Maxwell v. Stephens Appendix to Petition for Writ of Certiorari

    BRIEF FOR APPELLANTS

I n  t h e

lmtp& (Emtrt uf Appeal#
F oe t h e  D istr ic t  of C o l u m b ia  

No. 19,383

D a isy  E. L a m p k in , et al.,
Appellants,

J o h n  T. C o n n o r , Secretary o f  Commerce, et al.,

Appellees.

Appeal From an Order of the United States District Court 
for the District of Columbia

W il l ia m  B . B r y a n t  
615 F Street, N.W. 
Washington, D. C.

J a c k  Gre e n b e r g  
J a m e s  M. N a b r it , III 
M ic h a e l  M e l t s n e r

10 Columbus Circle 
New York, New York

Attorneys for Appellants

R ic h a r d  L. B a n k s  
W il l ia m  R . M in g , J r .
S. W . T u c k e r  
A. P. T ureaud  
A. W . W il l is , J r .
M argaret B u s h  W ilso n

Of Counsel



1

Statement of Questions Presented

1. Whether the district court should have dismissed the 
complaint on the ground that appellants lack standing in 
an action brought by:

(a) citizen-voters of the states of Pennsylvania, Mas­
sachusetts, Missouri, Illinois, Ohio, and California, who 
allege that their right to vote is debased and diluted by 
the failure of federal officials, charged with the duty to 
prepare the decennial apportionment of representatives, 
to carry out their duties in accordance with §2 of the 
Fourteenth Amendment and 2 U. S. C., §6;

(b) citizens of the states of Virginia, Louisiana, and 
Mississippi whose right to vote has been denied or abridged 
and who claim the right to receive the protection of the 
reduction in the basis of apportionment imposed by §2 of 
the Fourteenth Amendment and 2 U.S.C. §6.

2. Whether the district court erred in finding that, if 
appellants have standing, a summary judgment would be 
entered in favor of appellees because §2 of the Fourteenth 
Amendment; the equal protection clause of the Fourteenth 
Amendment; the due process clause of the Fifth Amend­
ment; 2 U. S. C. §2a, 2 II. S. C. §6, and 13 U. S. C. §§4, 5, 
11, 21,141 do not require appellees to prepare the decennial 
apportionment by excluding’ from the basis of apportion­
ment those disfranchised within the meaning of §2 of the 
Fourteenth Amendment and 2 U. S. C. §6.

3. Whether the district court erred in finding that, even 
though appellees are required to include the disfranchised 
when apportioning representatives, appellants are not en­
titled to alternative relief declaring unconstitutional stat­
utes which require an apportionment of representatives 
which is not in accord with §2 of the Fourteenth Amend­
ment.



Ill

I n  t h e

IMtth States (Ermrt of Appeals
F oe t h e  D istr ic t  op C o l u m b ia

No. 19,383

E . D avis A l l e n , R . S im s  A l l is o n , J . E dw ard  A t k in s o n , 
N e p h u s  H o m u s  B a n k s , T heodore  M . B e r r y , I na  B o o n , 
W . N . D a n ie l , L u c il l e  D e n m a n , N a t h a n ie l  D e n m a n , 
P earlie  E v a n s , J am e s  H . G a r ro tt , D e n n is  G il l u s , 
M il t o n  H . H a n c o c k , R a y m o n d  H ar ris , A r t h u r  K e n ­
n e d y , C h a r le s  L u c as , J o h n  L u n d y , L au ra  M cG ee , 
W il l ia m  M cG e e , H e n r y  F r a n k l in  M aso n , C la re n ce  
A. R o b in so n , M au r ic e  R o se n pie ld , W il l ia m  A. Ross, 
C arole  L . T u r e a u d ,

Appellants,

J o h n  T. C o n n o r , Secretary of Commerce;
A. Ross E c k l e r , Director of the Bureau of the Census,

Appellees.



TABLE OF CONTENTS

PAGE

Jurisdictional Statement ......    1

Statement of the Case ......................................................  3

Constitutional and Statutory Provisions Involved ....... 11

Statement of Points .............. ............................................  11

Summary of Argument ....................................................  12

A r g u m e n t  ............................        14

I. Appellants Have Standing To Sue ....................... 14

Group I Appellants Have Standing To Sue .......  15

Group II Appellants Have Standing To Sue .....  27

II. Appellees Are Required by §2 of the Fourteenth 
Amendment to Deduct From the Basis of a State’s 
Representation the Number of Citizens Whose 
Right to Vote Has Been Denied or Abridged by 
That State. Any Other Interpretation of Present 
Apportionment Statutes Would Render Them Un­
constitutional ......................... .......... .................... ......  30

Applicable Apportionment and Census Statutes 
Should Be Construed So As Not To Conflict With 
§2 of the Fourteenth Amendment ....................... 31

Apportionment In Accordance With §2 of the 
Fourteenth Amendment Is Constitutionally Re­
quired ......................................... ............ .................... . 39



V

Conclusion ....................................................................... 43

A ppendix of Statutes .................................................... 45

Appendix of Legislative History ................................ 53

Table of Cases:

Alabama Power v. Iekes, 302 U. S. 464 ................ .........  26
Ashwander v. Tenn. Valley Authority, 297 U. S. 288 .... 32

Baker v. Carr, 369 U. S. 186 ..............15,16,17,18,19,38
Bromley v. McCaughn, 280 IT. S. 124 .........................  24
Brushaber v. Union P. R. Co., 240 U. S. 1 .................. 24

Carrington v. Rash, 380 U. S. 89 ...................................  17
Carroll v. Becker, 285 U. S. 380 ..................................... 16
Colegrove v. Green, 328 U. S. 549 ................................  16
Conley v. Gibson, 355 U. S. 41 ......... ............................ 19

Davis v. Mann, 377 U. S. 678 ....................... ................  16
Davis v. Ohio, 241 U. S. 565 ..........................................  16
Dennis v. United States, 84 U. S. App. D. C. 51, 171 

F. 2d 986 (1948) aff’d 339 U. S. 162 ........................ 38

Ex parte Siebold, 100 U. S. 371 ................ ....................  17

Flint v. Stone Tracy Co., 230 U. S. 107........... .............. 24
Frothingham v. Mellon, 262 U. S. 447 .......... 15,19, 22, 26

Girouard v. United States, 328 U. S. 61 ...................... 37
Gray v. Sanders, 372 U. S. 368 ......................... ....15,17, 38

Helvering v. Independent L. Ins. Co., 292 U. S. 371 .... 24 
Hylton v. United States, 3 Dali. 171 .............................  23

PAGE



V I

Knight Templars & Masons’ Life Co. v. Jarman, 187
U. S. 197 ......... ................ .............................. .................  32

Knowlton v. Moore, 178 U. S. 43 ..................................  24
Koenig v. Flynn, 285 U. S. 375   ................................ 16

Lucas v. 44th General Assembly of Colorado, 377 U. S.
713 ...................................................................................... 16

Marbury v. Madison, 1 Cranch 137 ................ ........... . 42
Maryland Committee for Fair Representation v.

Tawes, 377 U. S. 656 ........ ........ ..... ...............................  16
Missouri P. R. Co. v. Boone, 270 U. S. 446 ................... 32

X A A CP v. Alabama, 357 U. S. 451 ...............................26, 28

Pennsylvania R.R. v. Dillon,------ U. S. App. D. C .------- ,
335 F. 2d 292 ................................ ........ ........................  26

Phelps v . United States, 274 U. S. 343 ......................... 32
Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429 .... 24

Reynolds v. Sims, 377 U. S. 533 ....................................... 15
Roman v. Sincock, 377 U. S. 695 ................................... 16

Saunders v. Wilkins, 152 F. 2d 235 (4th Cir. 1945),
cert, denied 328 U. S. 870 ........................................... 37

Smiley v. Holm, 285 U. S. 355 ........................................  15
Smith v. Allwright, 321 U. S. 649 ................................... 17
Spreckels Sugar Ref. Co. v. McClain, 192 IT. S. 397 .... 24 
Stanton v. Baltic Mining Co., 240 U. S. 103 ............... 24

Trimble v. Stone, 187 F. Supp. 483 (D. C. 1960) .......  32

United States v. Classic, 313 U. S. 299 ..........................  17
United States v. Moriarity, 106 F. 886 (S. I). NT Y. 

1901) ................................................................................. . 39

PAGE



V l l

United States v. Saylor, 322 U. S. 385 ........................... 17
United States v. Sharrow, 309 F. 2d 77 (2nd Cir. 1963)

cert, denied 372 U. S. 949 ..............................................  39
United States v. Stewart, 234 F. Supp. 94 (D. D. C. 

1964) ............ ...................................................................... 26

Wesberry v. Sanders, 376 U. S. 1....... 12,15,17,18,19, 38, 39
WMCA, Inc. v. Lomezo, 377 U. S. 633 ....................... 16
Wood v. Broom, 287 U. S. 1 ..........................-...............  16

PAGE

C o n s t it u t io n a l  and  S t a tu to r y  P ro visio ns  I n v o l v e d :

u. S. Const. Art. I, §2, Cl. 3 .............. 11, 23, 24, 29, 30, 33,
41,42, 43

u. S. Const. Art. I, §9, Cl. 4 .......................................11, 24
Art. :14, §2 ........... ....2, 3,4, 5, 6, 8, 9,10,12,13,

14, 20, 28, 29, 30, 31, 32,
35, 37, 38, 39,41, 42

2 U. S. C. §2a ...... ............ 5, 8, 9,11,12, 28, 30,
31, 32, 35, 36, 38

2 1U. S. C. §6 ........ .......... 1, 2, 3, 4, 8,10,11,12,
14, 30, 35, 37

13 u. s. C. §4 ....... ........ ..............8, 9,11,12, 31
13 u. s. C. §5 ....... .................8, 9.11,12, 30, 31
13 u. s. C. §6 ....... ............................. .11, 30, 31
13 u. s. C. §11 ...... .................8, 9,11,12, 30, 31
13 u. s. c . §12 ..... ................................... 11, 31
13 u. s. C. §13 ..... ................................... 11, 31
13 u. s. C. §14 ..... ................. ............... ...11, 30
13 u. s. C. §21 ..... .... ........... ...8, 9,11,12, 30, 31
13 u. s. C. §141 .... ...................8, 9,11,12, 30, 32
13 u. s. C. §221(a) ....................... .............  39
28 u. s. C. §1291 .. .................................  2



PAGE

viii

28 U. S. C. §1343 ......................... .................................  2
28 U. S. C. §2201 ......... .................................................  2
28 U. S. C. §2202 .......................... .................... -....... . 2
42 II. S. C. §§2000(1. 20000 1 ...................................... . 27
42 U. S. C. §20001 ...... .............-....................................  11
11 D. C. §306 ................................................................... 1

