Earl Warren: Number 20, WMCA Incorporated, et al., Appellants, versus Caroline K. Simon, Secretary of State for the State of New York, et al.
Leonard B. Sand: Mr. Chief Justice --
Earl Warren: Mr. Sand.
Leonard B. Sand: Mr. Chief Justice, may it please the Court. Before turning to the specific details of this, the New York legislative apportionment case, a word or two might be appropriate of concerning the relationship which this case bares to the body of cases decided by lower federal courts and by the state courts since this Court's decision in Baker against Carr. It is fitting that the Court today begins its review of some of these cases with the New York apportionment case because the New York case reflects one extreme of judicial reaction to Baker v. Carr. In this case, the Federal District Court in the Southern District of New York sustained the constitutionality of the apportionment of a state legislature in which challenge was directed to both houses of that legislature. And in which both houses of the legislature were seriously malapportioned. Following Baker against Carr, with surprising speed and near unanimity, a consensus appears to have been reached by the lower Federal District Courts and by the state courts and that consensus is, that regardless of what rule may apply to the second house of a legislature, surely one house must be apportioned primarily on the basis of population. 12 federal and 6 state cases are cited for the proposition that this consensus exists in the joint amicus curiae brief filed by the American Jewish Congress, the American Civil Liberties Union and the National Association for the Advancement of Colored People in this case. Indeed, the New York case is apparently the only case in which challenge was directed to both houses of the legislature. Both houses are malapportioned and all forms of relief were denied. Some evidence of the extent to which the consensus that one house must be based on population exist is found in another amicus curiae brief. That's filed by the Attorney General of the State of New Jersey and the Attorneys General of some 14 other States, this brief in support of the appellees in the Maryland case. There, the argument proceeds on the assumption that, of course, the apportionment of one house must be based on population. Appellants take the position that the Federal Constitution requires that both houses must be apportioned primarily on the basis of population, but although we take this position --
Potter Stewart: So you talk about one house, in both houses as though there is something constitutionally inevitable about a State having a bicameral legislature.
Leonard B. Sand: Every State except Nebraska --
Potter Stewart: One? Yes.
Leonard B. Sand: -- has a bicameral legislature.
Potter Stewart: Of -- is there anything -- any reason why they couldn't have a tricameral legislature?
Leonard B. Sand: I -- I know of no such reason, Mr. Justice Stewart.
Potter Stewart: Or that any State -- that every State couldn't have a unicameral legislature?
Leonard B. Sand: Every State could have a -- a legislature consisting of as many houses as it saw fit.
Potter Stewart: Are there any -- any reason why a State couldn't -- need to have any legislature at all?
Leonard B. Sand: I think the State must have -- must have --
Potter Stewart: Some -- somebody --
Leonard B. Sand: -- somebody --
Potter Stewart: -- to make the laws.
Leonard B. Sand: -- somebody to make the laws and some -- somebody to make the laws who is representative of the people.
Potter Stewart: Could be -- could a State have a legislative counsel?
Leonard B. Sand: It could -- it could have a -- any form of body to enact the laws provided that that body was representative of the people and if it be a unicameral legislature, a bicameral legislature, a tricameral legislature. The -- the legislature as I hope must be a body which represents the people of that State.
Potter Stewart: Are you suggesting then that it would be completely unconstitutional for any legislative power to exist in a governor's counsel appointed by the governor and not elected by the people?
Leonard B. Sand: I -- I would think that that would not -- that that would be unconstitutional.
Speaker: Why do you say that?
Leonard B. Sand: I think there is in -- in --
Speaker: Where do you find that (Inaudible) Constitution?
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: It -- it would -- it would arise there. I think it would be -- it would be enforceable under the equal protection and due process provisions. I would like, with reference to the relationship which this case bears to Baker against Carr and its descendants, I would like to emphasize that this differs from the Tennessee case in one -- in one respect. In the Tennessee case, the Court was confronted with a situation in which the non-representative nature of the legislature resulted from the fact that the legislature had not acted -- had not reapportioned during a period of radical population changes. There, the discrimination, the malapportionment resulted not from design but from accident. In the New York case, one finds a different circumstance. One finds that the -- the discriminations which exist, the disparities which exist between population and representation do not arise from accident but it arises from a deliberate plan, a purposeful and systematic scheme and we submit that that circumstance calls even more impellingly for judicial intervention and thus, the case where the discrimination is the product of accident not the zone.
Speaker: Do the apportionment accord to the provisions of New York Constitution?
Leonard B. Sand: Yes, it does, Mr. Justice Harlan.
Speaker: So you're claiming that the Constitution agrees with itself that that would be (Inaudible).
Leonard B. Sand: Our -- our challenge is directed to those provisions of the New York State Constitution which prescribes the formula pursuant to which every 10 years, the State is -- is apportioned.
Arthur J. Goldberg: Does the people of the State ratify (Inaudible)?
Leonard B. Sand: The people of the State ratified that constitutional provision in 1894 by a small majority and all efforts to change that formula and change that Constitution have been to no avail. There is no initiative and referendum in the State of New York. The only mechanism which exists for amending the Constitution without the concurrence of the legislature is by a constitutional convention. No such convention could be called the New York State without the concurrence of the legislature until 1977. The delegates to such a constitutional convention are elected on the basis of Senate Districts and the malapportionment which affects the Senate would affect such a constitutional convention.
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: They were elected on the basis of the -- of the then -- of the then districts.
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: No. New York State has never been malapportioned to the extent to which it is now malapportioned. Once the formula was adopted in every succeeding apportionment, the -- the extent of disparity between population and representation increased and --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: What -- what occurred in 1894 was a constitutional convention which viewed with along the rapid population growth which certain areas of the State were then experiencing, adopted a formula. The consequence of that formula has been to consistently diminish the representation accorded to the most populous areas of the State and -- and there exists in New York State no effective political remedy, no way by which the majority of the people can -- can realistically alter that formula short of --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: Mr. Justice Goldberg, I -- I think that relates to the nature of the restraint. Of course, we -- Constitutions are constitutional and -- and restraints may be placed upon majorities but I do not believe that it lies within the power of a State to select any minority within that State and to confer upon that minority, majority status --
Speaker: Where do you find that in the Constitution?
Leonard B. Sand: I find that in the Equal Protection Clause and I --
Speaker: What --
Leonard B. Sand: -- I --
Speaker: -- section? What portion?
Leonard B. Sand: In -- in the -- in the provision which says that no State shall deny to any citizen the equal protection of the laws. I find it also by strong implication in this Court's decision in Gray against Sanders. I recognize, the Court drew a distinction in that case between the circumstance which was then before it which was a -- a statewide election and -- and the Court explicitly indicated that that was a different circumstance but the Court also, in that case, said that it does not lie within the power of the State to -- to create preferred classes of voters. The difference between Gray against Sanders and the legislative apportionment case, it seems to appellants is -- is this. Where one is dealing with a statewide election, no districting is -- no districting is possible. The consequent -- a county unit system is a form of districting and when this Court noted that the consequence of a county unit system was that those who voted within a particular unit for the minority candidate, the candidate receiving the minority of the votes, had their votes entirely disregarded and therefore, it was bad. The Court was saying, "By virtue of the nature of this election, a statewide election, there can be no districting. " A state legislature is a different body. There, the members are intended to come from subdivisions of the State, but the State legislature, as a whole, has jurisdiction over the entire State, although elected from a particular district, the legislature has power over the entire State.
Potter Stewart: How was that inevitably true to the full extent of -- in the full sweep of what you say? It may or may not be true in New York State, I don't know. I have the impression that New York City has a very great deal of home rule power as contrasted to other areas in the State. I do know that -- I think I know at least that in many States, many municipalities have a great deal of home rule powers contrasted to the unincorporated areas of the State.
