama system, but I do sir is will state it that if that is true, it's about 25% I would say that maybe more than that, I don't know. I believe it's 38%, I believe.
Arthur J. Goldberg: Well as I reconsider --
W. McLean Pitts: Yes.
Arthur J. Goldberg: -- that your argument -- at the start of 1901 is about 40%
W. McLean Pitts: 44% --
Arthur J. Goldberg: It's about --
W. McLean Pitts: 44%.
Arthur J. Goldberg: It's about the shifts of population.
W. McLean Pitts: And it dropped down now. This is -- this act that the federal court has got it -- brought it back up to about 41%.
Arthur J. Goldberg: Have we stored the stipulation on what it was --
W. McLean Pitts: About 3% back and restored it back to the 1901 Constitutional Convention, I mean the Constitution.
Potter Stewart: Mr. Pitts, going back to Justice Harlan's question of -- a moment ago, go into the basic -- basic question before we get to the matter of remedy, the basic question of constitutional violation here as I -- as I understood him, Justice Harlan suggested that the basic argument on -- for you to make was that there was no constitutional violation but as I read the opinion of the three-judge court of July 21st, 1962. That argument is -- is not open to you unless I misread it or unless the Court here is misstating the fact and I'm quoting from 144 of the record where the Court says, "It has been generally conceded throughout this litigation by all the parties that the present apportionment for both Houses of the legislature of the State of Alabama constitutes invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Is that factually untrue or is it true? That the statement as to the concession by all the parties.
W. McLean Pitts: I would like to explain to Mr. Justice Stewart that I did not participate in the trial of this case. It's in the record, and that is a true statement in the record, I would say that it's true that that was conceded by the parties and of course --
Potter Stewart: Part of the great constitutional issue at this time that concessions of lawyers, concessions of parties, the views of the lower court while there -- of course title of the greatest respect are not the element or the basis in which we have to decide this case on.
W. McLean Pitts: We --
Potter Stewart: We're not bound by a Court's concessions in constitutional cases but as I -- I'm only suggesting that that issue wasn't even litigated in the --
W. McLean Pitts: Wasn't even litigated in the whole --
Potter Stewart: In the District Court.
W. McLean Pitts: Yes.
Potter Stewart: It was -- it seems so clear to everybody that that -- that the issues before the Court required different issues, i.e. as to what the remedy should be.
W. McLean Pitts: Now the Attorney General held it, who the -- in the lower court, (Inaudible) probate judge of Dallas County was a party defendant. That is -- we got in the case after the Court had decided the case and we appealed it to this Court.
Hugo L. Black: May I ask, what -- if you were to win your contention, what would be the practical result in Alabama?
W. McLean Pitts: Mr. Justice Black, it seems to me that if we would carry out, if we would be successful with appeal then the constitutional amendment would be submitted to the people.
Hugo L. Black: What would -- what would be the result with reference to the present members of the State Senate in the legislature?
W. McLean Pitts: You mean in the Sixty Seventh Amendment Bill?
Hugo L. Black: Those that are now the members of the legislature in the State Senate. If you win, are they properly elected?
W. McLean Pitts: Oh, you are talking about the legislature of Alabama --
Hugo L. Black: Yes, it's practical result.
W. McLean Pitts: -- that --
Hugo L. Black: Practical result.
W. McLean Pitts: -- has taken the office in the mean time and in -- where I'm in.
Hugo L. Black: Practical result.
W. McLean Pitts: Under the federal court decree.
Hugo L. Black: Yes, that's --
W. McLean Pitts: Now in my --
Hugo L. Black: If you win -- if you win your contention, --
W. McLean Pitts: Yes.
Hugo L. Black: -- what is the result with reference to the present Senate of the legislature of Alabama?
W. McLean Pitts: I think that was a de facto legislature and I think that the validity of that act would be determined by the Supreme Court of Alabama.
Hugo L. Black: Now, may I ask if -- if you would then return in your elections to their old apportionment –
W. McLean Pitts: Yes sir.
Hugo L. Black: Would that mean -- as I read this, I'm not sure about this though, that the Senator from Jefferson County where Birmingham is located represents 634,000 while one Senator from Lowndes County represents 7000 or 15,417.
W. McLean Pitts: If the Apportionment Act stands as it now -- as it was in the 1901 Constitution, what you say would be correct?
Hugo L. Black: Well now, is that -- what -- what would be the result if you win your case?
