Harris v. Anderson

44,026 No. and McCormally, MacDonald, Harris, Peter P. John

J. Publishing Plaintiffs, corporation, Company, Hutchinson Kansas; Governor of capacity his official Anderson, Jr., John of State Secretary capacity in his official Paul R. Shanahan, Commissioner of Elec- Kansas; Viola Pritchard, of the State of Emogene Wineinger, Kansas, and County, tions of Shawnee Kansas, as such individually County, Greeley Clerk of County coun- respective Clerk of their County Commissioner Election Commissioners Election ties, all and as representatives Kansas, the State Clerks of County Defendants. 25) (400 2dP. 1, Opinion filed March 1965. cause, Hutchinson, argued and H. R. Branine and Chalfant, of W. Y. plaintiffs. Hutchinson, him on the briefs for were Chalfant, with of C. E. General, argued cause, Attorney Both, and William Assistant Richard J. General, General, McGee, Attorney Attorney Park Assistant Ferguson, M. for defendants. the briefs him on were with delivered by court was The opinion action in warranto sounding quo original In this Fatzer, J.: and claimed that alleged apportion- it is A., 20-101a), S. (K. 2, Constitution, 2, Article Section the Kansas of ment provisions 2, 1, of the 1964 Ses- 10, Special and Chapter Section Article the seats of the House of Rep- apportioning the legislature, sion unconstitutional and void resentatives, rendered were United States in Reynolds Court Supreme decision 533, 506, L. 2d 15, U. S. 12 Ed. 84 S. Ct. 377 1964), Sims (June that, holding Equal standard, Protection Clause constitutional a basic “. . . as legislature a bicameral state must be requires both houses of that the seats stated, Simply right population individual’s apportioned basis. on a impaired unconstitutionally weigtht legislators when its is in vote for state compared living when votes of citizens fashion diluted a substantial 531.)) (12 2d parts L. Ed. of the State. .” other Reynolds from will be found in quotations Subsequent L. Ed. 2d. that the premise based on to vote for holding of the essence of the choice is representative of one’s candidate suffrage and that “the can be denied of government,

form weight dilution of the citizen’s or vote just debasement aby the free exercise of the fran- by wholly prohibiting as effectively as “Legislators that represent people, trees 523); chise” (pp. voters, are elected not farms or Legislators cities or acres. or legislatures that “our 527); interests” are those in- (p. economic elected directly by directly of government representa- struments voters, that “all state, as citizens of a people” (p. 527); tive regardless of where live” same relation they (p. stand 529); because weight votes “diluting place residence basic constitutional under the Fourteenth rights Amend- impairs much discriminations based upon ment as invidious factors just ... status” such as race or economic and that (pp. 530); no substantially “the Protection Clause demands less than Equal citizens, state for all legislative of all equal representation places all as well as of races.” (p. that, a federal constitutional both houses requisite, holding basis, must be on a apportioned a state legislature deem it not to out expedient attempt spell stated

court “we constitutional tests” what (p. 537); “marginally precise one State another” may unsatisfactory permissible (p. intended to state a few rather “only general con- 537); to be appear siderations us relevant” which it (p. 537), denominated as “discoverable” and “manageable” ap- standards Carr, its decision Baker v. plicable guidelines implementing L. Ed. 2d Ct. in determining 369 U. S. 82 S. die constitutionality of We legislative apportionment plan. further quote summarize from opinion: may legitimately political integrity “A State desire to maintain of various subdivisions, possible, provide compact insofar as con- for districts of tiguous territory designing legislative apportionment in . . .” scheme. state might prefer single-member then stated that one dis- It was might flexibility desire to achieve some while another state tricts districts, that, objective multi-member but “the creating overriding among substantial of the various dis- equality population must be tricts, in that the vote of citizen is any approximately equal so in to that of other citizen the State.” weight (p. 537.) stated: opinion however, indicates, deviated, greater “History many that have to a equal-population principle apportionment degree, of from or lesser divergences legislatures. long from house their So as in at least one of seats legitimate population based considerations incident to standard are on a strict equal-popu- policy, rational some from effectuation of a state deviations constitutionally permissible respect apportion- principle are with to the lation legislature. seats in either or both of two houses of a bicameral state ment of interests, history group alone, nor economic or sorts of are neither other But attempting disparities population-based justify permissible in factors to from Citizens, history interests, representation. cast Con- or economic votes. provide justification of area an insufficient for from siderations alone deviations principle. equal-population Again, people, pastures, not land or trees or developments improvements transportation Modem and communi- vote. in hollow, mid-1960’s, rather in most cations make claims that deviations population-based representation validly solely geographi- can based from be Arguments allowing considerations. for such deviations in cal order to insure representation sparsely prevent legislative settled and to effective for areas becoming large availability that the of access of citizens from so districts impaired unconvincing. representatives today, part, their the most is are appears justifying “A be of in some consideration more substance population-based representation legislatures deviations from in that of state is insuring political political subdivisions, some voice Several as subdivisions. rationally factors make more than claims that consider insubstantial a State can according political independent representation subdivisions some at least one in body legislature, long equality popu- of the state as the basic standard of of among governmental lation frequently districts maintained. Local entities charged responsibilities operation govern- various incident to the of state many legislature’s ment. activity States much of the the enactment involves legislation, of only particular political so-called local directed of concerns (pp. 537,538.) subdivisions. . . .” It further stated: may legitimately along State And a desire to construct districts political possibilities However, gerrymandering. subdivision deter lines to population-based permitting representation deviations does not mean from governmental political given separate each unit local subdivision can be regardless population. representation, far, giving Carried too a scheme political at (for least one seat in example, one each house to subdivision county) easily result, many States, each could in a total subversion of equal-population principle legislative body. especially would be This large many true a State where the number counties is them are sparsely populated, legislative body being and the number seats in the apportioned significantly does not result, exceed the number Such counties. conclude, constitutionally impermissible.

we would be judicial And careful scrutiny given, evaluating must of apportionment schemes, course be degree the character as well as population deviations from a strict basis. if, clearly But even as result policy of a according rational state some legislative representation political subdivisions, submerged controlling consideration particular of seats in the legislative body, then the all of the State’s citizens to cast an effective adequately weighted unconstitutionally impaired.” vote would (pp. 538, (Emphasis 539.) supplied.) court then The formulated arithmetic-absolute stan- dards under the Protection Clause Equal of equal-populated districts for houses of a bicameral legislature. both Those standards are ex- in pressed phrases various as “substantial equality of population the various districts” among (p. 537); “as nearly of equal popula- (p. tion as is and practicable” 536) “approximately equal” (p. 537), but “mathematical exactness or precision that is hardly a workable constitutional requirement” (p. 536), which is all characterized by “full and effective goal participation by all citizens in state and government” 529), even more (p. clearly “fair and effective 306 legisla- aim of concededly for all citizens is basic

representation (p. 529.) tive apportionment.” rec Union must acknowledge Kansas as a state

We of the amendment to the Constitution binding ognize its the time of and must enforce within adoption States from in limits, provisions inconsistent notwithstanding territorial own 370, Delaware, 26 U. S. our Constitution or statutes. Neal had Amendment 567, of the Fifteenth adoption L. Ed. held provi a state constitutional in to render inoperative effect law See, race. suffrage white sion restricted the which also, Am. See, Jur., 610, 212. Gunn v. 82 U. S. 21 L. Ed. Barry, 1332, L. R. Law, 648, 71 A. 41, and Anno: Sec. p. Constitutional struck automatically the Nineteenth Amendment dealing with constitution “male” used a state out the word wherever it was defining statute electors. 1859, original of Kansas was adopted

When the Constitution Representatives Section that the first House of provided Article for one the first Senate year of 75 members chosen and would consist after the of 25 chosen two and years, consist members would the House of and members of election the number of senators first law, exceed 100 but never to regulated be Representatives and senators. representatives Article amended Section hereafter people quoted, both houses of enlarged legislature.

and With the formation counties in the last of the 105 counties five present western of Kansas deal- organized. provisions Constitution were apportionment read: ing representatives regulated by law, number of “The and senators shall be but twenty-five representatives forty one exceed shall never hundred adoption rep- From and after the senators. amendment the house of county admit from each resentatives shall one member which at least two legal election; fifty preceding general at next were cast hundred and votes county legal organized than two which less hundred votes were and each preceding general the next election shall attached to and constitute at cast county lying adjacent representative it on part next district of 2, 2.) (Art. § the east.” state, apportionment organized county each “In the future shall have representative; county many each shall be into as dis- at least one divided (Art. representatives.” 10, 1.) as it has § tricts duty legislature first apportionment, “It shall be the to make an based legislative upon assembly territory; ordered the last the census year 1866, every years shall be made a new five preceding year.” (Art. 10,

thereafter, census of based § mem- are term and four-year Members of the Senate elected elected for a Representatives two-year bers of House 2, the Senate legislature provided term and the has (Art. 29), § of Representatives shall consist of 40 members and the House shall consist of 125 S. A. 4-101.) (K. members. construed and foregoing ap- constitutional were provisions 183, 387 5, 192 Kan. P. 2d

plied (Dec. 1963), Harris v. Shanahan 771, 13, holding Senate Laws apportionment (Ch. , Representa- and the 1961 of the House of 1963) apportionment and void. tives S. 1961 unconstitutional (G. to be Supp., 4-103) Shanahan, in Harris They were likewise construed and applied (March judicially 2d 1964), 192 Kan. 390 P. approved Special Senate No. 2 of the 1964 Bill 2 and House Bill No. Ses- Special Session of the Laws 1964 legislature. 1 and (Chs. sion), approxi- apportioning the state into 40 districts senatorial one member of the House mately equal population and apportioning counties, of Representatives apportion- and then each the 105 ing 20 seats not to counties en- on a basis allocated geographical titled to them with method virtue of in accordance population of equal proportions.

Our legislature is bicameral and the this state legislative power is vested in a Senate and House of 1.) Representatives. (Art. § stated, Simply the rationale of the plan Kansas apportionment that the seats of one (the equally house be Senate) apportioned shall on the basis of population (the of the other house the seats House of a popula shall be both on Representatives) apportioned tion and geographical (March basis. Harris Shanahan , 1964) it was said: supra, “. . . districts, leg- state into senatorial county lines, boundary islature not resulting confined to but districts should, possible, compact population where be and contain and area as may economic, political, interests, similar and cultural all as de- legislature discretion, acting arbitrarily termined in its or ca- (1.

priciously.” e. It said: was also recognized by “. those who framed the Constitution that Representatives districts the House apportioned were to be to the several counties, is, organized county each was to have at representative least one geographical seats not on a allocated basis were apportioned to be properly counties entitled to them population, virtue of county each more than seat entitled to one such was to many be divided into as districts

equal substantially equal representatives. as it had In no case county.” territory in more than one representative include was district (1. 632,633.) c. was plan the that our constitutional apportionment fact Despite and needs the characteristics particular to meet designed uniquely absolute, that, the terms of an Kansas, told in in Reynolds we are bar, the Kan- in the case admitted facts at the stipulated under 2, Session) and Special Laws 1964 sas plan (Ch. apportionment our Constitution Section and Article Article Section against discriminate invidiously are they because unconstitutional mathematically disfavored as district residing any person to conform “weighing representation,” result of the announced, the House of therein the constitutional requisite federal must be Representatives reapportioned. allege, agreement and the written parties’ of the plaintiffs confirm, that, census, based the 1963 official upon state the

facts preceding for the the enactment year official cur- population based, which it rent House was apportionment, was 2,172,296. If 125 House seats were apportioned equitably alone, each district would have had an population basis 17,378 Under current people. act average district in the state and County largest populated Saline 21.3 one and it has representative, times only popu- apportioned likewise was apportioned Greeley County only one lation Moreover, the smallest county has (Greeley) 12.9 representative. district, or average-sized of an ideal population percent times has the average 18.536 dis- county (Sedgwick) tire largest the 63 least Again, using the figures, trict’s 1963 population. to enact necessary populated being counties (districts), majority 411,792 or 19 legislation, were inhabited people, approximately populated total 84 least percent population, state’s while the counties sub- (districts), being majority required two-thirds mission of constitutional or convene a constitutional amendments 763,093 (Art. people, convention 1 and inhabited 2), were §§ contrast, By or 35 percent population. state’s approximately largest 827,123 four counties contained state’s alone people approximately or 38 percent state’s total population, only 23 23 apportioned representatives, although while these seats do represent more than smallest counties people (districts) in the House Representa- which control a two-thirds vote The 1964 official census would result approximately tives. ratios of insofar representation same as the and 84 least pop- However, ulated counties are concerned. there would be shift the ratio representation largest between two of populated counties. action