Leonard B. Sand: They have some home rules, Mr. Justice Stewart.
Potter Stewart: And now, let's -- let's --
Leonard B. Sand: (Voice Overlap) --
Potter Stewart: -- just assume -- let's assume a case, and I'm -- I'm sure this is a hypothetical case because I don't know of any State where this exists, but let's take a -- a case where a -- a city has a complete home rule power and the legislature has no power over it. Well, then in that case, it would obviously be wrong to have the city have any representation at all within legislature, would it not?
Leonard B. Sand: Under -- under that hypothetical, the -- the city would be functioning as an entirely independent governmental unit.
Potter Stewart: Correct.
Leonard B. Sand: And -- and --
Potter Stewart: So now that you (Voice Overlap) --
Leonard B. Sand: -- no -- no governmental nexus with the State. It would be in -- in essence, a separate State.
Potter Stewart: That's right. And to the extent, to the degree that a large urban municipality interstate has home rule power, couldn't it be argued that there was some rationality about having it -- have less representation in a state legislature which might have complete 100% power over the other areas in the State?
Leonard B. Sand: I would think only if the extent of that home rule was really to make the city independent of the State and that certainly is not the circumstance in New York in which the -- the city is very much dependent upon the State for revenue, for aid, and where in fact the city is very much shortchanged by the State in -- in the distribution of such things over which the legislature has power.
Earl Warren: Mr. Sand, may I inquire about the constitutional convention that's provided for every 20 years, that is the opportunity of the people to vote on it? Is there any opportunity for them to vote on the question of whether they will have reapportionment, a new reapportionment under the Constitution or is the whole Constitution subject to amendment than revision if they do have one?
Leonard B. Sand: It is the latter, Mr. Chief Justice, and into that election are injected many, many issues having no relationship to apportionment whatsoever and it is impossible on the basis of the results of such a -- an election to determine whether the voters rejected a -- a constitutional convention because they approved to the existing apportionment or because they did not want other changes to be made in the Constitution having no relationship whatsoever to apportionment.
Speaker: I mean, where do you assume that that referendum had no (Inaudible)?
Leonard B. Sand: I think it had no significance with respect to -- with respect to this case, Mr. Justice Harlan. They were submitted to the -- to the vote. Perhaps, I misunderstood your question. The 1894 Referendum was approved by a majority of the -- of the people of the State at that time. I think that -- I think, however, we're dealing with -- with rights of individuals guaranteed by the Federal Constitution and I do not believe that a majority can vote away the constitutional rights of -- of any individuals. Certainly, if a State were to hold an election and by initiative and referendum adopt a provision which is violative of the Fifteenth Amendment, this Court would -- would not long hesitate in saying that the fact that the majority of the people approved it and embodiment in the Constitution was irrelevant, the Federal Constitution would -- would go --
Potter Stewart: The existence of such a power in the people might be irrelevant to the substantive question of whether or not a particular system violated the Equal Protection Clause but it might be quite relevant, might it not, to the question of the equitable jurisdiction of the Court to do something about it --
Leonard B. Sand: It might --
Potter Stewart: -- if there is an adequate remedy elsewhere --
Leonard B. Sand: If --
Potter Stewart: -- then there's any court of equity might well stay its hand under accepted principles, is that correct?
Leonard B. Sand: It might, Mr. Justice Stewart and for that reason, we emphasize the following. There will be no opportunity in the State of New York for the voters to cause a constitution -- constitutional convention to be convened without the concurrence of the legislature until 1977. On the basis of the present population trends, the -- discriminated against citizens come from counties which will have a minority of the delegates to that convention. The delegates to that convention are elected on the basis of Senate Districts and the Senate Districts reflect a discrimination against the voters in the most populous counties. They were submitted to the voters in 1957 the question whether or not a constitutional convention should be convened. It was submitted in an off year and the -- and the voting returns were light. More -- more --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: The --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: That the -- the State Constitution requires that every 20 years, there'll be submitted to the people a question, "Shall there be a constitutional Convention?" And that is the question as it appeared upon the ballot. A majority of the voters voting rejected that. They were -- they were injected into that election issue, many other issues totally unrelated to apportionment.
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: Well, the -- the issue was whether there should be a revision of the entire Constitution. One of the -- one of the aspects of that Constitution is apportionment. One -- one prominent government official urged that the voters reject the constitutional convention because it was an inefficient method of amending the Constitution and suggested that it could be more effectively done by a commission. A commission was subsequently convened. It was originally headed by Governor Rockefeller and then subsequently by -- by Judge Peck. When the commission proceeded, when it disposed of technical revisions of the Constitution and proceeded to examine the question of revision of the apportionment provisions, its term expired and it was not renewed, which -- which was an unusual circumstance in the State of New York. I would like --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: It -- its life, there was a -- a report made to it in which there was a complete analysis of the New York apportionment and suggested revisions. Its life, its tenure ended prior to formal action on that recommendation.
Earl Warren: Mr. Sand, may I ask one more question about that? How many times have the people exercised their right to have a constitutional revision since 1894 under this 20-year provision?
Leonard B. Sand: I believe there was one constitutional convention since that -- since that time. I believe there has been one. There have -- I was advised there have been two.
Earl Warren: I beg your pardon.
Leonard B. Sand: I've been advised there have been two since 1894. I would like to turn, if I may, to the apportionment itself, to the formula which we challenge and the challenge is directed to the formula itself.
Speaker: This is what you're going to say now, I take it. That all terms of the proposition of the Equal Protection Clause requires a State to apportion or approach apportionment in that way of approach apportionment from a population basis, is that right?
Leonard B. Sand: It -- it requires something less than that, Mr. Justice Harlan, because our -- our position is that the beginning point, the starting point to measure the validity of a particular apportionment is the extent to which it bears a relationship to the population of the -- of the State.
Speaker: But before you can measure anything though, the exact measure becomes outstanding.
Leonard B. Sand: Yes, and --
Speaker: And you would agree with that.
Leonard B. Sand: Yes, and --
Speaker: And I think before you get into the question of the apportionment, you are to address yourself as to what the constitutional standard is, if any --
Leonard B. Sand: Let me -- let me say that in New York --
Speaker: -- federal constitutional standard. You have got --
Leonard B. Sand: I -- I --
Speaker: -- in order to make your argument based on statistical figures, what you thought malapportionment meaningful to the standpoint of this Court, you have got to address yourself to the question of what the federal constitutional standard is against which the apportionment is actually judged.
Leonard B. Sand: And -- an I say, Mr. Justice Harlan, that that federal standard prohibits a State from selecting a minority group within that State regardless of the nature of that minority whether it be based on race or -- or any other basis.
Speaker: (Voice Overlap) this is a question of the distribution of power on the question of -- of restriction, not individual voting power. This is a question of the distribution of power, governmental power in the State.
Leonard B. Sand: This -- this, as appellant see it, this is a question of whether an individual who is a member of a class whose votes are discounted because the legislature has selected some other group and has given to that other group a preferred position, an additional power, where the member of such a class has -- has individual rights enforceable under the Fourteenth Amendment.
Speaker: I understand, but my -- my question (Inaudible) what is there in the Federal Constitution that says that a State cannot apportion its Senate in the same way if it chooses to that the United States apportionment senators are on the various States. Now, I don't -- don't recognize the arguments that are made as to the federal analogy, not being an analogy, but what is there in the Federal Constitution that in the Fourteenth Amendment, specifically, that says that a State cannot allow senators on the basis of geographic community who distinguish population?
Leonard B. Sand: The concept of -- of equality of all people within a State and we're dealing here with the most basic civil liberty which those -- which those people have.
Speaker: But I'm worried -- tell me where it is that you find that in the Constitution?
