Clause 1 of section 2 of article I of the Constitution provides in part, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States."

Clause 4 of the same section provides, "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies."

Section 4 of article I provides, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

Of a most important bearing on this question is section 5 of article I of the Constitution, which provides in part, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."

Acting under the authority of section 4 of article I of the Constitution, Congress has from time to time enacted reapportionment acts, in some of which appears antigerrymandering language similar, if not identical, to that contained in Senate joint resolution 12 for the purpose of preventing gerrymandering. (The Reapportionment Act of 1911, 37 Stat. 13, sec. 3, specified the election of House Members should be by districts "composed of contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants.") Other reapportionment acts have conspicuously omitted such antigerrymandering language. (Reapportionment Act, June 18, 1929, 46 Stat. 21, 2 U.S.C., sec. 2(a).) From the foregoing it is obvious that the Court could reach no other conclusion but that the question of gerrymandering of congressional districts was a nonjudicial question. Section 4 of article I of the Constitution obviously gives Congress the right to regulate by statute the manner of holding elections for Senators and Representatives, and section 5 of the same article makes each House the judge of the elections of its own Members. Although Congress has seen fit to enact provisions against gerrymandering, the House of Representatives has never exercised its right to enforce such provisions by refusing to seat a Member of Congress certified by the State on the grounds that the antigerrymandering language was not complied with by the State in establishing the congressional districts.

It does not follow that because gerrymandering of congressionl districts presents a political, rather than a judicial question, that a challenge of the antigerrymandering language pertaining to presidential elector districts would present a political question in the event Senate joint resolution 12 were to be adopted as an amendment to the Constitution. A number of differences would exist which bear heavily on the question.

In the first place, the Constitution itself contains no language which prevents or purports to prevent, gerrymandering of congressional districts; but rather it leaves the manner of holding elections for Senators and Representatives to the State legislatures, subject to such changes as Congress may see fit to make by law. Senate joint resolution 12, on the contrary, proposes to write into the Constitution, itself, language prohibiting gerrymandering of presidential elector districts without any discretion on the part of Congress.

The House of Representatives is, by specific language of the Constitution, made judge of the election of its own Members. This provides a remedy to gerrymandering of congressional districts at the hands of the House of Representatives. What the Court has found to be a political question has, therefore, a political remedy. The electoral college is neither now, nor would it be under the provisions of Senate joint resolution 12, the judge of the election of its own members. There would, therefore, be no specific political remedy specified in the language of the Constitution on which the Court could rely as a substitute for judicial remedy.

The primary difference between the question presented to a court by the gerrymandering of congressional districts, on the one hand, and the gerrymandering of presidential electoral districts, on the other hand, would be the existence of a specific standard in the language of the Constitution with regard to the latter. Where standards appear, and such standards are of a specific and definable nature, it is most improbable that the Court would refuse to require compliance with such standards.

The Court, while seldom spelling out its reasons therefor, has invariably been reluctant to undertake the provision of a remedy which the Court was patently incapable of enforcing. This bears directly on questions concerning the gerrymandering of congressional districts, for even were the Court to find that the

antigerrymandering language of a reapportionment act had been violated and, upon such finding, base either an injunction against an election or a declaratory judgment that elections pursuant to such districting were invalid, the House of Representatives, being the judge of its own elections, could obviously ignore or negate the Court's finding and leave the Court no recourse from its decision. Were Senate Joint Resolution 12 to be enacted, however, the Court would be in no such impotent position with regard to an injunction or a declaratory judgment bearing on a presidential elector. No other branch or agency of government, other than the judicial, is delegated a power to negate the Court's decision. The Court would be in a position to deprive a State of the portion of its electoral vote which was represented by electors not chosen in conformity with the constitutional standards.

In addition, the Congress would have the authority to enact legislation specifically giving the Court jurisdiction to decide questions arising in this field.

In view of these distinctions, any doubts about the enforcibility of the antigerrymandering language for Presidential elector districts, which would be established under Senate Joint Resolution 12, appear rather remote.

(The following was submitted by Senator Karl E. Mundt:)

THE LIBRARY OF CONGRESS

LEGISLATIVE REFERENCE SERVICE

Washington, D.C.

