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with these remedies are apparent. To compel a legislature by mandamus to draft a new apportionment or to use other methods of direct compulsion on individual legislators are not usual exercises of judicial power, though many State courts have successfully done this. Nor is return to an earlier apportionment a satisfactory solution."

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But there is a simple, appropriate, and effective remedy: requiring an election at large until valid districts are drawn. This was the relief granted in Brown v. Saunders. A statute revising Virginia's congressional districts was invalidated as in violation of a State constitutional requirement that the districts contain "as nearly as practicable, an equal number of inhabitants." "1 The State's representatives were chosen at large, and valid new districts were drawn before the next Congress."

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III. A FEDERAL RIGHT TO EQUALITY OF REPRESENTATION EXISTS

A. Congressional districts

An individual right to equal representation in the House of Representatives can be drawn from article I of the Constitution. The existence of such a right is strongly supported by the legislative history of the article the proceedings of the Constitutional Convention and the ratification debates.83

Section 2 of article I reads, in pertinent part:

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States."

A reading of the contemporaneous material demonstrates that the word "People" was not used accidentally; the House was intended to represent the people rather than the States.4

In the heart of the Convention debate between large and small States on the form of representation in Congress, William Samuel Johnson of Connecticut thus put the compromise that was adopted: "[I]n one branch the people, ought to be represented; in the other, the States." 85 William Pierce of Georgia, noted Madison, "was for an election by the people as to the 1st branch and by the States as to the 2d branch; by which means the Citizens of the States wd. be represented both individually and collectively." "

78 E g., Attorney Gen. v. Suffolk County Apportionment Comm'rs (224 Mass. 598, 113 N.E. 581 (1916)). 79 But see note, 32 Indiana Law Journal 489, 513-14 (1957). The note concludes that the Indiana Legislature, which has not reapportioned itself since 1921, cannot be relied on to do the job. As a solution, the note proposes an action for declaratory judgment to declare the 1921 apportionment invalid, forcing election under the next previous act, that of 1915. If the legislature thus elected still fails to reapportion, the note suggests a suit to invalidate the 1915 act and go back to the next previous act, that of 1885. The note writers believe that under such compulsion the legislature would reapportion. 80 159 Va. 28, 166 S.E. 105 (1932).

81 Virginia Constitution, sec. 55.

82 See Congressional Directory, 74th Cong., 1st sess., 119-121 (1935). Aside from this case, the remedy of requiring an election at large has scarcely been tested in the State courts. The only square holding found by the writer against this relief is Kidd v. McCanless (292 S.W. 2d 40 (Tenn.), appeal dismissed, 352 U.S. 920 (1956)). The Tennessee court held that it could not order election of the legislature at large because the State constitution made no provision for such an election. 292 S.W. 2d at 42. Cf. Daly v. County of Madison (378 Ill. 357, 38 N.E. 2d 160 (1941)), in which at-large relief was sought but the suit was dismissed on other grounds. These two and Brown v. Saunders were the only cases found in which State courts were asked to order elections at large. 83 For an excelelnt discussion of the historical data see Paschal, The House of Representatives: "Grand Depository of the Democratic Principle", 17 Law and Contemp. Prob. 276 (1952).

84 The emphasis on election of the House by "the People" may be traced through the floor debates at the Convention, see 1 Farrand, "The Records of the Federal Convention" 48-50, 132-137 (1911) (hereinafter cited as Farrand), at the Committee of Detail, see 2 id. at 178. and as referred to and reported by the Committee of Style, see 2 id. at 565, 590. It has been suggested that there is evidence to the contrary in the fact that the House votes by States in choosing a President when no candidate wins a majority in the electorial college (U.S. Constitution, art. II, sec. 1; now id, amend. XII, sec. 1). But this provision merely carries out the constitutional plan for choosing the Presidentconceded by a State oriented plan.

851 Farrand. 462.

86 1 id. at 137. In a similar vein is a statement by James Wilson of Pennsylvania:

"The Government ought to possess not only 1st the force but 2ndly the mind or sense of the people at large. The legislature ought to be the most exact transcript of the whole society."

1 id. at 132.

