The 1960 population figures of state legislative districts in several states showed the immensity of the problem.
In Vermont, where each town was guaranteed one seat in the lower house by the 1793 state constitution, the town of Stratton with 24 inhabitants elected a state representative. Exactly the same representation -- one representative -- was accorded the city of Burlington with 35,531 residents, 1,480 times as many. It took less than 12 percent of the population to elect a majority of the Vermont House.
In California, the population of the smallest Senate district was 14,294, encompassing three rural mountain counties along the spine of the Rockies. The largest district encompassing all of Los Angeles County, had 6,038,771 inhabitants -- 422 times as many. Yet each was represented by one state Senator. Eleven percent of the people of California could elect a majority of the Senate.
These disparities were highlighted in a study published by the National Municipal League shortly before the Baker v. Carr decision. The League also found that it took less than 40 percent of the population to elect a controlling majority in the legislatures of 44 states. In 13 states, less than one third of the population could elect a majority.
As of 1960, in every house of every state legislature, the largest district was more than twice as large as the smallest district in population terms. The disparity was 424 to 1 in the Connecticut House, 99 to 1 in the Georgia House, 223 to 1 in the Nevada Senate and 1,414 to 1 in the Rhode Island Senate.
The U.S. Conference of Mayors in 1948 proclaimed that "equal representation is not a mere theory or doctrine" but "a fundamental feature of democracy.'' 6
In 1954, the American Political Science Assn. Committee on American Legislatures recommended 'equal numbers of population, no gerrymandering...a wide representation of interests'' as controlling factors in drawing legislative district lines. Reapportionment, the committee urged, should be carried out every ten years by a ''special administrative agency outside the legislature" in each state to go into effect automatically ''in ease the legislature fails to act promptly. 7
The 1955 report of the Kestnbaum Commission, appointed by President Eisenhower to investigate intergovernmental relations, warned that states which had neglected their reapportionment problems were undercutting their own authority and power. Ignored in the state capitals cities were seen by-passing state services and seeking help for education, housing and welfare needs directly from Washington. " In the long run," the Commission wrote, "the interests of all in an equitable system of representation that will strengthen state government is far more important than any temporary advantage to an area enjoying over representation.'' ~
The plea for change was repeated in Congress, in the press, magazines and in numerous law journals.
Sen. Joseph Clark (D Pa.) in 1960 proposed amending the Constitution to require states to reapportion themselves regularly and equitably. In 1958, Sen. John F. Kennedv (D Mass.) held that representation in state legislatures "has either been deliberately rigged or shamefully ignored so as to deny the cities and their voters that full and proportionate voice in government to which they are entitled." s
New York Times reporter Anthony Lewis argued in a 1958 issue of the Harvard Law Review that fair representation was a ''right" of citizens which neither the state legislatures nor Congress could be expected to protect. Voicing a line of reasoning similar to the one plaintiffs were later to present to the Supreme Court in Baker v. Carr, Lewis suggested that ''a court might easily find such blatant discrimination (as unequal representation ) in violation of the 14th Amendment."
Malapportionment, wrote Richard L. Strout in Harper's Magazine, ''rigs the results of the voting far more effectively than all the ballot-stuffing and bribery which went on in the bad old days of machine politics.''
WHAT COULD BE DONE?
What relief was available to citizens who consider~ their votes devalued?
State Legislatures. Little hope for change could be found in state capitals. Over the years, state legislatures -- not to mention governors, attorneys general and the rest of a state's political hierarchy where one party dominated -- were understandably reluctant to alter a status quo which comfortably accommodated them and their interests. Considerable pressure was usually brought on legislatures to keep things as they were. Not that most legislators needed pressure from outside: most could see only too clearly that reapportionment would place their own jobs at stake and few would respond when called on to vote themselves out of office. One authority said it was ''virtually impossible to find an example, from 1901 to 1962, of an apportionment fairly and equitably performed by a state legislature. 12
Initiative. In 20 states where the channel of initiative ~ i was open to citizens, its use in securing reapportionment was less than successful. One study showed that, through mid-1962, the process had been tried in only seven states, producing a ''score" of eleven reapportionment proposals defeated and nine adopted. From 1926 through mid-1962, California voters approved only one of five citizen-sponsored reapportionment plans and the one approved was a "federal plan'' (see p. 18) which was chosen in favor of a plan basing apportionment in both houses on population.. In Washington, voters approved a population-based plan through initiative in 1956, later saw it amended out of existence by the l.legislature, there rejected a new initiative reapportionment in 1962. ~ i
The Courts. Cases charging malapportionment were not new to the courts by 1962. Several state courts had accepted jurisdiction over apportiollment cases however few ever directed a state legislature deemed malapportioned to take corrective steps Where challenges to apportionment were upheld, state courts sometimes applied the questionable remedy of reinstating some previous apportionment system, little better and often worse than the ones challenged. ~s
Attempts to bring apportionment suits into federal courts were met with the argument that the federal forum was no place for so political a problem. An important Supreme Court decision in the case of Colegrove v. Green in 1946 -- involving Congressional redistricting, not state reapportionment -- was held responsible for this judicial posture. In dismissing the districting challenlge, as a lower court had done, the Supreme (,court held that reapportionment matters were not "justiciable'' -- not appropriate for resolution by a court. "The courts,'' said Justice Felix Frankfurter in presenting the Court's opinion, ''ought not to enter this political thicket."