O t h e r  A u t h o r it ie s  :

Cong. Globe, 41st Cong. 2d Sess. 36-38, 125, 1078, 1079 
(1869-1870) ..............................      40

Cong. Globe, 42nd Cong. 2d Sess. 42, 82-83 (1871-1872) 41

71 Cong. Record 107-108 ................................................... 36

71 Cong. Record 1325, 1328, 1330-33 ............................. 33

Corwin, The Constitution of the United States of 
America (Washington, 1953) .........  23,24

Report No. 3, House of Representatives, 41st Cong.
2d Sess. ......... .................. ............. ....... .......................... -  40

Report, Committee on the Census of the House of 
Representatives, 70th Cong. 2d Sess. No. 2010 .......  33

Report, Committee on the Judiciary of the Senate, 89th 
Congress, First Sess. on S. 1564 ......... .........................  21

Report of the Senate, No. 2, 71st Cong. 1st Sess. .......  35

Report of the President’s Commission on Registration 
and Voting Participation, November 1963, p. 8 ....... 43

Zuckerman, A Consideration of the History and 
Present Status of the Fourteenth Amendment, 30 
Ford ham L. Rev. 93 (1961) .................... ................. 40,41



I n  t h e

United States (knurl of Appeals
F or t h e  D is t r ic t  of C o l u m b ia  

No. 19,383

D aisy  E. L a m p k in , et al.,
Appellants,

J o h n  T. C o n n o r , Secretary of Commerce, et al.,
Appellees.

BRIEF FOR APPELLANTS

Jurisdictional Statement

The jurisdiction of the district court was invoked pur­
suant to 11 D. C. Code §306, appellants alleging that “ This 
is an action in equity against officers of the United States, 
to be found in the District of Columbia, for a declaration 
that they should perform duties owed to” appellants “by 
reason of rights secured” by the Fifth and Fourteenth 
Amendments to the Constitution of the United States and 
2 U. S. C. §6 (JA  4a, 5a).

Two groups of appellants joined in this action. Group I 
consisted of 15 persons from six states who are citizens 
of the United States, over the age of 21, and who are duly 
registered voters for all general elections in their respec­
tive states (JA 8a, 9a).1 Group II consists of 10 persons 
from three states who are citizens of the United States, 
over 21 years of age, and eligible to vote in their respective

1 Mrs. Lampkin of Pennsylvania is deceased.



2

states but unable to do so because of denial or abridge­
ment of their right to vote (JA  9a, 10a). Appellants join 
together in bringing this action on their own behalf and 
on behalf of all other persons similarly situated (JA 6a, 
7a).

When this action was commenced, defendants were 
Luther Hodges and Richard M. Scammon. On February 
10, 1965, the district court ordered John T. Connor, Secre­
tary of Commerce, and A. Ross Eckler, Director of the 
Bureau of the Census, substituted as party defendants 
pursuant to Fed. R. Civ. P. 25(d)(1) (JA 59a).

The jurisdiction of the district court was also invoked 
pursuant to 28 U. S. C. §1343 to redress the deprivation 
under color of state law, statute, ordinance, regulation, 
custom and usage of rights, privileges and immunities 
secured to appellants by §2 of the Fourteenth Amend­
ment and 2 IT. S'. C. §6 and also secured to appellants who 
are citizens of the states of Pennsylvania, Massachusetts, 
Missouri, Illinois, Ohio and California by the equal protec­
tion clause of the Fourteenth Amendment and the due 
process clause of the Fifth Amendment to the Constitu­
tion of the United States.

This is a suit for a declaratory judgment pursuant to 
28 U. S. C. §§2201 and 22022 in that there is an actual 
controversy now existing between parties to this action 
as to which they seek judgment (JA  7a).

The jurisdiction of this Court is invoked pursuant to 
28 U. S. C. §1291. This appeal is from a final decision of 
the United States District Court for the District of Colum-

2 The district court found that, as appellants “ do not seek an injunction 
to restrain the enforcement, operation, or execution of any act of Congress, 
a three-judge district court need not be convened” (emphasis supplied) 
(JA 62a).



3

Notice of appeal to this Court was filed April 19, 1965 
(JA  79a).

bia, an order entered March 29, 1965, granting appellees’
motion to dismiss the complaint (JA 78a).

Statement of the Case

The complaint was filed May 28, 1963, seeking a declara­
tion that appellees, who are charged with the duty of ap­
portioning representatives among the states, are required 
to: (1) take all necessary and proper steps to prepare to 
compile figures as to the denial and abridgement of the 
right to vote at the next decennial census in accordance 
with §2 of the Fourteenth Amendment and 2 U. S. C. §6; 
and (2) prepare, compile, compute, and transmit an ap­
portionment based on said figures (JA  7a, 21a, 22a).

Appellants sought alternative relief declaring unconsti­
tutional statutes governing apportionment of representa­
tives to the extent they provide for an apportionment 
which is not in accord with §2 of the Fourteenth Amend­
ment (JA 22a).

Two classes of appellants joined in this action. The 
first (Group I) consisted of 15 citizens of the States of 
Pennsylvania, Massachusetts, Missouri, Illinois, Ohio and 
California (JA  8a, 9a). A citizen of Pennsylvania, Mrs. 
Lampkin, is deceased. Each is a registered voter in his 
or her state who seeks relief from the failure of appellees 
to take any action to enforce §2 of the Fourteenth Amend­
ment and 2 U. S. C. §6 {Ibid,.). Each asserts that the 
failure of appellees to administer their duties to appor­
tion in a constitutional manner results in his or her con­
gressmen representing more persons than congressmen 
from states which deny or abridge the right to vote as 
specified in §2 of the Fourteenth Amendment; and that



4

Ms or her state would receive at least one additional 
representative in congress if §2 is enforced, thereby re­
sulting in an increase in the value of each appellants’ vote 
(JA  19a, 21a).

The second class (Group II) of appellants consists of 
ten Negro citizens of the United States and the states of 
Mississippi, Virginia and Louisiana. Each of the ten is in 
all respects eligible to vote except that his or her right 
to vote has been denied in a manner which would reduce 
the basis of apportionment for his or her state if §2 of 
the Fourteenth Amendment and 2 U. S. C. §6 were im­
plemented (JA  9a-12a).3 Each group II appellant alleges 
that his or her state would lose at least one representative 
in congress on the basis of an apportionment executed by 
appellees in accordance with §2 of the Fourteenth Amend­
ment and 2 U. S. C. §6 and asserts the “ right to receive 
the protection of the reduction imposed by §2 of the Four­
teenth Amendment” in order “to redress and deter denial 
and abridgement of the right to vote for reasons other 
than those specified in the Amendment” (JA  20a).

8 Appellants Lundy and Banks are disfranchised by the requirement of 
the State of Virginia that voters make handwritten application to register 
(JA 9a-10a). Appellant Harris is disfranchised by Virginia’s requirement 
that he pay a poll tax to vote (JA  10a). Appellant Mason is disfranchised 
by Virginia’s requirement that he apply to register in his own handwriting 
and by the poll tax requirement (JA 10a). Appellant Gillis is disfran­
chised by Virginia’s requirement that he apply to register in his own hand­
writing and by the state’s poll tax requirement (JA 10a, 11a).

Appellants Laura McGhee, Robinson, William McGhee and Hancock are 
disfranchised by the requirement of the State of Mississippi that they pass 
a constitutional interpretation test in order to vote, which they are unable 
to pass. Laura McGhee, William McGhee and Hancock are also disfran­
chised by the requirement of the State of Mississippi that they pay a poll 
tax (JA 11a, 12a).

Appellant Tureaud alleged that her right to vote had been denied and 
abridged by the requirement of the State of Louisiana that persons seeking 
to register answer questions on a registration form without error of any 
kind, the purpose and effect of such requirement being to deny and abridge
the right to vote of Negro citizens on the basis of race (JA 12a).



0

Appellee Secretary of Commerce of the United States 
is charged with duties under law to take a decennial census 
of population of the United States for purposes of ap­
portioning representatives. A  statement showing the num­
ber of representatives in congress to which each state is 
entitled and a tabulation of population is prepared, de­
cennially, under his direction, and transmitted to the Presi­
dent, who in turn transmits the apportionment to congress, 
2 U. S. C. §2a, 13 U. S. C. §141 (b), (JA 13a, 1.4a). Ap­
pellee Director of the Bureau of the Census has been 
delegated duties by the Secretary to prepare the state­
ment showing the number of representatives to which each 
state is entitled and the tabulation of population as re­
quired for apportionment (JA  13a, 14a). Each state is 
entitled to the number of representatives shown in this 
statement unless legislation to the contrary is enacted, 
2 U. S. C. §2a.

On February 28, 1963, plaintiff Lampkin wrote to then 
Secretary Hodges complaining of the failure of the Depart­
ment of Commerce to take any action to carry out §2 of 
the Fourteenth Amendment in the face of widespread 
denial of the right to vote in many southern states. She 
pointed out that the Department has not taken any action 
through the Census Bureau to obtain such information as 
would be necessary to enforce the law in this regard and 
requested that Secretary Hodges advise her whether there 
is any present intention to enforce these provisions (JA 
14a).

In reply, Mrs. Lampkin received a letter dated March 8, 
1963, from then Director of the Census, Richard M. Scam- 
mon, which stated (JA  14a, 15a):

Even though the Constitution provides for certain 
functions and activities, this does not necessarily insure 
their being carried out unless Congress gives specific



6

legislative authority. Even then, unless necessary 
funds are appropriated by Congress for the specific 
activity, there is no way any government agency may 
proceed to carry out the necessary job. As you may 
no doubt know, the funds appropriated to government 
agencies are available only to carry out the projects 
specifically described in the appropriation request.

I appreciate your interest, and will inform you if 
there are any proposals concerning Article 14, Sec­
tion 2.

The Bureau of the Census last attempted to comply with 
the requirements of §2 of the Fourteenth Amendment in 
preparing the apportionment of representatives in 1870. 
No steps have been taken nor, it is alleged, do appellees 
intend to take any steps to have census enumerators or 
others compile figures as to denial and abridgement of 
the right to vote at the next decennial census in accordance 
with §2 (JA 15a).

