Earl Warren: Davis, Secretary, State Board of Elections et al., versus. Harrison Mann. Mr. McIlwaine, you may continue your argument.
Robert D. McIlwaine, III: Thank you Mr. Chief Justice, may it please the Court. Under the principles formulated in the brief and advocated at the bar of this Court, the Solicitor General undertakes to condemn the Virginia reapportionment system as violative of the second postulate he lays down in that the Virginia system allegedly departs from the per capita standard without rhyme or reason. Counsel for the Commonwealth deny that the Virginia system may be criticized upon this ground but we believe it is clear from the evidence in this case that the relatively minor departures which exist in the Virginia system are occasioned by a legislative attempt to assure a proper diffusion of political initiative as between thinly populated areas of the state and those having concentrated masses in conformity with the law laid down by this Court in MacDougall and recently reapproved in -- reaffirmed in Baker against Carr. As we attempted to point out last Thursday, the MacDougall principles were stated by this Court in Baker to constitute several princ -- precedents and to constitute below of the case. As we understand it, advancement of this reason effectively removes us from the -- without rhyme or reason category of the Solicitor General but presumably impales us upon the opposite form of the dilemma erected by his third postulate that is that the reason advanced does not constitute a permissible purpose of state legislative apportionment. As we understand it, the Solicitor General likened operation of these two principles to the opposing action of a pair of shears, either we do not have a reason or if we do have a reason, it is a legally impermissible one. In response to this, we assert that the assurance of a proper diffusion of political initiative between thinly populated areas and those having concentrated masses is as a matter of law, a permissible purpose of state apportionment, one expressly sanctioned by this Court in MacDougall. Such differ -- since which occur as a result of the diffusion effectively causes the minority or thinly populated areas of the state to be represented in the counsels of Government to prevent such areas from being completely overridden by the sheer weight of numbers while still living to the areas having concentrated masses, the practical opportunity for asserting their weight at the polls which is not available to the thinly populated areas. Two aspects of the presentation of the case at bar stand out in connection with this reason. The first is, we believe that in none of his briefs which he has filed in the various reapportionment cases now under consideration, has the Solicitor General attempted to meet the argument predicated upon MacDougall. In his brief in the New York case, he brushes the MacDougall principle aside as a generality. In his compendious brief in the Maryland case, he asserts that MacDougall, despite its citation by various members of this Court in Baker has no application to state reapportionment cases. And in his brief filed in the case at bar, the Solicitor General does not make any reference to the MacDougall case or even cite it in his brief. And this absence of any reference or citation is highlighted we believe by the fact that in our brief, we advanced the MacDougall principle as being foremost among the principles which are applicable to cases of this character. The second aspect we believe is that in reliance upon -- in defense of his position, the Solicitor General relies upon the dissenting opinion of Mr. Justice Black and Mr. Justice Douglas in the MacDougall case. We therefore think it is unarguably clear that acceptance of the views of the Solicitor General necessarily entails a flat rejection of the MacDougall principle and overruling of the holding of that case and the elevation of the minority view to the position of the majority view. The Solicitor General's arguments, we feel cannot be countenance under the existing law as to what may be deemed a proper diffusion of political power between thinly populated and heavily populated areas, counsel for the Commonwealth lack the ability to state dispositively where the outer limits of propriety lie in this field or to articulate the criteria by which these outer limits shall be ascertained. Fortunately, we feel that in the case at bar is it -- it is not necessary for us to do so. We take this position only that where a state has so structured its legislature as to achieve a balance, an almost perfect balance between the representation of thinly populated and heavily populated areas, has achieved this balance without giving rise to any population-variance ratio which exceeds that of the Electoral College of the United States and has achieved this balance in a method which causes its state to rank eighth in fairness of representation based solely on population in the United States that such a reapportionment as this clearly constitutes a proper diffusion as to what more or what less may also constitute a proper diffusion, we need not say. We do point out however that the reapportionment systems of at least nine states which could not possibly pass most under the rigorous standard that I had just laid down have already been approved in Federal District Courts and in the Supreme Courts of the various states, the States of Florida, Georgia, Idaho, Illinois, Louisiana, Maryland, New Jersey, New York, and Ohio. In these states, the population-variance ratios range from 8-to-1 to 62-to-1 and all of these states are beneath Virginia on the index of representativeness or fairness of representation computed solely on the basis of per capita principles. We therefore submit that if the Virginia reapportionment system is annulled, it necessarily follows that the reapportionment systems of these nine states which rank less fair than Virginia must also be annulled as well are the -- as well as the reapportionment systems of the other 33 states which also have reapportionment systems which are not as fair on a per capita basis as Virginia's. We also state that if the Virginia apportionment system is annulled and those are the other nine states is approved, is it not incontestably true that the decisions of the federal courts in these cases will themselves become a topsy-turvical of gigantic proportions and will not these opinions form a pattern or a crazy quilt without rational basis laid down by the judiciary rather than by the legislature. We have one other suggestion in connection with our observations and that is that if the principles advocated by the Solicitor General are so fundamental and pervasive as he suggested they are, is it not more than passing strange that Judges Waterman, Levet and Ryan of New York, Judge Weick, Weinmann and Peck of Ohio, Judges Wisdom, West and Ellis of Louisiana, Judge Schnackenberg and Campbell of Illinois, the entire Supreme Court of the State of Idaho and Judges Jones, McCree and Dyer of Florida did not only fail to apply these principles but did not even recognize their existence. With respect to the two technical points, we would like to stress that if the military related population may effectively be removed or excluded in determining the inhabitants of a particular area for the purposes of representation then even under the figures advocated by the Solicitor General, all foundation for any claim by the City of Norfolk that it has been discriminated against by the challenged statutes disappears. For under those figure, Norfolk is only slightly underrepresented in the Senate and is indeed actually overrepresented in the House of Delegates of Virginia. We should like to call the Court's attention to what we believe to be fundamental deficiencies in the majority opinion, in that at no point in the majority opinion of the court below, is any reference made to any evidence whatever put in by the defendants in defense of the Virginia reapportionment system. Your Honors have seen the record in this case, the latter half of which -- is in -- involves the 11 exhibits which we introduced in support of the Virginia reapportionment system.
Speaker: (Inaudible)
Robert D. McIlwaine, III: If Your Honor please, the exclusion of the military personnel in those cases substantially reduces the population-variance ratios but they would be as is also true of a number of other Metropolitan areas, underrepresented on a straight per capita basis, viewed only from the per capita basis but the removal of the military personnel from Norfolk would leave Norfolk not even underrepresented on a straight per capita basis. I should like to conclude, if I may, the opening argument on behalf of the Commonwealth by alluding to two observations of the Solicitor General in which we very definitely concur. The first of this is on page 45 of his compendious brief in the Maryland case which we have cited on page 21 of our reply brief. In this connection, the Solicitor General uses a following language, "The Court is not to exercise the legislative function of choosing between alternatives. Still greater deference may be due the people of a state when exercising the sovereign function of shaping their own governmental institutions. The postulates of federalism also argue that in this area, the national judiciary must take care to allow full scope for local self-government." We could not agree more but we suspect that the Solicitor General, despite these words attempts to leave Virginia very little room for local self-government. In his brief in this particular case, the Attorney General has -- the Solicitor General has commented upon the results of the Virginia system in the following language which we have set out on page 22 of our reply brief. In this connection, he says, "The evidence also show that measured simply by the percentage of population required to elect a majority in each house of the legislature, Virginia ranks well up on the list of well-apportioned states," and so Virginia does if Your Honors please and so Virginia does. With the permission of the Chief Justice, counsel for the Commonwealth will retain the balance of their allotted time for rebuttal.
Earl Warren: You may Mr. McIlwaine.
Byron R. White: (Inaudible) questions -- I gather you -- you indicate that -- that is proper to diffuse political power into the thinly populated districts, to prevent them from being entirely overridden by the more heavily populated districts. And at the same time, you seem to indicate that the heavily populated districts retain the ability to take care of themselves, how does that work?
Robert D. McIlwaine, III: To me, the chief example Mr. Justice White is in the election of the chief executive magistrate of the state that is the government. The majority can elect the governor on a statewide basis under the one-man one-vote rule which is always obtained in -- in Virginia that being no way that (Voice Overlap) --
Byron R. White: Well, they're 40% in the -- 40% in the thiny -- thinly populated districts but you give them 60% of the votes so they could control the legislature. The 60% of the population that has 40% in the legislature can take care of themselves for the governor, this is your --
Robert D. McIlwaine, III: Yes Your Honor. Especially is this true in a state where the governor has great weight in the legislative process as making reports to the general assembly as is required by our Constitution as in recommending a legislative program, as in preparing the budget, exercising the veto in our state so far as the Appropriations Act is concerned, it is an item veto which is vested in the -- in the governor under --
Byron R. White: What does it take to override a veto in Virginia?
Robert D. McIlwaine, III: Two-thirds of -- that both House is present Your Honor, the two-thirds both having necessarily to constitute a majority of all votes, of the full membership. Consequently --
Byron R. White: But the -- so you -- your proposition really is that the -- the state may decide -- divest legislative control in a -- in a minority portion of the population?