W. McLean Pitts: And this amendment will appraise to the people. In other words --
Hugo L. Black: I'm not talking about -- I'm not talking about what could happen thereafter but what do we return to you if you succeed in -- in validating the judgment of the three-judge court.
W. McLean Pitts: Alright sir. I think that you return to the -- to the constitutional amendment, the Sixty Seventh Amendment Bill.
Hugo L. Black: You go to the apportionment as it has been.
W. McLean Pitts: Yes, in the mean time.
Hugo L. Black: You return to the apportionment has been and then have to wait --
W. McLean Pitts: Until that 6 --
Hugo L. Black: -- then have to wait it for your contention for action in Alabama about a vote of the people on the amendment to the Constitution.
W. McLean Pitts: Yes.
Hugo L. Black: But in the mean time, Jefferson County would be entitled of the population of 6 -- 650,000 to one sentence and Lowndes County with 13,000 to a -- to a representation of one sentence.
W. McLean Pitts: Yes.
Hugo L. Black: Well, that's typical throughout the state, is it?
W. McLean Pitts: I would -- I would say, yes from that day is malapportionment in Alabama Legislature. Yes, I see as it exists before the Sixty Seventh Amendment Bill and the Webb-Crawford Act was passed.
Hugo L. Black: So that's the practical situation in which the Court had to meet.
W. McLean Pitts: Yes.
Hugo L. Black: If it had your used claim, it didn't have jurisdiction and shouldn't have done it. But that's the practical situation it had to meet if it had jurisdiction.
W. McLean Pitts: Yes, but now the Sixty Seventh Amendment Bill would have been submitted to the people immediately because of the election coming up. And if it had passed, you would have had apportionment under the Webb-Crawford Act which boarded back near about to where the 44% that we were just talking.
Arthur J. Goldberg: But I was checking out the record that the point is that directly to ensure that the Senate in Webb-Crawford Act, the present situation would not be empirically changed under the present taking of work modified (Inaudible) under the Webb-Crawford Act would go about 47.6%, (Inaudible)
W. McLean Pitts: Well now -- Mr. Justice Goldberg, you will read from the Webb-Crawford Act, -- that was the sense of what we say.
Arthur J. Goldberg: I take it from the record --
W. McLean Pitts: Yes.
Arthur J. Goldberg: (Inaudible)
W. McLean Pitts: But the court, you were speaking of the Senate. Now, that the federal District Court took the Senate provisions of the Webb-Crawford Act.
Arthur J. Goldberg: That's what the --
W. McLean Pitts: And that's one of active point, yes. I will -- we contend and I want to make this statement before and I see that my time is about up, if this three-judge federal District Court decision and this case is allowed to stand, we say that then Alabama and our sister states have been deprived of the last vestiture of state sovereign. They are no longer sovereign state. If the federal judiciary considers all with the legislature of a state, and vetoed acts of that legislature and say that that legislature cannot submit to the people of that state a constitutional amendment to their own Constitution, then I'll say that there's no longer a sovereign state. I will retain the rest of my time for rebuttal.
Earl Warren: You may. Attorney General Flowers.
Richmond M. Flowers: Mr. Chief Justice --
Earl Warren: Attorney General.