On the basis of statistics, reports and information as to 
disfranchisement in the hands of appellees, and other offi­
cers of the United States, as well as reported opinions of 
United States courts, appellees know or shoidd know it is 
likely and probable that the states in which Group I appel­
lants reside would each receive at least one additional 
representative in congress, and the states where Group IT 
appellants reside would lose at least one representative in 
congress if the apportionment allocates representatives in 
accordance with §2 of the Fourteenth Amendment (JA 
19a, 20a).4

4 Appellants allege that: “ It is readily possible, by means of the census, 
to make inquiries to provide a count of persons who (1) did or did not 
register in preceding elections, (2) did or did not vote in preceding elec­
tions, and (3) did not register or vote respectively at preceding elections 
for specific reasons, including denial and abridgement of the right to vote



7

“ There is overwhelming evidence that denial and abridge­
ment of the right to vote by certain of the states exists to 
an extent that constitutionally requires loss of Represen­
tatives in Congress by those states and a gain of Repre­
sentatives by other states which do not deny and abridge 
the right to vote” (JA  17a, 18a). For example:

(1) Requirements that a poll tax be paid in order 
to register to vote in Federal and State elections in the 
State of Alabama, Arkansas, Mississippi, Texas, and 
Virginia, deny and abridge the right to vote of white 
and non-white persons to such an extent as should 
result in the loss of Representatives in Congress by 
these States and proportionate gain by others.

(2) In 1960 in the State of Louisiana approximately 
465,556 non-whites over 21 years of age (69.1% of the 
total), in contrast to approximately 396,108 whites over 
21 years of age (27% of the total) were not registered 
to vote. A substantial number of persons not regis­
tered to vote in Louisiana were disfranchised by the 
requirement that they pass a constitutional interpreta­
tion test and literacy test to register. Moreover, a sub­
stantial number of persons have been disfranchised by 
arbitrary and discriminatory practices which disfran-

by the states. Modern statistical knowledge and techniques possessed by 
appellees are adequate to secure the information required with a high degree 
of reliability and accuracy. Specific questions to be asked and procedures 
to be employed would not be more complicated than those employed in 
many inquiries now being- conducted by the Bureau of the Census. The 
results of such inquiries would be as reliable, accurate, and valid as data 
the Bureau of the Census and the United States now employ and rely upon 
for many purposes required by law and for other reasons of public impor­
tance. In order to insure a high degree of accuracy and reliability, specific 
questions and procedures to be employed should be developed in accord­
ance with prevailing census techniques (for example, on the basis of pre­
test operations and sample survey checks for accuracy) well in advance of 
the actual census period”  (JA 15a, 16a).



8

ehise 11011-whites. The great difference between the 
percentage of eligible registered non-whites and whites 
compels the conclusion that the requirements for regis­
tration are administered with the purpose and effect of 
disfranchising large numbers of 11011-whites.

(3) The United States Civil Rights Commission and 
. the Department of Justice have in their custody data
which establish conclusively that in every southern 
state with educational or other requirements for voting 
numerous white persons vote regardless of their abil­
ity to meet these requirements whereas numerous non­
whites are consistently denied and abridged the right 
to vote by these educational and other requirements.

(4) According to the 1959 report of the United 
States Civil Rights Commission there were 158 coun­
ties with a majority Negro population located in Ala­
bama, Arkansas, Florida, Georgia, Louisiana, Missis­
sippi, North Carolina, Tennessee, Texas and Virginia. 
Fifty-one of these counties have 3 percent or less 
Negro registration. Forty-one others have less than 
10 percent Negro registration. Only 11 had more than 
30 percent Negro registration, and the remainder had 
between 10 and 30 percent Negro registration (JA 
18a, 19a).

As appellees have a duty under 2 U. S. C. §2a, 13 U. S. C. 
§§4, 5, 11, 21, 141 and other provisions of law to prepare, 
decennially, the statement showing the number of repre­
sentatives to which each state is entitled, they are required 
by §2 of the Fourteenth Amendment, the equal protection 
clause of the Fourteenth Amendment, the due process 
clause of the Fifth Amendment, and 2 U. S. C. §6, to take 
all necessary and proper steps at the next census to com­
pile figures as to denial and abridgement of the right to



9

vote and to base apportionment on these figures. To the 
extent, if any, that 2 U. S. C. §2a, 13 IT. S. C. §§4, 5, 11, 21, 
141, and other provisions of law direct appellees to appor­
tion representatives without employing the reduction 
formula of §2 of the Fourteenth Amendment, they are in 
violation of the Constitution of the United States (JA  16a, 
17a, 21a, 22a).

On February 4, 1964, appellees filed a motion to dismiss 
or in the alternative for summary judgment and submitted 
in support of the motion the affidavit of Mr. Scammon. 
Appellees based their motion on the grounds that: (1) 
appellants lack standing to sue; (2) the complaint fails 
to state a justiciable controversy in that it raises a “ politi­
cal question,” and (3) the complaint did not state a cause 
of action for which equitable relief is available.

In response, appellants urged that the factual allega­
tions of the complaint insofar as they related to determi­
nation of “ standing,” “ justiciability,” and “want of equity” 
must be taken as admitted. Viewed in such posture the 
arguments put by appellees were insufficient as a matter 
of law. Appellants also submitted the affidavit of Dr. A. J. 
Jaffe which they alleged raised issues of fact, the existence 
of which required denial of the motion for summary 
judgment (JA 33a).5

5 Mr. Seammon’s affidavit stated that:
It would not be possible within the framework of the present opera­
tions of the Bureau of the Census for the Bureau to ascertain accu­
rately those disfranchised within the meaning of Section 2 of the 
Fourteenth Amendment (JA 26a).

In opposition, appellants submitted the affidavit of Dr. Jaffe which stated 
that the Bureau of the Census has met and overcome measurement prob­
lems no less difficult than those posed by determining the extent of denial 
or abridgement of the right to vote and expressing the view that an 
accurate count of the disfranchised could be made for purposes of enforc­
ing §2 of the Fourteenth Amendment. (Appended to Dr. Jaffe’s affidavit 
are the results of a sample apportionment calculated by use o f existing



10

The parties submitted extensive briefs and the cause 
was argued before the district court January 27, 1965. On 
March 29, 1965, the district court granted appellees’ motion 
to dismiss (JA  78a). In an opinion filed with the order, 
the court found that neither Group I nor Group II appel­
lants had standing to sue in that the injury they suffered 
was remote and speculative (JA 62a-69a).

The court also found that, if appellants had standing, 
summary judgment would be granted in favor of appellees 
(JA 69a-77a). The sole controversy would be a “question 
of legal authority without involving a factual dispute” (JA 
70a). After considering pertinent apportionment and cen­
sus statutes, the court held that appellees do not have to 
comply with §2 of the Fourteenth Amendment and 2 U. S. C. 
§6 when they apportion representatives among the states 
(JA  76a). The court also found that the failure of appor­
tionment and census statutes to direct appellees to comply 
with §2 does not render them unconstitutional and, there­
fore, denied appellants’ prayer for alternative relief (JA 
76a, 77a).

Notice of appeal from the March 29, 1965, order of the 
district court was filed April 19, 1965 (JA 79a).

statistics.) At oral argument counsel for appellees conceded that as a 
practical matter only adequate appropriations stand in the way of enforce­
ment of §2.

Appellants contended in the district court that the affidavits of Dr. Jafife 
and Mr. Scammon raised a disputed issue of material fact precluding sum­
mary judgment. The district court apparently sought to put the conflict 
raised by the affidavits to one side when it treated summary judgment as 
a question of whether appellees are required to enforce §2 when they 
apportion.



11

Constitutional and Statutory Provisions Involved

This case involves the following constitutional and stat­
utory provisions, the text of which is set forth in an 
appendix, infra, pp. 45-52:

Article I, Section 2, Clause 3 of the Constitution of 
the United States

Article I, Section 9, Clause 4 of the Constitution of 
the United States

Article 14, Section 2 of the Constitution of the United
States

2 U. s. c. §2a
2 u. s. c. §6

13 IT. s. c.
13 U. s. c. §5
13 U. s. c. §6
13 U. s. c. §11
13 U. s. c. §12
13 u. s. c. §13
13 u. s. c. §14
13 u. s. c. §21
13 u. s. c. §141
42 u. s. c. §2000f

Statement of Points

Appellants intend to rely upon the following points on 
appeal:

1. That the district court erred in dismissing the com­
plaint on the ground that appellants lack standing.

2. That the district court erred in finding that if ap­
pellants have standing appellees would nevertheless be 
entitled to summary judgment.



12

3. That the district court erred in finding that appellees 
are not required to enforce §2 of the Fourteenth Amend­
ment and 2 U. S. C. §6.

4. That the district court erred in finding appellants 
are not entitled to alternative relief declaring unconstitu­
tional 2 U. S. C. §2a and 13 U. S. C. §§4, 5, 11, 21, 141 to 
the extent they provide for preparation, compilation, com­
putation and transmittal of an apportionment of repre­
sentatives which is not in accordance with §2 of the Four­
teenth Amendment.

Summary of Argument

1. The district court erred in concluding that appellants 
who are registered voters in their respective states lack 
standing. Voters always have been held a divisible class 
with standing to sue. Voters assert a substantial interest 
when they seek to protect the full weight of their right to 
vote. Recent reapportionment cases, particularly Wesberry 
v. Sanders, 376 U. 8. 1, put the standing of appellants be­
yond question. In Wesberry, as here, the injury stems 
from a discrepancy between the value of appellants’ votes 
and the value of the votes of other persons. The injury 
to appellants caused by failure to implement §2 of the Four­
teenth Amendment is demonstrable. Significantly, the 
standing of a taxpayer to challenge the apportionment of 
taxes among the states has never been challenged. As 
apportionment of taxes and of representatives are consti­
tutionally linked, the standing of voters to challenge the 
apportionment of representatives cannot properly be de­
nied.

Negro citizens whose right to vote has been denied or 
abridged also have standing. The primary purpose of §2 
is to protect their right to vote. For members of the class



the Amendment seeks to protect, §2 itself confirms stand­
ing. Implementation of §2 will clearly vindicate their right 
to vote by inducing states which deny or abridge the 
franchise to cease.

The district court insisted that appellants demonstrate 
with absolute certainty that their injury would be redressed 
if <§,2 were implemented. But the standing doctrine does 
not and cannot require such a showing. Only a “ reasonable 
likelihood” of success is necessary, and appellants have 
demonstrated that they are likely to enhance the value of 
their vote and deter denial and abridgment of the right to 
vote. The use of the standing doctrine by the district court 
presents the danger that an explicit constitutional provi­
sion will be rendered nugatory.