Robert D. McIlwaine, III: Yes, Your Honor, to keep the majority from controlling both the executive and the legislative branch. And we say that if the majority is a large -- if the minority control requires a large minority to control then what you have is a check of the minority and not a tyranny of the minority which would arise at 10%, it can override 90%.
Byron R. White: Is this actually the way your legislature operates also that this large minority does control, I mean are there really bona fide issues in your legislature between a -- between a so-called majority and the minority or this is just on paper?
Robert D. McIlwaine, III: They are definitely bona fide issue between the majority view and the minority view in Virginia. Of course so far as --
Byron R. White: Is this between the -- the heavily populated and the thinly populated district?
Robert D. McIlwaine, III: Yes Your Honor, very definitely.
Byron R. White: Is there concurring issues?
Robert D. McIlwaine, III: Yes sir, but what -- we do not suggest that they naturally or inevitably fall in every case along a 60 or 40% basis? These -- these are theoretical figures as to whether or not --
Byron R. White: Well, if this is -- if -- if it's an actuality, that there are issues between the majority and the minority and this is the way they vote and the minority controls the legislature and the majority, the governor, how in fact this have the -- the heavily populated districts taking care of themselves? I mean you should have some history now, you say they -- they really aren't badly open to this system, the -- the -- they take care of themselves through their large share of both Houses plus the help from the -- from the chief executive, have they --
Robert D. McIlwaine, III: We -- we feel Your Honor that they very -- definitely have in view of the policy which is being adopted by our chief executive in this particular area and in the past governor's -- during his tenure of office in attempting to aid the heavily populated areas of the state by program -- vast programs of industrialization and by the creation of departments designed particularly to deal with urban problems. These has come into being in the tenure of the last two governors as an indication of the importance which must now be placed upon urban problems in the State of Virginia.
Earl Warren: Mr. Campbell.
Edmund D. Campbell: Mr. Chief Justice and may it please the Court. This complaint of Virginia citizens against invidious discrimination now before this Court is -- is not a new one for the state. Thomas Jefferson in 1781, in his notes on Virginia, federally complained about the apportionment of the legislature. Even at that time he said, "The County of Warwick with only 100 fighting men has an equal representation with the County of Lawton which has 1746." And then he said, "It will appear that 19,000 men living below the falls of the river that is in Tidewater possessed eighth of the Senate and want four members only of possessing the majority of the House of Delegates." This 19,000 therefore, living in one part of the country give a lot of up rates of 30,000 living in another. Mr. Jefferson didn't like malapportionment. He didn't also -- he also did not like the exclusion of fighting men. If I may, if the Court please, I would like to -- at this point to rush in where the Solicitor General has -- has feared to thread. I would like to ask this Court to accept four propositions which I believe will be of great assistance to the District Courts in solving this -- not a problem, this political thicket that -- it does now exist and which I believe this Court might properly accept. The first preposition is one which I believe the Court has already accepted and that is that a citizen's right to be protected from arbitrary or capricious debasement of his votes, a vote is one which is secured by the Equal Protection Clause of the Fourteenth Amendment whether it's implicit or explicit in Baker or -- and in Gray against Sanders, I -- I believe it is a -- a ruling of the Court. The second proposition that I wish to -- to make and this one --
William J. Brennan, Jr.: (Inaudible)
Edmund D. Campbell: It -- it is -- it is obviously explicit Mister -- Mr. Justice Brennan, I was -- the Equal Protection Clause, I -- I assert and this is a -- this will be a -- a definite statement that I ask this Court to take that the Equal Protection means the equal weighting of votes in legislative representation unless modified by a valid legislative classification. That is that we must start with the proposition which Mr. Jefferson again stated in a letter to General William King, the first Governor of Maine in 1819 on the occasion of the admission of Maine to the union, that equal representation is so fundamental a principle in a two republic that no prejudice can justify its violation because it prejudices themselves cannot be justified. I -- I would ask the Court to -- to adopt the principle set forth in this magnificent classic brief of Mr. John McConnell filed in Alabama on a subject of the fundamental principle of equal representation in a republic. It is -- it's an outstanding document, I never saw it and never met Mr. McConnell until we came to this -- this Court but it is -- is well worth the -- the careful consideration of the Court. In a principal here that in a democracy, affirmative government must be government by all majority, that the minority is protected by the -- by the Bill of Rights and by such other restrictions as the Court may impose but that if you haven't and this is in response to Mr. Justice White's question of the other day, if you have a choice between tyranny by a majority and tyranny by a minority, we must always take tyranny by a majority because the minority has in its power at any moment the power to overthrow the majority and become itself a majority, and if the protections of the minority are protections not in the range of affirmative government. We should not give minorities in either House affirmative government. We should give them the protections -- restrictions against abuse by a majority. I -- I submit that that is a -- a -- a fundamental principle that if -- that fundamentally, government must function and that government may properly function only by a majority vote.
Potter Stewart: The government in any state is more than its legislative assembly and what if a state is through the historical working out of an equilibrium of political forces in the various aspects of its government has worked out a system where there's no possibility of tyranny by anybody, isn't that a -- isn't that preferable, the tyranny by a majority or a minority?
Edmund D. Campbell: Certainly Mr. Justice Stewart. But I think that if you give for example the voters in one House of a bicameral legislature, give the minority what -- regardless of what minority it may be, the right to exercise affirmative government by classifying it other than on the basis of population, you have destroyed to that extent the republic and I'll give your -- give Your Honor a specific example. If we prefer the thinly populated areas as Mr. McIlwaine has suggested that Virginia has done but which I will show to Your Honors it has not done. If we prefer the thinly populated areas, we are giving a preference to voters in a pastoral community one way, one reason or another. We are -- if we prefer -- if we make a property qualification, we are giving a -- an -- additional, I mean a -- a separate kind of classification whatever kind of minority you choose for this -- of a House if it be -- if one House be on population and the other one be on some other basis. What other -- whatever kind of minority you choose, you are choosing it on the basis of sex, on the basis of property, on the basis of wealth, on the basis of occupation, on the basis of residents, on the basis of place of business or some other kind of -- of -- of basis. But whatever basis that is, it -- it gives to minority a special class of minority and affirmative government right in its minority should not have, I submit that affirmative government right but only a check upon the majority. Now, if I am correct in that principle and -- and I submit that this is fundamental in a republic and Mr. Jefferson again said it was fundamental in a republic and to the extent that a government departed from it in any frame -- in any phase of its -- of its operations to that extent, it is no longer a true republic and my colleague Mr. Howell has cited that in his brief. The third proposition is that the right of undiluted political franchise is a transcendent right using a footnote, they were the language in a footnote in Gray against Sanders somewhat akin to the right of free speech.Somewhat akin to the right of citizen to be secure against physical mutilation as in the Skinner against Oklahoma case. And if we once proved or if -- if there is a substantial variation from equality in population then the burden, contrary to the usual situation in classifications then the burden shifts upon the state to show a rational basis for that classification. I -- I urge this Court to adopt that -- that proposition that the right of political franchise is a -- in a sense a transcendent right closely akin to the right of free speech and that if we depart from equality of population and representation then the burden is upon those who assert the rationality of it to give a rational basis and the reason for that Your Honors is this. They are -- they are cases as Your Honors know coming from all parts of the country on this proposition. The minimum standards which this Court lays down for reapportionment are up to be the maximum standards followed by the states who are requested or required to make reapportionment. It is -- it is of the utmost importance that -- that this Court lay down a standard and I trust it would of equal population with a burden upon this state to show a rational basis for a departure. Judge Bryan in his masterful opinion in the District Court said, "Plaintiffs have proved the inequity of the allotment of representatives on the basis of population. They are upon the burden to adduce evidence of the presence of other factors which might explain this disproportion passed to the defendants. I -- I submit that is a -- that is an appropriate position for the Court to take. And lastly, the fourth proposition I ask this Court to accept is that a legislative classification must be rational. If there be any classification against the -- the equal population factor, it must be rational, it must be based on -- it must not be designed to favor any group of persons by a reason of their residence, their occupation, their color, their sex, their wealth or their place of employment. That would -- that would do away the classifications of farmers against city dwellers. It would do away the -- of the classification of people in the -- in industry or people who are not in industry or people in professions who are not in professions or classifications based on civilian against military or classifications based on large geographical areas or smaller geographical areas because area -- acres don't vote, it's on the persons that vote. Or classifications that are based purely on governmental units as such and the reason for this is that governmental units within a state have no sovereignty but are purely preachers of the state. The -- particularly is that true in the state of Virginia where the counties and the cities are purely preachers of the legislature and where the legislature of Virginia can do as it did to Arlington when Arlington stated that it would comply with the rulings of this Court in Brown against Board of Education and desegregated schools, the legislature within 30 days took away the Elective School Board that Arlington was very proud of and -- and required that School Board to be appointed by other means. It -- it is a -- it's a great importance to -- to any community in a state such as Virginia. Now within this framework, as Judge Bryan again said and I -- I suggest that this might a -- a proper holding for this Court that the state may consider compactness and conti -- contiguity of territory, community of interest of the people, observance of natural lines and conformity to historic provisions such as county lines. There again though the burden is on the state when Judge Bryan said, "Additionally, of course we must accept this to establish such reasons for the redistricting as a fairly conceivable or impairable from the result. If the Court would accept -- would adopt those standards, it could give to the District Courts a basis on which they could proceed to what themselves out of this political thicket and by which this Court could then proceed to hear cases when necessary on the merits on a basis of acceptance to the -- to the general principles. This, I take it would also -- if -- if the Court should accept this, it would also take care of Mr. Mays' argument which he made to this Court on the doctrine of abstention. If a -- if the right to vote is a transcendent vote, it is or in any event it is protected under the Civil Rights Act and should -- and Mr. Mays' argument I -- I trust should be disposed of by the recent decision of this Court in McNeese against the Board of Education just a few months ago. Here in Virginia, there are no strands of local law woven into this case which could possibly move to federal question. There's no question, for instance, of the boundary between Alexandria and Arlington or the boundaries between one community and another which might be a matter of state law. The issue is purely one of Equal Protection under the Federal Constitution and the fact that these plaintiffs may or may not have a remedy in a state court under McNeese is completely immaterial. Mr. Mays suggested and sought to distinguish between the voting right cases or distinguish these voting right cases from the segregation cases by saying that in segregation cases involved only plucking out an individual child and not the state governments as such whereas the voting right cases interfere with state governments. Mr. Mays has forgotten, (Inaudible) has forgotten, Jackson, he has forgotten, Cooper against Aaron, he has forgotten the -- the -- he -- he does not know what he says when he says that because the voting right cases I suggest to Your Honors, do not involve great social customs. It involves a -- a -- decision in the voting right case, this involves only a single surgical operation if you please, because once this legislature is correctly apportioned, once the matter is taken cared of by the judiciary or by the legislature as I hope the legislatures would in most instances take care of it, the people themselves are grateful and I suggest to Your Honors that the effect of reapportionment in state cases -- in state legislatures will be not to take away state rights or state powers but rather to restore the states to their primary functions because it will permit the states to conduct affirmative government sought by the majority and not simply to conduct negative government at the will of rural minorities or other minorities who do not wish services or other actions taken by our services given or other actions taken by the state.