Richmond M. Flowers: -- if it pleases the Court. The former Attorney General of Alabama was a party to this suit. As I understand, he was brought in because of some ministerial duty that he had in canvassing votes. Naturally, he was brought in along with some other public officials in order for this suit to develop to -- for the action and alike. The former Attorney General did not appeal this decision. Thus, I am here today as his successor. I do not believe that there is a citizen or an official of Alabama that could argue under any shadow of fairness or justice that apportionment of the legislature of Alabama under the 1901 Constitution as it is here today or as when this suit started is anything but unfair, unjust and even approaches the ridiculous. On occasions, the Supreme Court of Alabama has even recognized this fact. Now, we come to the proposition that the lower court has taken jurisdiction. Now, as stated in our brief, we argue under the presumption that Baker versus Carr will not be overturned in that event, or in case Baker versus Carr were overturned or were considered, we would want or expect or ask another day in Court, but we argue here today under the presumption that it will not be overturned. If it pleases the Court, I have served a term in the State Senate of Alabama before -- naturally before I became Attorney General of that state. I represented and this maybe peculiar in that I represented a two-county district. My home county which was the most underrepresented county in the House of Representatives; the most -- Houston County, the most underrepresented county in the state. I also represented an adjoining county as its Senator, Henry County which is the second most overrepresented county in the State of Alabama. If you gentlemen will admit, that's a good job for one man to do. Now, in my home county of some 50,000 people slightly over, we have one member of the House. We share the Senator with Henry County who had something over 13,000 people; they have two members of the House. Now, they were only surpassed by one other county, Lowndes County and being more overrepresented than they. Lowndes has slightly over 13,000 people, they had two members of the House but they had a senator to themselves. So as you can see, the apportionment under the 1901 Constitution at time they started approaches the absolute ridiculous. I argue not as to the validity or just how just or fair it was in 1901 because in 1901, my home county of Houston did not even exist. We were born after the adoption of 1901 Constitution. After the lower court took jurisdiction, then the legislature passed some acts that the three-judge District Court said were not acceptable. So they then wrote a temporary measure as I understand they said it was as temporary measure that would serve until the legislature had passed a bill that was adequate. Now, the legislature has met and failed to act, I realized. However, there are reasons for that action and I shall cover that later, but first let me state that I very strongly join the doubts that may exist here, if any, that a call for general standards to be laid down in all cases or in all states, I believe that to be unsound. Now while apologizing for not knowing the workings or the alleged troubles of the other states, I here today represent as I say, the State of Alabama and I strongly feel since I have actually engaged in these legislative facts, I strongly feel that our problem lies on having the one question answered whether the Alabama, whether Alabama can meet the equal protection provisions of the Fourteenth Amendment under the State Constitutional provisions, under our State Constitutional provisions providing for reapportionment. For instance, as you gentlemen well know, we have one section of our Constitution of States that our House shall be based on a population basis and shall be limited to 105 members giving any new county that's formed after the adoption the Constitution on additional member that's the reason our present House consists of 106 members. We had one county -- my county, the baby county, Houston to be formed since the 1901 Constitution.
Potter Stewart: Mr. Attorney General, while you're on the subject –
Richmond M. Flowers: Yes.
Potter Stewart: -- of your State Constitution, I wonder if you can tell me the meaning of the -- I'm now referring to Section 284 of Article 18 of the 1901 Constitution which says as you just told us that representation in a legislature shall be based upon population. Now, -- now here's my question, “and such basis of representation shall not be changed by constitutional amendments,” is this -- what's this -- what is the effect of this one in your State Constitution?
Richmond M. Flowers: I think it was well expressed in the New York case yesterday, Mr. Justice. That allows a handful of people too lock themselves into the legislature and hold control to the legislative body of Alabama.
Potter Stewart: Well, can any Constitution which is subject to amendment provide that this part of the Constitution is not so bad?
Richmond M. Flowers: As a member of the State Senate, we propounded to the Supreme Court, an opinion of the justice on that particular point and we receive one saying that it could not be changed. To me it's ridiculous but that's their answer.
Earl Warren: Mr. Attorney General, I thought I read in one of the briefs that your Supreme Court had interpreted that to mean that while the legislature could not submit an amendment to the Constitution, it could be amended through constitutional convention.
Richmond M. Flowers: Yes sir.
Earl Warren: That is --
Richmond M. Flowers: Yes sir.
Earl Warren: -- I just want to understand.
Richmond M. Flowers: Yes sir. In 1955, we introduced resolutions in both Houses calling for a constitutional convention. In our 35-man Senate, we mustered 16 votes to cast for a constitutional convention and it frightened that group so badly that when it came up in the House of 106 members, it only got eight votes. They got more votes in the Senate than they got in the House. Gentlemen, I have struggled and fought in these legislative battles for reapportionment and I'm going to cover that a little bit in just my last few remaining minutes. But this question of whether under our Constitution, whether under our Constitution we can meet the provisions, the equal protection provisions of the Fourteenth Amendment. As -- as for instance I say one section says that our House shall be based on a population basis, shall be limited to 105 members, with one new member for each county, then at the same time, it gives each county at least one House member. So this should be placed on a population basis and in times right around gives every county 67 we have or House member then in our. Another section, limits the Senate to 35 members. The state practices and policies supported by -- even supported by arguments in the Constitutional Convention established the fact that no county shall have more than one senator. There has been some doubt and some have advanced the arguments that under the section that says no county shall be divided between two districts. Through the -- through the years, no county has had more than one senator and I think that was the intention of that particular section that they should not. There have been arguments advanced that this mean you couldn't take part of a county and take it on another one, that's not our decision here today, but some have argued that you could have districts within a county.