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The same belief in a personal, individual right to representation in the House was reflected in the connection between taxation and the representation often made by speakers in the convention."7 article I.) The thesis that the people would be represented in the House was (The two are themselves connected in also expounded in the State ratifying conventions and in the Federalist.

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A second proposition demonstrated by the historical material is that the framers specifically anticipated the possibility of malapportionment of congressional districts and provided Federal power to prevent it in the clause of article I giving Congress ultimate authority to regulate the time, place, and manner of congressional election." as a weapon against maldistricting. Without it, he said, "the inequality of the In the convention, Madison supported the clause representation in the legislatures of particular States would produce a like inequality in their representation in the national legislature, as it was presumable that the counties having the power in the former case could secure it to themselves in the latter." 1990

Similar defenses of the clause were made in the ratifying conventions. In South Carolina, Charles Cotesworth Pinckney said it was "absolutely necessary that Congress should have this superintending power, lest, by the intrigues of a ruling faction in a State, the Members of the House of Representatives should not really represent the people of the State." 91

In the Massachusetts convention, Francis Dana pointed to examples of maldistricting in Rhode Island and Great Britain," and Rufus King noted similar examples in Connecticut and South Carolina." In Virginia, Madison, in defense of the clause, equated malapportionment with deprivation of suffrage."

All this indicates that the framers, in considering the possibility of maldistricting, envisaged a congressional corrective power. Congress first exercised the power in order to require election of representatives by districts in 1842." In 1872 Congress added the requirement that districts be of approximately equal

87 [T]he Senate did not represent the people, but the States in their political character. It was improper therefore that it should tax the people. 2 id., at 273 (Mason arguing for original House power over money bills). See also the Federalist No. 54 (Hamilton or

Madison); 1 Farrand 464.

88 Charles Cotesworth Pinckney told the South Carolina convention: "[T]he House of Representatives will be elected immediately by the people, and represent them and their personal rights individually; the Senate will be elected by the State legislatures, and represent the States in their political capacity. Federal Constitution 304 (2d ed. 1836) (hereinafter cited as Elliot). See also the remarks of George Cabot before the Massachusetts convention, 2 id., at 25. 4 Elliot, Debates on the

"[O]ne branch of the legislature is a representation of citizens, the other of the States. The Federalist No. 58, at 397 (Tudor Publishing Co. ed. 1947) (Hamilton or Madison).

89 United States Constitution art. I, sec. 4, cl. I: "The Times, Places and manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such regulations, except as to the Places of chusing Senators."

90 See Farrand 241.

reports of the Constitutional Convention itself.
This is the only specific reference to malapportionment in the

91 See 4 Elliott 303.

92 See 2 id. at 49.

93 See 2 id. at 50-51.

94 [I]t was thought that the regulation of time, place and manner of electing the representatives should be uniform throughout the continent. the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. Elections are regulated now unequally in some Some States might regulate States, particularly South Carolina, with respect to Charleston, which is represented by 30 members. Should the people of any State by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government. 3 id. at 367.

95 Act of June 25, 1842 (ch. 47.5 Stat. 491). taken to electing representatives at large. A number of States-seven in 1842-had anticipated election by districts. The framers of the Constitution apparently "The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. The Federalist so assumed without argument: It will therefore form nearly two districts for the choice of Federal representatives." No. 57, at 394 (Tudor Publishing Co. ed. 1947) (Hamilton or Madison). at least, eelction at large can be said to meet the requirement of equality of representation; every voter has equal influence on the choice of the delegation. and every member repreBut logically, sents the same number of constituents. Court dealt with the question of how representatives should be elected in a State which In Smiley v. Holm (285 U.S. 355 (1932)), the had too few or too many congressional districts. for a unanimous Court, wrote: Chief Justice Hughes, in an opinion

"The Constitution itself provides in article I, section 2, that "The House of Representatives shall be composed of Members chosen every second year by the people of the several States,' and we are of the opinion that under this provision, in the absence of the creation of new districts, additional Representatives allotted to a State under the present reapportionment would appropriately be elected by the State at large."