Arthur J. Goldberg: Mr. Campbell, am I correct in assuming that your argument (Inaudible)
Edmund D. Campbell: I -- I -- I would like a little more firm than Judge Bryan has made sir but we are very happy with Mr. Judge Bryan's decision, yes sir.
Arthur J. Goldberg: (Inaudible)
Edmund D. Campbell: Correct Mr. Justice Goldberg -- that is correct.
Arthur J. Goldberg: (Inaudible)
Edmund D. Campbell: It certainly is Mr. Justice Goldberg. The other argument which Mr. Mays made on the question of abstention, he said that -- that a voting -- that segregation cases involve the question of an education of a child here and now. I suggest to the Court that voting right cases -- if the voting rights are -- what we assert they are, if the voting right of a citizen is equally a matter here and now, and that if once lost, it is lost forever in this particular premise, in this particular situation in which the -- in which the citizen is called upon to cast his ballot. It's not like for a suit for recovery of taxes. It's not like a suit to a -- on a question of getting just compensation for condemnation. It's not like a dozen other cases in which this Court has considered the doctrine of abstention. This is a -- an -- as appropriate as this as the segregation cases for direct action at all times by this Court. The Court could also almost take judicial notice to the fact that in certain of the states there have been almost massive resistance to -- to reapportionment and that the only way that we can get actual relief is through the federal courts. Now, I would like to turn to Mr. McIlwaine's proposition that -- that Virginia does not have an irrational system, that it is simply a -- a method of taking care of the thinly populated areas at the expense of the thickly populated areas, whatever is that, may it please. I was -- can assure Your Honors, I -- I trust in a few very brief instances that Virginia is -- is the most crazy quilt of crazy -- crazy quilt types of apportionment. For example, the City of -- or a citizen of Fairfax has one delegate for 95 or 91,000 people. His neighbor in Loudoun County, Leesburg, Dulles Airport, his vote counts for four times as much as the vote of a citizen of Fairfax right across the line. If you take Fairfax as an urban community and compare it with the City of Richmond and the County of Henrico and in -- in this the Solicitor General's brief is not quite accurate nor with Mr. McIlwaine's statement quite accurate. The City of Richmond and the County of Henrico have together 237,000 -- 337,000 people. There are eight delegates on a total basis want to have a nose between the City of Richmond and the County of Henrico that is they have eight jointly, and the County of Henrico has one of its own. There are nine delegates of -- for the City of Richmond and these immediately closely populated County of Henrico very similar to the County of Fairfax. They have nine delegates, Fairfax has three, two and one-half times the representation for no rhyme or reason.
Felix Frankfurter: What's the population of Fairfax?
Edmund D. Campbell: That population of Fairfax is 285,194 as against the 337,000 but I -- I say if it keeps it from being quite 3-to-1 but it's about two and a half to one. Or take the -- take a couple of counties with single member districts. I mean -- take the County of Shenandoah which is in the valley, Woodstock and Edinburgh up near Front Royal. They have -- that -- that has a population of 22,000 people in an area of 507 square miles. Chesterfield County and Colonial Heights just South of Richmond, 80,000 people, 468 square miles, one delegate. It were a difference of 4-to-1 between Chesterfield and -- and Shenandoah. Or take the City of Charlottesville with 29,000 people and one delegate and compare it or -- or one delegate for every 29,000 people and compare it to Fairfax. Very greatly different -- I mean it's very much greater area, Charlottesville, six square miles, Fairfax 407 square miles and a difference approximately of 4-to-1 in -- in voting power. Or take Charlotte -- compare City of Charlottesville with City of Hampton in Tidewater, Virginia. Charlottesville has 29,000 people and one delegate, the City of Hampton has 89,000 people and one delegate, a ratio of over 3-to-1.
Byron R. White: But the counties (Inaudible)
Edmund D. Campbell: Virginia has historically combined -- combined them -- oh -- and -- and while, I might say generally speaking, the country boys may be preferred over the city boys as they talk about them in the legislature. It is -- if that is not the -- not the regular pattern, it is a crazy quilt in Virginia. Vicinity is not as quite as fairly apportioned as this -- as the House. But Judge Bryan said in his opinion "that a citizen of Arlington, Fairfax, or Norfolk has representation in the Senate" and this is found on page 4 of the brief of -- of the appellants, "Has representation in the Senate of less than 1/2 that possessed by a citizen of any of six of the remaining 33 districts in the state putting it congressionally, his voting power is more than two times the voting power of any of the plaintiffs." Further in five more of the districts, the power of each voter is almost twice that of any plaintiff on an average, that's one-third of the other senatorial districts are nearly 100% richer in each votes worth than other plaintiffs' districts. Alexandria which has a -- the substantial military population incidentally is almost exactly properly proportioned over the Alexandria whereas Fairfax and Arlington are greatly under proportioned as we -- as we have shown. Adjacent rural districts in the Senate, District 28 extending from Manassas, the Prince William County is -- all the way down to the end of the Northern Neck, the distance of 120 miles in one district with 111,000 people while District 25 and 20 -- 25 adjacent counties Goochland, Louisa, Orange, Pittsylvania, Fredericksburg, almost exact in the same number of square miles, have 63,000 people and the District 26, Culpeper, Fauquier and Loudoun, that's -- it's the Town of Culpeper -- the Town of -- I mean, that'd be Warrenton in -- that area have 63,000 people, almost exactly the same areas in miles. Adjacent com -- adjacent counties would be very simple to -- to rearrange them. The -- the Bureau of Public Administration which was consulted by the commission appointed by the governor to consider reapportionment had suggested rearrangements which made a variation of only 17% in the -- in the -- for mathematical equality if the legislature saw fit to leave this -- this crazy quilt. And leave Manassas and Prince William County, the Suburban County packed on to this rural or district extending for a 110-120 miles down the -- down the -- in the Northern Neck as to Virginia and say. Mr. Justice Black asked the question the other day, Virginia or might be or suppose a state is -- is fairly reapportioned but leaves out one county. My friends take the position that Virginia ranks 8th among the union in reapportionment and therefore it is not badly apportioned. A crazy quilt may work out that way but let's assume that Virginia were exactly mathematically proportioned in every one of the 97 counties except -- of the 98 counties except the County of Loudoun which holds less than 1% of the population. The effect of that would be that Virginia was 99% correctly apportioned or 49 -- it would take 49% of the people to -- to elect the majorities of the legislature and yet could anyone say that such an act would be -- it would grant to the citizens of Loudoun county equal protection of the laws. And so we say the same thing with respect to the citizens of Arlington and Fairfax if the proposition is not one of whether the state of how -- how many voters it takes to elect the majority but whether any substantial groups of persons are denied the equal protection of the law. Any substantial group such as any county or community such as -- as Fairfax or Arlington or Norfolk or Hampton or Chesterfield County or District 28 involving Manassas and -- and Prince William. I -- I -- I'm about ready to stop. Now if the Court please, the -- I -- I would like simply to -- to -- to conclude by saying by reiterating that if Representative Government is to -- is to be maintained, majorities have to have the affirmative power of government subject to the self-restrictions as may appropriately be imposed upon the minority. That if a minority is in control in the State of Virginia and it is so in control that there is a lot in oligarchy, a lot in control by a -- by a minority which cannot be changed except by the exercise of the judicial power or the -- or the force of the judicial power to suggest to the judicial power under the Fourteenth Amendment because in Virginia as Mr. Mays pointed out, the people do not have the right to initiate a Constitutional Convention or to initiate an amendment to their Constitution. In Virginia, the only persons who can do it are the very legislative minorities which would assume that control.