2. Section 2 of the Fourteenth Amendment provides 
that if a state denies or abridges the right to vote, “ the 
basis of representation therein shall be reduced.” Legis­
lative history shows that those determining the basis of 
apportionment are constitutionally bound to implement §2. 
Census-takers did so in 1870. Changes made in census 
procedure since 1870 strengthen appellees authority to 
implement §2, for the aim of the present reapportionment 
statute is to provide a constitutional method of decennial 
apportionment.

Appellees contend that when they apportion they are 
not required to deduct from the basis of representation 
the number of citizens whose right to vote has been denied 
or abridged. But if appellees are not authorized to make 
that deduction, then it follows that they are required to 
include such persons in the basis of representation in plain 
disregard of §2. Such a result is not, however, necessary 
for existing apportionment statutes may be construed in 
accordance with §2.



14

ARGUMENT

I.

Appellants Have Standing To Sue.

There are two classes of appellants in this action. The 
first (Group I) consists of citizens of the states of Massa­
chusetts, Missouri, Illinois, Ohio, California, and Penn­
sylvania who seek relief from debasement and dilution 
of his or her vote arising from appellees’ failure to en­
force §2 of the Fourteenth Amendment and 2 U. S. C. §6 
alleging, in effect, that the failure of appellees to carry 
out their duty to apportion in a constitutional manner 
results in appellants’ congressmen representing more 
persons than congressmen from states which deny or 
abridge the right to vote. Each appellant alleges that 
his or her state would receive at least one additional 
representative in congress if the relief sought is granted 
(JA  17a-20a).

The second class (Group II) of appellants consists of 
ten Negro citizens of the United States and the states 
of Mississippi, Virginia, and Louisiana who have had their 
right to vote denied or abridged.6 Each alleges that his 
or her state would lose at least one representative in 
congress on the basis of an apportionment executed in 
accordance with §2 and each alleges the “ right to receive 
the protection of the reduction imposed by §2 of the Four­
teenth Amendment” in order “ to redress and deter denial 
and abridgment of the right to vote for reasons other 
than those specified in the Amendment.” (JA 9a-lla, 20a).

6 Certain o f the allegations of group II appellants reflect discriminatory 
practices which have been affected by recent court decisions. As most of 
the discriminatory practices complained of are still in force, appellants 
do not intend to discuss here the present status of each group II appellant.



As regards both classes, the district court found the 
complaint alleged only “ remote, fluctuating and uncertain” 
injury (,JA 69a) and concluded appellants lacked standing 
under the doctrine of a taxpayer suit, Froihingham v. 
Mellon, 262 IT. S. 447 (1923). For numerous reasons set 
forth below appellants believe the district court misapplied 
the standing doctrine and improperly granted motion to 
dismiss.

First. Voters have consistently been held to be a divisi­
ble class with standing to sue. Long before Baker v. Carr, 
369 U. 8. 186, the Supreme Court recognized the standing 
of private persons to bring an action in federal court as 
citizens and voters.1 In Smiley v. Holm, 285 U. S. 355, 361, 7

7 In Baker v. Carr, 369 U. S. 186, the Supreme Court held that a claim 
asserted under the equal protection clause challenging the constitutionality 
of a state’s apportionment of seats in its Legislature on the ground that 
the right to vote of certain citizens was debased and diluted presented a 
justiciable controversy requiring adjudication on the merits by the federal 
courts. In Baker, the Court intimated no view as to the proper constitu­
tional standards for evaluating the validity of state legislative apportion­
ments, but squarely held that formulation of these standards under the 
equal protection clause could not be avoided by doetrines such as “ stand­
ing,”  “ political question,” or “want of equity.”

In Gray v. Sanders, 372 U. S. 368, the Court held the Georgia county 
unit system, applicable in state-wide primary elections, unconstitutional 
because it diluted the weight of votes of Georgia voters merely because 
of residence. The Court also held that the plaintiffs in Gray had standing 
to sue, that the controversy was justiciable, and that equitable relief was 
appropriate. Id. at 373-75.

In Wesberry v. Sanders, 376 U. S. 1, the Court held that constitutional 
challenges of congressional districting plans present justiciable questions 
and cannot be dismissed for want of equity. The Court determined that 
the constitutional test for validating congressional districting- schemes was 
one of substantial equality of population among the various districts estab­
lished for the election of members of the House o f Representatives.

In Reynolds v. Sims, 377 U. S. 533, the Court held that the equal pro­
tection clause requires substantial equality of legislative representation for 
all citizens in a state regardless o f where they reside, and that the seats in 
both houses of a bicameral legislature must, under the equal protection 
clause, be apportioned substantially on a population basis. Relying on

Group I Appellants Have Standing To Sue



16

the Court reviewed the merits of, and granted relief in, 
a suit by a Minnesota “citizen, elector and taxpayer” to 
enjoin the holding of a congressional election pursuant to 
a state redistricting statute which violated the federal 
requirement that redistricting be carried out by the state’s 
lawmaking power, including the approval of the governor. 
Similarly, in Koenig v. Flynn, 285 U. S. 375, 379, the 
Court reviewed on the merits a suit, brought by “ citizens 
and voters” of New York for a writ of mandamus to the 
state Secretary of State to certify that representatives 
are to be elected according to districts defined in a resolu­
tion of the state legislature. See also Davis v. Ohio, 241 
IT. S. 565; Carroll v. Becker, 285 U. S. 380. In Wood v. 
Broom, 287 U. S. 1, the Court considered an attack on 
Mississippi’s congressional districts because they were not 
compact, contiguous, and nearly as equal in population 
as practicable, which was brought by a “ complainant, 
alleging that he was a citizen of Mississippi, a qualified 
elector under its laws.” Id. at 4.8

Baker v. Carr, supra, the Court held that claimed dilution or debasement 
of the right to vote through malapportionment presents a justiciable 
controversy, and that the equal protection clause provides manageable 
standards for lower courts to determine the constitutionality of a state 
legislative apportionment scheme. See also WMCA, Inc. v. Lomezo, 377 
U. S. 633; Maryland Committee for Fair Representation v. Tames, 377 
U. S. 656; Davis v. Mann, 377 U. S. 678; Roman v. Sincock, 377 U. S. 
695; Lucas v. 44th General Assembly of Colorado, 377 U. S. 713.

8 In Colegrove v. Green, 328 U. S. 549, which involved the constitution­
ality of Illinois’ congressional districts, the dissenting opinion of Mr. 
Justice Black, in which Justice Douglas and Murphy joined, stated that 
“ appellants had standing to sue, since the facts alleged show that they have 
been injured as individuals.”  Id. at 568. Mr. Justice Rutledge, while not 
explicitly adverting to this issue, in effect assumed standing to exist by 
basing his concurrence in the result entirely on the ground of want of 
equity. Thus, a majority of the seven-member Court found or assumed 
that the plaintiff-voters had standing. The other three members o f the 
Court concluded that the wrong resulting from improper congressional 
apportionment was not suffered by individual voters. Id. at 552. This 
conclusion was based on the characterization o f the action as raising a



17

Second. Appellants assert a substantial interest when 
they seek to protect the full weight of their right to vote. 
This is made clear by decisions of the Supreme Court in 
United Stales v. Classic, 313 IT. S. 299, United States v. 
Saylor, 322 U. S. 385; and Ex parte Siebold, 100 U. S. 371. 
See also Smith v. Allwright, 321 IT. S. 649. In Classic, the 
right to vote for representative in congress was found 
to include the right to have the vote honestly counted. 
In Saylor and Siebold, the Court held that the Constitu­
tion protects voters against a dilution of the weight of 
their votes caused by stuffed ballot boxes. Recent Supreme 
Court cases demonstrate conclusively the critical impor­
tance attached to the right to vote. As Justice Stewart 
stated in Carrington v. Rash, 380 IT. S. 89, 96:

“We deal here with matters close to the core of our 
constitutional system.”

The right to vote, he went on, is one which the court is 
always “zealous to protect.” And the Court said in Gray 
v. Sanders, 372 U. S. at 375 “ . . . appellee, like any person 
whose right to vote is impaired (Smith v. Allwright 
(U. S.), supra; Baker v. Carr, supra (369 U. S. at pp. 
204-208)) has standing to sue.”

Third. The Standing of persons suffering an indistin­
guishable injury has been upheld. In Wesberry v. Sanders, 
376 U. S. 1, the Supreme Court held unconstitutional a 
Georgia congressional apportionment under which one 
congressional district had three times the population of 
another. Plaintiff-voters in Wesberry claimed that “these 
population disparities deprived them and voters similarly 
situated of a right under the Federal Constitution to have

wholly nonjustieiable, “political question.” On the other hand, these jus­
tices suggested that individual voters have standing to redress “ a private 
wrong.”



18

their votes for Congressmen given the same weight as the 
votes of other Georgians.” Id. at p. 3. In upholding this 
claim, the Supreme Court, of necessity, rejected the lack 
of standing argument relied upon by the district court, 
for it held that “ in debasing the weight of appellants’ 
votes, the State has abridged the right to vote for members 
of Congress . . . and that it was error to dismiss this suit.” 
Id. at p. 4.9

The plaintiff-voters in Wesberry claimed injury due to 
a disparity in population of congressional districts and the 
relief to which they were entitled decreased the number of 
inhabitants of their congressional districts. Here, appel­
lant-voters also claim relief which will result in a reduction 
of the number of persons represented by a single repre­
sentative in the House. In both cases, inequality stems 
from a discrepancy between the value of plaintiffs’ votes 
for their representatives and the value of the votes of 
other persons for their representatives. The only dif­
ference is that in this case the “ other persons” are citizens 
of other states, whereas in Wesberry they were citizens 
of the same state. There is no authority which suggests 
that this distinction, which the district court relied upon 
to distinguish Wesberry, has anything whatsoever to do 
with a party’s standing. Devaluation and dilution of the

9 The voters with standing in Wesberry v. Sanders alleged debasement 
and dilution of their votes for representatives in congress just as the voters 
found to have standing in Baker v. Carr, supra, alleged debasement and 
dilution of their votes for state legislators. Likewise, the Group I appel­
lants here allege that their votes for representatives in congress have been 
debased or diluted by the apportionment of representatives in congress. 
To the extent standing ( “ that concrete adverseness which sharpens the 
presentation of issues upon which the court so largely depends for illumi­
nation of difficult constitutional questions,” (369 U. S. at 204)) was 
present in Baker, supra, and Wesberry, supra, it must be present here, 
for those cases stand for the proposition that debasement and dilution of 
the right to vote is sufficient injury to satisfy the requirements of the 
standing doctrine.



19

vote of persons for their representative— the injury which 
gives rise to standing—is present in both cases.