This attacks only apportionment of the seats of Representatives. House As indicated, previously 105 of the 125 of that house seats apportioned each of the 105 counties on basis geographical (of which 30 counties have a population exceeding ideal average-sized and the district), remaining 20 seats are apportioned counties solely accord- by population in the method of equal ance with proportions. laid Having down the rule that both houses of a bicameral legislature must be appor- tioned on a basis that a but certain degree of variance so constitutionally permissible long from divergences strict standard are based on population legitimate considerations to the effectuation of rational policy, incident state the majority in then that divergences warns from Reynolds population-based does not mean that each representation local governmental unit or can subdivision be given separate political representation regardless far, if too and that carried “a scheme population, at giving seat in one house to least one each political subdivision ex- (for to each could county) easily result . ample, in a total of the equal-population principle subversion legislative Further, “this would (p. 538.) true body.” especially the number of counties is where large a State of them many and the number of seats in the populated, sparsely are legislative does not exceed the being apportioned significantly body number (p. counties.” not enlightened by the word We “significantly.” Does it 20, 30, 40, or how seats? If many mean the word was used to mean of seats in the legislative the number body being apportioned the number of counties by must exceed such number that the vote any citizen in district created by to that of equal weight any other approximately citizen in the 20 state, it is that the seats then evident apportioned to the more Kansas counties accordance with the method populous of equal in number to provide are insufficient proportions equal-populated with the federal in accordance districts constitutional requisite. the fact that 63 indicated least populated counties, This is enact necessary legislation, are majority controlled being 310 411,792 or 19 approximately state’s total people, percent 827,123 while four counties alone contain

population, largest total 38 the state’s people, approximately percent population, and are 23 seats both apportioned only geographical and basis. of the decisions of the light Supreme Court the United States Sims, Lomenzo, supra; v. WMCA v. Reynolds 633, 377 U. S. 12 568, 1418; Tawes, L. Ed. 2d S. Ct. v. Maryland 84 Committee 377 1429; 656, 12 595, Mann, S. Ct. U. S. L. Ed. 2d 84 Davis v. 377 U. S. 1441; Sincock, 678, 609, 12 84 S. Ct. Roman v. L. Ed. 2d 377 S.U. 620, 1449; 695, 12 L. Ed. 2d 84 S. Ct. Lucas v. Colorado General 713, 632, 1459; 377 U. S. 12 L. Ed 2d Assembly, 84 S. Ct. Meyers 554, Thigpen, 1024, v. S. 2d 1905; 378 U. 12 L. Ed. 84 S. Ct. Wil Moss, 558, 1026, U. S. Ed. 1907; liams 378 12 L. 2d 84 S. Ct. 563, 1036, 1917; L. 2d Hearne 378 S. 12 Ed. 84 S. Smylie, U. Ct. Butterworth, 1037, 12 2d 378 U. S. L. Finney v. Ed. 84 S. Ct. Drew, 1918; Ed. 2d Ct. Scranton v. U. S. L. 85 S. Davis, 565, 12 U. S. L. 2d Hill v. 84 S. Ct. Ed. requisites federal constitutional establishing legis court is opinion lative apportionment, Clause of Constitution the United that under the Supremacy constitutional and existing statutory ap VI), States (Article Equal Protection Clause of Kansas violates system portionment to the House of respect Repre Amendment with of the Fourteenth sentatives. task of

We, therefore, implementing have the distasteful the rule cases under the Equal and related Protection Reynolds laid down in Amendment, which we are Fourteenth required of the Clause under the Supremacy this state upon to be Clause of binding hold States, so the long the United as majority the of of the Constitution of the Court United States members continue to Supreme concept. highest The adhere to that constitutional court of the the that both of a land has rule houses announced bicameral state on a basis. legislature apportioned must be We are the the United States Constitution and the Con- uphold sworn Kansas, Clause, but under the state the Supremacy stitution of the United States is law of supreme Constitution of the land. Amendment has been so The Fourteenth construed to that require hold, do, that existing now apportionment plan we as we Representatives Kansas House unconstitutional as violating Hence, Clause of the amendment. we declare Protection Equal Article Section the Constitution portion inoperative reads: Kansas, which adoption representa- and amendment “From after house of county in tives admit member from each which at least one two shall fifty legal preceding general election; hundred votes cast at the were next organized county legal and each in which less than two hundred votes were preceding general next cast at election shall be attached to and con- part representative county lying adjacent stitute a district next it on the east.” and that of Article Section portion which reads: “each or- ganized county shall have at least one representative; and . .” Furtiber, hold we invalid the existing apportionment of the House Representatives contained House Bill No. 2 of the 1964 Special Session of legislature.

In view of conclusions announced in Reynolds, legislature is again called to face the unhappy difficult task of re- apportioning the House of Representatives. In performing that duty, court will endeavor to all exercise patience under- standing is permitted within the limitations of Reynolds, and will approve any reasonable plan of the legislature which does not result classification arbitrary or unreasonable departure from the equal population principle declared recently to be a federal constitutional requisite.

In Maryland Tawes, Committee v. supra, Court Supreme the United States stated that under no circumstances should further elections be permitted to be conducted under any unconstitutional plan. 1966 election next election of members of the House of Representatives. Under K. S. A. 25-204 25-311, secretary of state is charged with initiation of acts precedent to the holding of primary general elections, is, the preparation of notices of the primary election and the certifi- cation of nominees for general election. That process will be initiated by him by giving notice of the 1966 primary election on or before April 1966. Information as to representative districts must necessarily his hands for a time sufficient prior date to permit proper preparation of the required notices.

This court makes no indication of when or at what legislative session—the 1965 Regular Session of the legislature or a Special Session called the governor following the 1966 Budget Session— the legislature should enact a proper and valid apportionment of the constitutional with in accordance House of Representatives However, certain it feels supra. Reynolds, announced

requisite act apportion- a valid enact that the will legislature with conformity districts the state into' representative ing of state the secretary time so in ample constitutional requisite, to such representative as necessary information have proper will 2, 1966. to prior April a time districts at reasonable to ample affording legislature opportunity For purpose de- we withhold further necessary reapportionment, undertake the to matter action, hear the jurisdiction retaining termination this is deemed advisable and to additional action as further take such require. time circumstances and within such reasonable as the truth J., dissenting: This case involves what is in simple Fatzer, state, gravest one of the constitutional to face how- crises ever ever be. issue is may Rroadly speaking, grave ill-understood whether this government nation will become consolidated abso- a lute in exer- existing only its state to jurisdiction, governments sufferance, cise their or remain a union of states powers its a nation founding intended fathers. people

I do not of the ancient equivalent protest voice of the defeated litigant, nor nor intransigent, do I wish to be participate popular hue cry against on state majority’s ap- decisions portionment, give any malapportionment nor comfort states where their legislative reapportion bodies have failed themselves by their constitutions required thereby frustrating own will I under majority of their citizens. concede that the Supremacy (Art. legally Clause I am honor bound VI) comply with amendments, Constitution of States and various in- the United Fourteenth, them cluding and enforce without reference to any Moreover, inconsistent in the Constitution. provisions Kansas I agreeably decisions accept Supreme Court of the United States an obvious manifesting Constitution, basis but heavy burden on Supremacy places Clause judge court a course of decisions which he apply believes to be unfounded represent authority nothing in constitutional less than action by six members Court Supreme of the United a federal an unwarranted enforce interpretation in fact no federal exists under the There where Constitution. logic requires any judge nor a state is no law court under the result of such apply Clause action as the Supremacy end

313 Science Political Burgess, (1 robe” “aristocracy of the product Hand Learned Law, Judge what 365) p. and Constitutional (L. Guardians.” of Platonic as a “bevy characterized bluntly more Hand, 73.) The Bill of Rights, p. in the ratification integral part state of played Kansas Amendment, ignore remain silent and Fourteenth and I cannot Sims, v. 377 Reynolds in grave question implicit constitutional cases, 1362, 533, 506, and related when 12 L. 84 S. Ct.

U. S. Ed. 2d serious, far-reaching pervading so so consequences are structure, of our spirit experience so from the great departure institutions; the effect is to fetter and and in degrade, free when character of the rela- the whole fundamental radically change fact and of governments govern- tions of the state and federal the state absence the Fourteenth language ments to the people, admit of no clearly Amendment which such a expresses purpose Grazia, from the Dr. Alfred de “To take away doubt. As stated by constitutional of a authorities State with its con- (beginning very stitutional and its the right convention to determine constitution) the character of be representative system would blow powerful Court, itself un- against Supreme American federalism. For elective, to demolish structure partially representative on some inferred doctrine of wholly rarely practical crowning would the his- irony districts’ ‘equal-populations tory law-making.” Representative of judicial (Apportionment Government, p. 160.) vein, Stewart, the same Mr. Mr. joined by Justice Justice

Clark, stated that uncon- majority’s pronouncement making states, stitutional the of most the 50 legislatures “finds no support Constitution, Court, in any words decision of this prior 175-year or in tibe of our Federal Union.” political history (Lucas 713, 583, 632, v. Colorado 12 L. Assembly, General 377 U. S. Ed. 2d Likewise, S. Ct. 84 Mr. dissenting.) Harlan said that Justice decision “amounts to majority’s nothing less than an exercise Court,” and, amending “in power the name of con- interpretation, stitutional something court adds to the Constitu- it,” tion that was excluded deliberately from and “in reality substi- tutes its view of what should be so for the amending process.” Sims, v. (Reynolds supra, pp. 563 of 12 2d, L. dissenting, Ed. quotations from [subsequent Reynolds are from 12 L. Ed. 2d].) Moreover, stated, Mr. Frankfurter has “to find such a poht- Justice

ical broad and conception legally unspecific enforceable See to rewrite Constitution. guarantee equal protection 2d Dissent- Luther Borden How. L. Ed. 581.” (U. S.) ( Carr, Baker 369 U. S. 7 L. Ed. 2d 82 S. Ct. ing, Acquiescence undoubtedly decisions Court is Supreme borne, in a of a law and large part, respect for deep-rooted in the land. Supreme highest Court as the judicial authority en- However, as it for the court misdirected insofar respect Reynolds a docile to a decision such genders submission of the the organization and structure and challenges strikes down interest states, the the it is in long-term institutions of and political not become should the court nation that this respect of and the a servile abasement. of out fallen seems to have self-restraint

The notion of judicial court, impose fails to although it the of the and favor it should be power, its judicial the exercise of self-limitations upon that: remembered Constitu- may provisions the interpret the of “. . . the Court However the of not the decision

tion, law and is the it is still the which Constitution question law no underlying of constitutional the ‘To decision of Court. (3 Warren, right.’ endure, . finality . .” must be attaches. To . . . 470.) History, p. Supreme States Court in United of judges acting legislators to judicial opinions respect With Car- and Mr. right power, between distinguish fail to who Justice dozo said: have, course, Judges though right, ignore power, “. . . of the not the provision], judgment

the mandate of a statute and in de- [constitutional render They spite power, though right, beyond of have the not the to travel the it. interstices, judicial by precedent of walls the the bounds set innovation and less, by they power, .’’ custom. None abuse the law. violate Process, p. 129.) (Cardozo, The Nature of the Judicial It is first of all to duty preserve Federal Constitution sense, its true but when judicial confer opinion purports to federal where no is given, beyond or which reaches federal power restricts, which the it then Constitution confers or becomes no longer judicial supremacy through review but judicial judicial usurpation state courts power binding is not or under judges Clause. Supremacy Constitution, only “Article Section Federal it declares because supremacy Constitution, treaties United States and ‘laws pursuance thereof,’ only which shall be supremacy made affirms a Constitution, supremacy treaties To and laws. this statement of Con- counterpart pursuance thereof, stitution, or made in treaties and laws true, therefore, must, that acts counterposition also be obvious thereof, Government, department powers exercised the Federal or or States, contrary contrary powers the Constitution cannot to reserve or (Article 2) supremacy Section be constitutional declaration under Baylor Rev., (Call, pp. Supreme Court, 11 L. Constitution v. valid.” judicial insist that errors reasoning I be corrected. judicially historical facts and the where Particularly, experiences and tradi- and our laws preclude of our people assumption judicial tions turning constitutionally federated into republic power Otherwise, “to attribute such a government. power consolidated intolerable; it is would be but im- highest to the Judiciary should to demon- Judiciary always pervious portance as to the of the Consti- original meaning error of judicial stration Warren, mistakes.” to correct own tution, (3 be prepared “The tide rises and falls but the sands of cit., p. 471.) supra, op. cit., supra, op. p. 177.) (Cardozo, error crumble.” stated, reasons hereafter I think foregoing, view doubt that conclusions announced beyond established it can be unauthorized the Fourteenth Amend- only in Reynolds less than the act of the nothing majority at- ment, represent but to the Constitution of the its own amendment to write tempting Article, of the Fifth (V) and such clear violation law, are not the Constitution sanction conclusions, being without state courts or the States, binding upon and are not the Clause of the Sixth Supremacy courts under those judges Article. (VI) real note what the issues are. to here This is not important