Potter Stewart: How recently have they done it in Virginia? How recently have they reapportioned your legislature?
Edmund D. Campbell: They have reapportioned every 10 years Mr. Justice Stewart but --
Potter Stewart: In which year it? Then you're actively (Voice Overlap) --
Edmund D. Campbell: In 1962 is the re -- is the last reapportionment --
Potter Stewart: Six --
Edmund D. Campbell: And it is that one which is under attack.
Potter Stewart: (Inaudible) and it's been done every 10 years, after each -- after each census.
Edmund D. Campbell: Or it -- it has been done every 10 years though as we assert completely inadequately.
Potter Stewart: Yes, I understand. But is it -- it -- affirmative action actually has been taken. They haven't in any -- in at any time just said we'll just stick with the same section we've had (Voice Overlap) --
Edmund D. Campbell: You see -- in -- in -- in fairness to Virginia and I am a Virginian and I -- I too love the state. In fairness to Virginia, Virginia has made some sort of gesture toward reapportionment or every decennial.
Hugo L. Black: Mr. Campbell may I ask you a -- something about your table along page 5 and 6 of your brief. One alleged to the -- illustrates to what you considered the most (Inaudible) inequities of the 1962 Act with reference to the House and one with reference to the Senate?
Edmund D. Campbell: Yes Mr. Justice Black.
Hugo L. Black: It seems from those that the chief inequities as you see them are -- have been in -- inflicted on Arlington, Fairfax and Norfolk.
Edmund D. Campbell: That is -- that is correct though. That are those are not the only inequities with this Mr. Justice Black.
Hugo L. Black: But suppose -- suppose taking page 5, there is nothing except that Arlington, Fairfax and Norfolk and the counties they are under stated, they range -- those counties range a population for delegate some 21,000 to 29,000. What would you say about that? Forgetting -- leaving out Arlington, Fairfax and Norfolk. Suppose that Arlington, Fairfax and Norfolk has been given population for delegate of something like 25,000 --
Edmund D. Campbell: The --
Hugo L. Black: -- each 25,000 people, what would you say about your figures then?
Edmund D. Campbell: Mr. Justice Black, here -- mean the variation between 21 and 29?
Hugo L. Black: That's right.
Edmund D. Campbell: I would say that is not -- not greatly substantial. I mean the -- the way that it -- the average population for delegates should be 39,000 in Virginia based on a population -- population of based on upon 100 delegates and a population of 3,900,000 as Virginia has. They -- the -- all of this group of counties are substantially overrepresented on a basis of 39,000 which is the appropriate basis. I -- I'm positive this would answer Mr. -- your question Mr. Justice Black, the commission which -- of the Bureau of Public Administration which made proposed redistricting for Virginia, suggested that it would be difficult under any circumstances to justify a variation of more than 25%. Its proposals came within 17% variation. A 25% variation would mean really a 50% difference that is 25% of above and 25% below the line would mean if -- there might be as much as 50% variation between certain districts. I sug -- suggest in, if possible this is an answer to Your Honor's question that that would be the maximum under any circumstances which -- which ought to be allowed.
Hugo L. Black: Looking --
Edmund D. Campbell: And certainly, a 2-to-1 basis on the basis of -- of Your Honor's own opinion in MacDougall against Green would -- would be inappropriate.
Hugo L. Black: And looking at your -- at your figures on page 5, and that 10 counties there I presume have only one delegate and that's because their population ranges from 21,000 to 29,000. Suppose those were the only nine, the point I'm asking you is this, would you think that in order to give one representative to each county rather than split them up that you would challenge that as a fair allocation according to proportion if he -- if those were the only counties involved?
Edmund D. Campbell: I think that might well come within the range of -- of permissible variation from a -- a strict population standard having in mind the governmental subdivisions as a subsidiary basis of classification. It is on page 100 that -- of the record that the Bureau of Public Administration of the University of Virginia makes its recommendation that direct that the deviation from the ideal size be as little as possible with most deviation within 15% of ideal size and acceptance in the most difficult situations within 25%. It is difficult --
William J. Brennan, Jr.: (Inaudible)
Edmund D. Campbell: Yes, yes Mr. Justice Brennan.
William J. Brennan, Jr.: (Inaudible)
Edmund D. Campbell: That would be 50% variation really.
William J. Brennan, Jr.: (Inaudible)
Edmund D. Campbell: Want it? Yes.
William J. Brennan, Jr.: That anything exceeding that is a great (Inaudible)
Edmund D. Campbell: I -- I would -- I would think so Mr. Justice Brennan. I would hope that -- and I think that has to be justified on some basis of -- of -- that you can't do it any better. They obviously must be some play in the joints or as -- as this Court has said but -- but the burden needs to be on -- on those who would justify a variation.
Hugo L. Black: You are not arguing as I understand it that there is a (Inaudible) for precise equality in connection with counties that range along the lines that we have mentioned on page 5.
Edmund D. Campbell: No, no Mr. Justice Black.
Hugo L. Black: That -- you would say that was perfectly a legitimate thing (Voice Overlap) --
Edmund D. Campbell: But -- yes, I -- yes Mr. Justice. If -- if the deviation is not done.
Hugo L. Black: Designed?
Edmund D. Campbell: Is or -- or is not. Yes so it's not excessive or if the deviation shown in Maryland by counties or in certain area -- by counties or in Virginia by counties would be stupendous if you have one for each county.
Hugo L. Black: What is the reason given by the -- this great discrepancy among the number of people to have representatives in Arlington, Fair -- in Fairfax County and these other little counties, what's the reason given to that?
Edmund D. Campbell: What reason has been given by the legislature?
Hugo L. Black: Yes.
Edmund D. Campbell: The legislature has given no reason Your Honor.
Hugo L. Black: What reason has been given here in argument?
Edmund D. Campbell: The only reason I know is -- is I did -- there are two reasons that -- that conceivably have been given by opposition here. One of them -- I understood that -- that Arlington and Fairfax have more military personnel and -- and the other reason is --
Hugo L. Black: The people who are just temporarily located there?
Edmund D. Campbell: That is the -- that is the argument.
Hugo L. Black: Yes.
Edmund D. Campbell: Though in taking the Solicitor General's brief on page 39, third -- the Solicitor General points out and he has a -- a complete -- complete statement of -- of the military population in each community. In 37 and 39, in 39 this -- this with the House of Delegates are even using civilian population alone. The Solicitor General points out that the two most overrepresented districts have over four times the representation of Fairfax. The 17th of the 70 districts have over three times the representation and its, 40 out of the 70 districts have over twice the representation to Fairfax taking civilian population alone, I mean excluding the military. The other argument which Mr. McIlwaine gave are as the justification whereas the justification of the rural against the urban. But I trust I have shown that it is in the briefs that that simply were not (Inaudible), that the discrimination is a patchwork, crazy quilt discrimination which wholly departs from any such formula.
Hugo L. Black: What reason can you suggest as to why that was done?
Edmund D. Campbell: Arlington and Fairfax are rapidly growing communities. They're almost doubling in population every 10 years. The legislature in attempting to reapportion and give Arlington and Fairfax it's proper -- to their proper representation, has to as a practical matter, take delegates away from some other district or combine some other districts because of -- of the present maximum of 100 if you're going to enforce that. I would say that it was human reluctance of legislators to vote themselves right out -- out of arms. I -- I think --
Hugo L. Black: They are the counties --
Speaker: (Inaudible)
Hugo L. Black: -- observed in the represented bodies.
Edmund D. Campbell: There is a constitutional maximum in Virginia of 100 members of the House of Delegates. I -- I -- I would suggest to this Court however that that -- that if -- if the only way Arlington and Fairfax could be properly represented would be to give them a additional delegates in the present General Assembly that -- that maximum would not stand as against the Fourteenth Amendment. My colleague Mr. Howell, would like to use a balance of our time.
Earl Warren: Yes, of course. Mr. Howell.