It is urged that this injury would be shared by all the 
nation’s voters— except those in thinly populated states 
represented by Group II appellants. This is akin to saying 
that the Georgia and Tennessee plaintiffs in Wesberry and 
Baker had no standing because their injury was shared 
by all of those states’ voters—except those in the thinly 
populated areas. But, the Supreme Court, of course, has 
held that voters complaining of debasement and dilution 
of their vote have standing to sue without any factual 
inquiry as to whether, and to what extent, particular voters 
would increase the value of their votes. Nothing could 
be more remote from the finding of standing on the plead­
ings in Baker, supra, than the district court’s dismissal 
of the complaint, without a hearing, in the face of detailed 
allegations that appellants would increase the value of 
their votes if relief is granted. Cf. Conley v. Gibson, 
355 IT. S. 41.

In Frothingham v. Mellon, 262 U. S. 447 the Court could 
say, without considering the case on the merits, that the 
injury to plaintiff was so remote, fluctuating, and uncer­
tain that no basis was afforded for an appeal to a court 
of equity. The Court could dismiss the case on the plead­
ings, for that plaintiff-taxpayer could never prove to what 
extent she had been injured by the operation of the chal­
lenged statute. Given the nature of the plaintiff’s con­
tention, this conclusion was quite plausible. She argued 
that the effect of the appropriations complained of would 
be to raise her taxes in the future and thereby take her 
property without due process of law. But there was no 
way she could prove that the disbursement by the Treasury 
of monies already appropriated by Congress would in­
crease taxes in the future. It seems hard to conceive of a



20

set of calculations that could have been used to prove a 
contention that taxes would be increased following passage 
of the legislation attached. No one can predict the complex 
political decisions of the executive and the congress that 
are usually involved in tax increases. The Court, there­
fore, dismissed the complaint because plaintiff was not 
entitled to the opportunity to prove what could not be 
proven satisfactorily.

Appellants are, however, fully able to establish that it 
is “likely and probable [their states] would receive at 
least one additional Representative in Congress” (JA  19a) 
for “ There is overwhelming evidence that denial and abridg­
ment of the right to vote by certain of the states exists 
to an extent that constitutionally requires loss of Repre­
sentatives by those states and gain of Representatives by 
other states which do not deny and abridge the right to 
vote” (JA  18a). The basis of this conclusion is alleged in 
detail (JA  18a, 19a), and appellants should have the op­
portunity to offer this proof. In the affidavit of Dr. Abram 
Jaffe, the record already reflects evidence which suggests 
that such a change as is alleged will take place (JA  52a- 
57a). Most important, the Department of Justice has 
amassed and recently submitted to the congress an enor­
mous body of evidence which establishes beyond a doubt 
that, in southern states, where voting is dependent on tests 
or devices which would be considered denial or abridgment 
of the right to vote under §2 of the Fourteenth Amend­
ment, extremely low electoral participation is prevalent.10

10 For example, in the Presidential, election of 1964 ballots were cast by 
62% of the American electorate. Only 17 states fell below the national 
average. In 9 of these 17 states fewer than 50% of the persons of voting 
age voted in the presidential election. Of these 9 states, 7 employed tests 
or devices which resulted in denial or abridgment of the right to vote. A 
survey of registration data conducted by the Department in six of these 
states (Alabama, Georgia, Louisiana, Mississippi, South Carolina and 
Virginia) indicates that a large proportion o f non-whites of voting age



21

As of 1964, the Department had brought approximately 
70 voting cases in the states of Mississippi, Louisiana, 
Alabama, Tennessee and Georgia and found “ a systematic 
effort to use tests or devices to disfranchise Negroes.” 
See Hearings, Comm, on the Judiciary, 89th Cong. First 
Sess. on S. 1564, pp. 1148-1155.

As set forth in §2 itself, appellants’ injury is shared 
by inhabitants of states which do not deny or abridge the 
right to vote in sufficient numerical proportion, to lose 
representatives in congress and it is not shared by in­
habitants of those states where the right to vote is bur­
dened to such an extent as to require loss of representa­
tives.

In a memorandum in opposition to appellees motion to 
dismiss in the district court, appellants described the man­
ner in which §2 operated, as follows:

The results of an apportionment in accordance with 
the provisions of §2 are dependent totally on patterns 
of denial and abridgment of the franchise throughout 
the country. An apportionment consistent with §2 may 
result in a small number of states gaining Repre­
sentatives, a small number losing, and a large num­
ber remaining the same; or a small number of states 
may lose a large number of Representatives each and 
a large number of states may gain a small number of 
Representatives each. It may or may not be limited 
to inhabitants of a “ few thinly populated states” (De­
fendants’ Memo, p. 7) depending on whether and to 
what extent such states deny or abridge the right to 
vote and whether and to what extent other, more

are not registered to vote. See Hearing before the Committee on the Judici­
ary of the United States Senate, 89th Congress, First Session on S. 1564, 
pp. 1175-1181, 1448-1455.



22

populous, states deny or abridge the right to vote
(JA 65a).

The district court implied—without so finding—that this 
general description of the way §2 operates was a conces­
sion that appellants do not actually mean what they say 
when they allege that it is “ ‘likely and probable’ that the 
states in which Group I plaintiffs reside would each re­
ceive ‘at least one additional Representative in Congress’ ” 
(JA 65a). The use of this paragraph in the opinion of 
the district court does violence to its language and is an 
unjustified attempt to go behind the explicit allegations 
of the complaint. It is also subject to a more fundamental 
error in that it fails to distinguish between a general de­
scription of how §2 works and the application of §2 to any 
particular apportionment.

In short, §2 is “speculation” in the sense that it depends 
on actual patterns of denial and abridgment of the fran­
chise. Different states may at different times suffer from 
its reduction formula because they deny or abridge the 
right to vote. But appellants directed themselves expressly 
to a particular set of voting patterns and practices in 
which they, as well, it appears, as the Department of 
Justice, see clear evidence that certain states deny the 
right to vote more than others. In this context, it is im­
possible to say that appellants cannot prove they will 
gain representatives if §2 is enforced.

Fourth. A line of cases almost as old as the Constitution 
itself refutes the notion that appellants may be denied 
standing to sue on the basis of the treatment accorded a, 
taxpayer in Frothingham v. Mellon, 262 U. 8. 447. These 
cases establish the standing of a taxpayer to challenge the 
apportionment of taxes among the states. No less can be 
accorded the voter challenging apportionment of repre­
sentatives.



23

Art. I, §2, Cl. 3 of the Constitution provides that “Repre­
sentatives and direct taxes” shall be apportioned among 
the several states. In addition, Art. I, §9, Cl. 4, states:

No capitation or other direct tax shall be laid unless 
in proportion to the census or enumeration herein­
before directed to be taken.

Thus, the Constitution contains an explicit prohibition of 
certain forms of taxation and links it to apportionment 
of persons among the several states as revealed by the 
census. A taxpayer’s challenge of the failure of Congress 
to apportion taxes on the basis of population was per­
mitted as early as 1796. Hylton v. United States, 3 Dali. 
171.11

During the century following the Hylton decision, the 
Supreme Court “sustained successively as ‘excise’ or 
‘duties’ a tax on an insurance company’s receipts for

11 Congress levied a tax upon carriages which was not apportioned 
among the several states. The background of the famous litigation is set 
forth in Corwin, The Constitution of the United States of America, pp. 
317, 318 (Washington, 1953). The United States Supreme Court upheld 
the tax on the ground that no tax ought to be classified as “ direct”  which 
could not be conveniently apportioned and this tax was o f that character. 
Justice Patterson, a member of the Constitutional Convention, set forth 
the purpose of the constitutional requirement that direet taxes be appor­
tioned as follows:

The provision was made in favor of the southern states. They pos­
sessed a large number of slaves; they had extensive tracts of territory, 
thinly settled and not very productive. A majority of the states had 
but a few slaves and several of them a limited territory, well settled, 
and in a high state of cultivation. The southern states, if no provision 
had not been introduced in the Constitution, would have been wholly 
at the mercy of the other states. Congress in such case might tax 
slaves, at discretion or arbitrarily, and land in every part of the union 
after the same rate or measure; so much a head in the first instance, 
and so much an acre in the second. To guard them against imposition 
in these particulars was the reason of introducing the clause in the 
Constitution which directs that representatives and direct taxes shall 
be apportioned among the states according to their respective numbers 
(3 Dali, at 177).



24

premiums and assessments, a tax on the circulating notes 
of state banks, an inheritance tax on real estate and finally 
a general tax on incomes.” See Corwin, The Constitution 
of the United States of America 319 (Washington, 1953). 
In all of these cases taxpayers were permitted to challenge 
the failure of congress to apportion among the states. 
While the taxpayers did not prevail, their standing to sue 
was unchallenged.

In more recent years numerous suits have been brought 
by individual taxpayers alleging that congress had vio­
lated Art. I, §2, Cl. 3, by failing to apportion taxes among 
the several states according to their respective numbers. 
In Bromley v. McCaugkn, 280 U. S. 124, the plaintiff al­
leged that a provision of the Revenue Act of 1924, im­
posing a tax on gifts, violated Art. I, §2, Cl. 3 and Art. I, §9, 
Cl. 4. Again, the Court did not question plaintiff’s stand­
ing to sue although it denied his contention on the merits. 
Accord: Helvering v. Independent L. Ins. Co., 292 U. S. 
371; Stanton v. Baltic Mining Co., 240 U. S. 103; Brushaber 
v. Union P. R. Co., 240 U. 8. 1; Spreckels Sugar Ref. Co. 
v. McClain, 192 U. S. 397; Flint v. Stone Tracy Co., 230 
U. 8. 107; Knowlton v. Moore, 178 U. S. 43.

One of the most significant of these taxpayer’s cases, 
Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, dem­
onstrates that apportionment of taxes and of representa­
tion among the states are constitutionally linked in a man­
ner which makes them indistinguishable as far as standing 
to challenge an apportionment is concerned.

In the Pollock case, stockholders of the defendant com­
pany sought to have a tax on incomes declared unconsti­
tutional. They contended that the tax was a direct tax 
which was invalid because not apportioned among the 
several states. The Court’s comprehensive opinion analyzes



constitutional debates to show that provisions for appor­
tionment of representatives and taxes according to popula­
tion were part of the same compromise arrived at to 
secure the Constitution’s adoption. This compromise pro­
vided for “ establishment of the same rule for the appor­
tionment of taxes as for regulating the proportion of 
Representatives” (157 U. S. at 563).12

The framers of the Constitution considered apportion­
ment of taxes and of representatives part of the same prob­
lem and intended both apportionments to be governed by 
the same principle. As a result of this historical identity, it 
must follow that a citizen-voter’s interest in constitutional 
apportionment of representatives is as great as a citizen- 
taxpayer’s interest in the constitutional apportionment of 
federal taxes. Secondly, insofar as the taxpayer who is re­
quired to pay a direct tax which has not been apportioned is 
unconstitutionally burdened in comparison to taxpayers in 
other states, the voter who lives in a state not denying or 
abridging the right to vote is burdened and his vote is 
diluted. Since the Supreme Court has granted the citizen- 
taxpayer standing to challenge the alleged unconstitutional 
apportionment of taxes since 1796, no objection can be 
raised to the standing of citizen-voters to challenge an un­
constitutional apportionment of representatives.