Leonard B. Sand: I -- I find that in the implications of the Equal Protection Clause of the Fourteenth Amendment as -- as suggested by this Court in Baker against Carr and as exists by -- by analogy in the decision and language of this Court in Gray v. Sanders.
Speaker: But you agree that Baker and Carr furnishes no guidance, no light whatever to the question that you're debating here.
Leonard B. Sand: Except, Mr. Justice Harlan, the applicability of the Equal Protection Clause, the questions of legislative apportionment and -- and from that flows everything else that -- that I've urged upon the Court.
Speaker: (Inaudible)
Leonard B. Sand: I think it will be helpful to turn to the Senate formula because it becomes apparent from that formula that precisely what the State has done is discriminated on the basis of criteria which are irrelevant to any function of the State, any purpose of the State other than to diminish the voting rights of certain members of the State. The Senate is apportioned by what amounts to two entirely different formulae. One of which applies to those counties having 6% or more of the population, just we referred to as the most populous counties, the other which applies to the balance of the counties. The senators are apportioned to the most populous counties on the assumption that the total size of the Senate is to be 50 and one senator is apportioned for each 2% of the population. Next, the number of seats which are given to the populous counties are compared with the number of seats which were apportioned to those counties in 1894 and the total Senate membership is increased by the extent to which there has been any increase in the allotment of senators to those counties as compared to 1894. For example, if one of the most populous counties had seven senators under the new apportionment and had only two in 1894, the total size of the Senate is increased by five. After this was done, the balance of the original 50 Senate seats and all of the added seats, all of the added seats are apportioned to the less populous counties. The less populous counties receive senators on the basis of the actual size of the Senate, not the -- not the 50. The consequence of which is, senators are apportioned to the less populous counties on the basis of an entirely different smaller ratio. I like to emphasize what this rule for Senate expansion does and does not do. There is not now and there has never been in New York, a rule that each county will have one senator. Counties are combined for the purposes of forming Senate Districts.
Potter Stewart: How many counties are there?
Leonard B. Sand: There are 62 counties.
Potter Stewart: 62. And at the present, 57 senators or --
Leonard B. Sand: There are, at present, 57 senators. On the basis of the 1960 --
Potter Stewart: 1960 census.
Leonard B. Sand: -- census, there will be 58 senators.
Potter Stewart: Alright.
Leonard B. Sand: If -- if it's the other -- there are now 58 there will be 57.
Potter Stewart: 57.
Leonard B. Sand: This rule goes far beyond, this rule for Senate expansion goes far beyond anything which would be necessary to assure to the less populous counties, a certain minimum amount of representation for a certain absolute representation. This could be accomplished by saying the less populous county shall never have less than X senators. And then when there is an increase in the size of the most populous counties -- increase the -- the size of the Senate and distribute that increase proportionately among both -- between both groups of counties. What happens as a result of this formula is that the larger, the most populous counties become, the larger the Senate becomes. The larger the Senate becomes, the greater becomes the disparity between the ratio upon which senators are assigned to the most populous counties and the ratio upon which they are assigned to the less populous counties. There is somewhat startling and paradoxical operation of this formula as such, that the larger, the most populous counties become, the more underrepresented they become. The larger the most populous counties become, the more overrepresented the less populous counties become.
Potter Stewart: Well, there's nothing very unusual about that. Let's say you had a simple system of one senator from each county which some States have, one senator from each county. Well, then, exactly the same thing would happen as you say this ironical amazing, surprising things happening in New York. The larger -- the larger counties become, there -- the more so-called "malapportionment" there would be.
Leonard B. Sand: The -- the mathematical operation of this formula is such that the proportion of the disparity becomes greater which -- which does not usually happen. The proportion of disparity becomes greater because they increase in the size of the most populous counties causes an increase in the total size of the Senate and that increase is not reflect --
Potter Stewart: Those States (Voice Overlap) less populous --
Leonard B. Sand: -- goes -- goes --
Potter Stewart: (Voice Overlap) --
Leonard B. Sand: -- entirely to the less populous counties.
Potter Stewart: -- we haven't said it.
Leonard B. Sand: There are other arbitrary provisions with respect to the Senate formula which -- which are also irrelevant to any purpose other than to discriminate which aggravate the situation. For example, when one of the most populous counties loses seats, that reduction in size is entirely disregarded in this formula. In other words -- to take an actual example, New York and Bronx County had 12 Senate seats in 1894. On the basis of the present census figures, they will be entitled to only eight Senate seats, a reduction of four. The other foremost populous counties in the same category have seven more seats than in 1894. There is a net increase of three, but since the increases are taken into account while the decreases are totally disregarded, seven additional seats rather than then the net of three will be assigned to the less populous counties.
Speaker: Suppose in New York said that we think (Inaudible) would that be unconstitutional?
Leonard B. Sand: I -- I believe it would, Mr. Justice Harlan. I believe that --
Speaker: Or (Inaudible) or both, you think that would be unconstitutional?
Leonard B. Sand: I -- I would – I would say this at a minimum. When the net result of applying whatever formula the State devises is to produce a legislature, the members of which are -- are elected on the basis, which is radically disproportionate to population, the burden then shifts to the State and the State must then come in and say, "We have adopted this method of apportioning our legislature because we feel it more effectively represents the people. I don't think this Court need forever close the door upon experimentation by States in -- in --
Speaker: I'm putting the question to you, supposing the State of New York had said explicitly, "We'll have one -- we'll have one member of the Senate, allot to the so-called business centers in the State and another member allotted to the so-called labor industries.
Leonard B. Sand: And if -- and if the net result of that was to cause there to be a legislature, the members of which did not represent population, it would be unconstitutional.
Speaker: By -- by hypothesis I am assuming that neither of those -- neither of those forms would have taken into account the population figure (Inaudible).
Leonard B. Sand: What -- what I mean to suggest by the form of my reply, Mr. Justice Harlan, is that nobody is -- is saying that because the legislature must be proportioned to population, we throw out the -- the map of the State. We disregard natural boundaries, we disregard political subdivisions. The legislature may consider all of this and may consider more, but in apportioning representatives on the basis of these criteria, the net result must be a legislature which proportionately represents population. And where it does not, when it does not, then at a minimum, the burden is upon the State to come forth and to say, "We have adopted this method because this method achieves greater representativeness of the legislature. " Now, that is not what New York State had --
Potter Stewart: Well, now, let me -- Mr. Justice Harlan has asked you this unsuccessfully and maybe the answer is -- nobody can successfully answer, but where does this rule of law come from that you've just enunciated?
Leonard B. Sand: I -- I think it -- it comes from the -- from the basic nature of our -- of our system, the -- the genius of our democratic society.
Potter Stewart: Well, then --
Leonard B. Sand: From the -- from -- I -- these are words but these are concepts which are very meaningful. These are concepts which are -- which are in the basic traditions of -- of -- our democratic --
Potter Stewart: Well (Inaudible) are -- are you assuming majority -- majority rule in each legislative district that this is constitutionally required for example?
Leonard B. Sand: In -- I -- I don't understand.
Potter Stewart: Well, let's take -- let's take it --
Leonard B. Sand: Each --
Potter Stewart: -- let's just take a senatorial district in New York.
Leonard B. Sand: Yes.
Potter Stewart: And let's say that the candidates are A and B of the -- red party and the green party.
Leonard B. Sand: Yes.
Potter Stewart: Well, then, A gets 55% of the vote and B gets 45% of the vote. So the green party all -- those thousands and thousands of green voters are not represented by Mr. A in the state legislature, are they?
Leonard B. Sand: They are not. That's correct. Absent (Voice Overlap) --
Potter Stewart: Now, how -- what now – (Inaudible) -- you keep talking about majority --
Leonard B. Sand: Yes, sir.