It is apportionment of legislature’s congressional involving a case Federal House of Representatives seats for districts the method by to of equal allocated Kansas proportions been have was involved in Wesberry Sanders, as v. A., 376 2a), S. C. U. (2 § 526, 481, 2d 84 S. Ct. involved in 1, recently Ed. S. 11 L. U. Kansas, which ordered our legislature court district federal districts congressional according approxi- the five reapportion Anderson, v. 228 F. (Meeks equal population. Supp. 217). mately Federal the direct only application power Wesberry involved 1, Constitution, Section of by conferred Article 2 expressly states,” of the several “by People to be chosen congressmen “nearly practicable” equal popula- from districts which 316 announced, effect, the same conclusion this court Wesberry

tion. Shanahan, Kan. 2d announced Harris 192 387 P. 771. seats on a basis apportions geographical The Federal Constitution state shall one that each have at least by representative, providing same Constitution that each shall county Kansas provides at least one The o£ the membership have House representative. fixed 2 C. A. Representatives 2), has been at 435 U. S. ( leaving § on the basis to be several states apportioned popula- seats equal proportions. (2 tion accordance with method of S. C. A. U. Court of Kansas held that Supreme §2a.) twenty seats which remained after unapportioned geographical assignment of one to each were county, to be required apportioned counties entitled to them on a basis in accordance with the method of equal proportions, and with respect to those it seats further held that each district representative was to have approximately equal numbers. That in Wesberry was the holding respect congressional difference between the districts. The two cases is that in Wesberry federal is conferred power Con- stitution of the United States whereas the (Art. power §2), apportion Kansas House of Representatives is conferred Kansas Constitution 2, 2; (Art. 10, 1.) Ait. § § Likewise, Sanders, Gray U. S. 9 L. Ed. 2d S. Ct. was not a case, us, as is the case representation before involved quite different issue of of senators, election congress- men and state-wide officers from a entire single constituency—the state—in which it would be difficult to rationalize other standard for a Indeed, state-wide election than that of equality voting. rule voting was established Kansas Constitution (Bill Rights, 2) when was it and that has adopted been jeal- §§ ously guarded and even all protected state-wide, county- since. wide, district-wide, and elections township-wide every qualified elector in the single constituency has the to freely vote for the candidate of choice, his who is elected aby majority of those voting him. Gray was simply case, state-wide and the voting opinion expressly conceded had nothing do with composition state legislature and did not involve under the any question Equal Protection Clause. Neither Wesberry Gray nor have the slightest on bearing this case. is here is the

What involved Kansas determine tire extent, basis of its and to representation legislature, what own mandate providing apportionment our constitutional if any, the House basis and a population Senate apportionment runs and basis geographic on both population of Representatives Clause of Protection by Equal restriction imposed afoul of any is in terms answer majority’s The Fourteenth Amendment. seats that the “requires Clause Equal an absolute—the Protection aon must be apportioned of a legislature houses bicameral in both of such thought bemay Whatever 531.) basis.” (p. beyond is philosophy, of political as a requirement piece national sterotype policy, to mold of the jurisdiction inter- a unwarranted something by to add and it is not authorized Amendments, was and Fifteenth of the Fourteenth pretation law, a rule of the states as excluded, deliberately impose in utter disregard is Reynolds holding such The requirement. fundamental facts, principles and infringes upon of historical traditions of the experiences been understood they by have op. years. (Cardozo, than law for more our and our people demonstrated that tit., unanswerably It has been supra, p. 80.) the colonial sys- “was not districts representative equal populated government by for the national tem, chosen system it was not the or even pre- exclusively the system Constitution, it was adoption the time of the states at dominately by practiced Amendment, practiced Fourteenth it is not predominately Frankfurther, dissenting, Carr, states v. today.” supra., J., (Baker p. 735.) nature, been, very always has process

The thicket” envisioned Mr. and the political, “political Justice Ed. U. S. Green, 90 L. Colegrove Frankfurter in the eminent because has no less political become S. 66 Ct. en- have now United States Court of the justices Supreme there exists, tered government So long representative field. which permeates will be in reapportionment partisan politics strand stated, every “in entire Frankfurter As Mr. problem. Justice contending meet of this intricate web of values complicated, Frankfurter, Carr, J., supra, forces of partisan politics.” (Baker no politics dissenting, politics, p. Apportionment in the events itself one neutral. fact has manifested That nation in of this the birth at political history, was ever present Philadelphia 1787. to frame at that convention delegates problem that the would Their second accept.

a constitution people problem was to frame that would work governmental machinery and which would consolidate interests: men who conflicting State-sovereignty wanted the unworkable merely to Articles of Confedera- patch up tion versus for a nationalists central pressing strong government even with elements of states tinged monarchy; versus little big states, each fearful and of the party north versus jealous other; south, with economics and differing cultures; trade and commerce versus agriculture all, But above conflicting rep- interests. resentation in the Congress was controversy produced the most serious disagreement, even to the point threatening dissolution convention. delegates The states insisted big that the union of states should be based entirely people; the House of Representatives should be based on the people, in the representation Senate of States should be in proportion states, The little people. their through spokes- man, contended the states, union should be based on the states as confederate with a and threatened to But foreign out of power. this deadlock came so-called Great of the con- Compromise That this nation would not be vention: based on states alone nor would it be based on that the people alone; Senate of the United states, would be based on the and the House of Representa- would be based on tives As result of the people. compromise between the of the sovereignty states and the over-all consolidated we sovereignty Constitution, under the people, today, a union of states and a nation of people. Madison s (James report in the Federal Convention of of the “Debates 1787” Docu- [House first Congress, session, ment No. 69th entitled “Documents the Formation of the Union Illustrative of of the United States of Farrand, See, also, 1 Records Federal America”].) Convention This the distilled 1787. essence of our republican form of government. and controversies were not limited to the disagreements

But Kansas Convention was forged Constitutional 1787. tem- fires of It suffered controversy. ills of pered from the there more than mere nation; partisan was there politics; war. Following intense of violence guerilla period and blood- contest became shed, almost entirely political be- struggle settlers, and the tween free-state each side proslavery trying state by win the control of its securing government. The Fifth which convened legislature Territorial of the Kansas Session the months of during in Lawrence and concluded Lecompton Convention enacted the Constitutional February, January formation of a Constitution State Gov- “for the Act providing of 1859, Laws Ch. ernment for the state of Kansas.” (Territorial to form a state was the fourth attempt people This XXXI.) government. from both were elected to the political parties

Fifty-two delegates convention from districts which were on apportioned population. The convention met in on and the Wyandotte Tuesday, July 5,1859, and proceedings debates of convention recorded in the that Debates, Convention, Proceedings Constitutional Wyandotte 1859, hereafter cited as Wyandotte.

Almost immediately the of it- question representation presented self, and Thursday, July first question apportionment arose. Greer, Mr. of Shawnee a County, offered resolution which would direct the secretary of the to furnish territory conven- tion an abstract statement the census of the several counties showing of the territory, taken under the act of the last legislative assembly. Griffith, Mr. Bourbon, moved to amend resolution by request- ing the secretary of the territory “to address a letter to the clerks districts, of the counties included in their them requesting to forward by mail an to this Convention abstract of the census returns under seal, in file in their office.” Mr. Greer (Wyandotte, p. 37.) accepted resolution, Mr. amended, Griffith’s amendment and was adopted. On the following day, Friday, July question again arose McClelland, when Mr. County, moved to send Jefferson messengers returns, country “to the census get order that this Convention be the better a may just enabled to make apportion- ment.” (Wyandotte, Thacher, p. Mr. 66.) Douglas County, opposed, it unwise and thinking that no census expensive, stating was taken in counties, some of the because did not know “they law”; that “the laws are locked up safe Lawrence.” (Wyandotte, p. continued, debate and on voice vote Mr. McClelland’s motion was rejected.

On Wednesday, July the Committee on Apportionment made convention, which was in three sections. The first report that, section at least provided “every organized county shall have and unorganized one shall be attached to those Representative, that are The second section organized.” p. 357.) pro- (Wyandotte, fifth and the section third every year, vided for apportionment dis- state into senatorial legislative apportioned temporarily Mr. Leav- apportionment. McDowell, tricts until there was new County, enworth stated: President, suppose (having “Mr. I for me to order been will Apportionment), report on the Committee on that the the committee does unfair, my approbation. unjust

not meet in sense I think it is gotten I, obviously political purposes. up sense do as a member of no committee, p. 358.) (Wyandotte, sanction it.” Mr. Slough, County, recognized: Leavenworth President, propose “Mr. I to offer resolution with reference re-com- report, my mitment doing. of this and I desire to state reasons I for so submit following: “ report Apportionment ‘Resolved.,That the of the committee on be re-com- mitted, required and that the members each district be to make return to districts, said respective committee under oath of the their belief; accordance with their best information and said committee be ” report instructed to (Wyan- accordance with returns.’ said p. 359.) dotte, and stated his reasons in support Griffith, of the resolution. Mr. Rourbon County, was recognized, and stated: President, “Mr. ‘Provided, I attaching move to amend these words: ” they give organized county representative.’ shall each (Wyandotte, at least one p. 359.) The following are from exerpts the debate that Mr. followed: McDowell stated: President, population “Mr. 1 think that rather than counties should he predicate apportionment, organized an county and that an should not be en- representative,

titled! to a population unless it has a to entitle it. sufficient suppose I object people of this Territory whole scheme is to have of the law-making departments in their government; object, and that it seems me, equally, is best fairly at, justly by arriving attained —more and attained — place, approximation in the first population, selecting to the some number basis, of the apportioning as a accordingly. and fair; I think that is I think just, that is and only it justice to me that seems is method of which can be done to those large population. sug- counties that have a I these offer gestions they because I apportionment.” think indicate the fairest scheme for (Wyandotte, pp. 359, 360.) (Emphasis supplied.) Mr. Griffith replied: President, justice organized give “Mr. it is no more than counties we representative. adopt them amendment, each a Unless we we cannot. It every county peculiar for; known that has own interests to care and when two, represents counties, represent one man three he will not them all four perfectly. filling up,

so rapidly county The western counties are a should and if number before inhabitants, they may three times have have now but rep- county organized one each allow than fair to think it no more I election. supplied.) (Emphasis 360.) (Wyandotte, p. resentative.” stated: Stinson, County, of Leavenworth Mr. gentleman argument adduced President, has “Mr. I think sparsely counties of our western greater settled applies no force to square It is not miles and ... eastern border.

border than to those on our although may represented, people; there be hun- and but that are to be acres land, injustice if nothing it not work square does on the miles with dreds against the amendment.” square represented. I vote shall are not these miles supplied.) (Wyandotte, 360.) (Emphasis p. Thacher, County, replied: Douglas from delegate Mr. a organized county President, every has district interests “Mr. I think Legislature. require representative . at in one branch a least together you necessarily you take have to Where attach two or more counties county, your of one representative the other so interests from one or words, abeyance. completely ... In other if or two counties are left you sweep you representative, it give county out without a do not each counties, represents representative he representative two at all. Where only represents amendment a wise and fact ... I believe one. county Every organized adopted. salutary provision, one which should one, you give you ought representative, it disfranchise don’t and if have supplied.) (Wyandotte, (Emphasis p. it.” 18, and 30 to vote of Mr. Griffith’s amendment was adopted recom- ordered committee was report considera- to the for further mitted Committee on Apportionment (Wyandotte, tion. p. 361.) 26, 1859,

On Tuesday, the Committee July Apportionment re- again reported (Wyandotte, p. 475.) convention. port was three sections. one and two read: Sections permanent apportionment “Section 1. In organized State, each county Representative; county shall have at least one each shall be divided many Representatives. into as Districts as has duty Legislature “Sec. 2. It be the shall of the first permanent to make a apportionment, upon Legislative Assembly based the census ordered the last Territory; Apportionment year new shall be made in the every years thereafter, preceding year.” five based the census of the (Wyandotte, p. 475.) Both sections are a part of the Constitution of Kansas and appear as Sections 1 and 2 of Article 10 relating apportionment, with the of exception the word “permanent” 1, in Section which now reads “future,” the word “permanent” and in Section 2 which has been deleted. Section 3 merely made temporary apportionment for both senators and representatives.

322 minority report leave to submit

Mr. asked McDowell re- majority he regarded the because Apportionment Committee on read, report part: minority The unjust. both and port partisan apportionment, “First; only an regard population correct basis we as the of therefore, having census of an estimate or before us without square making acres agree majority the committee we cannot (Emphasis supplied.) a basis. . .” miles . representation; “Third; insisting upon population the true basis still apportionment, square basis not be the that miles should and still satisfied 476.) p. (Wyandotte, following . .” . . we . . . . . submit (Emphasis supplied.) die con- up took McDowell, convention Mr. On motion of Mr. Apportionment. the Committee report sideration of the convention, Mr. addressing Graham its adoption. moved McDowell stated: adopt report. sir, . . . hope, “I Convention will purposes. gotten up report political say 1 undertake to is a scheme for unjust unfair— adopted, hope I it is . . . not be because this will . any just . . proceeded upon basis. because the committee have not way population; only just proceeding determine [to] ascertain nothing but representative, then [it] a ratio such shall entitled to 477, 478.) (Emphasis (Wyandotte, pp. .” matter arithmetic.

mere supplied.) debate, the of the Committee on Following lengthy report Appor- Sections became adopted tionment was and Article of our part Constitution.

On convention, final tire Friday, July day presented Constitution was in final form Mr. signing. Slough, Leavenworth, chair, addressed the and after the Con- eulogizing features, general stitution’s pronounced it “a model instrument.” However, formally impelled he that political objections announced him and the members sign of his to decline to the Constitu- party tion for failure to submit to people question Kansas exclusion, Negro and for houses both legislature 566-571.) on a population (Wyandotte, pp. basis.