Id. at 374 (dictum). The case is further described at p. 1082 infra.

population," and this provision continued through the act of 1911." It was never enforced by Congress," and the Supreme Court held in Wood v. Broom-the first case in the Federal courts involving congressional districts-that the provision had been impliedly repealed when Congress enacted a permanent apportionment statute in 1929.1

The fact that the Constitution casts the right to equal representation in the House in terms of affirmative congressional power should not preclude judicial enforcement of the right in the absence of legislation. Such judicial action is commonplace in other areas. There is, notably, the commerce clause, which is phrased in the most general language and entirely in terms of congressional power. Among the framers and contemporary commentators, "the conception that the mere grant of the commerce power to Congress dislodged State power finds no expression." There was no hint that the Federal courts were empowered, in the absence of congressional legislation, to invalidate State laws impinging on national commerce. Yet since Marshall's first essay in Gibbons v. Ogden, use of the commerce clause for judicial invalidation of State action has become "central to our whole constitutional scheine." There is, in fact, more substantial support in the constitutional history for the presumption that, in the silence of Congress, the Constitution gives a right to equality of representation in the House than there is for the analogous presumption as to freedom of interstate commerce.

5

The leading modern cases exploring the scope of the right to vote for Members of Congress given by article I are United States v. Classic and United States v. Saylor. Both were criminal prosecutions of State election officials under Civil Rights Acts' dating back to 1870-the former for miscounting votes, the latter for stuffing ballot boxes. The statutes invoked do not mention voting but merely make it a crime to violate a person's constitutional rights, defined in the broadest terms. To uphold the indictments, the Supreme Court had to find, in the acts charged, violations of some specific right given by the Constitution. It found that right in article I-a guarantee of the integrity of the ballot. The Court held in Classic:

"Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a State to cast their ballots and have them counted at congressional elections."

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Saylor went further to hold that article I protects the voter's ballot against the diluting effect of stuffed ballot boxes.

In a suit challenging inequitably apportioned congressional districts, the substantive Federal right could be analogized from Classic and Saylor: If the declaratory language of article I guarantees the ballot against the random hazards of miscounting and stuffing, it should protect also against the continued diluting effect of maldistricting. It may be said that there is a difference in that in the Classic and Saylor situations the voters were qualified under State law and that the acts assailed were violations of State law as well as the Constitution, while in the maldistricting case the attack is against a deliberate act of the State. But the historical material shows that supervision over congressional redistricting was intended to fall within the area of Federal power, not within the States' exclusive authority over voting qualifications. Moreover, the fact

9 Rev. Stat. sec. 23 (1875) (originally act of Feb. 2, 1872 (ch. 11, sec. 2, 17 Stat. 28)). The provision was repeated in later congressional-apportionment acts. Áct of Feb. 25, 1882, ch. 20, sec. 3, 22 Stat. 6; act of Feb. 7, 1891, ch. 116, sec. 3, 26 Stat. 735; act of Jan. 16, 1901, ch. 93, sec. 3, 31 Stat. 734.

97 Act of August 8, 1911, ch. 5, sec. 3, 37 Stat. 13. The provision was that districts be "composed of a contiguous and compact territory, and contain as nearly as practicable an equal number of inhabitants."

as For some of the reasons, see p. 1094 infra. Curiously, as Justice Frankfurter pointed out in Colegrove (328 U.S. at 555), Congress' power to regulate congressional districts was questioned in a House committee report as late as 1901. See H.R. Rept. No. 3000, 56th Cong., 2d sess. (1901); 1 Hinds, Precedents of the House of Representatives, sec. 313 (1907).

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The Classic prosecution was based on an earlier version of what is now 18 U.S.C., secs. 241. 242 (1952); Saylor was based on id, sec. 241.

8 313 U.S. at 315.

"Electors in each State shall have the Qualifications requisite for Electors of the most numerous branch of the State Legislature." U.S. Constitution, art. I, sec. 2. Happersett, 88 U.S. (21 Wall.), 162, 171 (1874) (dictum).

See Minor v.

that an action violates State law does not of itself affect its validity under the Federal Constitution.10 Of course, there is an important difference of standards in the two situations. One miscounted ballot plainly constitutes a wrong, while a difference in district populations would have to be substantial before it could be regarded as invalid. But the substantive right would be based on the same premise of article I-the worth of the individual vote.