Earl Warren: Mr. Attorney General --
Richmond M. Flowers: Yes.
Earl Warren: -- is it your positions that the legislature could or could not adequately apportion -- reapportion the legislator -- the legislature under the 1901 Constitution?
Richmond M. Flowers: No sir. I believe it's physically impossible that -- it's politically impossible for the legislature to reapportion itself under the 1901.
Earl Warren: Under the 1901?
Richmond M. Flowers: Yes sir.
Earl Warren: Yes.
Richmond M. Flowers: Because they -- there are just a handful of people have gained control of the legislature and naturally it's hard to ask a man to vote himself out that.
Potter Stewart: Aside from political realities, it's your position that even if it were done that the resulting reinforcement would still violate the Fourteenth Amendment?
Richmond M. Flowers: No, sir. The three-judge District Court now has intimated and in their language they said that -- that our apportionment could be done on a population basis to some extent. Of course, now I realize we approached a twilight zone when we say "to some extent," but if you affirm this and I saw, I engaged in the fights and although I was not in the last in the session that actually reapportioned, I was there and I saw men struggling, wanting this question answer, whether even if they did this and so would it answer the Fourteenth Amendment, and they were unable to get that answer. And under our provisions, if you feel or you affirm or take the attitude of the three-judge District Court in saying yes to some extent you can and I believe the legislature can and will forward under the direction of the lower court it would be you pleasure but I believe they can and will move forward to make -- because otherwise, some of our constitutional provisions have to fall and it's -- it's my opinion that -- my observation that this Court does means backward to keep from knocking down, constitutional -- State Constitutional provisions, and if it be your attitude or your decision that some of our one or more of our provisions have to fall under the direction of the lower court if it be you will let our legislature reapportion and then in that way, let them, our people decide which must fall or what they should resubmit to the people in the place of them. That -- that would put it back to the State Legislature of Alabama.
Earl Warren: Hasn't the District Court done that? Hasn't the District Court done that, put it back to the legislature?
Richmond M. Flowers: Yes sir. Without -- without their action, but is in -- it is my sincere conviction that this one question was -- what through loggerheads in that pipe because I stood down on the floor and watched them, was whether or not, under the Equal Protection Clause, would our provisions fit under that? Would they meet it? Would they answer the Equal Protection Clause? This division of the House and the division of the Senate, the way we have it. Even if we put it as the District Court said "To some extent" and I would agree with the counsel before me that Alabama is peculiar and that it is heavily sectionalized and it's an economic thing. It's not just the geography, it's sectionalized economically and the Tennessee Valley, the industrial area of Birmingham, the Black Belt and the good wild grass are that we call it was ignored by previous council. The port area of the Mobile, it is heavily sectionalized and I think it could be districted in certain way -- in such a way that we were allowed to say to some extent that it could be done where most everyone would be happy with what we have.
Speaker: You're -- you're here basically in support of the present decree of the District Court, aren't you?
Richmond M. Flowers: Yes, sir. Because I cannot see the legislature, I stood five days and nights in the sustained filibuster where the preponderance of the State Senate voting for supporting reapportionment in Alabama to absolutely no avail. Also, I was a member of the state legislature when the suit was filed and the district refused to take jurisdiction and every bill that was introduced in every way failed. They absolutely refused the few people have to control they would not vote themselves out. As our populations grew and as withdrew their strength became more and more and more. Then when the --
Arthur J. Goldberg: Now, our little theory based on that is therefore the District Court in that way accepted temporary (Inaudible).
Richmond M. Flowers: Yes sir.
Arthur J. Goldberg: To maintain jurisdiction.
Richmond M. Flowers: Yes sir.
Arthur J. Goldberg: (Inaudible)
Richmond M. Flowers: Yes sir.
Arthur J. Goldberg: -- to Constitution.
Richmond M. Flowers: Yes, sir.
Arthur J. Goldberg: And therefore the District Court has been required (Inaudible) can now proceed to issue a permanent theory.
Richmond M. Flowers: I think that this --
Arthur J. Goldberg: (Inaudible)
Richmond M. Flowers: Yes sir. With the exception of this one question and maybe we do not have it in but if you could answer for them, whether or not, Alabama can meet the equal protection provisions of the Fourteenth Amendment under the State Constitution -- constitutional provisions that we have providing reapportionment. If they can, I think under the court’s, the lower court's guidance, I think the legislature of Alabama could now direct themselves.