Potter Stewart: -- rule, what happens to this? And then now, let's say in the very next legislative district, the other party wins, the green party wins by 55%. Now, those 45% in the contiguous districts of -- red party voters are not represented by Mr. B from that district in the legislature, are they?
Leonard B. Sand: No. This is an -- an inherent result --
Potter Stewart: Well, is there some political --
Leonard B. Sand: -- from a districting –
Potter Stewart: -- is there some political reality in having -- is there some political and subtle reality in having the disenfranchised A voters in district one be more or less represented by the A voters who prevailed in district two? I'm only suggesting, Mr. Sand, and it's simply a suggestion that the problems we have before us in these cases this week are somewhat more complicated and subtle than has been suggested in the briefs and -- in that they not -- cannot necessarily be solved by simple eighth grade arithmetic.
Leonard B. Sand: I -- I think -- I think that's -- that's true, Mr. Justice Stewart and I think -- I think particularly with regard to New York State the most significant consequence of the malapportionment doesn't exist in -- in any of these statistics to which I've had reference.
Potter Stewart: Let me just go back and -- and peruse my other question. Well, let's say a State required that – let's say a State decided to put in some variant of the (Inaudible) system of proportional representation, are you familiar with that?
Leonard B. Sand: I'm familiar with proportionate representation.
Potter Stewart: I -- well, Cambridge, Massachusetts have that such as -- such a variant. Now, would this be constitutional or -- or would it violate the equal protection?
Leonard B. Sand: I think it would be constitutional.
Potter Stewart: Let's say it decide – a State decided to experiment with something like the list system which was used under the Weimar Republic and their republican trans and in Belgium today, would this be -- would -- would this involve a violation of the --
Leonard B. Sand: I -- I confess that I'm not familiar enough with that -- with that form of -- with that form of (Inaudible). I think the State can devise whatever election techniques it will, provided that there are -- that there are certain -- there are certain essential ingredients to it. One of which must be that it does not represent a conscious discrimination by the State against any particular class or group within the State and -- and none of --
Potter Stewart: (Inaudible) wouldn't they -- wouldn't the 45% of the red party in that district who didn't have representative in the legislature, couldn't pay -- say that they're unrepresented entirely in that legislature under your theory?
Leonard B. Sand: The -- the -- no, they could not, Mr. Justice Stewart, because for one thing there would not be a purposeful systematic discrimination against -- against that minority. It would not be the inevitable consequence that in every election, they would be the minority. What New York State has done is adopted a rule pursuant to which in every apportionment, the same citizens are discriminated against in both the Senate and the assembly and -- and whatever theories may exist as to the nature of representation, no theory that we know of is constitutionally permissible which would enable a State to say, "We do not think that this group of people, that these voters should have as much power as much influence in the State as some other group of voters."
Potter Stewart: What if there were quid pro quo for that? Let's say that the people from New York City, met with the people from the representatives of the people from and fair -- fairly representatives of the people from the other parts of the State. And New York City said, "We will give up some of our -- what -- what otherwise be our representation, full representation in the state legislature, if you will give us a considerable amount of -- of local autonomous self government" and if that kind of a bargain was struck as a deliberate thing, would that -- would that violate the Equal Protection Clause of the Constitution?
Leonard B. Sand: Yes, Mr. Justice Stewart, because we're dealing with the rights of individual citizens and individuals -- which is what this Court said in Baker against Carr and the constitutional rights of individual citizens, isn't -- are -- are not subject to -- to (Inaudible) --
Potter Stewart: Well --
Leonard B. Sand: -- with the (Inaudible) -- with -- with the voting rights of -- of individuals, not of -- not of troops.
Potter Stewart: So I'm -- and I'm talking about the same thing, the citizens and the voters of New York City, who said, "If you -- if you will give us autonomy in this area and that area and the other areas, so we're completely immune from any action of the legislature whatsoever in this, that and the other area and we will have 100% self-government over that, we will give up certain representation in the state legislature, which has full power over the rest of the State."
Leonard B. Sand: When -- when the hypothetical supposes the creation of a governmental subdivision which is truly autonomous --
Potter Stewart: No, I didn't --
Leonard B. Sand: Well --
Potter Stewart: -- it's truly autonomous but not completely autonomous, that's my argument.
Leonard B. Sand: Well, to -- to the -- to the extent (Voice Overlap) --
Potter Stewart: If it were truly and completely autonomous --
Leonard B. Sand: -- through (Voice Overlap) --
Potter Stewart: -- then it should have no representation of the state legislature --
Leonard B. Sand: Yes.
Potter Stewart: -- isn't that right?
Leonard B. Sand: To -- to the --
Potter Stewart: Any more than New Jersey citizens should have any representation of the New York legislature.
Leonard B. Sand: To the extent to which the legislature will have jurisdiction over that political subdivision the -- the individual citizens residing in that subdivision have a right to have their vote counted equally with the votes of persons residing in -- in other areas of the State. And --
Potter Stewart: Well, now, you're -- we're not talking about counting a vote equally. Within each one of these districts, there's no claim that anyone of these people has not had his vote counted at the ballot box, is it?
Leonard B. Sand: With what you --
Potter Stewart: That's quite a different concept, that's Gray against Sanders and that's entirely a different concept.
Leonard B. Sand: I -- I think it is not entirely a different concept because I read Gray against Sanders to -- to imply that -- well, Gray against Sanders to hold that with respect to statewide election, there can be no districting because -- because 50 -- the 45% of the voters who vote for the -- can -- unsuccessful candidate, votes are disregarded. The state legislature is a different -- is a different body.
Potter Stewart: Representative body.
Leonard B. Sand: It is -- it is a representative body but it doesn't -- it -- it is two things. It both represents the particular areas and it has comprehensive jurisdiction over the entire state. We're not talking about election for mayor. Nobody would care then what the size of the particular city would be because the mayor would have jurisdiction over that city. To the extent under your hypothetical, Mr. Justice Stewart, to the extent to which the political subdivision was -- was subject to the jurisdiction and power of the state legislature, to that extent, as long as there is a meaningful jurisdiction in this -- in the state body over that subdivision, it seems to me that -- that there cannot be a discrimination against any -- any particular one of those subdivisions in the election of the -- of the statewide body.
Speaker: I might agree with what you pose in the New York legislature but what is there in the Constitution that would come back to that that prevents that kind of a debate going on in New York legislature?
Leonard B. Sand: Well, I -- I --
Speaker: And your theory is that that kind of a debate would be beside the point because anything other than the side of the debate that you're arguing before would be unconstitutional.
Leonard B. Sand: I -- I would say that the Equal Protection Clause would -- would make meaningless a debate over the -- the question whether the State should adopt an apportionment formula which discriminates against any group with -- within the -- within the State.
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: That --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: -- that is exactly the position, Mr. Justice Goldberg and -- and interestingly enough, the State itself apparently agrees in its reading of the Federal Constitution with the appellants that the State asserts at page 13 of the -- of the State's brief, "To be sure our democratic tradition demands that all men have an equal voice in the councils of Government" and the State repeats this. This -- its reading of the requirements of the Federal Constitution, at page 24 of its brief and it -- it states, "We share appellants' concern that all men should have an equal voice in the counsels of Government. Our democratic tradition demands no less of us, Cf. Gray v. Sanders. " This is the way the State reads the mandate of the Federal Constitution and one final reference to the State's interpretation of what the Federal Constitution requires, State asserts at -- at page 32 of its brief, "The important value is that each citizen, no matter whether he lives in the district spanning a large area or one that is relatively compact, whether he lives in a highly populous county or in a county with a small electorate, whether he lives in a thickly populated area or a thinly populated area should have equal access to the legislative process, so that the legislature maybe responsive to his needs. " I -- I emphasize that this comes from the brief of the State of New York. The State of New York construes the Federal Constitution to require that each citizen have an equal voice in the Government, but the State says, "In measuring that equal voice, we -- we don't even begin with a population basis. " The State says, "To achieve equality, we -- we create disparities. " What -- what the State says in essence is that in New York, all -- all citizens are equal but some citizens are more equal than others.