12 “ Thus was accomplished one of the great compromises of the Constitu­
tion resting on the doctrine that the right of representation ought to be 
conceded to every community on which a tax is to be imposed, but erystal- 
izing' it in such a form as to allay jealousies in respect of the future bal­
ance of power; to reconcile conflicting views in respect of the enumeration 
of slaves; and to remove the objection that, in adjusting a system of 
representation between the states regard should be had to their relative 
wealth, since those who were to "be most heavily taxed ought to have a 
proportionate influence in the government. The compromise, in embracing 
the power of direct taxation, consisted not simply in including part of the 
slaves in the enumeration of population, but in providing that as between 
state and state such taxation should be proportioned to representation.”  
157 U. S. at 563.

25



26

Fifth. In addition to Frothingham v. Mellon, 262 U. S. 
447, the court below relied on three totally inapposite cases 
as precedent for denial of standing here: Alabama Power 
Co. v. Ickes, 302 U. S. 464; Pennsylvania R. R. v. Dillon, 335 
F. 2d 292 (1964); United States v. Stewart, 234 F. Supp. 94 
(D. D. C. 1964). The first two cases involved attempts to 
enjoin lawful economic competition, and the third was an 
effort to reverse a decision of administrative officials exer­
cising legitimate discretion. The Court in Ickes could find 
no invasion of a legal right, since petitioner was merely pro­
testing the financial loss he would incur from lawful compe­
tition which would follow the use by municipalities of 
proposed loans and grants. The company had no right to be 
immune from lawful municipal competition. The Dillon 
case involved the same issue. Nor is United States v. 
Stewart, supra, precedent for denial of standing, for it 
merely holds that there is no standing to challenge govern­
ment officers when they decline to relieve the lawful, if 
harsh, consequences of an inadvertent error.

Finally, the standing doctrine does not and cannot require 
a showing of certainty of injury. In NAACP  v. Alabama, 
357 U. S. 451 459, 460, for example, Justice Harlan found 
that “the reasonable likelihood that the Association itself 
through diminished financial support and membership may 
be adversely affected . . .  is a further factor pointing towards 
our holding that petitioner has standing to complain . . .  on 
behalf of its members” 357 U. S. 451 at 459-460 (emphasis 
supplied). In the instant case, there is undoubtedly a “ rea­
sonable likelihood” that appellants’ votes have been debased 
and that implementation of §2 will redress the injury they 
have suffered.



Group II Appellants Have Standing To Sue

The district court also concluded that Group II appellants 
were without standing. Group II appellants asserted that 
“they as well as others in their states have suffered and will 
continue to suffer the denial or abridgment of their right 
to vote for reasons other than participation in rebellion or 
other crime” (JA 66a), and that they resided in states which 
would lose at least one representative if Section 2 were en­
forced (JA 19a, 20a). The Court found that even if appel­
lees were compelled to reapportion in accordance with §2 of 
the Fourteenth Amendment appellants’ right to vote would 
not be vindicated because such an apportionment would 
only result in allocating seats in the House of Representa­
tives to other states. Group II appellants “would find them­
selves in the same position that they are in at this time,” and 
for this reason are not injured by failure to enforce §2 
(JA  66a).

The distinct court was plainly wrong in finding that en­
forcement of §2 would leave appellants unchanged. The 
holding that Group II appellants are without standing also 
seriously misconceives the nature of §2 of the Fourteenth 
Amendment.

If §2 is implemented, quite clearly a powerful deterrent 
will have been brought to bear against states which deny 
and abridge the right to vote. Officials denying or abridg­
ing the right to vote would be put on notice that absent an 
end to such offensive practices, the number of representa­
tives would be reduced to reflect denial and abridgment of 
the right to vote. It is difficult to conceive of a more potent 
sanction which appellants could invoke to end discrimina­
tion against them. Compared to it, a cut-off of federal 
funds (threat of which has often been sufficient to obtain 
compliance with the Constitution, cf. 42 IT. S. C. §2000d, 
2000d-l) is only a minor sanction, for representatives



28

determine whether, and for what purpose, funds are allo­
cated.13

To assert the standing of Group II appellants, one need 
not, however, establish with certainty that offending states 
will end denial or abridgment of the right to vote, rather 
than risk loss of representatives. The standing doctrine 
does not and cannot require a showing of certainty of suc­
cess or it will be converted into an inarticulate and mislead­
ing device for determining the merits of a controversy. 
Cf. NAACP  v. Alabama, 357 U. S. 451, 459, 460. Here, it 
is apparent that states which deny and abridge the franchise 
may well end such practices. Group II appellants, therefore, 
have a great stake in the outcome of a controversy over 
appellees legal duties with respect to §2 of the Fourteenth 
Amendment.

The standing of appellants, however, is established by 
still more fundamental circumstances, for the legislative 
history of §2 makes clear that the primary purpose of the 
Amendment was to protect the right to vote of Negroes in 
states where they would otherwise be denied the right to 
vote. See infra pp. 53-60. The legislative history of §2 
shows it was conceived as a means to protect the Negro by 
confronting the states with alternatives: abandon policies 
which deny and abridge the franchise to a substantial num­
ber of persons or enjoy fewer representatives in congress. 
Thus, appellants are members of the class §2 was adopted to

13 It is, of course, probable that offending states will abolish denial or 
abridgment of the right to vote if threatened with enforcement of §2. For 
proof of this, one need only weigh the important economic interests in­
volved in the loss of representation in congress, or glance at the legislative 
history of Apportionment Act of 1929 which reveals the concern of legis­
lators over the consequences of the mathematical formula employed to 
apportion. Indeed, so great was the controversy over this formula that in 
1920 congress was unable to apportion, a failure which led to the present 
automatic reapportionment procedure of 2 U. S. C. <$2a, see infra, pp. 
32, 33.



29

The possibility that a state might prefer to lose seats in 
Congress rather than enfranchise those whose voting rights 
are denied is, however, not argument for failure to enforce 
§2 for the simple reason that §2 by its terms confers such a 
choice. In rejecting the standing of Group II appellants, 
the district court really rejected the alternatives set out by 
the Fourteenth Amendment itself.

It was said by the appellees in the district court that 
Group II appellants merely want to deter action by local 
officials; and, therefore, their injury is direct only insofar 
as local officials are concerned and does not demonstrate an 
injury by the appellee federal officials. This position seems 
to have been adopted in part by the district court which held 
that “ insofar as that right has been denied or abridged it 
resulted from the alleged action of state officials; but they 
are not parties to this suit” (JA 67a).

There are two critical errors in this position. First, while 
appellants “merely” seek to deter state action which denies 
and abridges the right to vote, it is incorrect to characterize 
their injury as “ indirect” rather than “ direct” (and draw 
a significant consequence therefrom) because they seek re­
lief from federal rather than state officials. The “injury” 
arising from denial and abridgment of their right to vote 
is the same whether relief is granted against state or federal 
officials.

Secondly, appellants are not seeking enforcement of a 
duty owed to them by federal officials “ indirectly” . On the 
contrary, apportionment of representatives among the 
states is and always has been an exclusively federal respon­
sibility under the Constitution, see §2 of the Fourteenth 
Amendment and Art. I, §2, Cl. 3 of the Constitution, which

protect. If they cannot invoke its remedy it is difficult to
see who could have “ standing.”



30

Congress has delegated to appellee federal officials. Appel­
lants seek redress against these officials for their failure to 
protect them in a manner clearly contemplated by the 
framers of §2 of the Fourteenth Amendment, for the 
framers of §2 determined that apportionment was a federal 
responsibility which could not be carried out without re­
dressing denial or abridgment of the right to vote. The 
method of deterrence which appellants seek to implement is 
no more or less “ indirect” than §2 itself. To argue that 
§2 cannot be enforced by appellants because they have not 
suffered “direct” injury is, therefore, to ignore the nature 
of the constitutional provision of which enforcement is 
sought.

II.
Appellees Are Required by § 2 of the Fourteenth 

Amendment to Deduct From the Basis of a State’s 
Representation the Number of Citizens Whose Right 
to Vote Has Been Denied or Abridged by That State. 
Any Other Interpretation of Present Apportionment 
Statutes Would Render Them Unconstitutional.

Section 2 of the Fourteenth Amendment is the consti­
tutional authority for the apportionment of representa­
tives among the several states. Its first sentence directs that 
“Representatives shall be apportioned among the several 
States according to their respective numbers” and replaces 
the three-fifths compromise of Article I, §2, Cl. 3. Its second 
sentence provides the manner in which “the basis of repre­
sentation therein shall be reduced.” Congress has legislated 
in detail regarding the apportionment authorized by §2. See 
2 U. S. C. §§2a, 6; 13 IT. S. C. §§5, 6, 11, 13, 21 and 141.

Appellees contended below that they are “neither author­
ized nor required” when they conduct this apportionment to



31

deduct from the basis of apportionment the number of 
citizens whose right to vote has been denied or abridged and 
the district court adopted their view. In short, the district 
court held that appellees may enforce the first sentence of 
§2 while ignoring the second, modifying, sentence of the 
Amendment. But if appellees are not authorized to deduct 
the disfranchised, then it follows that they are required to 
include such persons in the basis of representation (JA  72a, 
74a). Such a requirement squarely conflicts with the lan­
guage and history of §2 of the Fourteenth Amendment and 
would be invalid, see infra pp. 53-60. This result, however, 
is neither necessary nor appropriate.