ENFORCEMENT OF THOSE PROVISIONS OF SENATE JOINT RESOLUTION 12 REQUIRING ELECTORS TO BE ELECTED BY THE SO-CALLED DISTRICT SYSTEM

(Prepared according to the instructions of Hon. Karl E. Mundt by Samuel H. Still, legislative attorney, American Law Division, July 25, 1961)

To: Hon. Karl E. Mundt.

From: American Law Division.

THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, Washington, D.C., July 25, 1961.

Subject: Enforcement of those provisions of Senate Joint Resolution 12 requiring electors to be elected by the so-called district system.

There are here set forth some of the arguments in support of legal means whereby enforcement may be had of that mandate in Senate Joint Resolution 12 that where electors are chosen within single-elector districts established by the legislature such districts must be composed of "compact and contiguous territory, containing as nearly as practicable the number of persons which entitled the State to one Representative in Congress."

COLEGROVE V. GREEN DISTINGUISHED

At the outset it might be pointed out that the chief source of doubt as to the enforcement of the above provisions of Senate Resolution 12 stems from a decision of the U.S. Supreme Court of June 10, 1946, holding that under existing acts of Congress, and provisions of the Constitution the matter of dividing a State into congressional districts presented issues "of a peculiar political nature and therefore not meet for judicial determination." Colegrove v. Green, 328 U.S. 549, 552 (1946).

The situation presented in that case was, however, different from a situation which might be involved should a State legislature establish electoral districts in violation of Senate Joint Resolution 12.

In Colegrove v. Green the Court was asked for relief because the Illinois Legislature had failed to revise its congressional representative districts in a manner to reflect great changes, over some 40 years, in the distribution of the State's population. In its decision and failure to grant relief the Supreme Court emphasized (1) that the then existing apportionment act of Congress contained no "requirements as to compactness, contiguity, and equality in population" and cited Wood v. Broom, 287 U.S. 1 (1932), as precedent for failure to grant relief: (2) for want of equity because the issues were in the absence of a constitutional mandate "of a peculiarly political nature"; and (3) because of a belief that in

the exercise of its power to judge of the qualifications of its own Members under article I, section 5, clause 1, Congress alone has final authority to assure fair representation. To emphasize the language of the Constitution as controlling in its decision Justice Frankfurter speaking for the majority of the Court said: "The short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House and left to that House determination whether States have fulfilled their responsibility. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people. Whether Congress faithfully discharges its duty or not, the subject has been committed to the exclusive control of Congress (id. 554)."

Colegrove v. Green was a 4-to-3 decision, Justices Douglas and Murphy not participating, with Justices Black, Douglas and Murphy dissenting.

"Justice Black, in a dissenting opinion with his two associates, first spelled out a 'constitutional policy' of substantially equal representation for all inhabitants and then countered the majority's arguments. He viewed State (and presumably congressional) power to regulate the 'manner' of elections as operable only within that constitutional policy, and Wood v. Broom as standing for no broader proposition than that the current Federal statute includes no 'equal population' requirement. As for the want of equity argument he denied that the relief sought was either unprecedented likely to involve the Court in a clash with Congress, and termed it a play on words to say that, because elections are connected with politics, courts cannot protect the right to cast an effective ballot" (56 Yale L. Rev. 133-134 (1946)).

Justice Black stated:

"While the Constitution contains no express provision requiring that congressional election districts established by the States must contain approximately equal populations, the constitutionally guaranteed right to vote and the right to have one's vote counted clearly imply the policy that State election systems, no matter what their form, should be designed to give approximately equal weight of each vote cast. *** legislation which must inevitably bring about glaringly unequal representation in the Congress in favor of special classes and groups should be invalidated, 'whether accomplished ingeniously or ingenuously'" (Colegrove v. Green, 570–571).

SUPPORT HAD FROM THE SOLICITOR GENERAL, UNITED STATES, IN RECENT BRIEF A most illuminating argument that the Supreme Court has never held that the questions of apportionment are beyond the power of the Federal courts appears in the brief for the United States as amicus curiae filed by Solicitor General Archibald Cox in the Tennessee [State Legislature] apportionment case, Baker v. Carr, docket No. 103, October term, 1960, set down for reargument on November 9, 1961, before the U.S. Supreme Court. The Solicitor General states (at pp. 24-29):

"1. This Court has never held that questions of apportionment are beyond the power of the Federal Courts