Henry E. Howell, Jr.: Mr. Chief Justice and Honorable Members of the Supreme Court. There is no locality and no state that has greater need for the protection of the Fourteenth Amendment than Norfolk in the State of Virginia. In the short time that I have, I intend to direct my attention to reemphasize the rank raw discrimination that was perpetrated upon the people of Norfolk by the statutes under attack. And to eliminate once and for all, I hope, the mirage of rationalization, any mirage in rationalization that the argument of the Attorney General of Virginian may have created with reference to eliminating from consideration any right of representation on behalf of citizens who have the military for an occupation and who have always constituted an important part of the population of the City of Norfolk. I'll go to a fundamental that we are here with an affirmative opinion from a three-judge federal court written by Judge Albert V. Bryan of the Circuit Court of Appeals for the Fourth Circuit, who has been bred and born in the tradition of Virginia, who has served as Commonwealth's attorney of the city of Alexander for well over a decade, who has appeared on constitutional questions before the Supreme Court of Appeals who is specially appointed to counsel and who, as I say, was learned in the traditions of Virginia. And I think that we should go to some of the facts on which the lower court relied in handing down that opinion, namely that insofar as Norfolk is concerned, when the legislature refused to constitute a sturdy commission of its own body after it adjourned, Governor Allman (ph) had to appoint a special study commission so that they might have time to consider the complexities of reapportioning and re -- redistricting the State of Virginia. That was composed of learned lay people and learned legislators from all over Virginia from representative sections throughout the wheat and bread for the state. They in turn permission the Bureau of Public Administration of the University of Virginia to give impartial consideration to these problems and the Bureau of Public Administration came up with two plans for the Senate, Senate plan A and B and both of those plans awarded Norfolk a third Senator. It came up with three alternative plans for the House of Delegates, plans A, B and C for the House. And in each of those plans, Norfolk was awarded an additional delegate to raise us to seven based upon an increase in population of a little in excess of 90,000 during the 10-year period from 1950 to 1960 when the Hoover Commission, the name of the delegate who headed the commission was Mr. Lawrence Hoover. When the Hoover Commission went over these plans of the Bureau of Public Administration, they took a little of assault, took political realities and they (Inaudible) down the per capita representation but even with that political assaulting out of the Hoover Commission, came a recommendation firm and clear that Norfolk was entitled to a third Senator and a seventh delegate. Those overpowering facts from considered members of both the lay and the legislature cannot be blinked at on appeal by the Attorney General of Virginia, I submit. Now I want to get swiftly and quickly to the rankness and the rawness, I submit, of the discrimination perpetrated upon the City of Norfolk. Each of Norfolk's two Senators represent roughly 152,000 people and the adjacent City of Chesapeake, only 73,000 people are necessary to give them an additional Senator. Now the -- for example a Norfolk delegate represents 50,000 people and a delegate from Shenandoah represents only 21,000 people. This discrimination with respect to the people of Norfolk is underlined by the fact that a community which has twice the influence in the State Senate is immediately adjacent to the City of Norfolk. How more invidious can discrimination be than where a neighbor Jones residing in Norfolk realizes that the common fence he shares with his neighbor in the City of Chesapeake marks a line of demarcation for political influence which exceeds his by more than 100%. Bringing it down even clearer, if we could conceive that Congress would decree that Justice Harlan should be paid $40,000 a year and Justice Stewart $20,000 a year merely because of the seats that they occupy before this Honored Court.
William J. Brennan, Jr.: He might share it.
Henry E. Howell, Jr.: Unfortunately, that cannot be done in legislative seats. For example, it has been suggested perhaps by Justice Stewart that -- that the people in Chesapeake would look out for the people in Norfolk and the people now, was a county of Princess Anne and now the City of Virginia Beach would look out for the people of Norfolk. Two weeks ago, our City Council had to go to the bank and borrow money to run our public school system waiting for the taxes to be raised because Virginia governmental-wise has withered to a philosophy known as pay-as-you-go and the state's out of debt but the cities are in debt over their head. We wanted to have a payroll tax in Norfolk so that the people living in Chesapeake and working in Norfolk would have to pay a portion of our tax and so that the people living in Princess Anne on the City of Virginia Beach and working in Norfolk would have to pay a part of that tax. We had to get that through the legislature in order to have payroll tax in the league of -- the league of counties which only includes two cities, that's Chesapeake and Virginia Beach, they're only two cities allowed in that league and that league says, "No, we won't vote for any payroll tax." That's the protection of the economic selfishness of each individual but it just shows you that we've got to go at alone and we badly need every green button that we can get in the General Assembly of Virginia and I -- I want to emphasize that we're talking about our very real thing and that each year that it goes by, that we are out-weighted 2-to-1 and our representation means this, that tomorrow, a special session of Virginia General Assembly convenes for the people that I represent in Norfolk with great majority or against a poll tax which is locked in political control in Virginia for over half a century where only 30% of the adults bothered to go to the polls tomorrow when -- to -- Wednesday, I think the Governor expects to have the public hearings and everything ready for it to roll and we need desperately to have a green button added to our delegates so that seven buttons will show in the House of Delegates and three buttons will show in the Senate as we try to do away with the -- with the poll tax.
Potter Stewart: What's a -- what's a green button? Is that a yes vote?
Henry E. Howell, Jr.: Yes, the green --
Potter Stewart: (Voice Overlap) -- I see
Henry E. Howell, Jr.: And red is -- red is no and we watch that panoramas, it goes up and -- and that is the stuff for government in Virginia.
Potter Stewart: I see.
Henry E. Howell, Jr.: And we've been struggling hard in Norfolk to -- to get equal representation and it has been somewhat difficult. If Your Honor please, now getting to this military mirage, I say, this case is unique. We have had -- some people suggested, it's alright to have 20-to-1 discrimination but this is the only State Attorney General who stood up and say, "Give no representation to 110,000 individuals on a community. They want to excise and exclude from any representation and these people are just not on ships, they're with us for three years or longer as they take their shore leaves and many of them leave their families with us because there're only three or four ports that you're going to live with -- in the -- in the United States and they're back with us." And furthermore, I want to bring out to the Court the fact that no evidence was produced before the three-judge court on this military idea except the vast census in -- in the bluebook of the census and Judge Bryan said, "Furthermore, it was hardly helpful talking about these census statistics for it was conceded that servicemen and women could and many of them do qualify to -- to vote."
Speaker: (Inaudible)
Henry E. Howell, Jr.: Roughly 304,000 people.
Speaker: (Inaudible) How could (Inaudible)
Henry E. Howell, Jr.: We estimate 40 some thousand.
Speaker: 40,000
Henry E. Howell, Jr.: That's -- that's the head of the family and that's a man. They take a theoretical figure of two and a half and multiply that.
Speaker: (Inaudible)
Henry E. Howell, Jr.: If -- if Your Honor please, I could not stand here with reliability but it's been fairly stable since the -- since the conclusion of World War II and the temporary people returned to their homes. The Navy does not draft, you have to volunteer to be in the Navy and so we don't have any draftees, we more or less have people that have selected that for a tenure of period -- a certain period of time.
Speaker: (Inaudible)
Henry E. Howell, Jr.: Yes, sir.
Speaker: (Inaudible)
Henry E. Howell, Jr.: And -- and the great percentage of them get shore duty at -- you have shore duty for a certain period of time and you're on a ship for a certain period of time.
Speaker: I think that (Inaudible)
Henry E. Howell, Jr.: That's right sir.
Speaker: (Inaudible)
Henry E. Howell, Jr.: Exactly in their tax sir, they have to pay automobile taxes when they park their trailers. They have to pay a tax for that. They have to pay a tax on the homes that they're buying under the FHA and the Veterans Administration Financing Facilities. They pay -- they pay taxes --
Speaker: (Inaudible)
Henry E. Howell, Jr.: That's right sir.
Speaker: (Inaudible)
Henry E. Howell, Jr.: As to -- after they have been there one year and they may vote if they will say that we have no present intention of abandoning Virginia as our home, we -- we like it here and we're going to stay here as long as we can.
Speaker: (Inaudible)
Henry E. Howell, Jr.: No, sir. Not -- none whatsoever in the record and as a matter of fact, I -- I don't think that there should have been any mention of the state court suit which was bought to enjoin the democratic primary and to enjoin the general election we just held and hopes that we could get this third senator and seventh delegate for the tomorrow's special session or certainly, next week's general session. We thought we had a federal right that the state court would reverse but in that the -- they -- they slipped this state court testimony in there but they do not hope Mrs. (Inaudible), our Deputy of Registrar, when she asked and has -- and there is no way of telling how many of the 63,923 people that were registered in the City of Norfolk as of April 1, 1963 went to military service, answer, no sir. She had no way of telling her, she could tell us how many may have voted but she couldn't tell us how many of them over the period of years, have registered. But I don't want to get into an extraneous and -- and strange record which I feel is not exactly an order from my friends to have slipped in -- in harshly, we might say.
Hugo L. Black: You said these military people pay taxes, do they pay the state income tax?
Henry E. Howell, Jr.: Unless they select another state as -- as their state, they are amenable to the state income tax, if Your Honor please. But here is a very significant fact that in the lower court, not a single legislator was produced, not a single state employee was produced to offer any testimony concerning the lack of rhyme or reason or the presence of rhyme or reason of a rationale. If before the lower court, they had suggested that our increase in 90,000 people was due to an increase in the military forces in Virginia, we would have countered with the judicially established fact that in 1952 thereabouts, we annexed a portion of the City of Chesapeake, then Norfolk County and took in 55,000 people living in -- who moves there in that area. And we would have shown them that by judicial decree, we were permitted to annex a portion of Princess Anne County and took in 38,000 people and they are the 90,000 people that we need to represent. People that we have annexed from our adjacent territories in order to give us oddly room in which to grow as a large municipal -- municipality there. And then I would hastily move on, if Your Honor please, to show you that our entire history and tradition has been to count the military and it appalls me to -- to hear the Attorney General of Virginia suggest that we haven't -- in 9th -- traditionally and historically, Virginia responding to the roots of Thomas Jefferson and those early founding fathers have used population as the keystone. All those legislators in recent years, population was not so stable as it was and they're becoming more reluctant to hue to those well established historic principles but in 1922, Norfolk got an additional delegate based upon our total population established by the United States and its census including military population. In 1950, the legislature refused to reapportion it all. They went home and Governor Battle, had to call a special session because the people of the state rows up and say, "You cannot blink at this mandate." They came back and our now present Governor, Albertis Harrison, was then a State Senator who had served on the redistricting the committee and he recommended that Norfolk receive an additional delegate in 1952, 30 years since we've gotten anything in 1922 and he cited as the figure to justify this increase, the total population census is established by the United States Census and in that special session, we got an additional delegate based upon our total population. And now, it seems somewhat contradictory that his Attorney General is saying that we shouldn't have now what we have had in 1922 and -- and 1952.