Byron R. White: Well Mr. Flowers you've -- you've added this thought over what you have in you brief than I take it.
Richmond M. Flowers: Yes sir.
Byron R. White: I gather that you thought there was nothing to decide here in your brief but now you suggest that the -- we really should get to whether or not the provisions of in the Alabama Constitution themselves are acceptable under the Fourteenth Amendment, isn't that your point?
Richmond M. Flowers: Yes sir, whether they meet -- whether they meet the provision.
William J. Brennan, Jr.: Well, let's see if I understand that.
Richmond M. Flowers: It was embraced in our brief, on page 5.
William J. Brennan, Jr.: Do I understand thus far as what you're suggesting is abstractly, with the Alabama constitutional formulation, if executed, if executed, satisfies the requirements needed to Equal Protection Clause, is that it?
Richmond M. Flowers: Yes sir. If we can -- you see the three-judge district panel said that they felt they could to some extent.
Byron R. White: Now, even if the -- even if the -- I gather from you that there's some of the mystery about what the Alabama Constitution means.
Richmond M. Flowers: That could be some questions, there have been. In fact every time the legislator meets and attempts to put out a constitutional amendment to the people the 67-Senator Bill has been put out and soundly defeated three times.
Byron R. White: So, you really do believe this could be somewhat of a problem, I suppose.
Richmond M. Flowers: Yes sir. I fought those fights through the night. Alabama needs reapportionment, Alabama doesn't have reapportionment. And Alabama --
Byron R. White: But you think you know fairly that that's what Alabama Constitution means to say that the apportionment that existed before the Court took action violated the Alabama Constitution.
Richmond M. Flowers: Before they took action, no sir, I don't think it violated the Alabama Constitution.
Byron R. White: Oh, you don't?
Richmond M. Flowers: The 1901 Constitution, the apportionment that they had.
Byron R. White: Do you think that -- do you think that the --
Richmond M. Flowers: Oh you mean the 10-year refusal? Well, of course yes sir, yes sir absolutely, I do. That they're refusing, they're refusing to act -- I don't know that that negates the Constitution but they certainly didn't follow the Constitution and continually refused to follow it. It wasn't an oversight --
Byron R. White: And the constitutional, in the Crawford Bill, you think that violates the existing Constitution?
Richmond M. Flowers: I think it's just a poor substitute. It wasn't to my liking, better than what we have, but if you would allow it to move on. Excuse me gentlemen, I see my time is up.
Earl Warren: Mr. Morgan.
Charles Morgan, Jr.: Chief Justice, may it please the Court. We have entered in the arguments during the last day, today and yesterday, I think the political picket and we've done this generally by adhering to standards of apportionment for questionings about standards of apportionment and comments on them, which vary from the shipping interest and their representation in the legislatures, the interest of labor and business, to mathematics and formula and really it seems to me that in the argument that if one fact becomes true, it is that the easiest judicially and most -- most easily judicially maintainable standard of apportionment can certainly be population. Regardless of all the problems that may develop and all the problems that may exist in many states, and may exist in many different counties and different districts, it would seem that surely, the one standard that is measurable in each instance leaving the less room for doubt and the less room for question insofar as each of the state legislatures of this nation are concerned, is the ascertainable standard of how many people are there in a legislative district or how many people are there in a representative seat. Now in Alabama, the facts have been adequately noted with respect to the existing apportionment of the legislature. They have had no reapportion since 1901 and the people of Alabama have no place to go in order to seek redress for their grievances other than the United States Courts. The state courts of Alabama have refused to take jurisdiction; there is no initiative and referendum in the state; the legislature for 60 years refused to reapportion and there is of course no conception that they would change their minds except under a court order. And the constitutional convention provisions that are provided in our Constitution allow the state legislature, and provide for the state legislature to establish the method of representation of conventions. And it is inconceivable to me that over -- especially there might have been long lapse in apportionment that where we have or to have another constitutional convention, that the legislature of Alabama would alter in its default with respect to apportionment by selecting delegates for that convention who would apportion them out of their seats. The state -- the United States District Court action in the Montgomery in enjoining the 67-Senator Amendment was to us quite proper and quite reasonable. The State Constitution says that population is the ascertainable standard and that it cannot be changed and that the Alabama Supreme Court has advisory opinions which are not binding upon the Court and do not have the force of law which binds only those justices and state their preferences, as who do state their preferences. The Court has held that provision cannot be taken from the Constitution from Section 284. Now, that provision quite clearly says, that in Alabama at least, population is the goal for which we're working in legislative apportionment and representation shall be based on population and that provision should not be deleted from the Constitution even by constitutional amendment. The -- the --
Hugo L. Black: Well, you wouldn't -- do you think that would bind the people of State of Alabama if they wanted to adopt the provision of the Constitution which was acquired differently?