The bill for Kansas’ admission union was H. R. No. 23 (Act 20,12 29,1861, Ch. Stat. and it 126), declared that the expressly Jan. government IV, of Kansas republican (Art. form. §

On April the House of Representatives voted admit Kansas as a new under the Wyandotte (Cong. Constitution. Globe, 36th 1st Cong. Sess. p. Globe, Part cited [hereafter admission, 36th on the Mr. Niblack Cong.].) During debates stated that three should be considered as for the points imperative on the Congress application consideration a new state: .1st, “. . Has its been constitution formed accordance with some law Legislature, Congress authorizing or with an act of a State Territorial organization? republican 2d. its constitution in form? 3d. Has the new Is responsibilities govern- State a sufficient to assume of a State Congress law, by by ment, rule of must determine some fixed discretion, time, emergencies from time as the arise? . . . exercise of theory, application of this I believe has all the a fair Kansas Tested Globe, Cong., p. 1665.) requisites admission. . . .” 36th essential months, the next during eight Twice the Senate debated motions debates, to consider the Kansas bill. those Mr. Collamer During said: objection republican “There is no to this constitution that it in form government. requisite by guar- of its That is the United Constitution. It every republican government; it, antees to State a form of and I take this con- Kansas, adopted people stitution, republican govern- thus is a form of (Globe, Cong., p. 2463.)

ment. .” 36th 21, 1861, On January Senate, the bill passed the and eight days later, 29,1861, on January Kansas was “added to the Stars.” (Globe, 36th Cong., p. 489.)

Surely no one would contend that when Kansas was admitted to the union under a constitution found to be republican in form pur- suant to IV, Article Section that any provision the Constitution of the United States restricted the exercise of its inherent sovereignty to regulate suffrage, except with respect to the election of Congressmen as provided for Article or to apportion seats of its legislature pursuant to its constitutional provisions statutory Moreover, enactments. if recorded history demonstrates fact, one irrebuttable it is that question of representation in the Kansas legislature was a political question great magnitude which was continuously considered and bitterly debated by dele- gates the convention, at and the issue whether both houses of our bicameral legislature would apportioned on solely the basis of population or whether one house would be apportioned geo- graphical and population basis was resolved by the people when voted they overwhelmingly give each organized county at least one representative in adopting the Constitution. It is no wonder that people this state find it incredible that they should now be told they must disregard the whole course of their political history, and. majority, eliminate announced of “equality,”

in the name structure which was devised in our state that feature governmental sacrificed, while satisfy- being few from rights protect the many. the needs of ing a con- the result of has been plan Kansas apportionment

The the people representation providing scientious state policy and by popula- and geographical in the Senate solely by population Its design Representatives. House of tion considerations of the popular interests a between compromise to provide was interests of and economic geographic and the majority political, a access to ready and insure all citizens minority, important voice the legislative the ear of their and an effective representative rule majority for the chambers. This has made it plan possible ruling. without influence without minority and for the tyrannizing, For and over 104 interests years this has worked to the best plan satisfaction and of all its wisdom population elements of the Kansas has validity never challenged. light been previously state’s and concen- topography, heterogeneity geography, history, tration of population, and and economic inter- variety fire of social ests, our and achieves effective reasonably plan balanced of all substantial interests without sacrific- representation ais rational ing plan rule. The principle majority effective discrimination; one and makes it has been applied no unreasonable current; it and it has not systematically kept reasonably has been tended to lend itself majority frustration of the will of state, the electors of with compliance and it is full presently Article Section and 2 the Kansas Article Sections 1 Constitution. (Harris Shanahan, March supra, there concealed The obvious is that was within gist Reynolds Amendment, un- although the historical of the Fourteenth phrasing amendment, known it when submitted Congress proposed it, and to the states ratified that both they requirement when houses of on popula- state bicameral legislature apportioned basis, use, tion re- only which has now arisen like springing cently “manage- became “discoverable” for which majority able” standards were inflated rhetoric and a prescribed through slightest degree are not the of decisions that tortured interpretation essay arithmeti- majority’s effect point. inescapable convert a particular is to cal numbers and residence geography equal-populated ruling into constitutional philosophy political government state districts are an condition of indispensable from encroachment Amendment withdrawn the Fourteenth and the experiences the states. Historical facts of the amendment con- do not support traditions of our our law people clusion, nor in the name of “interpreta- is the authorized majority tion” to amendments or construe that amendment or subsequent acts of aside Congress, to reach this has cast result. The our political history “regarding relationship between and legislative representation matter from de- wholly different —a nial race, color, of the franchise to religion individuals because of Carr, or sex.” Frankfurter, (Baker v. supra, J., dissenting, p. 714.) Likewise, has, effect, it determined that government state of Kansas is no longer in form its Consti- republican because tution arbitrarily denies the to a right of equal “weighted” suffrage considerable state, number of people of the and that what was once the power of Congress to determine the character republican governments IV, under Article Section did respect Kansas, has now been assumed the by majority imposi- the through tion aof synthetic judicially created num- recognizes bers as the only basis for representation.

I pause here to note that not all of the al- present majority have ways entertained idea that the right protect against “dilution” of votes was orbit, within the judicial but that it should be left to congressional action. See dissenting in opinion Say- States v. lor, 322 U. 88 L. S. Ed. Likewise, S. Ct. 1101. Mr. Chief Warren was not always of view that leg- bicameral Justice islatures were required to have equal districts. populated When he was governor of the California, state of a controversy arose respect to the apportionment of state, legislature that and in a at speech Merced, California, 29,1948, on October he said: “ ‘Many important California counties far more in life of the State population population than their bears to the entire It for State. is reason that restricting representation have I never been in favor of in strictly population senate to a basis. “ country gave Founding ‘It the same reason Fathers our representation equal representation balanced the States of the Union — proportionate representation one house and based on the other. “ State, upset representation the balanced in our made to have been ‘Moves strictly though in accord with American tradition it us well and even served pattern National Government. of our “ completely by dominated boss when California was was a time ‘There system reapportionment legislative laws liberal election rule. Any weakening such domination. of the laws would liberated us from have happily rid of. rule which we are now return to boss invite “ progress system present under State made almost unbelievable our ‘Our has ” keep (Congressional representation. legislative it.’ believe we should I Session, p. Record, July Congress, 88th Second in. California in Struggle “The Reapportionment also, Barclay, See, 319. June, p. Vol. 1948,” Quarterly, Political The Western mathematically demonstrated almost opinion legal If ever devastating Harlans dissent it Mr. certainty, absolute Justice answered, he can I Reynolds. If be majority opinion and useless faculty, given as vain reason human surrender us. what concerns me is that But to guide and not bewilder, without dissent, case of such heedless decide should majority attention to the abso- slightest paid manifested having Harlan assembled respect- materials Mr. lutely convincing Justice intent the Four- submitting of congressional historical facts ing the states considering for ratification. teenth Amendment is the history of state apportionment, recorded political complexities ignored and ratification of the amendment to be the submission aside s notes memorandum majority or cast Caesar —like Anthony only, in the hands of to them and construed open —to more, instance, say so much and no suits their views? (See, Sanders, Wesberry supra, relied almost where facts to entirely historical When support conclusion.) issue is did not constitutional what did or simply happen recorded what manner then no past; history speaks, judicial has either The truth “historical opinion finality infallibility. assertions on facts and must be alone, on facts those depends documents, evidenced and established actual the same other facts in longer no wit- litigation proof living capable nesses.” Uses and (Wiener, Abuses of Practi- Legal History: A tioner’s [1962], View p. 26.) the fact that the account of history one questions

No not is not a safer guide Fourteenth accurate and Amendment meaning. to common hence to constitutional understanding fact, declared that for a unanimous speaking Mr. Holmes Justice 107, Co., 22, court in v. Rosenbaum U. S. 31 L. Ed. 260 67 Jackman 9, Ct. when he S. said: 43 Amendment, product, destroy itself a historical did not “The Fourteenth compartments law, all

history substitute for the mechanical states practiced years by exactly thing hundred common has been for two alike. If

327 consent, strong it will need case for the Fourteenth Amendment to affect it. . . .” Neither does the Fourteenth Amendment restrain the states from experimentation in political ways and means which characterizes a viable nor government, restrict them in the manner of apportioning their think, legislatures, and, contrary, to what Bren- I Mr. Justice nan stated in an address to the Conference of Chief on Justices “Some Federalism,” Aspects 7, York, New August 1964, not may be used by the majority to declare in what areas “a uniform and national policy should obtain” to supersede power. Mr. Pitney declared otherwise in Ownbey Morgan, U. S. 256 Justice 112, 94, 65 L. Ed. S. 41 Ct. A. L. R. 873, 17 when he said: rightly “. . . it cannot be said the Fourteenth Amendment furnishes self-executing remedy. universal and negative, Its function affirmative, not particular it carries no mandate for measures . . of reform. .” Holmes cautioned in Louisville & Again, Mr. N. R. Co. v. Justice 430, 434, Barber Paving U. Asphalt Co., 197 S. Ed. 819, 49 L. Ct. 466, S. that “it is ... important to avoid from extracting very general language Fourteenth Amendment a system of delusive exactness.” To the same effect is Mr. Reed’s Justice Alexandria, statement in Breard 341 U. S. L. Ed. Ct. S. that “the . Fourteenth Amendment has been treated never as absolute[s].”

An excellent relevant historical analysis materials of the origin, debates and submission the Fourteenth Amendment was marshaled and forth set by Mr. Harlan in his dissenting Justice opinion Reynolds. While do wish I to be feel repetitious, I that this historical evidence should be made available to the people of this state so know they may that when Congress submitted and legislature Kansas ratified the Fourteenth Amendment neither nor our Congress legislature intended to or alter change the political structure or governmental organization of state. Fourteenth Amendment is a text single

The five sec- containing tions, and was and discussed as such in proposed the Reconstruction Kendrick, Committee. (62 Committee of Fifteen Journal Reconstruction, pp. It was discussed as a 83-117.) unit Congress, Globe, submitted to the states (Cong. 39th Cong., Sess., 1st pp. Globe, 2459-3149 cited as 39th Cong.]), [hereafter which ratified it as a unit. Rut the majority considered only first section which provides that no state “shall deny any person law,” ignored and the protection equal its jurisdiction

within reads: of Section the significance according among “Representatives apportioned several States the shall be numbers, persons counting respective number each the whole of to their any State, excluding to at election But when the vote not taxed. Indians States, of the United and Vice President choice of for President the electors for State, Representatives Congress, or Executive the Judicial officers of any thereof, inhabitants Legislature of the male is denied to the members of States, State, age, twenty-one years being and citizens of the of such rebellion, crime, way except any abridged, participation in or other or in for proportion representation which the in the basis of therein shall be reduced male citizens such whole number of number of male citizens shall bear (Emphasis twenty-one years age supplied.) in such State." available intent If there was no other of congressional evidence reaches the Fourteenth ascertain meaning, purposes Amendment, refutes completely of Section language express through Equal Pro- power conclusion that federal majority’s element states respect any tection Clause extends into the a citizen’s abridge the franchise. The deny states could or state, or the to vote for of a judicial the executive officers me thereof; hence, members of the it is inconceivable to legislature is imper- how the could “weighing” conclude vote missible under Clause in Equal Protection election nothing I submit representatives. nothing repeat, there —in —I express justifies amendment which authorizes language such a conclusion. express language clear rely

But one not alone need proposed who conclusively amendment to show those reason had to believe the Equal amendment and ratified the states power apportion from the withdrew Protection Clause history The bodies. The Committee legislative their Joint Kendrick, recorded and documented on Reconstruction is Fifteen the amendment incorporating reported resolution and the 30,1866. Cong., p. 2286.) 39th Congress (Globe, on April opened Stevens the debate May On Thaddeus House of his remarks was that the epitome propo- Representatives. desired, stated: the committee he sition was all present public opinion. can state of it is be obtained “I believe all that Upon Congress only several states consulted. but the careful Not loyal ground, survey we not believe that nineteen did whole stringent ratify any proposition (Globe, more than this.” induced to could be p. 2459.) Cong., 39th house, reminded the He since, more, reported . three months and the committee and the “. . that fixing adopted proposed representation the amendment basis of such House a in surely every

way citizen have secured the enfranchisement of at no as would (Ibid.) period. . .” distant . the was in House Resolu- rejected (See But Senate. proposal the In to.) referred the first section discussing tion No. hereafter amendment, the particularly Equal and Protection of proposed the Clause, he said that it Congress any unjust would allow correct to of the states so or legislation punishes protects that whatever law one man all. equally operate shall section, second which Mr. considered to the Stevens

Turning article, the most he said that its effect while was important to it Congress, fix the of of also representation recognized basis the of a to withhold the to vote: power right any “. . . State her If exclude of adult shall male citizens from the franchise, abridge right, right representa- elective that she shall forfeit her provision proportion. compel tion in the same this effect of be either to will grant suffrage power the keep States to universal to shear them or so of their as to hopeless minority Government, legislative them in a in the national forever both (Ibid.) and executive.” He his dislike second section indicated for for the reason: “. . . section respect This allows the [with discriminate among proportionate class, and receive represen- vote] same credit in Cong., (Globe, p. 2460.) 39th tation.” Broomall,

