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52 A.B.A. J. 326 (1966)
An Antireapportionment Amendment: Can It Be Legally Ratified

handle is hein.journals/abaj52 and id is 328 raw text is: An Antireapportionment Amendment: Can It Be Legally Ratified? Mr. Wolf looks at comparatively unaired problems relating to whether malapportioned state legislatures may legally ratify an amend- ment to the Constitution under which the one-man, one-vote principle might be diluted. His conclusion is that the question of ratification by these legislatures would be justiciable, and that only state legislatures apportioned in accordance with present standards are able to give competent ratification to an antireapportionment amendment. by Peter H. Wolf * of the District of Columbia Bar CONGRESS IS ENGAGED again in the battle over reapportionment of state legislatures. An attempt made at the end of the second session of the 88th Congress to remove reapportion- ment litigation from the jurisdiction of federal courts was defeated by a fili- buster in the Senate.1 The first session of the 89th Congress witnessed an effort to limit the effect of the Supreme Court's extension of the one-man, one- vote principle of Reynolds v. Sims, 377 U.S. 533 (1964), by means of an amendment to the Federal Constitu- tion. That attempt failed to muster the required two-thirds majority in the Senate.2 Senator Everett M. Dirksen of Illinois, the prime mover behind the antireapportionment drive, has renewed efforts to amend the Constitution in the second session of this Congress. The proposed amendments have taken various forms,3 and not unexpectedly, they all provide for ratification by three fourths of the states. But substantial and comparatively unaired legal questions arise with respect to this method of ratification- by state legislatures-of an amendment concerning apportionment of those legislatures. If the equal protection clause demands no less than substan- tially equal state legislative representa- tion for all citizens,4 can a malappor- tioned state legislature ratify an amend- ment that would impair its citizens' rights to equal state legislative repre- sentation?5 Stated another way, if the equal protection clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis,6 can a malap- 1. 110 Com Re. 21896, 22758 (September 10 and 24, 1964). 2. 111 CoxG. Rec. 18660 (August 4, 1965). 3. See e.g., H. J. Res. 13, 14, 24, 151, S.J. Res. 2. 37, 38 and 44, 89th Cong., 1st Sess. (1965). The amendment proposed by Senator Dirksen has received the most attention. Extensive hear- ings were held on his (S.J. Res. 2) and other proposals (S.J. Res. 37, 38 and 44) in March, April and May, 1965, before the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee. Those proceedings are printed in a 1,228-page document entitled Hear- tngs on Reapportionment of State Legislatures. An amended version of S.J. Res. 2 was debated in the Senate in July and August, 1965, as an amendment to S.J. Res. 66 (National American Legion Baseball Week). After its defeat, Sen- ator Dirksen introduced another version, S.J. Res. 103, for consideration in the current ses- sion of Congress. It reads as follows: Resolved by the Senate and House of Rep- resentatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legisla- tures of three-fourths of the several States within seven years of its submission to the States by the Congress, provided that each such legislature shall include one house apportioned on the basis of substantial equality of popula- tion in accordance with the most recent enu- meration provided for in section 2 of article I: 'Article- 'SEcrioN 1. The legislature of each State shall be apportioned by the people of that State at each general election for Representatives to the Congress held next following the year in which there is commenced each enumeration provided for in section 2 of article I. In the case of a bicameral legislature, the members of one house shall be apportioned among the people on the basis of their numbers and the members of the other house may be apportioned among the people on the basis of population, geogra- phy, and political subdivisions in order to in- sure effective representation in the State's legislature of the various groups and interests making up the electorate. In the case of a unicameral legislature, the house may be ap- portioned among the people on the basis of substantial equality of population with such weight given to geography and political sub- divisions as will insure effective representation in the State's legislature of the various groups and interests making up the electorate. SEc. 2. A plan of apportionment shall be- come effective only after it has been submitted to a vote of the people of the State and ap- proved by a majority of those voting on that issue at a statewide election held in accordance with law and the provisions of this Constitu- tion. If submitted by a bicameral legislature the plan of apportionment shall have been ap- proved prior to such election by both houses, one of which shall be apportioned on the basis of substantial equality of population; if other- wise submitted it shall have been found by the courts prior to such election to be consistent with the provisions of this Constitution, includ- ing this article. In addition to any other plan of apportionment which may be submitted at such election, there shall be submitted to a vote of the people an alternative plan of apportion- ment based solely on substantial equality of population. The plan of apportionment ap- proved by a majority of those voting on that issue shall be promptly placed in effect.' 4. Reynolds v. Sims, 377 U. S. at 568 (1964). 5. Senator Dirksen's amendment does not in and of itself deprive citizens of their right to equal state legislative representation; it per- mits the states to base their legislative appor- tionment on factors in addition to population only after approval by a referendum of the people. But there is no question that the ciii- zens' present rights to equal representation would be impaired, because they would be sub- jected to a popular vote, unlike other consti- tutional rights. 6. Reynolds v. Sims, 377 U. S. at 568 (1964). 326 American Bar Association Journal

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