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: I -- I can --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: If -- if the consequence of not doing that is to cause the legislature to be grossly disproportionate to population, then it cannot, but it is -- it is certainly possible for the State to apportion with respect to political subdivisions and giving minimum representation to political subdivisions and -- and still have, as a net result, a legislature which is proportionate to population. I -- I would like --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: It -- it would but it could not impose a size limitation and then also impose other rules such as a one per county rule, which would -- the net effect of -- of both rules being to produce a -- a legislature which can be elected by a -- by a small minority. I -- I would like --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: I -- I --
Arthur J. Goldberg: (Inaudible)
Leonard B. Sand: Depending on the -- the total number of counties and the total size of the -- of the legislative body.
Potter Stewart: That's right and it depends on --
Leonard B. Sand: Yes, yes.
Potter Stewart: -- there are 50 States, are there not? You're arguing the case in New York.
Leonard B. Sand: Yes.
Potter Stewart: But you're asking us, I suppose to enunciate a -- some guidelines or boundaries here that would apply it in each of the 50 States, necessarily if -- because the Fourteenth Amendment applies to each of the 50 States, does it not?
Leonard B. Sand: Yes, sir.
Potter Stewart: And you see and one of the things that troubles me about your argument, as I suggested at the beginning is all these assumptions, the assumption that it was one exception every State has a bicameral legislature or does in fact now, but there's no reason to unearth that it -- I can't imagine why a State couldn't have a tricameral or an -- or --
Leonard B. Sand: Nor is there anything --
Potter Stewart: -- (Voice Overlap) --
Leonard B. Sand: -- nor is there anything which appellants have been suggesting which would -- which would preclude (Voice Overlap) --
Potter Stewart: Well, your argument is talking -- I'm talking about one house but you talk about the -- basically about both houses but let's say --
Leonard B. Sand: I -- I think --
Potter Stewart: -- a State had a dozen houses in its legislature, would it -- would six be enough to represent population or would 11 have to or would only one?
Leonard B. Sand: But I think -- I think --
Potter Stewart: Well, let's say State had only two counties in the whole State.
Leonard B. Sand: I think those are questions which would have to be resolved after there were created such a legislature.
Potter Stewart: Well, but you're asking --
Leonard B. Sand: And -- and then such a legislature would have to be measured and -- and judged in terms of the extent to which it was represented above the people. I -- if I might pursue for a moment about the significance, as we see it, of the -- of the State's position because the State or States that other criteria maybe considered only insofar as they achieve greater equality. The State does not purport to say that we can have a -- a waiting system or we can have a preferred class. The State agrees that under the Federal Constitution, each citizen must have an equal voice in the legislature and any other criteria must be justified by the State. We say then, in terms of the extent to which it -- it achieves that criteria, I -- I would like to -- to emphasize one -- one other fact with respect to the necessary scope of the Court's decision in this case. Because both houses are malapportioned and because challenge is directed to both houses and -- if the rule adopted by this Court is an acceptance of the consensus which has been reached by the lower courts that at least one house must be proportionate to population, that is all that need be decided in this case for a determination that one house must be proportionate to population, in New York, would lead to an invalidation of the apportionment of both houses. The State -- it is impossible in New York to determine which house would be selected as the body to represent population if the rule enunciated by this Court is that at least one house must -- must represent population or that there is at least a presumption that one house must be proportionate to population.
Potter Stewart: It's on the assumption that there are a total of two?
Leonard B. Sand: Dealing with the specific facts in the New York case and -- and --
Potter Stewart: We're dealing with the Fourteenth Amendment though.
Leonard B. Sand: Dealing with the Fourteenth Amendment.
Potter Stewart: It's applicable to 49 other States.
Leonard B. Sand: Yes, sir. My -- my -- the thrust of my argument at this point, Mr. Justice Stewart, is that it is unnecessary in the -- for the disposition of this case for the Court to determine whether the Fourteenth Amendment requires that the apportionment of both houses be based on population --
Potter Stewart: But --
Leonard B. Sand: -- for the State has conceded at -- at page 61 of its brief that it is impossible in New York to determine whether it would be the Senate or whether it would be the Assembly which would be the house which must be proportionate to population. There is no -- there is nothing in the structure of the State Government which would lead to a choice as to either the Senate or the Assembly, since both provisions, the apportionment provisions with respect to both houses, are contained in the State Constitution, the only way in which the legislature can choose which of its houses would be proportionate to population would be if this -- if the Court were to declare that the apportionment provisions with respect to both are invalid. Otherwise, the legislature could proceed by a statute with respect to one house but could proceed only by constitutional amendment with respect to the other house and that would -- that would take many, many years. Therefore, a conclusion reached by this Court that the consensus of the state court decisions and of the lower federal court decisions that at a minimum one house must be proportionate to population if accepted by this Court, would lead to the result that the decision below should be reversed and the decision remanded to the District Court with instructions to declare the apportionments of both the New York Senate and Assembly, violative of the Federal Constitution. With the leave of the Court, I would reserve the balance of my time.
Earl Warren: Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. This case is one of four arising from New York, Alabama, Maryland and Virginia that require the Court to rule for the first time upon the constitutionality of the apportionment of seats in a state legislature. The ultimate question to which all four of cases point is what is the meaning, in the field of legislative apportionment, of the constitutional guarantee of equal protection of the laws or to put in a little differently, by what standards, by what criteria giving meaning to the phrase "equal protection" is the constitutionality of a legislative apportionment to be judged. Neither these cases nor any other single case or group of cases can supply the complete answers to the ultimate question. We need to keep the ultimate question in mind, however, because whatever is decided here must fit a coherent analysis, as has been suggested in the argument, and must be susceptible of being reduced to generalizations that are good across the board. But at the same time, this can be made a manageable problem, I think, only by adhering to the traditional process of deciding the cases before the Court and leaving other questions that logically don't have to be decided to the future, provided they can genuinely be left open and nothing is said that necessarily determines it. In an effort to steer that kind of little course, I shall not confine myself to the present New York case, but will try to give an answer that is comprehensive enough to cover these four cases and to make a start on the problem as one might put it of implementing Baker and Carr, but I shall go no farther. There are clearly some questions that I leave to the future. We propose four general principles which I would like to state first summarily then I'm going to come back to each in an effort to clarify its meaning and indicate the reasoning that lies behind it. First, we say that the starting point and this hardly says anything, that the starting point in adjudicating the constitutionality of a legislative apportionment is the representation accorded qualified voters' per capita. I'm simply asserting a measuring stick. I'm not asserting anything about its constitutional validity or invalidity in that proposition.
Potter Stewart: In that case, I don't understand it. What --
Archibald Cox: I -- I'm simply suggesting that in order to determine whether two voters are treated alike or whether they're treated differently or whether the voters in Cayuga County are treated differently from the voters in New York County, that one must use numbers. Now, whether their Constitution requires them to be treated alike or differently, I come to in a subsequent proposition.
Potter Stewart: Numbers of voters or numbers of people.
Archibald Cox: Either one.
Potter Stewart: Because you're -- the (Inaudible) the preceding counsel talked only about population, I (Inaudible) voters.
Archibald Cox: Actually, it's -- what -- when I say voters, I mean eligible voters, citizen population which is --
Potter Stewart: Not -- not --
Archibald Cox: -- what he must be talking about.
Potter Stewart: -- not children? I'm just trying to find out what you're talking about.