As for the technical right of action, a suit for equitable relief from an unconstitutional act can be based directly on the Constitution." But in any event a Civil Rights Act 13 parallel to the criminal statute involved in Classic authorizes civil actions, including suits in equity, against State officials who deprive persons of constitutional rights.

In addition to article I, a Federal right to equality of representation in the house may be based on the various provisions in section 1 of the 14th amendment. The first of these, the half-forgotten privileges-and-immunities clause, has been held to protest only rights of national citizenship, not State-given rights." It would appear, by a specific negative on State action, to reinforce rights implicit in other portions of the Constitution' In an attack on unequal congressional districts the clause would simply support the argument based on article I.

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The equal-protection and due-process clauses offer a supplementary argument. Here the assertion is that for a State to discriminate geographically among its voters is, as in the case of racial discrimination, to deny the equal protection of the laws; or that it is to deprive the citizen of political liberty or of the intangible property of his vote" without due process.' In any case, as to congressional districts, there should be no practical difference in legal consequences whether reliance is placed on article I or on the 14th amendment."

B. State legislative districts

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There is no constitutional assumption that representation in the State legislatures should be based on units of equal population.20 Indeed the States would seem constitutionally free to choose any reasonable form of representation they wish: by population, by area, or by occupations as in guild socialism.

21

10 It has been held that an act contrary to a State statute does not violate the 14th amendment unless there would be a violation in the absence of the State statute. Owensboro Waterworks Co. v. Owensboro, 200 U.S. 38 (1906); see Snowden v. Hughes, 321 U.S. 1, 11 (1944).

11 See the discussion of standards at pp. 1083-1086 infra.

12 See Ex parte Young, 209 U.S. 123 (1906); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Hart & Wechsler, The Federal Courts and the Federal System 818 (1953).

13 Rev. Stat. sec. 1970 (1875), 42 U.S.C., sec. 1983 (1952):

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

In numerous civil rights cases--such as Brown v. Board of Educ., 347 U.S. 483 (1954)the plaintiffs relied on this act in their complaint, but the Court did not bother to mention it in the opinion.

14 Slaughterhouse Cases (83 U.S. (16 Wall.) 36 (1873)).

15 Compare Crandall v. Nevada (73 U.S. (6 Wall.) 35 (1868) (State transportation tax held invalid, before ratification of 14th amendment, as violating Federal right to travel freely among the States), with Edwards v. California (314 U.S. 160, 177-86 (1941)) (declaring State restrictions on entering travelers invalid under 14th amendment's priv ileges and immunities clause) (concurring opinions of Douglas and Jackson, JJ.).

o Nixon v. Condon (286 U.S. 73 1932)); Nixon v. Herndon (273 U.S. 536 (1927)). 17 A right of action to recover damages for interference with one's vote was established at common law in Ashby v. White (1 Brown 62, 1 Eng. Rep. 417 (H.L.), reversing 2 Raym. Ld. 938, 92 Eng. Rep. 126 (K.B. 1703)). The report makes interesting reading, especially the scarcastic comments directed by Lord Chief Justice Holt at what must have been the political-question exponents of his day:

[M]y brother says, we cannot judge of this thing. O, by all means be very tender of that. be contrariety of opinions."

matter, because it is a parliamentary Besides it is intricate, and there may

Id. at 956, 92 Eng. Rep. at 137 (dissenting opinion).

18 Compare Brown v. Board of Education (347 U.S. 483 1954)), with Bolling v. Sharpe (347 U.S. 497 (1954)).

19 The author's view is that a standard of reasonableness like that used typically in a case involving the equal-protection clause should be applied to a districting suit based on either article I or the 14th amendment. See pp. 1085-86 infra.

20 The moribund Federal guarantee of a republican form of government in t'e States, U.S. Const. art. IV, sec. 4, imposes no such requirement which the courts will enforce. Cf. Pacific Tel. Co. v. Oregon (223 U.S. 118 (1912)).

21 It may be difficult, however, to say whether a State-that is, a majority of its citizens-"wishes" a particular form of representation. The amending processes for many

State constitutions make it difficult for even a dominant majority of the citizens to change a form of representation fixed at some time in the distant past. For example, an amendment changing the long-established apportionment of the Connecticut House by towns would first have to be approved by a majority of the house at one session and a two-thirds vote at the next, Connecticut's normal amending procedure. See Conn. Const. amend. 1.