Mr. of Pennsylvania, stated that while the amendment everything wanted, did not contain he he would vote for it because it get, was best he could and that: every gentleman “It is known in hall . this . . we leave it to these grant suffrage, regard condition, States to or refuse without opinions, claiming (Globe, or the crimes those Cong., of it. . . .” p. 39th 2499.) Miller, of Pennsylvania, Mr. in discussing the second section, stated he deemed it important the most of the amendment be- cause: complications regard amendment “. . . will settle suffrage This representation, leaving regulate itself, each State to so that it will for representation whether or not have for to decide it shall of all its male twenty-one years age.” (Globe, Cong., p. not less than of 2510.) citizens 39th (Emphasis supplied.) Farnsworth, Illinois, of

Mr. discussing of question appor- Congress, of representatives tionment stated Section 2 was concluding adopted previously. House one better than remarks, he stated: his prefer although direction; I should step . This is “. . suffrage, as guarantee universal of incorporated the Constitution into to see propo- support that, cordially this I required get two thirds

we cannot supplied.) 2540.) (Emphasis Cong., p. (Globe, 39th next best.” sition as the Com- Reconstruction of Ohio, member Bingham, Mr. the amendment section of the first the author mittee and was Speaking 106.) supra, pp. (Kendrick, leading proponent. franchise, he said: the elective generally great body people agree, sure we all “. . To be . reporting reconstruc- measures of agree, country far the committee thus though franchise, it be one agree, the elective exercise that the tion exclusively control Republic, under the privileges a citizen supplied.) (Emphasis Cong., p. (Globe, 39th States. .” amendment, he said: the section of to the first respect With passing, me, say Speaker, in that to this amendment from Mr. takes “Allow pertained right, any right it. No State that ever to ever had the under no State otherwise, equal deny any protection to to freeman the of of law or the forms Repub- abridge privileges of citizen the or laws immunities the or to power, lic, although many the that them have assumed and of exercised shows, give, remedy. not as the second section The amendment does without suffrage Congress regulating power in the States. to several the of by suffrage section excludes the conclusion that “The second the section first law; save, indeed, congressional subjected exception, that the this as is republican government a right people each State to the of and to choose in Constitution, Congress guarantees by Representatives is the tire of of their remedy might given directly supposed by be for case this amendment a might change government republican Madison, a State from a treason where deny suffrage people. government, thereby .” despotic to a supplied.) (Ibid.) (Emphasis House, three of debate in the days the During every speaker resolution, doubtful exception (Representative Rogers, the with one resolution, against voted the suggested of New who that the Jersey, covered the might by Privileges to vote and Immunities right [Globe, Cong., pp. 39th But immediately Clause. 2545.] he the possibility thereafter discussed tihat the southern might negroes “refuse to allow the assumed without vote.”), question not a of suffrage subject congressional that was This power. as- stated, not inadvertent and the speakers sumption repeatedly unmistakable terms or the express implications, states the to retain over the elective franchise within their power were had the amendment as it passed House May borders. On the committee. been reported considered in the Senate until 23. May resolution was not

The Howard, of who was also member of Re- Michigan, Senator Committee, opened construction the debate the Senate with amendment, discussion on lengthy Section of explained meaning Protection as Equal Clause follows: “The last clauses file first two of section of the amendment disable a State depriving merely any person, from not citizen States, of the United but who- may be, life, liberty, he property process law, ever of without due or from denying equal protection to him the State. This laws of abolishes legislation all away class injustice subjecting States and does with the persons one caste applicable prohibits hang- to a code not It another. ing aof man for hanged. black a crime which the man white is not to be protects It rights the black man in his fundamental as a citizen with the same shield which time, it throws President, over the white man. it not Is Mr. man, we extend the black poor privilege I had almost called it the protection equal of the law? .... “But, sir, proposed give section amendment not does to either first voting. suffrage not, these classes law, one privileges or immunities thus secured merely It Constitution. of creature of law. always regarded It country has been as the result of law, positive regarded local not rights lying one of those fundamental at society people all and without except basis which a slaves, cannot exist depotism subject (Globe, Cong., p. to a [sic].” (Emphasis sup- 39th ) plied. amendment, tbe discussing second section of the Mr. Howard desired, that was all that admitted he thinking suffrage should be secured to extent at least some the Negroes. According him, question suffrage was left with states under the section, second and he his expressed that it regret did “not recognize the authority of the United States over the of in the question suffrage several States.” 39th (Globe, However, Cong., in this re- p. 2766.) he gard justified the limited purpose of the amendment follows: “But, do; question question sir, it is not the here what will we it is not the you, I, may what prefer or or half a dozen the members of Senate other respect suffrage; entirely question to . . . it is not the measure what we can pass through is, Houses; question really Legisla- two the but the what will the tures the various whom States to these amendments are to be submitted do of premises; likely general approbation people what is will meet the it of the Legislatures, ratify are to proposi- who elect the three fourths of whom must our they provisions? tions before have the of force constitutional opinion yet prepared were that the States are not to “The committee of change right as would so be the concession the sanction of of fundamental fairly, plainly may so that there it suffrage. as well state shall . . We . opinion misunderstanding subject. three It was our that on be no fourths of grant right vote to be induced to Union could not this the States suf- of of any any . . degree . frage, or under restriction even regulate right to the elective section still “The second leaves franchise right.” (Ibid.) (Emphasis sup- States, not meddle with and does with the plied. ) first and were made second changes Senate In the several amendment, given and more attention was to the o£ the sections than had been the House. How- suffrage rights given of question ever, House, in the Senate as in it understood that equally the first and the second sections the amendment did not interfere of That regulate suffrage rights. with the of the states to power states to retain of after the regulating suffrage adop- were the power tion of the How- amendment was Senator emphatically expressed by ard on as follows: June they very power, . know well that the States retain the which “. . We always possessed regulating right suffrage It have in the States. of of them;

theory right never no Constitution That been taken has of itself. from them; theory and the whole ever been made to take it endeavor has from of is, power regulating suffrage people to with the or amendment leave of to States, regulate by any Legislatures and not assume to clause (Globe, Cong., p. (Emphasis Constitution the United States.” 39th supplied.) Johnson, Maryland, explaining Senator day That same amendment, section of commented of the second meaning follows: vote, States, you any right says ‘If exclude class from the to “. . It exclusion, say your power it shall have no other effect we, admitting to make the number excluded from the whole number which is deduct the than to

whatever If, therefore, representation. you exclude from the the basis constitute States, any twenty- citizens of who are the United franchise benefit State, belong any par- age, and years more inhabitants or who one contradistinguished man, race, color from the white who are of or ticular them, you right propose exclude and all we to do have we admit your representation say extent that exclusion basis shall (Globe, Cong., p. 3028.) (Emphasis supplied.) 39th diminished.’” Resolution No. Senator said: debate House Johnson interfering nobody with the of the States to dreams “. . But officers, interfering suffrage regulate reference to their own or with the officers, officers, appoint their own to elect their own States to qualifications the electors of their officers prescribe the own and to step Nobody Government dreamed that this was to within the has ever have. elected, Legislatures States how their shall be tell the lines and State limits of

333 (Globe, shall chosen. .” Cong., p. 765.) their 39th how officers supplied.) (Emphasis 1866, the Senate the resolution passed which con- On June Amendment in its present tained Fourteenth days Five form. arose in the later Thaddeus Stevens House and moved to concur The vote was favorable, Senate amendments. and the Four- teenth Amendment submitted to the states ratification on 16, 1866. June the amendment ratified without On delay. Kansas January transmitted the Crawford proposed Governor amendment to in his annual He message. legislature requested that both houses it their unanimous It give approval. is significant that in he the same asked the message legislature to submit a constitu- amendment to a vote of the tional at people the next general elec- tion, word “white” from our striking Constitution, which limited tire to the white race. voting rights Journal, (House Sess., 1867 p. The governor’s is an request 65.) express indication that at the time the legislature was ratification considering of the Fourteenth it was Amendment assumed that after ratification of the amend- ment, would Kansas retain the power regulate suffrage all within its respects borders. House following day, On Resolution No. to1 ratify Joint

the Fourteenth Amendment was introduced in the House of Rep- resentatives and passed body vote of to 7. 76 (House Sess., It Journal, pp. 73-79.) 1867 should be noted that the mem- House of bers of the Representatives were elected from districts apportioned legislature pursuant Article Section to each organized at giving county least one representative. On 11, the Senate voted to January adopt resolution aby vote of Journal, (Senate Sess., 23 0. p. 76.) 1867 On January 19, Gov- ernor Crawford informed the house that he had approved Joint Resolution No. ratifying Fourteenth Amendment and had transmitted same to the secretary state of the United States. (House Journal, Sess., p.

While no record was made of the debates on the ratification Amendment, the Fourteenth cannot I import to the Kansas legis- lature such crass foolishness that ratifying amendment eliminated the impliedly apportionment provisions of the Constitu- tion under which it was elected and then assembled for purposes ratifying amendment, now used by majority Reynolds doubt about the question, If there was shears. pruning when the in of this state people dispelled 1873 completely it was Constitution increas- 2, Section our amend Article 2 to voted from to not to exceed 100 Representatives number of ing exceed, to not to and af- number of Senators from and the 33 into that section for the first time the requirement wrote firmatively shall admit one member from House of Representatives that the at least votes were cast at the in which next county pre- each 250 That is conclusive evidence our election. ceding general people Fourteenth elimi- understand or intend the Amendment to did not of that geographical apportionment provisions nate the Article or Article of Section 1 of 10. from the time the Fourteenth year

Within was Amendment states, it, 22 submitted to the had ratified being more than three- ‘loyal fourths so-called It was states.” promptly rejected by states, all the southern with the Tennessee, exception and this defeat enough was to ratification inasmuch as the ten southern states were more than one-fourth of the states in the 37 union at that In the of 1868, time. spring Iowa ratified, but then nearly two had years from the time passed the amendment was submitted and the assent of the necessary three-fourths was still lacking. this During period, Kentucky, Delaware and Maryland rejected amendment, and Ohio, New Jersey Oregon rescinded their former ratification although later Congress repudiated their rescis- sion. (Flack, The Adoption the Fourteenth Amendment, pp. 189, 190.) radical members so-called “Union Party” were stymied; the congressional plan of reconstruction (Kendrick, supra, still p. lacked 319) approval. It was that necessary states ratify 28 and only had thus far approved. To secure ratification, Congress passed Act of 25, 1868, to “readmit” some of the southern June states. The bill R. (H. No. was in 1058) introduced the House and that passed body. (Globe, 40th Cong., pp. It was 2412-2465.) amended in the Senate to Florida, include and read, in part: enacted, ire., “Be it That each Carolina, States North South Caro- lina, Louisiana, Georgia, Alabama and Florida shall be entitled and admitted representation Congress as a State Legislature of the Union when the duly such State shall have ratified the amendment to the Constitution of the proposed by Thirty-Ninth Congress, and known article fourteen, upon following (Globe, Cong., fundamental conditions.” 40th Sess., p. Globe, [hereafter 2nd Cong.].) (Emphasis supplied.) cited 40th

That the of the Act express purpose coerce these states pro- emphatically Amendment was the Fourteenth ratifying into debates, as Delaware, during the Senator Saulsbury, nounced follows: notwithstanding this, you say you gentlemen; mean to “Then I hold you they allow them constitutional are States in the Union will not they ratify you propose

representation body to them. You what unless your bill, say people, the doctrine mean to American ‘True, Union, you- you have none are States in the but shall benefits of country Union; legislation you. unless have no voice shall pro- bidding by adopting having you sake do our shall benefit yowr adopt posed own amendment, you would constitutional left if (Emphasis supplied.) (Globe, Cong., p. will and choice.” 40th free amendment, In the Mr. debate the House to concur the Senate Ohio, of confirmed of the Act he said: Bingham, that when purpose bill, condition-precedent incorporated “. . . The in this which now presses House, the for decision before this is that not one of six named Legislature political power it in shall that its come to save the condition (Globe, ratify shall 40th the amendment. due article form fourteenth of Cong., p. 3094.) (Emphasis supplied.) Brooks, York, In reply, Mr. of New stated: gentleman “Ah . . . arithmetic, has consulted his his addition and subtraction, by process great and of two of the rules of arithmetic he has come to the that conclusion unless Florida be included this omnibus bill the proposed fourteenth article of the of the amendments Constitution cannot be carried; necessary, that it carry amendment, is in order to that to include bill, Florida in this and to admit her with these other States. That is idea gentleman change which the avows. ... in order to the Constitution of country, necessary, arithmetic, according it is may his no matter what Florida, be the constitution may of no matter whether the State be rebellious anti-rebellious, to overlook and override all other considerations to admit and object, object (Globe, the State for if not for alone . . .” 40th Cong., 3095.) p. debate, During the the problem of state legislative apportionment was called expressly to the attention of Congress. Florida’s consti- tution provided that each county in the state would be entitled to a representative. Because of this provision, and for certain political reasons, Mr. Farnsworth objected to the inclusion of Florida in the Act, and said: might “I representatives. refer to the By this constitution