Archibald Cox: Citizen -- citizen population. I'm not sure which way they define it in New York for purposes of my argument or if it makes any difference.
Potter Stewart: You think either one would be rational?
Archibald Cox: Yes.
Potter Stewart: Citizen population or registered voters?
Archibald Cox: I would think so. At -- in any event, here, we're dealing with the citizen population. Our second general proposition is that the Equal Protection Clause is violated by an apportionment that is crazy quilt because it creates substantial inequalities in per capita representation without any rhyme or reason. This principle in our view, as I'll -- when -- I can't say when I come to explain it, invalidates the Virginia and Maryland apportionments. It's unimportant on one aspect of the Alabama case. It does not apply to New York, at least in the apportionment of the seats between the counties. Our third proposition is that --
Speaker: Can I ask you a question about that?
Archibald Cox: Yes, sir.
Speaker: The crazy quilt theory presupposes the basic population standard defined as you (Inaudible).
Archibald Cox: I think not. I'm going to deal with Your Honor's problem when I come to explain each of these and I think I know what you're thinking and I'm planning to meet it head on. The third proposition, we assert, is that the Equal Protection Clause is violated by an apportionment that does have some systematic, some intelligible rule if the criteria incorporated in the rules are either one contrary to express constitutional limitations, two, invidious under our traditional standards or three, irrelevant to any permissible purpose of legislative apportionment. Specifically, I will argue that this standard forbids the singling out of some groups of voters, rural voters, labor union members, management or others for preferred treatment and the others for oppressive treatment. This is the principle, we think, which invalidates the New York apportionment as applied to the Senate. And our fourth proposition, and we think it has some relevance too in the Maryland and Alabama cases, our fourth proposition is that the Equal Protection Clause is violated by an apportionment which subordinates the principle of popular representation to the representation of political subdivisions or some other principle or objective of representation to such a degree as to create gross inequalities in per capita representation and give control of the legislature to small minorities of the people. The Maryland apportionment, we think, and two of the apportionments under discussion in the Alabama case are invalidated or invalid under that rule.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Yes, I shall. I'm going to try to define the obviously vague phrase that legitimate or permissible purposes of a legislative apportionment on the principles (Inaudible) important as something that tack all these problems into it and clearly, each of the things I've said requires a great deal of explanation or definition. May I note two specific questions that we lay aside because none of the present cases raised them? None of our four propositions espouses the view that the concept of equal protection always requires equal representation per capita. In other words, our analysis does not assert, although it is wholly consistent with the view that the Fourteenth Amendment leaves some room for sacrifice of equal representation per capita in order to achieve what I have called to have a short phrase, permissible objectives of legislative apportionment. Indeed, in order to demonstrate the consistency of that, I may seem at times to be arguing in favor of these other permissible objectives. I do it only arguendo so as to show that it's genuinely a different problem and to leave it for the future, rather than have it decided here. Similarly, though we may want to apply our generalizations to it, there's no question here as to whether a State may follow the analogy of the Federal Government and have one house apportioned by area or political subdivision or provided the other is apportioned equally per capita because none of these cases involves a legislature in which is of either house is apportioned per capita. As I said --
Potter Stewart: I still want to be sure I understand you when you talk about apportioned per capita. Are you talking about total citizen population or are you talking about total eligible voters or are you talking about total registered voters?
Archibald Cox: I'm talking --
Potter Stewart: Or you're about -- are you talking about any (Inaudible) principally?
Archibald Cox: I'm not. I'm talking about them loosely altogether.
Potter Stewart: Alternative.
Archibald Cox: I'm not distinguishing between --
Potter Stewart: Well, let's say -- let's say, the State of New York that, historically, over the years, up in St. Lawrence County, it's cold, snowy in November and -- and just historically, you can show that only 10% of the eligible voters have voted up there ever. And in Buffalo County, let's say, you can show that 60% of the eligible voters have always voted there within a percentage point or two, could New York say, "We're going to measure our legislative districts by registered voters or those who voted the last election and give six times as much per capita representation at Buffalo County as they do to St. Lawrence County?
Archibald Cox: If -- if such evidence were forthcoming, I would think, requested here, but I would think that perhaps one -- that was one of the permissible purposes of legislative apportionment. In fact, Mr. Justice, all the studies indicate that that is not true. I -- I don't about New York.
Potter Stewart: I'm not suggesting it's true about St. Lawrence Country and Buffalo County, I just invented that case.
Archibald Cox: No, no, I didn't mean -- nor did I mean to address myself specifically to that. I meant that all the information I have been able to get and I have had some, indicates that the rural voters voted larger numbers than the urban voters.
Potter Stewart: Well, that'll reverse my case, could -- could they give six times the per capita representation to St. Lawrence as they do to Buffalo County?
Archibald Cox: As I say, I would think that if such a consistent pattern were to be established, that there would be room for arguing that that would be --
Potter Stewart: It's kind of socially desirable to encourage people to vote and the more voters you got, the more representation you get?
Archibald Cox: I would think that this was a way of getting the number of representatives proportionate to the number of people whose interest were to be represented, but we don't have any such a case. I think that the answer either way is consistent with anything I'm saying. It violates (Inaudible).
Potter Stewart: I suggest -- it seems to me that if you have six times the per capita representation in one districts that that you do on the other, it's inconsistent with what you're saying.
Archibald Cox: No, because -- alright, I submit not, Your Honor.
Potter Stewart: Well, then, you better change per capita to some other phrase because per capita means per person, per head.
Archibald Cox: But I haven't yet asserted that you may not have six times the representation in one district per capita that you have in other.
Potter Stewart: I misunderstood you.
Archibald Cox: I -- I have to --
Speaker: (Inaudible)
Archibald Cox: Indeed, this is --
Potter Stewart: Four propositions-wise that you had to have -- that you began with the assumption of rough equality per capita.
Archibald Cox: No, all -- no, I literally meant. There's nothing cut two-way in my first proposition. I simply mean to say and perhaps, it's so simple that I should've left it out, sometimes I think I should. I simply mean to say that since the Fourteenth Amendment guarantees that individual people or groups of people shall be treated equally, unless there is something to explain the differentiation that the way you would determine the first part of that is by per capita representation. Then you go on to the unless part, is there some justification for this differentiation and there may be a lot of them. That's what I try to take up in the next three propositions of what and I do it by stating not what differentiations are permissible but which ones are forbidden, so as to leave the rest to the universe undecided, but I think my standards are susceptible of general application.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Might -- might I postpone -- I'm -- I'm going to deal with --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: -- that. Might I postpone, I am going to dealing with that, might I just postpone in dealing with that for just a moment. I'd -- I'd -- I think that if I can do it with my slow way, which it maybe a little bit clearer.
Potter Stewart: A little too fast for me here. [Luaghter]
Archibald Cox: Well, I -- I don't think that -- be flipped, as I say it, I think my first proposition perhaps, could be skipped entirely and since we've only gone through it, you won't be left behind. Our second proposition and the one with which we do come to define when differentiation is impermissible, is that an apportionment that results in substantial inequalities in per capita representation, without rhyme or reason, violates the Equal Protection Clause of the Fourteenth Amendment. Now that I think, is nothing more than a -- than an application of the long established and familiar principle that Equal Protection Clause precludes irrational discrimination as between persons or groups of persons, the application of the law and as the Court said in Baker and Carr, it's long been open to courts to invalidate discriminations that are based on no policy. That's the only kind of case, Mr. Justice Stewart, that I'm addressing myself to now. By each of these propositions, it's really quite limited by a crazy quilt or substantial inequalities with neither rhyme nor reason, I apparently mean something different than a number of the appellants or appellees in these cases. If a State has one senator for each county, as proposed in Alabama's 67th senator amendment or one representative from each town and the lower houses in Vermont, there are gross inequalities in the per capita representation, but as I use the words, those could not be called a crazy quilt. They do lend themselves to some intelligible reason. Similarly, New York's apportionment of the assemblymen here is based upon a combination of two coherent policies. One, that each county should be represented, the other, that the rest should be distributed according to population. In the Senate, too, there is a rule. We think it's more discriminatory as well as more complicated, but it cannot, the apportionment of senators among counties, cannot under our sense of the term, be attacked as a crazy quilt. What do we mean by a crazy quilt? The best example of an apportionment, lacking any intelligible foundation, is, of course, Baker and Carr. Among the cases here, the prize example is the apportionment, in effect, in Alabama at the time the Alabama case was instituted because there, the seats were apportioned according to a rule like New York's in the 1901. During the ensuing 60 years, there were tremendous changes in population and one finds today inequalities in per capita representation that no one attempts to explain, much less to justify. You find counties -- the smaller county having three senators and the bigger county having two and this sort of differentiation all over the State. The Virginia case, we submit --
Potter Stewart: But the case you've just talked about was New York, no?