"It should be stressed that this Court has never held that apportionment cases necessarily raise nonjusticiable questions. On the contrary, it has passed on the merits of apportionment systems in several cases and has granted relief in some of them. Thus, in Smiley v. Holm, 285 U.S. 355, the Court held that the existing Minnesota apportionment of U.S. Representatives did not meet Federal requirements because the Governor had refused to approve the bill, and accordingly the Court ordered an election at large. The Court also held a State apportionment law invalid (the Governor had vetoed it) and ordered an election at large in Carroll v. Becker, 285 U.S. 380. And in Koenig v. Flynn, 275 U.S. 385, the Court affirmed a decision of a State court holding that, in the absence of a valid districting statute (the Governor had not approved the resolution of the State legislature) to conform to the increase in Representatives allotted to a State by Congress, the additional Representatives must be elected at large.

"Colegrove v. Green, 328 U.S. 549, does not hold to the contrary. Admittedly, Mr. Justice Frankfurter, joined by two other Justices, would have held that State apportionment of Representatives is a political question beyond the power of the Federal courts to decide. But a majority of the participating Justices (Mr. Justice Rutledge concurring, and the three dissenting Justices) took the view that Federal courts had the power to adjudicate the validity of the system of apportionment under attack. Mr. Justice Rutledge, whose vote in this respect was dis

positive of the case, concluded that this power should be employed 'only in the most compelling circumstances' (id. at 565). Since such circumstances were absent, he decided that the case is one in which the Court may properly, and should, decline to exercise its jurisdiction' (id. at 566).

"Shortly after the Colegrove case, the scope of the Court's decision became even more clear. In Cook v. Fortson, 329 U.S. 675, 678, involving the Georgia county unit system, Mr. Justice Rutledge described the actual ruling in the earlier case: ****** A majority of the justices participating refused to find that there was a want of jurisdiction, but at the same time a majority, differently composed, concluded that the relief sought should be denied. I was of the opinion that, in the particular circumstances, this should be done as a matter of discretion, for the reasons stated in a concurring opinion.'

"In Cook v. Fortson Mr. Justice Rutledge would have postponed consideration of the issue of jurisdiction to the argument, even though he admitted that the order on appeal might have become moot in part,' Id. at 677. The Court, however, dismissed the bills, citing United States v. Anchor Coal Co., 279 U.S. 812, which involved the dismissal of a bill seeking an injunction as moot.

**

"In MacDougall v. Green, 335 U.S. 281, the Court passed on the merits of the claim that an Illinois statute requiring a candidate of a new political party to obtain a specified number of signatures on his nominating petitions in 50 of the 102 counties in the State was unconstitutional. Mr. Justice Rutledge, in a separate opinion, stated that 'this case is closely analogous to Colegrove v. Green' and '[e]very reason existing in Colegrove *** which seemed to me compelling to require this Court to decline to exercise its equity jurisdiction and to decide the constitutional questions is present here. *** As in Colegrove * * * I think the case is one in which *** this Court may properly, and should, decline to exercise its jurisdiction in equity.' Id. at 284, 286-287. No member of the Court suggested that the Court was without jurisdiction or power to consider the issue. "In South v. Peters, 339 U.S. 276, 277, the Court again recognized that the question is not one of judicial power but of its proper exercise. The decision was embodied in a single sentence: 'Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a State's geographical distribution of electoral strength among its political subdivisions' (emphasis added). None of the cases cited in support of this conclusion held that the issue involved was not justiciable. Reliance was placed on MacDougall v. Green, in which, as we have seen, the Court passed on the merits of a State election issue; Colegrove v. Green, in which a majority of the Court held that the Federal courts have power to consider the merits of apportionment cases; and Wood v. Broom, 287 U.S. 1, 8. In the Wood case, the Court held that the Reapportionment Act of 1911, requiring that congressional election districts be of contiguous and compact territory and, as nearly as practicable, of equal population, applied only to districts formed under that act and not to the Apportionment Act of 1929. Four members of the Court (in a statement beginning on page 8) said that they believed that the bill should be dismissed 'for want of equity.' That phrase suggests that under traditional equity principles an injunction should not issue, not that the courts are without jurisdiction to consider the merits because a nonjusticiable political issue is involved.