Hugo L. Black: May I ask you what -- suppose you -- suppose you had a 100,000 military people and you took them all out? Take that away from the total population of Norfolk and what would be the population percentage there?
Henry E. Howell, Jr.: 100,000 piece of the --
Hugo L. Black: 100,000, (Voice Overlap) --
Henry E. Howell, Jr.: They took away a --
Hugo L. Black: How does that -- how do that compare with these other counties?
Henry E. Howell, Jr.: It -- it compares relatively good -- relatively good, if Your Honor please but as we've said, the -- the -- we cannot condemn because a boy or a girl's father has chosen the military as an occupation and they move into to Norfolk to stay for an average period of three years, who are going to our schools. The Federal Government under Public Law 115, pays an increment to Norfolk for their schools and they should have a say in the legislature to see how that federal money that the government sends down as to be apportioned. They're using the roles and all of the stuff of government which is the only justification for a state government. They need as bad as anyone else.
Hugo L. Black: Suppose that's not accepted as a valid rational ground, what other ground as suggested for the discrepancy of the figure to any others?
Henry E. Howell, Jr.: If you take away 100,000 people from us because they are militarily connected, we could not complain.
Hugo L. Black: Suppose they -- suppose however, that should not be accepted as a valid ground for doing it, rational ground.
Henry E. Howell, Jr.: Oh.
Hugo L. Black: What other grounds have been suggested to justify this discrepancy?
Henry E. Howell, Jr.: No -- no -- no ground -- the only urban -- the urban rule argument is the only argument that Mr. McIlwaine suggested.
Hugo L. Black: What -- what do you point to is the reason why this discrepancy was put in the act?
Henry E. Howell, Jr.: If Your Honor please. On that score, I wrote out here, "Virginia is a crazy quilt when measured by the legal criteria but it is a skillfully, closely woven and almost invisible net when measured by the intent of a political machine bought half a century ago to maintain power. Those communities there can be found rhyme or reason for this crazy quilt. Those communities that are politically manageable in Virginia were favored and those who had shown some sort of independence were disfavored and the --
Hugo L. Black: Is that in the record? Does the record show any --
Henry E. Howell, Jr.: No sir, that's --
Hugo L. Black: Would that -- could be inferred?
Henry E. Howell, Jr.: We -- we -- we -- you cannot read the minds, it's too finely woven, too invisible. All we can say, it's a crazy quilt, they cannot be rationalized. Why should Shenandoah have 22,000? Why should Culpeper outweigh us 2-to-3-to-1? Why should Princess Anne County, with the same type of transit population as we have, they have 30% military connected personnel, we have 30%. They give them an additional delegate in the last legislature and they give us none. Why shouldn't Chesapeake be joined with (Inaudible) County as recommended by the Hoover Commission, so that they would roughly have one senator for a 100,000 -- 110,000 people, rather than one senator for 70 some thousand people. It's a crazy quilt, we go no further but we say that if -- if it had been any justification, they would have put on an able legislator on able state employee. They'd put on -- put on none. I want to say that if were to extend --
Hugo L. Black: But this is of the -- the crazy quilt has been used a lot but what -- in what sense do you mean use it in what you are saying practically speaking? What sense do you use it of?
Henry E. Howell, Jr.: Of what --
Hugo L. Black: You say it's a crazy quilt, in what sense do you sense that then?
Henry E. Howell, Jr.: There's no rhyme or reason. There's no rationale to the discrimination that we have proven by their use of per capita population. I would want to show that in my brief or maybe it's not in the brief but in 1867, they convened a convention and there was an effort to make registered voters the criteria for reapportionment. And on January 11, 1868, it was disregarded, it was lost and there never has been an attempt in Virginia since then to use registered voters and a natural extension of -- of that argument of excising military would be to excise young people and excise anyone who is not qualified to vote in historic that we abandon that in -- in Virginia if Your Honor please.
Potter Stewart: Well now, your -- I appreciate your argument. The Virginia case but do you suggest that it would be -- that it would be an irrational and violative of the Fourteenth Amendment if instead of raw population figures, a state should use registered voters figures or people over 21?
Henry E. Howell, Jr.: I -- I do sir -- I do sir.
Potter Stewart: That that would violate the Fourteenth Amendment?
Henry E. Howell, Jr.: Yes, I don't think -- I don't think that you can -- you can meet the -- the demands of a Republican form of Government with respect to state governments without giving each inhabitant of that locality, young, old or middle-aged a -- a weight in the legislature through his delegate. He --
Potter Stewart: Even though those people are not qualified to vote?
Henry E. Howell, Jr.: Even though they're not qualified because there's only one justification for a state government, to furnish services that the individual cannot furnish him for himself. To furnish roads, to furnish schools, to regulate power and light rates and so forth and its people that create these problems. The legislature is merely a mirror reflecting the people behind him when he goes to the legislature and we must -- in order to have influence and impact for these people who create the problems for which state got -- government is the only justification we must adhere closely to a per capita of approach for representing --
Potter Stewart: Well there's no right in saying that that's -- that's a -- that's a brand new claim of a Fourteenth Amendment violation. Last week as I understood it from the phrase per capita was used quite frequently but I think it was conceded by everybody who -- who argued the favor of that per capita rule that it could equally name registered voters or people over 21 years old.
Henry E. Howell, Jr.: The very able and imminent Solicitor General made that suggestion, if Your Honor please, but when you stop to think about it, I hope its not over simplification, we're not talking about a Federal Government involved with international policy or anything else. We just talk about the bread and butter of existence which is the only justification for a state government, not -- not for high philosophical policies or anything.
Potter Stewart: Well if you say, then let -- let's assume a district which for one reason or another, all the families there had lots of children and they were -- 1000 people but 800 of them were children, there are only 200 voters and you think a -- a district like that under the Constitution, would be required to have -- of those 200 voters exactly the same representation with tiny variations in the legislature as -- as 1000 voters within the next county?
Henry E. Howell, Jr.: I'm not saying exactly head for head.
Potter Stewart: I know you're not saying exactly.
Henry E. Howell, Jr.: Yes. But substantially, it must be per capita for us to have a healthy state government that is keeping up with the times and keeping in the mainstream of the demands of human beings and this the latter half of the 20th century. Otherwise, we're going to get disgruntled people, we're going to get people who -- who's problems cannot be solved, and I close if Your Honor please, by submitting that the law will not permit latter day Virginia politicians to bankrupt Virginia State in a Republican form of Government, that it is -- that is equally responsive to all people of Virginia, the labor, the doctor, the lawyer, the merchant chief, the soldier, sailor and airman, the little-old lady and the brand new baby. People are people, all people are people. Thank you.
Earl Warren: Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice and may it please the Court. Our position in this Virginia case is that the decision of the court below is correct and should be affirmed. I want to devote myself very briefly if I can to two or three of the points that have been raised with particular reference to this case. First, I'd like to direct myself to the question of abstention. This is the only case in which it has been argued and indeed the only case in which it could be argued that -- equitable doctrine of abstention applies and that the court below should not have preceded to an adjudication of merits. It could not have been argued in the other cases, in the Maryland case because it was in the state court, the best reason of all. In the New York case because there was no suggestion that there could be any remedy under New York Law for a violation of New York's Constitution because it was New York's Constitution that was involved and in the Alabama case, it could not be --
Potter Stewart: Of course there could have been a --
Archibald Cox: -- there could have been a --
Potter Stewart: -- a state court action in New York for violation of the Federal Constitution, couldn't it?