Archibald Cox: No, Alabama.
Potter Stewart: Alabama.
Archibald Cox: The apportionment in effect in Alabama when the suit was started.
Potter Stewart: None --
Archibald Cox: The Virginia --
Potter Stewart: -- in New York, just so I can be clear.
Archibald Cox: New York has a --
Potter Stewart: There has --
Archibald Cox: -- (Voice Overlap) --
Potter Stewart: -- been a periodic -- a periodic reapportionment --
Archibald Cox: Oh, yes.
Potter Stewart: -- under the Constitution every 10 years, does it not?
Archibald Cox: That's right. That's --
Potter Stewart: There's going to be another one under the present Constitution --
Archibald Cox: Correct, correct.
Potter Stewart: -- by 1966?
Archibald Cox: But I'm not arguing that it's condemned by the crazy quilt rule. We do say that Alabama is, we say that the Virginia case is condemned by the crazy quilt rule, but it does raise another question or another problem in the application of the crazy quilt rule to with who has the burden of proof and I want to advert to that for just a moment. The Virginia Senate is apportioned pretty much according to population, although the State Constitution doesn't supply any rule. Arlington, however, has only one senator instead of the two to which people would be entitled under per capita apportionment. Fairfax and Norfolk have only two for the three to which they would be entitled. And in the House of Delegates, there is even worst discrimination measured by per capita equality against those counties. So far as we could see, there's no explanation for this. No -- none of the normal basis of apportionment apply to it, none other that we can deserve. Virginia came in and we would say at that State that the plaintiffs had carried their burden unless the defendants came in and showed some reason, some explanation for the apportionment. The Court --
Potter Stewart: Under your theory, would this have to be a -- an explanation of the -- of just any conceivable rational recent reason?
Archibald Cox: So far as the rule --
Potter Stewart: Or it has to be a -- had to be proved of what actually motivated the -- the apportionment?
Archibald Cox: No, I think you can think of it after the event, just as -- to answer you more completely, all I'm saying now is that if they come in with a reason, and I think it's up to them to come in with the extraordinary reason, that you're not required to make your case to disprove every possible explanation however fantastic. The courts never required that even in economic cases. If they do come in and I think they can come in --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: I should suppose -- I should suppose that if that's a good reason and all I said was this -- that it might be a good reason, we didn't have the case, if they could come in and show that and it would fit the facts, then they would be entitled to have that policy considered, yes. Just as Virginia comes in here and says, "Why, our policy is to discriminate in representation against members of the armed forces and their families, we don't think they're worthy of being counted when you're apportioning a seat. " I doubt very much whether that was in the Virginia legislature's mind but I suppose if they can show that it fits the fact, we can't psychoanalyze the legislature and find out whether it had it mind or not. What we will seek to show when we come to that case, is that it doesn't fit the facts and it wouldn't fit the facts, Mr. Justice, in your assumption about the New York rural counties because I've had a checkmate. So rough, it's a sample check and I believe that it indicates that.
Speaker: You said it was impressible even the (Inaudible) urban -- urban-rural.
Archibald Cox: Oh, but he was talking about the number of people who voted, not the urban-rural. I would say urban-rural was impermissible.
Speaker: But I'm -- it -- it -- that's impermissible.
Archibald Cox: That's impermissible. I've counted our gifts, just --
Potter Stewart: For one --
Archibald Cox: -- one breath more and I will be to the determination of what's permissible and impermissible. The Maryland case really introduces that problem. The Maryland apportionment, it seems to us, to be a crazy quilt because there, the State has given less representation per capita to the people of three suburban counties than it gives to the people of Baltimore City, the urban center, or to the rural counties and we -- we say that there's, on the face of it, no justification for that. Now, the state authorities come in and say, "Oh, yes, there is a justification. " They say that Baltimore is a port city with shipping interest. It's got a steel-making industry, iron, steel working industries and it's a financial center. And we think that the financial center and the shipping industry and the steel industry and the people in connection with them are more important and so are the farmers more important than the people that live in the rural suburbs and therefore, we are going to give each of them greater representation. Now, obviously, our case is not complete unless we go ahead and apply something in addition to the crazy quilt test. To answer them, we have to show that this basis of differentiation is not permissible. Indeed, and I come -- I have to direct myself to that and I will in just a moment, but I want to go just a step further. Indeed, the crazy quilt test of necessity requires some other test to go with it, I think, either by implication or explicitly because if there is no limit to the things that a State can take into account in apportioning seats in the legislature, if it may prefer farmers over storekeepers, bankers over wage earners, port cities over manufacturing establishment, cities with a population, say, between 20,000 to 35,000, over bigger cities or littler towns and so forth and if the rationalization can be supplied after the event, then I suppose anyone with sufficient time and sufficient imagination could supply some rule that would explain the crazy quilt.
Potter Stewart: What bothers me, Mr. Solicitor General, is in -- it's bothered me all morning. You say, if a State can do this, if a State can give more heavier representational weight to a seaport than to other places and so on, well, now, isn't it conceivable that perhaps one State in the particular context of the social, economic and political conditions of that State might and another State might not be able to constitutionally -- I mean, what is North Dakota got in common with New York, what does New Mexico have in common with Maine, I don't know the answer --
Archibald Cox: I'm --
Potter Stewart: -- I would suggest this Court may not know the answer and that you may not know the answer with -- of all the local problems in these various States.
Archibald Cox: That's quite true, but all I was attempting to say, Mr. Justice, is that the crazy quilt rule won't supply a complete answer to the cases unless there are some limits on what interest the State may prefer over other interest. Now, it's perfectly free so far as anything I've yet said goes to say, well, that's the trouble with the crazy quilt test. That's what Mr. Justice Harlan said, the same thing in Baker and Carr and all I was saying, I -- I don't think there's any disagreement between us at this point. I'm afraid my mind is operating too slowly but I think the foundation is important. I -- the next thing I have to go on and do, as you suggest, is to deal with the problem, may Maryland -- may Maryland, quite apart from the other States, may Maryland prefer the shipping interest over the banking interest, the labor unions over management or the reverse in manner's representation? Does the Constitution permit it? It's the critical question, isn't it? And it's that question --
Potter Stewart: Well, I suggest that some States, Maryland is one, Virginia is another, New Jersey is another, have large areas which are dormitory counties whose population, most of whose social, economic, occupational life is -- lived in another jurisdiction, other States don't have such counties at all. I don't know about the -- about Iowa but I would presume it doesn't have much of the -- in that way of counties and that various of -- of -- quite different factors might be applicable in the -- in the differing States in that you -- you can't just say in the vacuum, in the air, may a State do this? We have to -- we have to tie it down to the particular facts in a particular State.