Applicable Apportionment and Census Statutes Should 
Be Construed So As Not To Conflict IWith § 2 of the 
Fourteenth Amendment

Appellees have ample power and authority under existing 
law to apportion in a constitutional manner by complying 
with the requirements of §2 of the Fourteenth Amendment. 
A comprehensive statutory scheme reflects the aim of the 
framers of the 1929 Census and Apportionment Act to en­
sure automatic and constitutional decennial apportionment. 
2 U. S. C. §2a provides for the transmission to congress of 
a statement showing the number of persons in each state 
and the number of representatives to which each state is 
entitled. 13 U. S. C. §4 provides that the Secretary of Com­
merce shall carry out the functions and duties of Title 13 
of the United States Code and authorizes him to delegate 
his authority. 13 U. S. C. §5 directs the Secretary to prepare 
the schedules and inquiries for the census. 13 U. S. C. §§6, 
12, 13 authorizes the Secretary to utilize the resources of 
other departments of government or private agencies as 
may be necessary in conducting the census. 13 U. S. C. §§11, 
14 authorize the appropriation of such sums as may be 
necessary to carry out the census. 13 U. S. C. §21 provides



32

for a Director of the Census who shall perfom duties as may 
be imposed by the Secretary of Commerce. 13 U. S. C. §141 
authorizes a decennial census of population, unemployment 
and housing and directs that the tabulation of total popula­
tion as required for the apportionment of representatives 
shall be completed within eight months and reported by the 
Secretary to the President.

Consistent with the well-established principles of our 
judicial system, see Ashwander v. Tenn. Valley Authority, 
297 U. S. 288, 348 (Mr. Justice Brandeis dissenting), appel­
lants urge that these statutes be construed to preserve their 
constitutionality by construction in conformity with the re­
quirements of §2 of the Fourteenth Amendment. Legislation 
enacted by Congress is invariably construed to preserve its 
constitutionality, see, for example, the decision of the dis­
trict court in Trimble v. Stone, 187 F. Supp. 483 (D. C. 
1960), where a statute which did not explicitly incorporate 
a constitutional guarantee was construed to do so. See also 
Phelps v. United States, 274 U. S. 343, 344; Knight Tem­
plars S Masons’ Life Go. v. Jarman, 187 U. S. 197, 205; 
Missouri P. R. Co. v. Boone, 270 U. S. 446.

The legislative history of the present apportionment stat­
ute (Act of June 18, 1929, 2 U. S. C. § 2a, 46 Stat. 26, as 
amended 54 Stat. 162; 55 Stat. 761) supports a construction 
consistent with §2. The basic intention of its framers, to 
'which all other intentions were subsidiary, must serve as 
a guide to construction. It. was to provide a constitutional 
and nonpolitical method of apportioning representatives 
which would insure decennial apportionment.

Until 1929, Congress had been unable to pass a reappor- 
tionment act on the basis of the 1920 Census. Twice during 
the 1920’s the House passed apportionment measures and 
twice the Senate failed to approve them. This failure not



only had disfranchised millions of Americans, but it bla­
tantly disregarded the requirement of Art. I, §2, Cl. 3 of the 
Constitution that representatives be apportioned decen­
nially. The Congress which passed the Census and Appor­
tionment Act of 19,29, removing from Congress continuing 
duties and obligations of reapportionment and placing them 
solely in the hands of the executive, had these considerations 
foremost in its mind.

In order to avoid the kind of political impasse which had 
resulted in failure to apportion since the 1910 census, every 
function of the Congress with respect to apportionment— 
except the power to amend—was delegated to the executive. 
Significantly, it was on this ground that the Bill was most 
vociferously attacked. For example, Senator Swanson, an 
opponent of the Bill, saw the only issue as whether it is “a 
wise thing for Congress to surrender its power of apportion­
ment. . . ” 71 Cong. Record 1328.14 Other Senators suggested 
two defects in the B ill: First, that it covered future appor­
tionment perpetually, and second, that it delegated what 
was seen as a congressional function, 71 Cong. Record 
1330-33.

These criticisms were answered by reference to the 
obligation to apportion contained in Art. 1, §2, Cl. 3 and 
the disfranchisement of thirty million Americans which 
had been caused by the failure of Congress to apportion 
since 1911. Undoubtedly, it was to remedy this evil that 
the Act was approved. See e.g. 71 Cong. Record 1325.

14 Representative Fenn, Chairman of the Committee on the Census, 
stated “ The main . . . opposition advanced against this proposed legislation 
is that Congress ought not to divest itself of any authority or power con­
ferred upon it by the Constitution in the reapportionment of Congress.” 
Report to accompany H. R. 11725, Committee on the Census, 70th Cong. 
2d Sess. No. 2010, p. 6.



34

The report of the Senate Committee on Commerce on 
the Bill put the matter plainly:

The need for legislation of this type is confessed 
by the record of the past nine years during which 
Congress has refused to translate the 1920 Census 
into a new apportionment. . . . As a result great 
American constituencies have been robbed of their 
rightful share of representation, not only in the 
Congress itself but also in the Presidential Electoral 
College. On the prospective basis of the next census, 
more than 30,000,000 people are relatively disfran­
chised as a result of this lapse in a fundamental con­
stitutional function. Already we have had two 
presidencies and four Congresses elected out of an 
anticonstitutional source. On the basis of census esti­
mates, it is safe to say that reapportionment, with the 
present size of the House maintained, would affect 
23 seats in the House of Representatives and 23 votes 
in the Presidential Electoral College. So large a 
factor of misrepresentation is a travesty upon repre­
sentative democracy, a flagrant mockery of constitu­
tional equalities, an ugly hazard to domestic tranquil­
ity, and an insufferable affront to victimized states.

Despite the progressive development of this tres­
pass during recent years, Congress has failed to 
correct the situation. The Senate has refused either 
to accept reapportionment initiated by the House or 
to originate such legislation itself. There is no con­
vincing reason to anticipate that the same influences 
and considerations which have prevented constitu­
tional apportionment in the past will not prolong 
these defects indefinitely. As entrenched inequities in­
crease, their voluntary correction proportionately be­



comes less easy and less likely. Thus, it becomes 
evident that the protection of the roots of our repre­
sentative Government requires an enabling act paral­
leling and authenticating Article 1 of the Constitution 
(S. Rep. No. 2, 71st Cong., 1st Sess. pp. 2-4 (1929)).

The Act was written to fit any subsequent decennial 
emergency which might arise. It was intended to be—and 
has become—a permanent contribution to our representa­
tive institutions. The legislative history of the Act 
indicates, therefore, a paramount congressional purpose to 
effect apportionment on a constitutional basis. Given this 
goal, the Act must be construed in light of §2 of the Four­
teenth Amendment and 2 U. S. C. §6 and appellees’ duty 
to prepare, compile, compute and transmit the apportion­
ment of representatives in accordance with the terms of 
the Constitution should be acknowledged. As the overrid­
ing purpose of the Congress which passed the Census and 
Apportionment Act of 1929 was to make the apportion­
ment process automatic and remove it from congressional 
politics, it would be ironic, indeed, for the courts to refuse 
to construe the Act in accordance with the plain terms of 
the Constitution.

The district court, however, construed 2 U. S. §2a(a) 
to provide for the inclusion of the disfranchised in the 
basis of apportionment of representatives, contrary to §2 
of the Fourteenth Amendment, because the statute directs 
the President to transmit the “whole number of persons 
in each State” which “Necessarily . . . includes the dis­
franchised” (JA 72a). In concluding that the language 
of 2 U. S. C. §2a compels such a conclusion the court 
ignored a critical portion of the text, for the statute au­
thorizes two separate sets of data—a tabulation of the 
number of persons in each state, and a calculation of “ the



36

number of Representatives to which each state would be 
entitled. . . . ” The court’s fear that calculation of dis­
franchisement would prevent transmittal to Congress of the 
“whole number of persons in each State” is unfounded. 
The effects of disfranchisement will show up not in that 
tabulation, but in the statement which the statute expressly 
authorizes, of “ the number of Representatives to which 
each state would be entitled.”

Likewise, there is no support for the suggestion in the 
district court’s opinion that no statutory provision imposes 
a duty on appellees with respect to apportionment, since 
§2a places “ responsibility” on the President to transmit 
to Congress the number of representatives to which states 
is entitled (JA  72a). Appellees concede that as a matter 
of law they are obliged to execute and, as a matter of fact 
do execute the apportionment of representatives. (Com­
pare JA 24a, 25a, 70a with JA  13a, 14a). While it is the 
President who transmits the figures to congress, he is 
merely a conduit for a statement prepared, compiled and 
computed by the Secretary and Bureau of the Census. In 
addition, as the legislative history of the 1929 Act, 2 
U. S. C. §2a, makes clear, the President was substituted 
for the Secretary only for formal purposes.16 Appellants 
alleged and will prove, if given the opportunity, that ap­
pellees and not the President prepare the apportionment 
of representatives to which each state is entitled (JA 13a, 
14a).

The district court also concluded that “Congress in 1929 
denied defendants the authority plaintiffs now claim for

16 Senator Vandenberg, manager of the Bill, substituted the President 
for the Secretary of Commerce on the floor of the Senate April 18, 1929. 
See 71 Cong. Record, 107-108.



these officials” (JA 74a). The court cites the failure of 
three Tinkham amendments which sought to enforce §2 
in the House as evidence for this conclusion (JA 73a). 
But the legislative history of these amendments does not 
support the conclusion that congress considered and then 
rejected enforcement of §2. Failure of the legislature to 
act may mean many things or nothing at all, and even the 
rejection by Congress of a particular provision after ex­
tended debate (not the case here) should not be taken to 
mean congress approved the opposite position. Girouard 
v. United States, 328 U. S. 61, 69, 70. Congress in 1929 
was primarily concerned with establishing a method 
of decennial apportionment which would conform to the 
Constitution. The legislative history of these amendments 
reveals only that congress may just as well have thought 
them redundant, an unnecessary restatement of appellees 
preexisting constitutional duty. Indeed, appellees concede 
as much in their Memorandum in Support of Motion to 
Dismiss in the district court (p. 17, n. 6), when they refer 
to 2 U. S. C. §6 (the provision which explicitly directs that 
§2 be enforced) as follows:

This provision, which had already been on the books 
for more than 50 years when Congressman Tinkham 
offered his amendment to the 1929 census and appor­
tionment bill, would have made that amendment 
entirely superfluous.

The district court also found support for its conclusion 
that appellees have not been directed to implement §2 of 
the Fourteenth Amendment in language found in Saunders 
v. Wilkins,10 152 F. 2d 235 (4th Cir. 1945), cert, denied 16

16 In Saunders v. Wilkins, an action was brought against the Secretary 
of State of Virginia to recover damages under 42 U. 8. C. §1983 for fail­
ure to certify the plaintiff as a candidate for election as a Representative-



38

328 U. S. 870; Dennis v. United States,17 84 IT. S. App. D. C. 
51, 171 F. 2d 986 (1948) aff’d 339 U. S. 162; and United

at-large in the House. Plaintiff argued that, through the poll tax imposed 
by the state, 60% of the population of citizens over 21 years o f age of 
Virginia were deprived of the franchise and that, consequently, represen­
tation of Virginia in the House of Representatives should be reduced from 
9 to 4 under the provisions of §2 of the Fourteenth Amendment. For this 
reason, the four Representatives legitimately accruing to Virginia would 
have to be elected at large, pursuant to 2 U. S. C. §2a(c). Plaintiff sought 
damages for the failure of the Secretary of State to certify him as a 
candidate. The Court of Appeals for the Fourth Circuit affirmed dismissal 
o f the suit on the ground that the issue presented by this suit was non- 
justieiable, a political question that the court in that case could not decide.