Charles Morgan, Jr.: I don't see how it could but the Supreme Court of Alabama has.
Hugo L. Black: Do you mean they have said that the Constitution as supposing the situation in the state, so that the people cannot of their own choice, adopt the new constitutional provision contrary to the 1901 provision?
Charles Morgan, Jr.: The --
Hugo L. Black: Is that in the -- do you have that opinion and in what part of the record?
Charles Morgan, Jr.: Yes, sir. I'm sure it's in -- I'm not sure it is in --
Arthur J. Goldberg: Page 147.
Charles Morgan, Jr.: 147.
Arthur J. Goldberg: (Inaudible)
Hugo L. Black: That's says to withhold from the legislature the power.
Charles Morgan, Jr.: Yes, sir that's right. Now, the people of course in the Constitutional Convention could change it, but they can't have a constitutional convention unless the legislature called the convention.
Potter Stewart: The provision itself said that it simply shall not be changed by constitutional amendments?
Charles Morgan, Jr.: Right.
Potter Stewart: Or anybody. I assume that's what it purports to say. That was the basis of my question to the Attorney General.
Charles Morgan, Jr.: Well, I -- I hold no brief for the proposition that -- those are mentioned though. Now, the 67-Senator Amendment also of course, in our judgment was complete nullity. The -- on its face, it purported to provide each county a little federal sort of plan with representation in the State Senate. In the House of the 106 members of our House of Representatives, 67 of them are also allocated on the basis of political units or on the basis of some sort of little federal plan. Now, we look at the -- the county argument and the use of -- and the use of counties and in the allocation of some weight for counties for representation purposes and it seems to me that -- as it has been stated by others that there is no comparison with the Federal Government, no proper comparison. There was no federal compromise with respect to counties, there is no and has never been any so-called sovereignty in the counties that are created by the states. The counties are have only such right that are granted by the state legislature and by the State Constitution and the effect of the utilization of these political units, it seems to me would be rather disastrous as far as the Government of our state legislature is concerned. It would seem to me that over a period of history, as America has developed, the United States Senate has been an effective instrumentality of Government, but is extremely doubtful to me that if the United States Senate were totally fragmented with fractional interest. If the Senators did not run statewide, if they did not -- in a state like Alabama for instance, have to take into consideration the industrial interest of Birmingham and shipping interest of Mobile, the farm interest, the plantation and perhaps the Black Belt, the Tennessee Valley authority area and the Alabama Power Company area, it would seem to me that the representation that we might get in the Senate of the United States might well be a mere blocking rather than a useful sort of representation. But in most states in the union, there is divergence inside of the senatorial districts, a divergence of interest that molds itself and measures into the senator who comes -- who comes forward. Now inside of the state, the principal usage for representative districts is to break down into smaller and smaller units the area of representation and the place and the people have representation so that one representative may at least know the will of the people whom he represents. Now to me, if you go into any sense of area representation or any sense of political unit representation, you quite naturally have in it a rural bias because it just seems implicit to me that there is more farmland than there are city lands and in this nation, there are fewer farmers than are the city people and if you use land, or if you use political units without population being the guiding factor, then we must of necessity with representative – reach a representative standard which would be non-responsive to the people. And the function of the Government, of course, should be the -- its response to the people whom it governs. The difference -- it seems to me boils down to the question of trust in people. If there's -- if in this country as I think the country's (Inaudible) says "if we assumed that power of self-government is the power of people to think and to reason and to vote and to properly represent them, to get their own representatives, then the Courts it would seem would be standard to protect the minority from the majority" but the majority surely should have the right to elect representatives in both Houses of the legislature. For if that right doesn't exist in both Houses then they only have equal protection of one-half of the law. Now in the Alabama case, the -- of course Baker v. Carr was decided on March 26, on a March 30th the District Court issued an order setting a hearing in a motion for preliminary injunction we filed. The case moves rapidly. On April 14th there was a hearing and on July 16th, therefore a special session of the legislature there was reapportionment. I am quite convinced in my own mind that -- that in the middle district of Alabama, the Court viewed the would-be reapportionment case there and found an effective remedy and under Court order had an election held. Fashioned a remedy, perhaps better than we could dream could be fashioned from far away. I am quite certain from the opinion of the District Court, that in its mind at the moment before your decisions on future cases, that in its mind at the moment, population is the standard which must be met as far as an the apportionment is concerned.
