John Marshall Harlan II

“ Now, conceding to each State the right to regulate the right of suffrage, they ought not to have a representation for male citizens not less than twenty-one years of age, whether white or black, who are deprived of the exercise of suffrage. This amendment will settle the complication in regard to suffrage and representation, leaving each State to regulate that for itself, so that it will be for it to decide whether or not it shall have a representation for all its male citizens not less than twenty-one years of age. ”

“ No set of standards can guide a court which has to decide how many legislative districts a State shall have, or what the shape of the districts shall be, or where to draw a particular district line. No judicially manageable standard can determine whether a State should have single member districts or multi-member districts or some combination of both. No such standard can control the balance between keeping up with population shifts and having stable districts. ”

“ There are city elections, county elections, and district or borough elections, and those city and county and district elections are held under some law of the State in which the city or county or district or borough may be, and in those elections, according to the laws of the States, certain qualifications are prescribed, residence within the limits of the locality and a property qualification in some. Now, is it proposed to say that, if every man in a State is not at liberty to vote at a city or a country or a borough election that is to affect the basis of representation? ”

“ If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive. ”

“ Would it not be a most unprecedented thing that, when this [former slave] population are not permitted where they reside to enter into the basis of representation in their own State, we should receive it as an element of representation here; that, when they will not count them in apportioning their own legislative districts, we are to count them as five-fifths (no longer as three-fifths, for that is out of the question) as soon as you make a new apportionment? ”

“ Manifestly no State should have its basis of national representation enlarged by reason of a portion of citizens within its borders to which the elective franchise is denied. If political power shall be lost because of such denial, not imposed because of participation in rebellion or other crime, it is to be hoped that political interests may work in the line of justice, and that the end will be the impartial enfranchisement of all citizens not disqualified by crime. ”

“ Amendment does not take away from the state governments in a general sense the power over suffrage which has belonged to those governments from the beginning and without the possession of which power the whole fabric upon which the division of state and national authority under the Constitution and the organization of both governments rest would be without support and both the authority of the nation and the State would fall to the ground. ”

“ Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action. ”

“ The second section of the constitutional amendment proposed by the committee can be justified upon no other theory than that the negroes ought to vote, and negro suffrage must be vindicated before the people in sustaining that section, for it does not exclude the non-voting population of the North, because it is admitted that there is no wrong in excluding from suffrage aliens, females, and minors. But we say, if the negro is excluded from suffrage he shall also be excluded from the basis of representation. ”

“ But it is surely equally obvious, and, in the context of elections, more meaningful, to note that people are not ciphers, and that legislators can represent their electors only by speaking [p624] for their interests — economic, social, political — many of which do reflect the place where the electors live. The Court does not establish, or indeed even attempt to make a case for the proposition that conflicting interests within a State can only be adjusted by disregarding them when voters are grouped for purposes of representation. ”

“ Does anyone suppose it possible to avoid this plain issue before the people? For if they will sustain you in reducing the representation of the South because she does not allow the negro to vote, they will do so because they think it is wrong to disfranchise him. ”

“ I might refer to the apportionment of representatives. By this constitution, representatives in the Legislature of Florida are apportioned in such a manner as to give to the sparsely populated portions of the State the control of the Legislature. The sparsely populated parts of the State are those where there are very few negroes, the parts inhabited by the white rebels, the men who, coming in from Georgia, Alabama, and other States, control the fortunes of their several counties. By this constitution, every county in that State is entitled to a representative. ”

“ The history of the adoption of the Fourteenth Amendment provides conclusive evidence that neither those who proposed nor those who ratified the Amendment believed that the Equal Protection Clause limited the power of the States to apportion their legislatures as they saw fit. ”

“ Now color disqualifies a man from testifying in courts, or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them, those States will all, I fear, keep up this discrimination and crush to death the hated freedmen. [14] He turned next to the second section, which he said he considered "the most important in the article." [15] Its effect, he said, was to fix "the basis of representation in Congress." ”

“ If the negroes of the South are [p627] not to be counted as a political element in the government of the South in the States, why should they be counted as a political element in the government of the country in the Union? 2498 (Mr. Broomall) .
It is now proposed to base representation upon suffrage, upon the number of voters, instead of upon the aggregate population in every State of the Union. 2502 (Mr. Raymond) .
We admit equality of representation based upon the exercise of the elective franchise by the people. ”

“ With these cases, the Court approaches the end of the third round set in motion by the complaint filed in Baker v. Carr. What is done today deepens my conviction that judicial entry into this realm is profoundly ill-advised and constitutionally impermissible. As I have said before, Wesberry v. Sanders, supra, at 48, I believe that the vitality of our political system, on which, in the last analysis, all else depends, is weakened by reliance on the judiciary for political reform; in time, a complacent body politic may result. ”

“ There are in that State counties that have not thirty registered voters; yet, under this constitution, every one of those counties is entitled [p606] to a representative in the Legislature, while the populous counties are entitled to only one representative each, with an additional representative for every thousand inhabitants. [44] The response of Mr. Butler is particularly illuminating:
All these arguments, all these statements, all the provisions of this constitution have been submitted to the Judiciary Committee of the Senate, and they have found the constitution republican and proper. ”

“ Mann, post, p. 678, the defendants introduced an exhibit prepared by the staff of the Bureau of Public Administration of the University of Virginia in which the Virginia Legislature, now held to be unconstitutionally apportioned, was ranked eighth among the 50 States in "representativeness," with population taken as the basis of representation. The Court notes that, before the end of 1962, litigation attacking the apportionment of state legislatures had been instituted in at least 34 States. ”

“ As of 1961, the Constitutions of all but 11 States, roughly 20% of the total, recognized bases of apportionment other than geographic spread of population, and to some extent favored sparsely populated areas by a variety of devices, ranging from straight area representation or guaranteed minimum area representation to complicated schemes of the kind exemplified by the provisions of New York's Constitution of 1894, still in effect until struck down by the Court today in No. ”

“ In all these respects, the courts will be called upon to make particular decisions with respect to which a principle of equally populated districts will be of no assistance whatsoever. Quite obviously, there are limitless possibilities for districting consistent with such a principle. ”

“ In the Gray case, the Court expressly laid aside the applicability to state legislative apportionments of the "one person, one vote" theory there found to require the striking down of the Georgia county unit system. See 372 U.S. at 376, and the concurring opinion of STEWART, J., joined by CLARK, J., id. at 381-382.
In Wesberry, involving congressional districting, the decision rested on Art. I, § 2, of the Constitution. The Court expressly did not reach the arguments put forward concerning the Equal Protection Clause. ”