Archibald Cox: Well, I -- I was attempting to direct myself to the point that you emphasized earlier and that was that we have to have some general rules here and that we couldn't direct ourselves just to the particular case. Now, let me --
Potter Stewart: I didn't say we had to have them, I didn't say we had to have them. I suggested that they may not be possible to -- to formulate.
Archibald Cox: Perhaps so. Let me -- let me come to my third proposition, let's see if we can, in addition to the crazy quilt rule, formulate some others that will answer the problem that I used Maryland to epitomize. Our third proposition is that the Equal Protection Clause is violated by discriminatory apportionment, and I simply mean per capita differentiation, based upon criteria that are contrary to express constitutional limitations or otherwise invidious or irrelevant to any permissible purpose of legislative apportionment. I have addressed myself to each of those three, taking to -- beginning with the easiest case. Certainly, an apportionment based upon the number of white voters or white citizens in a district or the number of women or the number of men would violate the Equal Protection Clause because it's contrary to the express policy of the Fifteenth and Eighteenth Amendments. Similarly, I should suppose it was clear that equal protection bars differentiation and per capita representation.
Potter Stewart: Why does your -- in here, your enemy, I don't see why necessarily measuring your per capita test by the number of men would be -- would violate the Constitution at all --
Archibald Cox: I think that the --
Potter Stewart: -- if it were shown that the number of men and the number of women were roughly equal, 50% to each.
Archibald Cox: Well, then, it doesn't match. Then there would be no inequality. You would apply my first judge stick, you would find there was no inequality and that would be the end of it.
Potter Stewart: And so it wouldn't violate the Constitution.
Archibald Cox: As -- no, I'm assuming when I refer to women that there is, for some reason, made big difference between the counties, the number of women in one county relatively and the number in another. In that event, I would think that it violated the postulate of the Eighteenth Amendment which is that when it comes to voting, that men and women are to be treated equally. And I would think that was a postulate that carried over from voting to waiting their votes and counting for -- electing a governor to apportioning representatives. I suggest that invidious discriminations were forbidden by the Equal Protection Clause. An apportionment that was based on population, for example, but excluded Roman Catholics or persons of Italian descent or second generation immigrants would seem to me plainly to violate the Fourteenth Amendment as introducing a differentiation between people or groups of people that is quite contrary to our traditional heritage of equality in matters of voting. Again, it would seem to me that purely whimsical criteria will not furnish a rational basis for differentiation. For example, if a State were to apportion to each county the number of senators that there were letters in the name of the State would, I think, violate the Fourteenth Amendment.
Potter Stewart: Well, any of the counties get the same number.
Archibald Cox: What?
Potter Stewart: Every county will get the same -- I don't understand it.
Archibald Cox: Oh, I'm -- I'm sorry, I misspoke myself, in the name of the county. A long named county would get a lot, a short named county would get a few. Excuse me, I -- it was simply a slip of the tongue or suppose that the State gave people who lived in the western counties twice the representatives per capita of those in the east because they lived nearer the setting sun. I take it that that would be a differentiation forbidden by the Fourteenth Amendment.
Arthur J. Goldberg: Suppose that --
Archibald Cox: Now --
Arthur J. Goldberg: -- suppose that (Inaudible)
Archibald Cox: No, I would say that -- I would exclude that and I -- these extreme examples I put only because they seem to me to suggest one seeks to generalize from them and it seems to me that the reason they are impermissible is that they are not relevant to any proper purpose of legislative apportionment. In the Maryland case, for example, we say that an apportionment which discriminates against the bedroom towns, as Mr. Justice Stewart called them, in favor of the cities or in favor of the rural areas is an impermissible apportionment. In New York, we say that a discrimination in the Senate against the people who live in counties having more than 6% of State's population, in favor of those who live in any county having less, is based on an impermissible step.
Arthur J. Goldberg: Why?
Archibald Cox: Yes, well, I'd -- and I'd say that they're just as impermissible as discriminating or betraying naturalized citizens, other citizens, Roman Catholics or Protestants and the like.
Arthur J. Goldberg: And the State would probably deliberate (Inaudible)
Archibald Cox: I think it may do that in some -- by some means and not others. In other words, Mr. Justice, I fully recognize that in enacting tax laws and regulatory laws, granting appropriations or other benefits that a State may encourage one industry or discourage another or protect the wage earner or the management and so forth.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: No, I'd -- I've -- I would -- I'd exclude that. I would say that it's -- and coming again quite slowly, that there's nothing novel in my suggestion, the basis of classification that will do in one area of state action maybe impermissible in another. For example -- let me come back to your case.
Arthur J. Goldberg: If I may reference a moment for (Inaudible)? If the -- if the State of Virginia did all these things (Inaudible) districts can only be done (Inaudible) objection?
Archibald Cox: That -- that's what I'm trying to address myself to. I want, first, if I may, to come to Your Honor's question about encouraging movement to the west. I replied that a State could not give them more representatives in order to encourage people to move out there. Also it's quite clear that tax advantages and regulatory laws might be directed in that direction. Now, if I may, before I come to defy, may I simply suggest that there's nothing novel in the suggestion that discriminations that are permissible in one context maybe impermissible in another. I suppose, for example, that if a State wished to encourage people to go into the steel industry that the various tax benefits and other things might do, but I don't think it would be a permissible way to encourage them to say that no one outside the steel industry may have trial by jury, that only those in the steel industry may have trial by a jury. Nor do I think if the aim is to encourage the farming regions that a State should say or could constitutionally say, "We won't supply education to farmers' children because then they must stay on the land but we will supply an education to bankers' children," and there are other cases which suggest that there is room for differences of this kind. In the matters of apportionment, I suggest that the critical difference is between rules which serve the purpose of making representative government work better, the operation of which may have collateral consequence of creating discriminations per capita and rules whose only function is to create classes of voters with preferred political rights, disproportionate to their number, which we say is impermissible. Now, let me explain first what I mean by making the legislature more representative and then go to the question, where do I find the rule that prohibits creating the preferred classes of voters, just to give one more political right than the other?
Speaker: I think there's also another question to address yourself to is to whether the Equal Protection Clause of the Fourteenth Amendment has anything to do whatever with apportionment, as distinguished from the racial discrimination cases of exercising civil rights?
Archibald Cox: Well, I will -- I will try to -- by making representative government work better, the kind of thing to which I suggest maybe a permissible purpose of apportionment. I have it in mind that a legislature is not simply a mirror to public opinion like a (Inaudible). It's a deliberative body and deliberation requires knowledge. For that reason, it would seem to me that it might be thought desirable to take steps to ensure that the representatives in one house of the legislature came from geographical districts small enough, so that the -- there would be no part of the State which didn't have someone there who knew its people and their needs and the individual conditions in the individual locality. An admirable example, I think certainly in the past, would've been Martha's Vineyard and Nantucket Gulf in Massachusetts Coast where their problems where distinct and they're ought to be -- could be thought there'd be -- ought to be somebody in the legislature to know that. I've told the Red Lake area in Minnesota way up in the northern part of the State is another, separate in area of this kind. Again, geographically, small districts might be sought to enable people to know their representative better and him to know all the people in the district. It might be thought that a legislature was better informed and more representative if it -- it this Government recognized -- the apportionment recognized the political subdivisions that have a historic coherence and identity of their own. Indeed, anyone who's participated in town or county government knows that the town hall or the county courthouse is in a sense, say, nerve center for political organism and that it is more in tune with the all the county, all the people in the county than the sheer numbers might indicate. Again, I suppose a measure of continuity or stability or maybe thought a desirable purpose in the workings of the legislature or it might be thought desirable to minimize the number of political organizations that had to be created for representative districts so as to have effective organization. This is what I mean by the permissible purposes.
Earl Warren: We'll recess now.