Earl Warren: Mr. Morgan, is it possible under your constitutional provision of 1901 to beat that standard?
Charles Morgan, Jr.: I think it's possible in a sense. It's possible in the Senate if you interpret the provision which says that no county shall be divided into two districts. If you -- if you interpret that as a pure gerrymander -- any gerrymander provision, and I should think that there is some presumption in favor for constitutionality of course of the State Constitution, if you read it that way and say it doesn't mean that a county, the county may not be divided into districts, it means it can be divided between districts and split down the center or chopped up. Now, under that assumption, your Senate could be apportioned on the basis of seven senators for Jefferson County, three for Mobile and so forth which would be on the basis of pure population. In the House of Representatives, there is no way under this Constitution to have an absolute population apportionment that the -- because of the one per county provision there.
Earl Warren: But it could be done without -- without gross inequalities.
Charles Morgan, Jr.: Yes. I think so and equalities in the House. Well, in some instances they are -- they approached what I would consider gross to support but I think as far as a temporary measure or a measure with respect to the usage of the state for the next few years it could be --
Earl Warren: No, I'm speaking about it permanently because that's the question that Attorney General posed to us whether he would like to have us say whether or not under that constitutional provision in 1901, it is possible for the legislature to meet the standards of the Federal Constitution.
Charles Morgan, Jr.: I would say now and of course I assume it has gone through varying stages you'll understand as we progress why did we changed our mind with respect to what we think the law is. I would say that quite probably not. The provision requiring one per county in the House of Representatives, it would seem to me would deprive again people of their vote on a population standard, if there's to any deviation from population in either House of the Representatives if that were the Court's ruling, then it could go under the State Constitution.
Byron R. White: (Inaudible) conclude then that both Houses have to be on a state population basis.
Charles Morgan, Jr.: Correct.
Byron R. White: As you said a moment ago.
Charles Morgan, Jr.: Yes.
Byron R. White: One House, one way or another is only (Inaudible)?
Charles Morgan, Jr.: I should think so, yes. We --
Potter Stewart: Of course the difficulty with the first branch of your answer to the Chief Justice’s question with respect to the 1901 constitutional provision affecting the State Senate is that the State of Alabama has construed the constitutional provision to mean something other than what you're saying.
Charles Morgan, Jr.: Well, there are other factors to --
Potter Stewart: It's construed to mean as I understand it that there should be one -- no more than one senator in any county.
Charles Morgan, Jr.: Right. The -- I might add this --
Potter Stewart: Now, we bound by that as a matter of accepting the --
Charles Morgan, Jr.: Well I'm -- I -- I don't think so when you have -- when you have a state legislature that hasn't abided by anything else in the same provisions or anything else to Constitution. Because --
Potter Stewart: Aren't we -- this at least as I understand it, you tell me if I'm wrong, this has been clearly construed to mean what I say, this could -- this rather ambiguous language of your constitution has been construed in your state to mean, no more that one senator from any counties. Is that right or not as a matter of fact?
Charles Morgan, Jr.: I would say as far as common parlance is concerned, and legislator is talking and that's --
Potter Stewart: The judiciary has spoken --
Charles Morgan, Jr.: No. No, and the only construction, I think of course of law would be the failure of the legislature to utilize the provisions into -- and to bring about more than one senator. I must say in all candor that in history of Alabama there has not been any Senatorial District which has had more than one senator.
Potter Stewart: Though in practice as well as in talk, that's the way it's been construed.
Charles Morgan, Jr.: In practice and prior to this suit, I would say that there was commonly accepted that Jefferson County could only have one senator.
Potter Stewart: No county could have more than one.
Charles Morgan, Jr.: That's right.
