A New Charter For State Legislatures

The agricultural counties of California are far more important in the life of our state than the relationship their population bears to the entire population of the state. It is for this reason that I never have been in favor of restricting their representation in our state senate to a strictly population basis. It is the same reason that the founding fathers of our country gave balanced representation to the states of the Union, equal representation in one house and proportionate representation based upon population in the other.

In 1948, when he made that declaration, Earl Warren was the Republican Governor of California. It was a statement with which almost all elective officeholders could agree. But times change, and so do jobs and outlooks. And last week Warren, now in the robes of Chief Justice of the U.S., wrote an opinion for a 6-to-3 Supreme Court majority that not only flew in the face of his earlier ideas but considerably changed the complexion of U.S. state politics.

Shaky Grounds. Judging cases in Alabama, Colorado, Delaware, Maryland, New York and Virginia, the Court ruled that their existing systems of representation in their state legislatures were unconstitutional and laid down the general rule: "The seats in both houses of a bicameral state legislature must be apportioned on a population basis."

Until a Tennessee case of 1962, the Supreme Court had always held that state legislative apportionment was none of the federal court system's business. Now all that is changed. Justice Warren justified his decision on the provision of the 14th Amendment to the U.S. Constitution that requires that no state "shall deny to any person within its jurisdiction the equal protection of the laws." Some lawyers thought this was shaky ground.

The whole notion in many states has been that one house is based on population, thus representing local interests. The other, just as in the U.S. Congress, is elected on an area basis, and its members are responsible to more diverse, often conflicting groups. Warren saw no particular difference between state houses and state senates. Wrote he:

"Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.

"Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a state could elect a majority of that state's legislators. To conclude differently and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result. Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsible to the popular will. Our constitutional system amply provides for the protection of minorities by means other than giving them a majority control of state legislatures.

"To the extent that a citizen's right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighing or diluting the efficacy of his vote. The complexions of societies and civilizations change, often with amazing rapidity. A nation once primarily rural in character becomes predominantly urban. Representation schemes once fair and equitable become archaic and outdated. But the basic principle of representative government remains, and must remain, unchanged--the weight of a citizen's vote cannot be made to depend on where he lives."

Warren also saw no merit in the argument that because the U.S. Congress is apportioned one chamber by area and one by population, the states may do the same. He contended that the Constitution specifically set up the congressional system as a compromise between large and small states--all of them equally sovereign. But, reasoned Warren, counties, cities or other subdivisions of a state have never had such sovereign powers.

"Not a Panacea." Concurring with Warren in the key Alabama case were Justices Hugo L. Black, William J. Brennan Jr., William O. Douglas, Arthur J. Goldberg and Byron R, White.

Justices Tom C. Clark and Potter Stewart disagreed with the reasoning of the majority, but only Justice John Marshall Harlan flatly dissented from the decision itself. In., his written opinion Harlan declared:' ''The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. The equal-protection clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures." At one point, Harlan went beyond his text to declare: "This decision involves the Court amending the Constitution. If the time comes when this Court is looked upon by well-meaning people--or, worse yet, by the Court itself--as the repository of all reforms, I think the seeds of trouble are being sown for this institution."

The Inequalities. Beyond question, Warren was right in one sense: not only state assemblies but also state senates are often wildly disproportionate in their voter representation (see map). There are examples galore. Because rural areas are overrepresented in the Nevada senate, a mere 8% of the state's population can elect a majority of the Senators. In California, State Senator Thomas Rees of Los Angeles County represents 6,700,000 constituents; Senator William Symond Jr.'s three mountainous counties have only 15,300 constituents. New York is so closely divided between political parties that Democratic Governors have held office about half the time in this century; yet upstate areas are so overrepresented that Democrats have controlled the state legislature but once.

Such inequalities are more than mere statistical curiosities. In Hawaii, the left-wing International Longshoremen's and Warehousemen's 'Union has been able to elect, and then to influence, legislators outside the heavily populated island of Oahu. The union therefore can ram almost any labor legislation through the legislature at the expense of Honolulu's underrepresented businessmen. Dominant farm legislators in Delaware have maintained a law that requires a farmers' market to be situated on a main street of Wilmington. Florida's Dade County (Miami) supplies 25% of the state's gasoline-tax revenue, gets back only 4% of this for highway construction; the county has 1,000,000 people, but not one state-supported park or beach. In many states, four-lane highways connect small, out-of-the-way towns, while metropolitan areas choke on inadequate roads.

Warren's opinion required only that both branches of state legislatures be represented by members from districts "substantially" equal in population. He added: "The equal-protection clause requires that a state make an honest and good-faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. Mathematical exactness or precision is hardly a workable constitutional requirement."

More Problems Than Answers. While the Warren opinion spelled out the new legal principles, it also raised more problems, legal and nonlegal, than it solved. Precisely how equal must equal-population districts be? Can a single legislator roaming, for example, a huge, sparsely settled Texas range serve his constituents as well as can the city legislator with a pocket-sized district? Is it really helpful to run the risk of giving a big-city political machine, such as Chicago's, a stranglehold on a whole state? If both branches must be based on population, why not save money and time by following Nebraska's example of a unicameral legislature, a possibility that was being discussed last week in Delaware, Hawaii, Iowa, Vermont and Rhode Island? Should two such diverse areas as Northern and Southern California both be dominated by the single county of Los Angeles? Already some Northern Californians are renewing the old plea for statehood of their own. Their rallying cry: "Would you want your daughter to marry a surfer?" Finally, as Governor Earl Warren once insisted, are not the many minority interests more important to the welfare of a state than their population indicates?

What would all this mean to the two major U.S. political parties over the long haul? Almost surely, it would give the Republicans greater legislative representation in the South, where their greatest voter strength is in underrepresented cities. It should also give the G.O.P. greater representation from the U.S.'s generally Republican, fast-growing suburbia. It may hurt the Republicans in their old stronghold, the Midwest, where rural interests have long had disproportionate power in state legislatures. If nothing else, it should serve as a spur to the G.O.P. to work much harder in the big industrial cities.

On its surface, the decision seems to be in keeping with the present Court's tendency to interpret the U.S. Constitution so as to minimize states' rights. Yet by removing the glaring inequities in the representation in state legislatures, the decision should strengthen the statehouses by increasing their efficiency and attracting more capable members. And any upgrading of the state legislatures should, in the long run, make them less reliant on the Federal Government when they are faced with difficult state problems.

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