A system of State legislative representation could, however, be so unreasonable as to offend the equal-protection and due-process clauses. Were a State, for example, to provide that each resident of an urban area have one-quarter of a vote in leigslative elections while a rural citizen may cast a full vote, a court might easily find such blatant discrimination in violation of the 14th amendment. Suppose the State constitution requires legislative districts of equal population, but failure to reapportion has so unbalanced the districts that the urban resident's vote is in fact worth only one-quarter as much as the rural resident's. The violation of the State constitution would not itself amount to a violation of the 14th amendment." But in an argument on the merits the apportionment would stand exposed as based on something other than a rational principle. It might lack the rational basis needed to pass muster under the 14th amendment. IV. THE SUPREME COURT'S REASONS FOR DENYING RELIEF ARE NOT PERSUASIVE The Supreme Court has articulated on three occasions-principally in Colegrove v. Green, more briefly in two subsequent cases-its grounds for rejecting constitutional challenges to malapportionment. Plaintiffs in Colegrove, citizens and voters in Illinois, attacked the State's congressional districts as in violation of article I and the 14th amendment's privileges-and-immunities and equalprotection clauses. No mention was made of the Civil Rights Act," but jurisdiction was asserted under the parallel jurisdictional statute." The districts, unchanged since 1901, varied in population from 112,000 to 914,000. Plaintiffs sought a judgment declaring the district invalid and an injunction barring the defendant Governor and other officials from using the districts in the 1946 election. The result would have been to force an election at large.

20

Mr. Justice Frankfurter's opinion, affirming dismissal of the suit because of its "peculiarly political nature," concluded that any right to equitable representation can be vindicated only through the political processes, without the help of the courts. Justices Reed and Burton concurred in the opinion. Mr. Justice Black, dissenting in an opinion joined by Justices Douglas and Murphy, saw no reason why the Court should stay its hand here any more than it had in the Negro-voting cases." He found the population disparities among the districts violative of article I and the equal-protection clause, and he saw no remedial difficulties in affording the relief sought." The deciding vote was cast by Mr. Justice Rutledge." He assumed arguendo that the Court had power to adjudicate but said it should exercise its discretion to dismiss for want of equity, on several grounds; that to grant relief would involve the Court in delicate relations with Congress and the States, that the date (June 10, 1946) was so late as to make redistricting unlikely before the election, and that voting at large would be undesirable.20

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MacDougall v. Green challenged an Illinois law which required a new party seeking a place on the statewide ballot to have petitions with at least 200 signatures from each of at least 50 different counties and at least 25,000 signatures in all. The Progressive Party of 1948 had 75,000 signatures in the State but did not have the requisite geographical distribution. Plaintiffs, would-be Progres

22 See note 109 supra.

23 Nor did the plaintiff-appellants' brief develop the relevant historical material. It stressed the political evils of maldistricting. See Brief for Appellants, pp. 60-70, Colegrove v. Green (328 U.S. 549 (1946)).

24 Now 28 U.S.C., sec. 1343(3) (1952). For a discussion of the scope of jurisdiction thus conferred, see Hague v. CIÓ (307 U.S. 496, 508-13 (1939) (Roberts, J.); id. at 518 (concurring opinion)).

25328 U.S. at 556. Most law-review comment on Colegrove has been critical of the result. See e.g., 35 Calif. L. Rev. 296 (1947); 41 Ill. L. Rev. 578 (1946); 56 Yale L. J. 127 (1946). See also Note, 62 Harv. L. Rev. 659, 662-664 (1949). Only one comment has been found which approved the political-question rationale of the decision. 35 Ill. Bar. J. 263 (1947).

28 See 328 U.S. at 572-574 (dissenting opinion).

27 Id. at 574 (dissenting opinion).

28 Id. at 564 (concurring opinion).

Justice Jackson did not sit. Chief Justice Stone

heard argument but died before the decision.

20 Justice Rutledge indicated in Cook v. Fortson, 329 U.S. 675 (1946), that he would have voted to grant a rehearing in Colegrove, if a majority of the full Court had been willing to hear argument in Cook v. Fortson, Id. 678-679.

30 335 U.S. 281 (1948).

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