representatives Legislature apportioned Florida are in such a cf manner give sparsely-populated portions as to to the the State the control Legislature. sparsely-populated parts The of the State are those where there very negroes, parts are few rebels, inhabited who, white the men coming Georgia, Alabama, from States, and other control the fortunes every county m that State is en- By constitution this counties. their several thirty that State counties have representative. are in There to a titled constitution, every of those counties is voters; yet, one under registered this Legislature; populous counties while the representative in to a entitled representative each, representative an additional only one entitled sup- Cong., 3090.) (Emphasis p. (Globe, 40th every inhabitants.” thousand plied. ) ob- Massachusetts, to Mr. Farnsworth’s Butler, responded Mr. as follows: jection, statements, provisions consti- all the of this arguments, all these “All these they Senate, Judiciary and Committee have been submitted tution proper. republican has been This constitution constitution have found the republican proper. It Senate, they it has have found submitted Reconstruction, they have found your own Committee on

been submitted to reported (Ibid.) proper, House.” republican it to and have it Florida be re- the constitution Bingham also considered Mr. form, and said: publican constitution, sir, Re- “. democratic all traditions interpretations republican by

public. It the Constitution all p. (Globe, Cong., States.” 40th Act by striking amend the out Florida motion Farnsworth’s Mr. 40th rejected. (Globe, Cong., p. 3097.) overwhelmingly the Act immediate purpose true Irrespective of June states named Act and all ratified was taken six action Amendment, final making possible the proclamation Fourteenth 28, 1868, declaring part Constitution. issued July incredible to me that the could declare in It seems well-considered, “congressional however approval, Reynolds legislative validate an unconstitutional state appor- could hardly in face of all this tionment” the historical evidence—when (p. 539), Amendment, as authors of the Fourteenth as well the both houses had scrutinized Congress, thoroughly the of constitutions of the determine six southern states to whether were in republican they the compliance form and with amendment —when Congress of demanding adoption solicitous its so these states —when for the very admitted of purpose securing ratification, were their without favorable vote ratification would have failed —when provisions of the the Constitution of Florida ex- that each pressly provided county would be apportioned at least basis, representative a geographical one regardless of popula- tion, at when the very and by moment very the act of ratifi- states, cation, these according to the instantaneously majority, of their con- provisions silentio all apportionment struck sub down representation the basis for mere numbers making stitutions not I to the members of impute their cannot legislatures. state lack or reckless of disregard 40th such of such Congress integrity states duty having provisions repugnant as to readmit constitutional Amendment of very insuring Fourteenth for purpose Note, however, ratification. Kansas stands in a Constitution different than did constitutions the six southern posture states, because Kansas was to the union to admitted prior adop- Amendment, tion of the Fourteenth and no would contend one that it did not have full power respect establishing voting of its rights citizens except in Article Section provided or for determining the manner of apportionment of its legislature. ask,

I would a single union to ratification agreed have of the Fourteenth Amendment had it all the expressly given power to the federal judiciary proclaimed now majority opinion? Is there any reason to believe states are disposed more than now then to acquiesce their supersession rights coercive powers fiat to by judicial government, consolidated have substituted in their political systems voter-power voter-repre- sentation influence action? legislative history The and intent of submission together with the historical consideration of practical our federal system demonstrates I no devastatingly otherwise. have hesitancy in been saying had there the least anticipation the course of decision there have arisen Reynolds, would solid phalanx would not it. opposition. adopted They states have would have stood them. constitution their founders gave have They would claimed that had steadfastly they regulate within their confines suffrage apportion own and to their in the manner legislatures prescribed their constitutions. .the may, Re that as it historical foregoing beyond- facts show That well Congress, doubt: as members of the Recon- (1) struction Committee who proposed Fourteenth Amendment— aware some although fully possibility would states to all voting rights or a their citizens— deny abridge part of provisions refrained from in its incorporating suffrage universal franchise; the states’ power regulate the elective derogation instead, the intent of Congress it was coerce states into con- all rights upon their citizens the indirect voting means ferring states’ representation House reducing Representa- in the ratio provided in Section the manner thereby tives in deny to permit, state right from federal tibe power, insulating it might as qualifications such under right suffrage or abridge Amendment the Fourteenth sponsors That the prescribe. (2) to place Committee Reconstruction the votes in the did not have Kend- (62 voting rights control on the states’ power restrictions the amend- to submit rick, Congress or supra, pp. 300-303) nor did believe that if Congress objective, ment that incorporating it. That ratify (3) such restrictions states would were imposed, states, in particular, at least a substantial and Kansas majority the Fourteenth by ratifying did not understand or intend that voting rights regulate Amendment limitations to they were accepting choose, to vote respect with any manner they might particularly “weighing” geography. based residence upon the deliberate choice of the of the amendment and

By sponsors it, Congress very which submitted problems passed control of for mem- by majority Reynolds voting rights —the legislature bers of the state insulated the exercise against —was or act Congress federal no amendment has subse- power, conferred to restrict federal or to dictate quently power right apportionment. the manner of state I the majority’s

At this turn to new “constitutional” juncture, rigid doctrine. “the Protection By pronouncement Equal that the in both houses of bicameral legis- Clause seats requires must be on a basis” apportioned (p. 531), lature of absolutism in its engaged reasoning, has “in a majority species likely light.” (Gris- which is more lead us into darkness than to wold, Dark, inIs 8 Utah L. 168 [1963].) Absolute Rev. had to (1) To reach that conclusion the find: individual right the federal personal protected constitution demanded judicial protection, and which and it purported do when it concluded that “the vote is personal” suffrage “the can be denied debasement dilution weight of a citizen’s vote just by wholly effectively free the franchise” prohibiting 524); (2) exercise of (pp. that “invidious discrimination” results when the weight citizen’s vote legislator “is in a substantial diluted when fashion votes compared living of citizens other parts state” (p. 531), (3) “manageable” “discoverable” and standards Protection Clause which to Equal measure state apportion- and it did concluded ment this when plans, that “the fundamental

339 government country is one of principle representative for numbers of without equal representation equal people, regard race, sex, status, economic or residence within state.” place I (p.526.) think (Emphasis supplied.) unanswerably it has been demonstrated that this is not correct of fact. (Baker as a matter Carr, Frankfurter, v. supra, dissenting, heretofore Jr., quoted, p. 735.)

The majority accepts the idea that is geographical districting constitutionally permissible, but what asserts, is impermissible, it residence, geographical since such consideration would not per- mit “weighted” equally voting. It does not how or suggest why geographical re'sidence “dilutes” votes, or “debases” or how or why a voter instance, residence of in Morton for County, makes him that much more or that much less a citizen of the United States or the state of Kansas than voter who resides in Doniphan County, or where in the Constitution there is a limitation prescribed the relative to which the law weight might entitle properly respec- tive ballots for state scale representatives. Certainly, no to “weigh” Fifteenth, Fourteenth, votes in either the may be found Nineteenth As Mr. Twenty-Fourth Amendments. Clark stated: “No Justice one . . contends that mathematical equality among voters is Carr, v. Equal Protection Clause.” required (Baker supra, concurring, p. 709.)

The Protection Equal uses Clause as the formal ve- hicle for condemning that do apportionment plans not satisfy standard. Its conclusion is equal representation not afford plan does to voters results in a Thus, to vote. right denial discriminatory right vote question. (Kauper, emerges Reapportionment the critical sym- 243, L. Rev. 249 This raises the [1964].) ques- 63 posium, p. Mich. tion, vote? right what is the constitutional source is a suffrage political right.

The The right of Constitution of the right United does not confer that upon anyone, and the no own creation in United States has voters its the states (Minor 162, 627; Ed U. S. 22 L. United States v. Happersett, Cruik- 588; al., Williams, S. 23 L. Ed. Pope shank et 92 U. 193 U. S. 573; States, Guinn v. 24 S. Ct. Ed. 238 U. L. S. 35 S. Ct. L.R.A. 59 L. Ed. 1916A 1124), except provides expressly insofar as the Constitution members of 1, §2) and of the Representatives (Art. the House of Senate shall be elected in each state elec- Amendments) (Seventeenth electors having qualifications requisite tors for for the most for legislature. numerous branch the state to vote Constitution, members secured Congress federal a state in qualifications prescribing voters for legisla- ture, does not do this with reference to the election of members defines is to Congress. A state who vote for the members of its declares and the Constitution the same legislature, person shall vote members of in that state. Congress adopts It qualifications qualifications furnished the state of its by thus as own electors Hence, electors of members Congress. for members of Congress of to law sense any vote to state makes right do not owe their which exclusively to on the law of the right depend the exercise of the 651, U. 28 L. Ed. S. Yarbrough, 110 S. 274 4 parte state. Ct. (Ex 299, 1368, Ed. Classic, U. S. 85 L. 61 S. Ct. 152; States v. 313 United 383, 1355, 59 L. 238 U. S. Ed. 1031; United States v. Mosley, 904; supra.) States v. Saylor, United S. Ct. 8, 18, and Sections 4 Clause Congress

Under Article has the protection to enact laws to right power constitutional for of Congress. parte Yarbrough, United (Ex supra; members vote of for for Classic, has enacted legislation It supra.) purpose v. States to to injure, threaten or in- conspire oppress, it an offense making his timidate, of constitutional exercise and rights, a citizen law, an inhabitant of a state any color of to under deprive, also of and laws the United by the Constitution rights protected 241,242.) A. U. S. C. (18 States. §§ a Yarbrough, supra, corpus was habeas proceeding

Ex parte validity of a conviction of the de- the court sustained federal charged violating with statutes making who were fendants of his a citizen rights, and conspire deprive crime to it a federal The issue to vote. right his was whether deny in particular, laws pass protecting right had to vote for power a Congress or violence. from fraud The defendants as- Congress member a of Congress to vote for member did not de- right that the serted United States, or laws but the Constitution was upon pend relied Court of each state. on Article law by the governed to vote members right Congress that the held Section for the Constitution was not in- based fundamentally was control of states. the exclusive within to be left tended defendants, Classic, supra, Commissioners United States v. Louisiana, based upon Election in in indictments charged were A., U. S. C. Sections 19 (18 and 20 of criminal code the federal §§241, congres- ballots a miscounting 242), altering It was held primary sional United States Representative. for for the party are a primaries process states’ electoral part purpose Representatives, members of the electing House that the cast ballots right of within a state to their qualified voters right them counted at a is a congressional have election federal by rights guar- secured the Constitution but unlike the (Art. 2),§ Fourteenth, Amendments, anteed Fifteenth Nineteenth the right to members of inter- against choose secured Congress individuals, ference as interference private against as well action of the states. (Ex parte Yarbrough, supra; Logan v. States, 144 U. S. 36 L. 617.) Ed. S. Ct.

The defendants in United States county Mosley, supra, were election officials who were charged with citi- conspiring deprive zens of their votes Congress by member falsifying for election returns. The prosecution brought under Section 19 A., U. (18 criminal S. C. It code. was held that the § statute constitutionality protection extends to vote right the members Congress and “that the one’s vote have counted is open to protection by Congress put ballot in box.” (United Mosley, supra, p. 386.) In United States v. Saylor, defendants, supra, county election officials, were with a charged violation of Section 19 of the criminal A., U. S. C. (18 code 241) conspiring deprive to citizens § right to have their votes counted for United States The senator. indictment alleged that they “stuffed the box” ballot in favor of the opposing candidate for whom injured voted, voters had thereby diluting and destroying ballots of the injured voters. It was held that provisions of Section 19 embraces a conspiracy by officers to stuff a election ballot box thereby causing ballots not to receive the which weight the law has in them, fact given to amounts a a deprivation of right Constitutional to vote federal for officers. foregoing cases cited by