Arthur J. Goldberg: Didn't the District Court understand it that in fact this legislature that the opinion which is made by the legislature have to be unconstitutional (Inaudible).
Charles Morgan, Jr.: That's correct.
Arthur J. Goldberg: Based on the District Court's opinion that it has to whether relieve (Voice Overlap) --
Charles Morgan, Jr.: Yes. Yes.
Arthur J. Goldberg: -- requires a judicial (Inaudible).
Charles Morgan, Jr.: Yes.
Arthur J. Goldberg: (Inaudible)
Charles Morgan, Jr.: Yes.
Arthur J. Goldberg: (Inaudible)
Charles Morgan, Jr.: Yes (Voice Overlap) -- and we are joined in this by the interveners as far and others who --
Arthur J. Goldberg: In other words you are saying that so far as this statement satisfies (Inaudible)
Charles Morgan, Jr.: I'm satisfied to leave this matter to this District Court, yes sir.
Arthur J. Goldberg: (Inaudible)
Charles Morgan, Jr.: Yes sir.
Arthur J. Goldberg: (Inaudible)
Charles Morgan, Jr.: No sir. I do not. Gentlemen, in conclusion I would --
Hugo L. Black: May I ask you of this (Voice Overlap) --
Charles Morgan, Jr.: Yes sir.
Hugo L. Black: -- constitutional provision has been interpreted by the Court in a regular lawsuit --
Charles Morgan, Jr.: -- Section 2.
Hugo L. Black: -- or only by statement by the judges.
Charles Morgan, Jr.: Only by the -- there's been no adversary proceeding involved it all. Statements by the judges except in a -- I would say probably in the case of Waid v. Pool where they did say that the legislature was malapportioned but they weren't going to take jurisdiction that was -- there was not specific interpretation of this provision at all.
Hugo L. Black: As I recall statements by the judges in answer to inquiry under the statute are not binding as Court decisions.
Charles Morgan, Jr.: They are not. They're purely advisory opinions.
Hugo L. Black: Purely voluntary.
Charles Morgan, Jr.: And each of the justices could change their mind on the next --
Hugo L. Black: That is the way, isn't it?
Charles Morgan, Jr.: -- on the next group.
Hugo L. Black: That is the way, isn't it, that the Court originally sustain the constitutionality of the state act which had authorized the inquiries to be made on the Court? They sustained it, did they not, on the basis that it would not be binding decision?
Charles Morgan, Jr.: Yes, sir. And they are not binding.
Hugo L. Black: As in the controversial case but merely the individual views of the judges would voluntarily gave them.
Charles Morgan, Jr.: Yes, sir. That's correct. In conclusion with, I simply state that we do think the District Court is competent to handle the matter and has exhibited a great deal of speed in doing so and we feel that the rights of all Alabamans and all Americans rest upon the decision of this Court with respect to whether on people do have on the basis this country was founded for each man one vote.
Earl Warren: Mr. Vann.
David J. Vann: Mr. Chief Justice, may it please the Court. We are intervenors in the case below and in the court below, we join with the plaintiffs and I believe all of the intervenors in proposing to the court below that this case had reached a stage where the remedy of provisional reapportionment, as we proposed it, was the only effective way to which the Court could deal with the matter. They had previously, there were three remedies considered by the court below. One was election -- requiring an election at large after the legislature had failed to act. There was a remedy proposed of proportional voting of existing legislators, and there was the remedy of provisional reapportionment, all of which, we felt, were within the discretion of equity. However, in practical impact, it was our contention that for the Court to set up a temporary plan which the legislature itself could change either before a legislature was elected under that plan or after a legislature was elected in that plan, gave to the state and to legislature the full range of discretion and at the same time gave the litigants a full opportunity and full protection for their constitutional standards. However, as you have noted from our appeal, we are here, in this Court, unlike Mr. Morgan, to say that we feel that action by this Court at this time is necessary in this case, and that is the subject that I want to discuss with you. We come from a state that has 10% of the natural resources of America, mainland America. This state has been locked in an impasse for the expression of the popular will of the people for over 60 years. In this case, while this case was pending, we attempted to utilize every single way that was opened to us. We backed the Jefferson County Democratic Campaign Committee and others. We backed to proposals in the legislature, and we petitioned the legislature. When the legislature passed the Crawford-Webb Bill, we even ask that the Government to veto and then use his power of amendment.
Earl Warren: We'll recess now Mr. Vann.