Between Colegrove and Baker, the Court turned back about a dozen more attempts to present cases involving
representation. The lower federal courts took a similar ''hands off" position. Before 1962, only two district courts (in Minnesota and the territory of Elawaii) agreed to review apportionment cases and, in both instances, upheld the challenge to malapportionment. The two legislatures involved reapportioned before the courts could apply remedies l'
'Baker v. Carr' Turns the Tide
With its landmark decision in Baker v. Carr (369 U.S. 186), the Supreme Court opened an avenue of relief for citizens who claimed that they were living and voting under a state apportionment system which violated their corlstitutional rights. (citizens could henceforth put their case before a federal court. A turning point was reached. The distriThe Changing U.S. Population
Two profoulitl popillatiorl changes -- movilig the natiorl
from a rural to a eity-lJased society anti, later, to a rnetroE~olitarl-based
society -- generatecl most of the representatiol1 prohlerils of
the micl-20th century. Until 1920, the Unitell States was predomilialitl!
a natiol1 of farmers ancl small towr1 residents bl later eensLIses,
the proportioliate mirilbers of urhall Amerieans drarnatiealiv
oLItpatttl those of rural Amerieans (see adjoinlug cliari) while
thc total popillatioll took ever wider leaps. Bv mideeritLIr!
swellirig en'! poptilatioris were famlirig oLLt into surroLIliclilig
areas creating thieklv settled metropolitall centers. Currentl!
as the map beR,w shovs~s, areas aR,Ilg botil coastlilles, in Texas
ancl in I~R'ricla (whiel1 eolitained sonic of tht fastest-growilig
metropolises) eolitilluetl to register poE'lilatioll increases,
while predomiliantly rural areas in the central easten1 anti soutilt
rn parts of the countr! declined. Metropolitall poprIlatiorl over-all
incrt ascd twice as rapitil! as tlitl otiler arc as between 1960
ancl 1965 anti the proEJortiol1 of the popL'latioll living in
metro;Jolitall areas (slightly less than 65 percent in 1966) eoritillLled
to incil upward. A 1960 stucl! of the 23 largest metropoIitar1
centers (p 43) showttl that the subLIrlJall areas of all 23 had
gainecl populatior1 in the precetlilig decade, while mall! of
the eontral city areas R,st resiclents -- a phenoiriciloll whicl1
(p 39-41 ) carried deep political implicatiolis for reapportiolimerit.
button of seats in a state legislature was no longer simply a
state matter or a political matter, but a federal constitutional
matter.
The case began in the U. S. federal district court in Nashville, Tenn., in May 1959, when a group of urban residents, including the r.nayor of Nashville and a county judge named Charles W. Baker, 18 filed a suit against Joe C. Carr, Secretary of State of Tennessee. At issue was the makeup of the rural-controlled Tennessee Legislature.
Under the Tennessee constitution, apportionment of both legislative houses was to be based on population. Reapportionment was required every ten years. However, at the time of the suit, no apportionment changes had been made since 1901 and tremendous population growth and migration to urban areas had rendered the constitution's population provision meaningless. By 1960, the House districts ranged from 3,454 to 79,301 in population -- a disparity of 23 to 1. Senate districts ranged from 39,727 to 237,905 -- a six-fold disparity.
The urban residents had appealed to the Legislature for a fairer distribution of seats, but to no avail. A suit brought in the state courts to force the Legislature to act was rejected on the grounds that the courts were obliged to stay out of legislative matters. The urban forces then kJtJk their appeal to the federal courts, stating that they had no other channel of redress: the Legislature had refused to act for half a century; attempts to call a state constitutional corlvention had failed because the call must come from the Legislature; the state courts had refused to intervene; and Tennessee had no referendum or initiative laws to carry the issue directly to the people.
The plaintiffs argued that the Tennessee Legislature was so unrepresentative that a minority ruled in both houses, contrary "to the philosophy of government of the United States and all Anglo-Saxon jurisprudence in which the national government in such areas as housing, urban development, airports and defense community facilities.''
The case was argued in the spring of 1961 and reargued as the opening case in the following October term. Attorneys for the Tennessee voters were Charles S. Rhyne, of Washington, a past president of the American Bar Assn., and Z. T. Osborn Jr. Jr., of Nashville, who had presented the case to the lower court. .