The were majority to support its that “it broad statements has been repeatedly recognized that all electors a qualified have constitutionally protected to right vote” counted”; and to “their votes have the right to vote cannot nor “denied outright,” “destroyed by alteration ballots,” nor “di- 342 appli- decisions are The (p. 523.) stuffing.” ballot-box by

luted to it a crime making statutes as to federal they apply cable insofar elec- in a rights citizen his to conspire deprive federal federal Congress for members tion, to vote right particular on not point But they are Constitution. by is secured representa- state for issue, to vote is, freely the right present context, decisions none those Used in this tives in a state election. presented. on the question the slightest bearing have the fed by is not conferred in a election state right The to vote is constitution, privi It not its amendments. by any nor eral States. v. of the United (Minor from lege citizenship springing al, 555; et supra, States v. Cruikshank p. United Happersett, supra; States, Williams, United right Guinn v. supra; supra.) v. Pope matters, officers, state is purely or local derived vote for state and is not a right from constitution laws the state federal right congressmen vote for and senators. A way same election, in a qualifications voting is free define state or abridge right that it citizen’s to vote on may deny except race, color, sex or tax poll account of (Fifteenth, extraction. Nine Amendments; Williams, teenth, Pope v. Twenty-fourth supra; Breed Suttles, 205; S. 82 L. Ed. 58 S. Ct. love v. 302 U. McPherson Blacker, 1, 38, 39, 869, 13 36 L. Ed. S. Ct. 146 U. S. 3. In Breed- ) court, Butler, speaking for the stated: love Mr. Justice Privilege voting States, is not derived the United “. . . but from and, the State save as restrained and Nineteenth conferred Fifteenth provisions Constitution, may Amendments and other of the Federal the State suffrage appropriate. Happersett, deems Minor v. condition 21 Wall. seq. parte Yarbrough, Ex et U. S. 664-665. McPherson v. Blacker, States, U. Guinn v. S. 37-38. 238 U. S. 362. (Emphasis (p.283.) supplied.) .” out, the Fourteenth Amendment did not pointed As heretofore Blacker, anyone. (McPherson vote upon right confer in Minor v. that the Happersett, supra, contended It was supra.) and Im- Privileges vote was protected women right Amendment, bringing Fourteenth thus munities Clause of the Constitution. The conten- the protection to vote under that the ground vote was rejected tion was therefore, not, state, citizenship, not of national and was privilege Amendment. by the Fourteenth guaranteed privileges the among neither the Constitution nor the Fourteenth held that Court The Mr. Chief (Syl. citizens voters ¶5), made all Amendment when he said: reasoning indicated the Court’s Waite Justice privileges and immunities of a citizen. add the amendment did not to “The protection guaranty of such as he for the simply an additional It furnished 171.) necessarily (p. . .” already made it. . new voters were had. No supplied.) (Emphasis attached to the the court significance indicates the following The Nine- reasoning applicable Amendment and its is Fifteenth as well: Twenty-fourth teenth Amendment and the amendment, again, adoption it was “And after the of the fourteenth still necessary adopt amendment deemed a fifteenth. . The fourteenth to already provided law which had no should or make enforce abridge privileges citizens of the United States. should the or immunities of immunities, suffrage privileges why the If amend Constitu- was one of those or &.C.? Nothing race, prevent being tion on account of more its denied already less, greater were and if all evident than that the must include' protected why go through amending Constitution to with the form of protect part?” (p. on the states’ The Fifteenth Amendment direct restrictions places Section 1 reads: power voting of prescribing qualifications. right of not be denied or “The citizens of the United shall vote race, abridged by by any color or United States or State on account previous condition of servitude.” con- operation The Fifteenth Amendment was effect of the States, sidered in Guinn v. Mr. Chief supra, Justice White, court, for the said: speaking “(a) Beyond away doubt the Amendment not take does from the state governments general suffrage power belonged in a sense the over which has governments beginning, possession those from the and without the of which power authority the whole fabric which the division of state and national organization governments under the Constitution and the of both rest would be support, authority without both the the nation would and the state fall ground. fact, very recognizes command of the Amendment possession general State, power by since the Amendment seeks to regulate particular subject exercise with which it deals. “(b) equally beyond possibility question But it is that the Amend- express power ment terms restricts the United States or the States to deny abridge or aof of the United citizen States to vote on account race, color, previous or condition of servitude. restriction is coincident power prevents disregard with its exertion in command of the true, But Amendment. while this is it is true also that the Amendment does change, modify, deprive power suffrage the States of their as to full course, except, subject as to the Amendment deals and necessary. authority that obedience to its extent command Thus over 344 possess which the Amendment

suffrage and the limitation which the States destroy bringing may without imposes the other coordinate one are 362.) (p. about the destruction both.” United States Amendment, prohibits which Nineteenth Tlie citizen to any right abridging or state from or any denying Amendment, does not sex, Fifteenth vote account of on like been long has although confer the right suffrage upon anyone, measureably might that in their recognized operation prohibitions amend- of the effect; is, the commands have that that since action legislative ments without are and reach self-executing aimed—for are against they conditions of which discrimination instance, were constitutions the words and “male” state “white” citizens eliminated, number of increasing the thus automatically states. entitled suffrage to under constitutions and laws 370, Delaware, 26 L. parte 103 U. S. (Ex Yarbrough, Neal v. supra; Ed. private The amendments do not apply interference individuals but action only against operate interference Williams, States, supra; Pope supra; states. v. United v. (Guinn Bowman, 127, 678; 47 L. 23 S. Ct. v. 190 U. S. Ed. James Missouri, 125; v. L. Ct. Mason 179 U. S. 45 Ed. S. Harris, 601; United States v. S. 1 S. Ct. 106 U. L. Ed. Cruikshank, al., Reese, United States v. supra; et United States However, 478; 92 U. S. 23 L. Ed. Happersett, Minor v. supra.) states, States, amendments prevent these or the United from giving preference to one citizen of the another United States over race, account of color Eefore this could adoption or sex. their done; v. Happersett, now it cannot. Guinn v. (Minor supra; States, If citizens of one class supra.) having requisite vote, law permitted by those another class qualifications the same must be Previous having qualifications permitted to vote. amendments, no guarantee against to these there was constitutional discrimination; They now there invested the citizens of the is. United States with a new constitutional right. (United Reese, That supra.) from exemption discrimination color, exercise race, Hence, vote on account of or sex. extends the express protection prohibitions only federal amendments, but does not extend beyond with which subjects deal and nothing the amendments there them authorizes exertion of federal power weigh considerations in a state respect “economic status” or of residence” “place state of a considering validity state, when a voter within the apportionment plan. Amendment added 4, 1964, the

On Twenty-fourth February or payment any poll may impose that no prohibition or election other tax as a to vote other condition primary President, or Vice electors President for President or Vice President, Congress. in or or Representatives (McPher- for Senators Blacker, Thus, a denies or when state only son v. it is supra.) to vote at a election the state abridges of a elector right qualified race, color, three amend- because of or tax extraction that these sex to strike down a state statute judiciary ments authorized the federal Congress interfere or the to constitutional authorize provision, Harris, United States v. (United supra; and provide punishment. Reese, Wilson, S. L. States v. Lane v. 307 U. 83 Ed. supra; States, 872; Boioman, Guinn v. supra; 59 S. Ct. James supra.) right the it is the of a qualified

From obvious that foregoing, vote and in state elections is conferred elector to in federal by congress- different a election for constitutions —in distinctly federal senators, men and is the right by United States conferred Con- 1, §2; stitution of United States Seventeenth Amend- (Art. officers, in and ment), including a state election for state members legislature, is conferred the Constitution of right by 1, 2; 4, 1; Kansas Art. Art. (Bill Rights, 1), except §§ § § race, color, Kansas not may right to vote on account deny Blacker, sex or tax (McPherson extraction. supra.) I agree that “the Constitution of the United protects vote, of all right qualified citizens state as well as federal elections” it (p. analyzed, but unless 523), carefully major- is noted, broad ity’s statement is As misleading. just protection in a afforded election is derived from different source federal than the protection Constitution afforded in election. election, voting privileges constitutionally are protected federal Section that Article the Seventeenth Amendment and sense senators, confer directly right congressmen to vote for and which is a privilege immunity citizenship national is secured and against inter- against interference individuals well as private hand, ference action of the states. On the other the Constitution right does not confer the to vote in a state election upon directly That is derived from the state Constitution anyone. right solely and is not a While privilege citizenship. national immunity the Consti- conferred by is election in a state vote right the extent that is, protected tution, however, constitutionally it as to the with subjects voters against not discriminate may the state Amendments Nineteenth, and Fifteenth, Twenty-fourth which the deal. right statement that majority’s

No one disagrees form to our right republican is basic right. vote is a personal system; free political of our the bed-rock government and is governments and federal both state means a fundamental matter suffrage agree continued. I in free the franchise in a free and that the to exercise republic basic, manner is civil and unimpaired political of other pervasive citizen, Under the individual rights. every Constitution of Kansas elector, rights is each inalienable possessed equal one life, All live liberty (Bill Rights, 1.) citizens happiness. § sunshine, under the indiscriminating same breathe the free same air, venerate the same past, historical are imbued with the same ideals and look forward political share common equal future, civilization in a places higher bright all may they participate in the exercise of fully political the free power government of Kansas founded on their authority which was and instituted for (Bill their and benefit. of equal protection Rights, Likewise, I majority’s am accord with the statement that § it should scrutinize carefully any allegedly classification which infringes vote, the right of citizens to before federal judicial but asserted, power may be properly there must in exist an actual fact Hence, infringement care- constitutionally protected I right. fully search for any constitutionally cognizable principle which would sustain the majority’s declaration that the seats both houses of a bicameral legislature state on a be apportioned must basis. case,

Under record in this every Kansas citizen possesses who of an qualifications elector has the right to freely vote for the state-wide, candidate of his choice in all county-wide, city-wide, and township-wide district-wide elections. No right Kansas citizen’s denied, to vote for state representative has been nor has he been right counted, to have his deprived vote nor has his ballot altered or destroyed, been diluted by ballot-box stuffing. Laws of all voters from protect this state these reprehensible consequences. S. No (K. 21-824.) Kansas citizen has denied any A. been 21-801— judicial the federal which upon Constitution right protected could grant majority for or which concentrated might focus be to vote right denial outright upon based judicial protection crux of But the race, color, extraction. or tax on sex account to vote can the right declaration that is the Reynolds majority’s citizen’s of a “weight” “dilution” of the “debasement” or denied right. exercise prohibiting effectively by wholly vote as place votes because weight then concludes that “diluting It 529), rights” (p. residence basic constitutional impairs made cannot be vote weight that “the of a citizen’s reason supplied.) (Emphasis where he lives.” depend (p. 530.) at least these From has concluded assumptions denied dilution vote can be a debasement or right the voter. That of the vote because of residence weight place it its stake drives is the basic which majority’s premise in the nothing I find relief state action. against claim to afford erro- It has conclusion. supports majority’s Constitution which fiat to afford right by judicial to create federal neously attempted the federal beyond reached it has no right given; where protection confers. the Constitution power which Nineteenth, still later the Fifteenth, Twenty- later the states infring- from prevent adopted were fourth Amendments elections in state voters against (Mc- discriminating ing upon Blacker, only constitutionally afford the they v. pherson supra), federal voting process rights respect protected Discrimination action. against enforce judiciary may of franchise in exercise of the form to equality thwart or simple-minded— sophisticated state and federal elections—either discrimination, express grounds attacked on bemay is still Wilson, supra; (Lane amendments individual specified Anderson, 238 U. S. States, Myers v. United supra; Guinn the exercise affecting or discrimination 932), 35 S. Ct. L. Ed. prohibitions of their specific in violation franchise the Four- Clause of Protection through the Equal enforced bemay Missouri, v. Mis- Williams supra; v. (Mason Amendment. teenth 583; 1012, v. Pope S. Ct. 213, 18 42 L. Ed. U. S. 170 sissippi, 536, 759, Herndon, 71 L. Ed. 47 273 U. S. Williams, v. Nixon supra; 984, Condon, 73, Ed. S. Ct. 76 L. 446; 286 U. S. Nixon v. S. Ct. Davis, Schnell Schnell, affirmed 81 F. 484; Supp. Davis v. also, See, Anderson Ct. 749.) 69 S. L. Ed. S. 336 U. Martin, 375 U. S. 11 L. Ed. 2d 84 S. Ct. where the against discrimination based on color was directed candidate not the voter. cases, In the first of Herndon, two “white primary” Nixon v. supra, citizen, a plaintiff, Negro was in every way qualified to vote a that Texas statute “in event party primary except provided, no shall a to Negro eligible in a Democratic participate primary election held in the state of contended Texas.” It was (p. 540.) and Fifteenth statute violated both Fourteenth Amendments Holmes said: to Mr. denying plaintiff vote. Justice Amendment, unnecessary the Fifteenth be- “. . . We find to consider it infringement imagine cause direct and obvious it seems to us hard to more Amendment, all, passed, applies it was Fourteenth. That while know, against special protect discrimination we intent to the blacks from with a Negroes part take them. . . . The statute . . . assumes to forbid discriminating against primary in a . them the distinction election . classifying may good that color alone. States deal of difficult to do rational, limits, argument and it is too clear for extended believe but there statutory affecting the color cannot be made the basis classification up 540-541.) (Emphasis supplied.) (pp. set in this case.” case, Condon, In the second Nixon v. supra, Texas statute the state authorized executive committee of a political party pre- qualifications scribe members to determine who shall be to vote in qualified its A primaries. resolution of the state Demo- cratic executive committee limited the right in its participate election held primary persons. to white court that the case Herndon, controlled Nixon v. and Mr. supra, Car- Justice dozo said: Amendment, adopted “. . The Fourteenth special as it was with protection equal Negro lays solicitude for the race, duty of members of the

upon judgment the court (p. to level these barriers color.” (Emphasis supplied.) Schnell, In Davis v. supra, court invalidated a constitutional Alabama, provision of providing a literacy test as a suffrage requirement ground that it violated both the Fourteenth and Fifteenth It Amendments. was held provisions Constitution providing that only persons who can “understand and explain” any article Constitution of the United States reasonable satisfaction of the Hoard of Registrars may qualify electors, to that board attempted grant arbitrary power accept elector and violated the reject any prospective Equal Protection It held the Fifteenth Amendment was also guarantees Clause.