Archibald Cox: Yes and I -- I suppose -- used unfortunate words. What I meant to say is that there could have been. Now, the plaintiffs could have had no recourse to a cause of action founded upon state law to secure the kind of redress that they were seeking. I think that's really what I meant when I said there was no state remedy. In the Alabama case, the Alabama Supreme Court had apparently held on several occasions that it could do nothing about this and therefore, there was no chance of obtaining a remedy in the Alabama Courts. Also that case that perhaps above all, in view of the issues raised about the interpretation of the Alabama Constitution would be one where the argument might have been appropriate whereas not for those persons. We submit that in this instance, the District Court was plainly right in adjudicating the case of the merits because no ground of abstention that was made out. As we read the cases, there are two grounds on which a federal court of equity may properly abstain from passing upon a claim raised under the Federal Constitution or under other federal law. The first is where a question involving the construction of the state law is bound up with or perhaps antecedent to the federal question. In such a case of course, for the federal court to go ahead, it may be deciding a hypothetical case because it may adopt the construction of the state law that that state courts will not adopt. It maybe deciding a constitutional question that there would be no occasion to decide if the state court can speak first and for both reasons, this Court has held and the lower courts followed the view that they should abstain unless some reason of contrary appears. We have no quarrel with principle but no such question is involved here. The state law under which the election officials would proceed unless enjoined is perfectly clear, there is no dispute about its meaning. There is no dispute about the meaning of any provision of the Virginia Constitution because there is none that bears even arguably upon this question. And consequently, but one word more, the reference in Judge Bryan's opinion where he says that in Virginia, population is undoubtedly debased is not a reference to any requirement of the Virginia Constitution. It's a reference to what in fact has undoubtedly happened over the year. And there again, everything he said seems to me consistent with the view that I've expressed. There is no antecedent question of state law involved. Now the second ground on which this Court has held to the lower court and this Court might abstain from deciding a federal question, a federal constitutional question, is that there is a state remedy based upon state law which makes it unnecessary to decide the federal constitutional question. We've suggested in our brief that that doctrine is not applicable where the suit is founded upon the Civil Rights Act. And it seems to us that the decisions in the Monroe and Pape and in the McNeese case sustained that proposition and with it, we would argue that they were right, that the aim of the Civil Rights Act was to give one who alleged the deprivation of Federal Constitutional Rights a -- and a remedy in the federal court because it was believed that the federal remedy would be more effective or at least might be more effective than some alternative state remedy even though very possibly they're based upon the state law but I don't have to go that far here. Here there is no suggestion that there is any remedy based upon the State Constitution but no one has suggested any provision of the State Constitution that this apportionment violates but not even by the wildest stretch of the imagination. Any remedy that exists is a remedy for a violation of the Federal Constitution and certainly there is no occasion and no one has ever suggested that a federal court should defer to a state court in enforcing a -- if in a suit to enforce a Federal Constitutional right. The plea for abstention let this go to the state legislature, let's see what the state courts will do. It seems to me simply a plea that the federal court not adjudicate whether the plaintiff's have Constitutional Rights. And I'm not aware of any decision or any consideration that would support that position.
Speaker: You think it's possible that it might in Baker and Carr in the state court (Inaudible) limited construction (Inaudible)
Archibald Cox: I just can't -- I just can't find anything in it Mr. Justice Harlan. That would lead one to -- to think that was a possibility if the -- in the case I think would be quite different if there were something there that made at least a -- a substantial possibility. But we've seen nothing there and we see nothing suggested by any of the parties that would sustain that view. Coming now to the --
William J. Brennan, Jr.: I understand Mr. Solicitor that the state (Inaudible)
Archibald Cox: Sir there's nothing in the state constitution. Of course it found nothing in the Federal Constitution.
William J. Brennan, Jr.: (Inaudible)
Archibald Cox: Yes. Coming -- coming now to the merits.
Speaker: Before you leave this question, (Inaudible)
Archibald Cox: Well -- I -- I just don't -- I just don't see the foundation for it in the language. All the language says is that there shall be periodic reapportionment.
Speaker: (Inaudible)
Archibald Cox: Well, I would think that was an exceedingly free construction of the language. And also one which while it has been based in many apportionments in Virginia, certainly it is something that over the years has not been done with any effort in equal population.
Speaker: Why -- why is that anymore (Inaudible) more difficult construction of the language to get the same form rather than the Fourteenth Amendment?
Archibald Cox: That seems to me that the guarantee of equal protection of the law -- there is none in the Virginia Constitution. I -- it does have a more specific meaning as applied here and as applied to the distinctions that some of these apportionments have tried to make between people then a constitution that has no substantive guarantees that are applicable to these problem at all. Coming to the merits, I think it is important to emphasize the nature of the claim made here by the plaintiffs. The claim is not so loose as that Virginia has an unrepresentative legislature. It's a claim that there is discrimination against three specific areas, a city, a county on the city and the county that is either capricious in the sense that those areas have been discriminated against for no reason whatever or that its invidious in the sense that they have been singled out for adverse treatment because something in the character of their population. There is no question I take it on the facts that there is this kind of discrimination against Arlington, Norfolk and Fairfax. To mention just one figure, Fairfax has only three delegates in the Virginia House of Representative of where on any population base, it would be entitled to seven, more than twice as many and in the Senate too which underrepresented, it has only two but it would be entitled to three. And while I think the most extreme case, it's equally clear that there is this kind of discrimination against Arlington and the City of Norfolk. Now I stress that this is a capricious or invidious discrimination against the people of those specific areas because that, it seems to me is the answer to counsel's argument that Virginia's legislature on the whole is pretty representative much more so than in many state. Where the claim is that there is capricious or invidious discrimination against a substantial group of people then it's no answer to say, "Well, we come out pretty well in terms of the number of -- in terms of the population base required to elect the minimum number of the majority of the legislature." In this respect, it seems to me that Mr. Campbell was absolutely right. One can illustrate the point, and I think so that it's clear beyond dispute by a very simple example. Suppose if one can -- imagines a state of a 150,000 people with 15 counties, all of which are equal again in every respect. 10 of them have two representative districts, I'm imagining a unicameral legislature with 5000 people in each and five have only one district with 10,000 people in it, the whole county. So that those people have half the representation on per capita basis of the other counties unless my arithmetic is badly wrong, it would take representatives elected by half the people of my imaginary county, exactly half, to constitute a majority in my imagine -- unicameral legislature if there is not the slightest doubt that there would be a -- a denial of equal protection to the people of the five counties. And so here, the fact that it takes about 40% in each House of the Virginia -- of the population of Virginia to elect the majority in each House seems to me to be irrelevant. That put this in the general terms and in terms of the basic propositions that I've argued to the court in these cases. I think it is irrelevant how high or low a state ranks on the list of the smallest major -- smallest percentage of the population needed to elect the majority of the legislature so long as one is talking in terms of either by our second or a third proposition. That is to say when you're talking about a capricious discrimination or an invidious discrimination, one not directed at a permissible legislative purpose in terms of apportionment. Then I think that it's immaterial of what is the balance of power in a state legislature of those people are being denied equal protection of the law. When one comes to our fourth proposition and says that the inequalities are so gross and the sub -- submerging of principle of majority rule or popular will is so great that even though the legislature -- that even though the law has a permissible function and unreasonable balance has been strung, then it would seem to me that considerations such as this do come into play because in determining whether the plaintiffs have been denied equal protection of the law, our proposition refers one to the overall situation. I would say the same thing is true and this is one reason I mentioned it, about such considerations as whether there is -- that Constitution may be changed by initiative and referendum or whether it was recently adopted by popular vote. If the basic proposition to which one refers, to determine whether there's violation of the Equal Protection Clause is in terms of the degree that there's a permissible purpose but an impermissible balance has been strung but then I think those factors may come into operation but not in terms, as I say of our second and third proposition. Then may I address myself very briefly in the two or three minutes remaining to MacDougall against Green. In MacDougall and Green, the court said, and half way out, misplaced the brief I was -- here it is." That a state may assure to measure it -- to assure a proper diffusion of political initiative as between its thinly populated counties and those county having concentrated masses that this was something permissible for the state to do." I would emphasize here something which I think has been overlooked. MacDougall and Green was talking about how you nominate candidates for a statewide office by a petition, nominating petition and the language that is so often quoted speaks in terms of assuring a diffusion of political initiative. I take it, it was talking the business of getting signatures on a nominating petition and what was said that is that you may require signatures from all around the state and not just from Cook County. Well, if you're talking about candidates for statewide office, that is a -- it's -- and you're talking about people not running from one of the recognized parties in order to make sure that the ballot isn't just being clattered up by a lot of very popular local, people who were popular locally. It would be calculated to assure fairness in the election to see that there were some strength all through the state. And I think that that interpretation is confirmed by the fact that in the latter part of the sentence, the Court referred to the practical opportunities for exerting their political weight which it possessed by people in the cities. That's much easier to collect signatures in the city than it is to collect signatures out in the rural areas just because that more people there and there closer together. I cannot believe that MacDougall and Green was meant to say or that it does say that it is proper to weigh the importance to be given in the votes, the votes of one area against the importance to be given the votes in some other areas. Certainly, no such question was before the Court. Certainly, the reference to political initiative is not appropriate for that purpose and I would say as I argued last week that certainly to this extent, the decision -- the argument is contrary to Gray and Sanders that I think what --
Speaker: (Inaudible) this country and what exactly (Inaudible)
Archibald Cox: I confess, I hadn't thought of the point but I'm glad to it a thousand. I do think that what may be comparable to the thought in MacDougall and Green is the suggestion that I made last week that there might be some purposes which were relevant to apportionment like the desire to have somebody from each separate reason -- region of the state that it -- that that is the meaning that MacDougall and Green may be given here. One final point, very briefly, with respect to the military population or military-related population in the counties. Without going into the figures or all the arguments that have been very well presented, I simply want to emphasize that the contention that we stressed the most and I think the appellees do too, is that these figures about military related population simply will not explain the inequalities of the discrimination against these three areas.