"In no subsequent apportionment case has this Court held, so far as we can determine, that the Federal courts lack power to adjudicate the constitutionality of apportionment systems. In Cox v. Peters, 342 U.S. 936, involving an attack on Georgia's county unit laws, and Remmey v. Smith, 342 U.S. 916, involving a suit to compel reapportionment of the Pennsylvania Legislature, the appeals were simply dismissed for want of a substantial Federal question, without citation of authority. In Anderson v. Jordan, 343 U.S. 912, the Court dismissed the appeal on the authority of Colegrove v. Green, MacDougall v. Green, and Wood v. Broom (the opinion of the Court). As we have seen, in the latter two cases the Court considered the issues on the merits. In Kidd v. McCanless, 352 U.S. 920, involving an attack upon the same Tennessee apportionment law now before the Court, the appeal was dismissed on the authority of Colegrove v. Green and Anderson v. Jordan. In Radford v. Gary, 352 U.S. 991, involving an attack on the Oklahoma apportionment laws, this Court affirmed the district court's dismissal of the action, citing Colegrove v. Green and Kidd v. McCanless. And in Hartsfield v. Sloan, 357 U.S. 916, without citation of authority, the Court denied a motion for leave to file a petition for a writ of mandamus to compel the convening of a three-judge court to pass on the validity of the Georgia county unit laws. "Where the Court has rejected attacks on apportionment systems without cita

tion, it is of course impossible to know the basis of the decision. But such action is just as compatible with a determination that the case clearly does not present *compelling circumstances' necessary for Federal judicial relief as with a holding of lack of power. Where the Court has cited Colegrove v. Green, the reason for this reliance is also not entirely clear. As we have seen, four of the seven Justices voting in that case upheld the power of the Court to consider the merits. The citation of the Colegrove decision to support rejection of attacks on State apportionment must therefore, we believe, mean reliance on the only holding of the prevailing majority in that case, i.e., that an injunction was not justified in the circumstances. It cannot be assumed that the Court intended to settle this imporant issue of Federal judicial power in accordance with the review of the minority of the Court in Colegrove v. Green by citing Colegrove in per curiam decisions, without the benefit of full briefing or oral argument."

Probably the most effective means of enforcing the district system would be through the Federal courts.

Action would be of a civil nature perhaps brought under the Declaratory Judgment Act of the United States providing for the declaration of rights and other legal relations of interested parties petitioning therefor, and for other relief. Sections one and two of the Declaratory Judgment Act are set forth in sections 2201 and 2202 of title 28, United States Code, 1958 edition, as follows:

§ 2201. Creation of remedy

"In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

§ 2202. Further relief

"Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment."

Assuming that a favorable decision be had, there should be no difficulty in enforcing a decree. In his dissenting opinion in Colegrove v. Green, 328 U.S. 549, 573 (1946), Justice Black stated that without assuming any jurisdiction over elections the Court could declare any inequitable bill invalid and enjoin State officials from enforcing it. He cited Smiley v. Holm, 285 U.S. 355 (1932). Of course, the Supreme Court has already struck down a State redistricting law wherein the boundaries of a municipality were gerrymandered to single out "a readily isolated segment of a racial minority for special discrimination." Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960). In the Gomillion case the Court said: "a constitutional power cannot be used by way of a condition 'to attain an unconstitutional result'", citing Western Union Telegraph Co. v. Foster, 247 U.S. 105. 114 (1918). Also see Western Union Telegraph Co. v. Kansas, 216 U.S. 1 (1910); Pullman Co. v. Kansas, 216 U.S. 56 (1910); Sioux Remedy Co. v. Cope, 235 U.S. 197 (1914).

ENFORCEMENT OF COMPARABLE PROVISIONS AS TO COMPACT AND CONTIGUOUS DISTRICTS AND NEARLY EQUAL POPULATION BY STATE COURTS

Virginia

The constitution of Virginia places a limitation on the legislature that each congressional district "shall be composed of contiguous and compact territory containing as near as practicable an equal number of inhabitants."

"The general assembly shall by law apportion the State into districts, corresponding with the number of Representatives to which it may be entitled in the House of Representatives of the Congress of the United States; which districts shall be composed of contiguous and compact territory containing as nearly as practicable, an equal number of inhabitants" (art. IV, sec. 55).

The Supreme Court of Virginia has held that section 55 places limitations on the discretion of the legislature, and whether or not a redistricting act exceeds those limitations becomes a judicial question when raised by the proper parties in a proper proceeding. Brown v. Saunders, 159 Va. 28, 166 S.E. 105 (1932).