349 state discrimina- against of franchise right the free the exercise affirmed, per Court Supreme on race or color. The tion based S. 118 U. Wilson, v. curiam, Hopkins, Yick Wo Lane v. citing supra, 1064, Mississippi, supra. v. 356, 220, Williams 30 L. Ed. 6 S. Ct. Williams, Mississippi, supra, v. Pope In v. Williams supra, (determining action that Missouri, Mason v. it was held state supra, Equal the did violate voter qualification registration) and voter Protection Clause. based exist was found to Nixon cases discrimination the un- color, against prohibitions express race or

upon to It is fair Amendment. in the Fifteenth discrimination lawful or color— amendment —race that of that say express prohibitions the Fourteenth amendment the court into implanted by were down Protection Clause strike standard for applying Equal But it is obvious right vote. discriminatory denial its con- the Nixon cases to rely upon support did not not for reason that those and that it could Reynolds clusion on right to vote account outright denial decisions involved of race or color. cases, the court decided two cases after the Nixon

Before Oklahoma, of electors in which were qualifications wiih the dealing States, Fifteenth v. (Guinn under the Amendment. United decided Wilson, The rationale of the Lane v. Nixon supra.) cases is supra; explained by the court’s reluctance decide certainly almost part were electoral process party primaries pur Amendment. See States, v. United Newberry of the Fifteenth poses However, 232, 913, Ct. 469. 65 L. Ed. 41 S. once S. that ques 256 U. Classic, rest in States v. court supra, tion was laid to Texas involving primaries cases subsequent decided basis 649, Amendment. Smith Allwright, Fifteenth See v. 321 U. S. 757, Adams, 987, v. Terry 64 S. Ct. 345 88 L. Ed. U. S. Likewise, Ct. 809. the recent 73 S. case of L. Ed. Gomillion U. S. 5 L. Ed. 2d 81 S. Ct. deciding that Lightfoot, stated by allegations claim was lines municipal a constitutional intention of Negroes redrawn with depriving had been elections, based on the Fifteenth Amend municipal vote Sims, Harlan, Note (Reynolds J., dissenting, p. 557.) ment. noted, only constitutional limitations state As previously to the suffrage action exercise all respect Fifteenth, Nineteenth and express prohibitions forms are Amendments, vote “de- Twenty-fourth weighing determine basement” or “dilution” ballot of place of a because residence a voter is not one of them. No court look may beyond express provisions of those amendments to measure or strike down statute or constitutional provision pertaining elective franchise Harris, Reese, (United States v. v. nor States supra; supra), Protection may Equal Clause be used a court to travel by beyond the interstices of those to reach and review express prohibitions discrimination alleged arising right from the exercise of the directly Otherwise, of suffrage. to allow the majority prohibi- write own tions by imposing right suffrage in state elections such upon fit, might limitations as it see Pro- through interpretation Equal Clause, tection would it write its own amendments to permit Constitution in clear violation of Fifth Article. If Congress (V) not may step outside its and attempt constitutional limitations is which its reach beyond statutes are broader in by enacting which scope than is warranted the Constitution to matters by respect pertaining right suffrage state elections (United Harris, Reese, United States supra; how, then, can the supra), conclusion in majority’s Reynolds, which likewise exceeds the power conferred Constitution with to the exercise of the respect right of suffrage in state elections and which encroaches upon reserved states, rights and the people, be sustained? To ask ques- tion is to answer it. What majority has done is an impose additional prohibition action, state which is beyond express Fifteenth, limitations of the Nineteenth and Twenty-fourth Amend- ments, by asserting right that the to vote can be denied aby “debase- “dilution” ment” or of the weight of the vote because of place residence the voter. This is clearly action, unconstitutional begs question say that this additional prohibition bemay found in or protected by Fourteenth Amendment.

I not enter into the do debate of the political question whether a legislature bicameral state should or should not be apportioned on the basis of and decide population, in the light of present-day social economic conditions for or against the wisdom of that policy. social, moral Whether and economic interests have been bettered governmental a particular policy is not a judicial question. But be- dissent, fore I feel concluding compelled to note there is nothing in the Kansas plan at apportioning least one representative to each which, face, county on its is unconstitutional for any reason sug- gested in Reynolds. There is nothing written into this plan is invidious or purposely It discriminatory. operates uniformly of each with the county residents the state throughout providing choice, and the inequality of their to vote for the representative result from does not condemns Reynolds of vote weighing free produced only by state action under the Kansas plan —it Their choose. they choice of Kansas citizens to live where may state free movement citizenship incident of state not them in one interfere with that movement nor to live compel place in the The fact that some citizens state rather than another. in a medium county, choose to live in a others sparsely populated populated others in a more populated county, densely still Hence, citizens. it is county, is the result of their free choice as in- majority’s produces action—the Kansas plan—that free choice vote it is the equality unequal weighing, clearly but can find Obviously, citizens to where will. they live no solace in the Clause to buttress its conclusion Equal Protection that the depend of a citizens vote cannot be made weight lives, and, where he strike “equality,” name down Kansas action. plan as state discriminatory

If it reserved rights is the aim of to “break down the a that consolida- against the constitution the states as bulwark tion, the opposition fear of which the whole produced Jefferson, constitution at its birth” of Thomas Writings (10 [Ford 225, it has then what Mr. Dickinson pp. ed. become 226), 1899] 1787, said he in debate in the Constitutional when Convention Aragon by degrees observed that “the became Justiciary case, If then that what Charles lawgivers.” this be apparent Amend- Wallace Collins wrote in his book entitled “The Fourteenth States,” ment and the said: may been He justified. have centralizing Supreme “. . . In the hands of a radical views Court with people Fourteenth Amendment could beat become rod iron to empire law, United into one consolidated whose word matters light weighty, Washington.” (p. 150.) well should emanate from said, Mr. Holmes has “Great constitutional provisions- Justice must be administered with caution.” & (Missouri, Kansas Texas 267, 270, 971, 973, Ry. Co. v. 194 U. S. 48 L. 24 Ct. May, Ed. S. I submit there should be a of the Four- symmetrical development Amendment, teenth consistent history experience, has been the moving force in its contours and defining giving shape examined, to existing rules. When the historical facts are I find that the indicated intent Amendment, of the Fourteenth the historical leaders, birth, the assent of American impressive of its setting affairs for governmental approximately its practical operation outweigh Reynolds years, clearly sweeping pronouncements that, may cases. To this I add when fifteen of so- and related states; states; of the so-called reconstruction at least six loyal called the Fourteenth Amendment at least six of states admitted after States, have, adopted, Congress ap and the that the constitutional proximately century, accepted philosophy to ap should their constitutional legislatures power state exercise portion their seats in accordance with their respective legislative has received the approval when this apportionment provisions, leading country, including ap courts of the appellate four proval of the Court of the United States in at least Supreme 1262, Barrett, 804, v. 330 U. 91 L. Ed. separate grove cases (Cole S. 685, Smith, 916, 973, 67 S. Ct. v. 342 U. 96 L. Ed. Remmey S. S. question; dismissed for want of a substantial federal Ct. McCanless, 77 Ct. Kidd 352 U. S. 1 L. 2d S. Ed. dissent; 991, 1 352 U. appeal Gary, dismissed without S. Radford L. Ed. 2d action without 77 S. Ct. affirmed dismissal of Vinson, at times when it Chief dissent), included Chief Justice Warren, Black, Frankfurter, Reed, Douglas, Justice Justices Jack son, Burton, Clark, Minton, Brennan, Rutledge, Harlan and it is very day say late indeed to constitutional provisions violate fundamental constitutional rights. It is hardly legislative reasonable to suppose bodies over so wide a terri tory, States, including Congress of the United and eminent judges courts, of the highest have defied the constitu knowingly tion for so or that long period, acted in they ignorance have of its meaning provisions. so Particularly this when a few just short years ago, Supreme Court said: political power “. To assume exclusively is a function of num- disregard practicalities government. bers is the Thus, to of the Constitution protects against greater by the interests smaller giving the in the Senate entirely unequal representation populations. to strange indeed, It would be doctrinaire, Court, applying for this such concepts broad constitutional process equal protection laws, as due deny to power the a State the proper political to assure diffusion thinly initiative as popu- between its having masses, lated counties and those concentrated in view of the fact that practical opportunities have exerting the latter political weight their at the polls available practical to former. the Constitution —a The instrument of government (MacDougall no such demands Green, on the States.” —makes 281, 283, 284, 1.) 335 U.S. 93 L. Ed. 69 S. Ct. has as it been is the same now constitutional principle The changed i£ so conditions have throughout period; basis in at least one house a geographical state on apportionment this is is no wise or longer proper, of a state legislature bicameral amendment matter for submit constitutional Congress by the to an to the states and not for correct majority attempt by the to unconstitutional Clause. That interpretation the Protection Equal is what had in the George Washington people mind when he told the 17,1796: in on his address September farewell If, “. opinion (cid:127) people, the modification in the or distribution by powers any particular wrong, constitutional be corrected be it let designates. way, amendment be But let there which constitution change by usurpation; for, no though this, instance, may be the instru- in one good, ment of weapon customary governments it is the de- which free stroyed. precedent always any greatly permanent must overbalance evil partial benefit, (12 Sparks, transient yield.” which the use can at time Writings Life and p. Washington, Any conclusion other than what has been arrived at this dissent would cause Fifteenth, Nineteenth Amend- and Twenty-fourth ments to become mere If constitutional amendments surplusage. were means by which the of this nation could people only guarantee and, later, women, all, to all men to vote at later, and still to preclude the states from as a condition imposing vote, of the right to tax, of a payment it is reasonable poll assume the would have deemed it people necessary adopt amendment constitutional that state requiring apportionment alone, on based the absence Four- language teenth Amendment such a expressing But more requirement. clearly that, Twenty-fourth than Amendment was proposed Congress Carr, Baker after was supra, decided. Resolution 29No. Joint it 1962; was proposing passed the Senate on March it passed 27, 1962, House on August submitted to the states for was ratification on September 1962. It was declared to be part on the Constitution Reynolds before February shortly It is decided. evident Congress deemed submit necessary Twenty-fourth Amendment period occurred during had Supreme Court under consideration state apportionment ques- tions, but it seem have been a futile would gesture part it, when, states Congress to submit and the to ratify according Reynolds, can now find “discoverable” “man- standards in ageable” Equal Protection Clause to determine constitutionality and it plans, should 354 have discovered also majority the for presented problem

have no tax a condi- a mere poll to eliminate standards “manageable” tion to vote. constitutional prin- any cognizable searched diligently

I have I in but Reynolds, opinion majority’s sustain the which would ciple that the doubt beyond find established it has none. I think been unauthorized only case are not announced conclusions the than Amendment, nothing less represent but Fourteenth the Constitution amendment to write its own attempt majority’s Article, and Fifth (V) the United States clear violation Consti- are not sanction, conclusions such being legal without courts upon state binding United States and tution Clause of Supremacy courts under the or of those judges Sixth Article. (VI) of the United States Supreme

I Court majority insist that error, clear and retreat judicial correct what seems to me to be from the height judicial which it has ascended its unwarranted sound, cases, related to a historical interpretation Reynolds and amend- That legal construction of the Fourteenth Amendment. states, ment was the Congress ratifying work notwith- Reynolds, not the product opinion majority’s Court standing Supreme eminence of those members of lofty who proposed concurred therein. Had framers who regu- that it Congress the amendment intended which submitted on late based se a standard per prescribe alone, a policy express would have declared such they terms. dual federal system Such an matter our important affecting misgivings majority would not left have been unattended. The have of of our historical dual federal should not concept system it to into permit write the amendment its own notions of what presently politically socially best cure the since nation’s ills times, succeeding may, members due to have changing completely different notions as to or social political those what may cures be. Surely, Constitution and the Fourteenth Amend- Moreover, ment mean more than that. Protection Clause the Equal “should not distorted to make the courts the supervisor federal of state elections apportionment]. That would place [state federal in a judiciary position ‘to supervise and review the political administration of a state government by its own officials and through Carolina, courts (Wilson own v. North U. S. each L. Ed. S. 435)’ 18 Ct. —matters 1, S. 88 L. Hughes, state has the final U. (Snowden say.” 497, 397, Ed. S. 64 Ct. Douglas, J., dissenting.) writing dissent, In this I no reflection cast whatsoever eminent members Court of the United States who Supreme Reynolds constituted in exercise attempted and who the duties imposed upon them with desire with care sincere and welfare; for the general however, dealing important we are with and far-reaching constitutional concerning powers question government, state, both federal permit integrity and which do not good intention to take the of essential constitutional action. place

I would enter judgment for the defendants. my opinion, Kansas plan Article Section prescribed by Article Sections 1 into effect currently placed A; 4-103, K. S. which has previously received judicial approval court, this does not of the Constitution any provision with conflict Amendment, States, the Fourteenth including particular Protection Clause thereof. the Equal I am authorized to Chief Parker and Mr. say that Mr. Justice Wertz concur this dissent. Justice concurring: I find J., agreement many myself

Fontron, of the sentiments Fatzer in his dis- expressed scholarly Justice Nevertheless, court, senting judicial as a opinion. responsible Clause of the United States body, is bound by Supremacy reason, that, good For this I am convinced con- Constitution. science, mandate obligated clearly expressed to follow the we Sims, 533, 12 Reynolds laid down in U. S. L. Ed. 2d S. 84 Ct. and related cases.

Price JJ., join the foregoing concurring opinion. Schroeder,

Case Details

Case Name: Harris v. Anderson

Court Name: Supreme Court of Kansas

Date Published: Mar 1, 1965

Citation: 400 P.2d 25

Docket Number: 44,026

Court Abbreviation: Kan.