Earl Warren: Mr. Mays.
David J. Mays: Mr. Chief Justice and if the court pleases. I believe I have 15 minutes which is lunch time and if I find I have another segment to -- with the Court's permission, I will give that up and -- in Virginia's case with the luncheon bell.
William J. Brennan, Jr.: May I ask this (Inaudible) in this record (Inaudible) represented language or representative (Inaudible) I gather the (Inaudible)
David J. Mays: It is. Yes, sir.
William J. Brennan, Jr.: Now, what are the -- are these made on population and eligible for (Inaudible)
David J. Mays: No sir, it simply says, in the middle of page 267 that double asterisk, based on the 1962 Redistricting Acts and calculated by Bureau of Public and Information staff, I'm sorry I can't --
William J. Brennan, Jr.: (Inaudible)
David J. Mays: I can't contribute more.
William J. Brennan, Jr.: (Inaudible)
David J. Mays: Yes, sir. We've never had our state fairly proportioned on -- on population.
William J. Brennan, Jr.: (Inaudible) wherein taken the analysis and so the areas point in -- objects (Inaudible)
David J. Mays: Well, the census --
William J. Brennan, Jr.: (Inaudible)
David J. Mays: Well -- I'm sure that that's been taken into consideration but I can't tell what goes on in the heads of 140 members of that General Assembly and it may well be that many of them had taken citizenship as a test rather than population.
Speaker: (Inaudible)
David J. Mays: Our difficulty is getting in the back of the skulls of all these people as to what influenced them and we don't know.
Speaker: Without reference to the record?
David J. Mays: Yes sir.
Speaker: And I can't find any information, was there any (Inaudible) to be given at any time or if anything but the (Inaudible) or taken into consideration. Now, these were made (Inaudible)
David J. Mays: I can't -- I'm sorry, I can't inform you more. Of course we'd take into consideration geography and many other factors but I realized what you getting -- getting at.
William J. Brennan, Jr.: And the Government (Inaudible) or his right to adjudicate on the basis of (Inaudible)
David J. Mays: It's -- it's on the basis of inclusion of military of sorts, I know. It was the outside figure on population. Now if I may take a moment or two further on abstention, I -- I brought that to -- to Your Honors' attention in two aspects, one, a rather narrow one and one, a much broader. The narrow one was that you can take Virginia Constitution which may seem perfectly plain and you make take the Sections 24 in which seem perfectly plain but you have to lay them beside other things in the Constitution too. Now, in saving time, I made a general reference to our brief but I call your attentions specifically now to two provisions of our Constitution. When George Mason wrote it and has been copied all over the world and the Bill of Rights of our Constitution became the first 10 amendments in different language of the Constitution of United States. We ratified it. We didn't want to lose the union. We ratified it in order to have a union but we have gentlemen's agreement to put the Amendments in as the first 10 Amendments of the Constitution. That was agreed by both sides. And Mason said, "That all men are by nature equally free and independent and have certain inherent rights." What does that mean when we put it beside Section 43? I don't know what our Court would say. Again, Section 63, subsection 18 of our Constitution provides and, "The General Assembly shall not enact any local special or private law granting to any individual any special right, privilege or immunity." How will they construe that against 43? I don't know and I say that should be given a chance. But it was beyond that that I went in saying that -- that here, we have a peculiar case for abstention because at this instance, we are not simply giving a right to an individual or rather not giving a right but we are -- we are seeing that he gets it. But we are going inside of the state and changing its very machinery of government in order to accomplish a result and I say therefore, that we -- when we apply Baker to that state of facts, we have to do it with the greatest caution. Now I know that McNeese has been cited here and when I first saw it, I was troubled by it but when I analyzed it, I wasn't. McNesse was a case in which you had an integration situation in Illinois of all places and not the South. And you had waited nine years to get that thing of a (Inaudible) and you still haven't done it in the North. And you went after them. I have no (Inaudible) about that. What I'm talking about here is, we have a case of first impression dealing with the voting situation in which you are laying your hand on the internal machinery of government and I think there, the Court should show restraint when it comes to a state like Virginia which has come close, not perfect and I appreciated Mr. Justice Goldberg's observation, "Why aren't you perfect Virginia?" You didn't ask that question of anybody else and I was very flattered that he had asked it at all. So I think it McNeese here is --
Arthur J. Goldberg: (Inaudible) what -- what would be the (Inaudible)
David J. Mays: Well, I think you get it sir but of course we're not dealing here with the democracy, we're dealing with the republic and they are two different things. So much of that, if I -- I may, I -- before I leave that observation the Attorney General though, I -- I want to point and I don't think it unfair to him for me to do that his views on that had been very interesting during the course of this summer. I think it's not improper to make this reference. On July the first, he appeared in Seattle before the Attorneys General and all the Attorneys General present familiar with the language he had used and I quote it now. He had just said, "That in the view of the purest, in the purest view, it ought to be one vote for one -- one man, one vote", but there he said, and I quote exactly." Nevertheless there is much to be said against the purest view. It seems wholly inconsistent with our history and practice is almost in so founding of the colonies." It would assert that well over half the states have been violating the Fourteenth Amendment continuously since its enactment. It would require the total reconstitution of at least two-thirds of the state legislatures. It would leave no room for local autonomy and matters of representation. Perhaps -- perhaps, I shall later find myself arguing for the principle but time was (Inaudible) that at least today, I wonder whether in the face of his considerations --
Speaker: (Inaudible)
David J. Mays: I beg your pardon?
Speaker: (Inaudible)
David J. Mays: Yes sir, but they will make them and to use them, cleared before they make them too. At least today, I wonder whether in the face of these considerations, the Fourteenth Amendment could fairly be held to lay down so rigid a rule. And again, we will say we couldn't agree with him more than when he made that particular observation. And I recall too that he said on page 44 of the brief in Alabama case, "Any reapportionment honored by a court is a poor substitute for one of the people's own making." Now, what the Solicitor General, I don't need to bow down on him entirely I'll get to the others if I have time but the Solicitor General here has held that, in the Maryland brief. He has held out to you that there should be one man one vote. He said that's the general principle to keep in mind but what he says to you after that is Your Honors. One man, one vote is really the real thing, that's the principle. I don't ask you to -- to enunciate it, no -- no, don't leave them. Just keep it in the back oh your head some place and keeping it there, declare all of these states violative of the Federal Constitution. What he is suggesting to you is that you have in the back of your heads a system of rules. He has named one, this is one. And that you would just keep them in mind and knock these states out without having any guidelines set forth to all of them. That's exactly what it amounts to in the simplest kind of lay English. There of course, he couldn't ask it to having a fixed rule. No political side has -- can say 25% is right, why not 26, why not 30, why not 18, why not 16 and two-thirds? You can't do it like that and if this Court, may I say, if this Court would attempt it and say "We will allow this much permissibility." It would not be a judicial function, it will be a legislative function and assume as you do that to the extent that you do it, you are denying Republican Government the form of Government under Article IV, Section 4 of the Constitution, the very thing that we assured we must have and you can't legislate. I have so little time for the rest but I must hit a few things. Mr. Jefferson is true with all the soldiers that we are now but all the soldiers in Jefferson's day in Virginia were Virginia soldiers called from the (Inaudible) in Connecticut when there was talks in the sound of a revolution and they all went back to the (Inaudible) to harvest the crops. We didn't have any outsiders so the company of a 100 North Carolinians came in, in the French and Indian wall and we didn't see any others until the eve of (Inaudible). Well, we are talking here about an entirely different thing when we speak of enormous numbers of very fine young men who come into our community for limited time and go. And there's nothing in the record to show how many registered but it is notorious in our state that very few do. As a matter of fact, we've had a situation in it too in the history of this country where a man never did vote until he was running for the president itself. Now, I was -- a question was asked, "What about Shenandoah County?" I don't know whether that question was rhetorical or not. It has a small vote. Why so small? Now, just to point out to you that Virginia is not gerrymandering, Shenandoah County has a Republican there who comes to our General Assembly or regularly in votes to Republican view and we have not attempted to gerrymander him out of his representation. And if you look below Richmond of the County of Chesterfield, you will find that that is probably has -- has much malapportionment as any and that's a good loyal Democratic County and we haven't tried to do anything especially for them. And we of course have a -- a democratic state. Now, reference was made to the Richmond situation and we say you got eight representatives here for Richmond and -- and Chesapeake and Henrico County which surrounds it in one voter. The reason for that is simply this. You see, you can't sit here and not know 50 states thoroughly and pass on this, you can't. In Richmond and Henrico County, we are now in the process we hope of annexing a good part of Henrico County to the City of Richmond. And the General Assembly which made that possible -- which made that possible anticipated this by setting up the new representation to that fashion and that same General Assembly found -- that same General Assembly found that there was underrepresentation in the counties in the Northern part of the state and it is overlooked. That 1962 -- has overlooked it at 1962, Virginia gave Fairfax a new senator and it gave Fairfax a new delegate. So the argument that these people would never give any of their power vanishes in the light of what they actually did. We did in apportion -- gave both of them more representation in both House. Now, it maybe from the map, some may say that the crazy quilt -- sorry sir. Thank you very much.