The heart of the Saunders holding is that the suit was brought against 
a single state official who did not have the power and authority to enforce 
§2, for  §1? does not require only that some states lose Representatives, but 
that others gain. In no way could the Secretary of State of Virginia 
effectuate apportionment among the states, for his jurisdiction was obvi­
ously limited to Virginia. As stated by the Fourth Circuit:

It is quite clear that we lack the means o f deciding whether or not 
Virginia is entitled to nine Representatives in Congress upon the in­
formation before us . . .  we have no means of knowing the effect 
upon the suffrage of the restrictions imposed by the statutes of other 
states in the form of poll taxes or other qualifications for voting. We 
could not say, even if the question lay within our power, whether 
Virginia is entitled to nine out of the total number of four hundred 
and thirty-five Representatives provided by Congress without ascer­
taining the number to which other states are entitled when the pro­
visions of the second section of the Fourteenth Amendment are taken 
into consideration. (152 F. 2d at 238) (Emphasis supplied.)

It should be noted that Saunders was decided prior to Baker v. Carr, 
supra, Gray v. Sanders, supra, and Wesberry v. Sanders, supra, and to 
the extent the language of the court sanctions judicial noninterference with 
the electoral process it is, of course, modified by those eases.

17 In Dennis v. United States, 171 F. 2d 986 (D. C. Cir., 1948), §2 was 
raised “ collaterally as an unsound defense in a criminal case,” 171 F. 2d 
at 993, charging failure to respond to a congressional committee subpoena. 
The idea seems to have been that members of the committee would have 
lost their seats if §2 had been enforced, and, therefore, the subpoena was 
illegal. The court pointed out that this reasoning would invalidate all acts 
of Congress, not merely the specific subpoena attacked, and held that “ the 
validity of the apportionment act of 1941 cannot be attacked in a collateral 
proceeding.”  Ibid. To the extent the court in Dennis may have suggested 
that Congress has exclusive jurisdiction over apportionment, the ease is 
also disposed of by Wesberry, 376 U. S. at pp. 3, 4.



39

States v. Sharrow,18 309 F. 2d 77 (2nd Cir., 1962), cert, 
denied 372 U. S. 949. These cases, however, do not offer 
fruitful guidance to the Court in dealing with the issues 
raised in this case for they dealt with §2 of the Fourteenth 
Amendment collaterally or under the assumption, which 
Wesherry v. Sanders, 376 U. S. 1, has shown to be un­
founded, that its implementation was not properly a judi­
cial question. In these cases the Secretary of Commerce 
or Director of the Census were not parties and the ques­
tion of their authority was tangential.

Apportionment In Accordance With § 2 of the Fourteenth 
Amendment Is Constitutionally Required

Only one census, the Ninth Census of 1870, has attempted 
to compile the data needed to implement §2 of the Four­
teenth Amendment. Significantly, the census-takers of 1870 
acted without express Congressional authorization, and 
under the belief that §2 alone required them to investigate 
abridgments of the right to vote.

18 United States v. Sharrow, supra, also involved an attempt to raise §2 
as a defense to a criminal charge. Sharrow refused to answer questions on 
a census form and was indicted under 13 I). S. C. §221 (a). He defended 
on the ground that if the Census Act did not provide for enumeration in 
accordance with §2, it was unconstitutional and, therefore, he was not 
required to answer any questions on the form. The opinion sheds no light 
on the major question presented here; whether existing law requires appel­
lees to enforce §2 of the Fourteenth Amendment. This issue was not posed 
because §2 was introduced into Sharrow by the back door. The view that 
the “Fourteenth Amendment”  does not “prescribe that Census-Takers as­
certain information relative to disfranchisement”  309 F. 2d at 79-80 does 
not explain or reflect consideration by the court of the fact that “ census” 
has been delegated the duty to apportion pursuant to §2. The authority 
cited for this conclusion does not support it. United States v. Moriarity, 
106 F. 886 (S. D. N. Y. 1901), only holds that the Census can inquire 
into matters other than population. The reference to the Report of the 
Ninth Census establishes the contrary of the proposition for which it was 
cited, for the disfranchisement inquiries of the Ninth Census were taken 
on the authority of §2 without specific congressional direction, see infra 
pp. 40, 41.



40

During the preparations for the Ninth Census it ap­
peared that Congress might expressly provide that the 
census compile data on denial of the right to vote. The 
House census committee, under the chairmanship of James 
Garfield, drew up a list of the various state laws which 
operated to exclude citizens from voting in order to assist 
the census takers. More specifically, it recommended that 
the census schedules contain a column listing “male citizens 
of the United States twenty-one years of age, whose right 
to vote is denied or abridged on other grounds than rebel­
lion or other crime.” H. R. Rep. No. 3, 41st Cong. 2d Sess. 
52-53 (1869-1870); Cong. Globe, 41st Cong. 2d Sess. 36-38 
(1869-1870); Zuckerman, A Consideration of the History 
and Present Status of The Fourteenth Amendment, 30 
Fordham L. Rev. 93, 108-109 (1961). But when the House 
was ready to vote on a final census bill, Garfield proposed 
that this voting section be deleted and that Congress deal 
with the voting problem separately in the next session. 
Cong. Globe, 41st Cong. 2d Sess. 125 (1869-1870). His 
proposal was accepted and the House census bill contained 
no instructions to the census takers with regard to denial 
or abridgment of the right to vote.

In the Senate, the Committee on the Revision of Laws 
proposed that the Secretary of the Interior be directed 
“to so change the [census] schedules and blanks to be used 
in enumerating the inhabitants of the United States in 
1870 as to make the same conform to the Constitution of 
the United States.” Cong. Globe, 41st Cong. 2d Sess. 1078 
(1869-1870). Senator Conkling, the reporter for the Com­
mittee, conceded that this provision was probably unneces­
sary, since the Secretary of the Interior was already bound 
to follow and implement the new amendments in taking 
the census. Cong. Globe, 41st Cong. 2d Sess. 1079 (1869- 
1870). The provision was never approved, and, according



41

to Garfield, this was because the Senators realized “ that it 
would he the duty of the Secretary of the Interior to make 
the schedules conform to changes in the organic law with­
out any new act of Congress”  (emphasis supplied). Cong. 
Globe, 42nd Cong. 2d Sess. 82-83 (1871-1872). The Secre­
tary of the Interior evidently accepted this interpretation, 
for*, despite the absence of statutory instructions, he di­
rected the census takers to list in separate tables the total 
number of adult males in the United States and the num­
ber of “male citizens of the United States of twenty-one 
and upward whose right to vote is denied or abridged on 
other grounds than rebellion or other crime.” Zuckerman, 
op. cit. p. 110; Cong. Globe, 42nd Cong. 2d Sess. 82-83 
(1871-1872).

The post-war, 1870 Census, by the Secretary of the In­
terior’s own admission, Cong. Globe, 42nd Cong. 2d Sess. 
42 (1871-1872), proved so inaccurate and unreliable that 
no changes could be made in congressional representation 
pursuant to §2 of the Fourteenth Amendment. Zuckerman, 
op. cit. pp. 111-114. The crucial point remains, however, 
that both the Senate and the Secretary of the Interior be­
lieved census takers were constitutionally bound to provide 
data for the implementation of §2 even without express 
direction by Congress.

Thus, the language, history and plain meaning of §2 of 
the Fourteenth Amendment, as well as the over-all statu­
tory scheme for reapportionment, authorize and require 
the appellees to implement §2. If this statutory scheme 
contemplated apportionment based solely on population, 
no account being taken of those disfranchised in each state, 
then it would be in conflict with §2. Appellants do not seek 
such a result but it must follow if appellees are not re­
quired to implement §2 when they apportion. The consti­
tutional injunction of Art. 14, §2 is clear:



42

But when the right to vote . . .  is denied . . .  or in any 
way abridged, except for participation in rebellion, or 
other crime, the basis of representation therein shall 
be reduced. . . .  (Emphasis supplied.)

The district court disregarded the mandatory language 
of §2 and the manner it was implemented in 1870 by failing 
to find any conflict between the Amendment and an appor­
tionment which ignores disfranchisement (JA  76a). In so 
doing the court does not suggest the theory on which Con­
gress is permitted to destroy the effect of the second, 
modifying, sentence of §2 while implementing the first 
sentence when language and history, see infra pp. 53-60, 
demonstrate they were meant to be read as one. Such a 
construction of §2 runs against the very nature of a written 
constitution for “it cannot be presumed that any clause 
in the Constitution is intended to be without effect” 
Marbury v. Madison, 1 Cranch 137, 174. Rather than per­
mit such a result, this Court should construe the prevail­
ing apportionment and census scheme to enforce the man­
date of the second section of the Fourteenth Amendment.

Section 2 of the Fourteenth Amendment was designed 
by its framers to insure universal suffrage and to deter 
denial and abridgment of the right to vote. Almost one 
hundred years after adoption, its great goal, so funda­
mental to the health of the demoei*atic process, is far from 
being realized. As the President’s Commission on Reg­
istration and Voting Participation, of which Mr. Seammon 
was chairman, put i t :

. . . the plain fact remains that citizens of other 
democracies vote in greater relative numbers than 
Americans. The United States, leader of the free 
world, lags behind many other free countries in voter 
participation (Report of the President’s Commission



43

on Registration and Voting Participation, November 
1963, p. 8).

I f  §2 is implemented, Americans may well be free to vote 
without the archaic and anti-democratic restrictions which 
now serve to limit voting; and the wisdom of the framers 
of the Fourteenth Amendment will prevail.

CONCLUSION

W herefore, appellants p ra y  that the ju dgm en t below  
be reversed .

Respectfully submitted,

W illiam  B . B ryant  
615 F Street, N.W. 
Washington, D. C.

J ack  Greenberg 
J am es M. N abrit , III 
M ich ael  M eltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants

R ichard L. B an k s  
W illiam  R . M in g , J r .
S. W. T ucker 
A. P. T ureaud 
A. W. W illis , J r . 
M argaret B ush  W ilson

Of Counsel



APPENDIX



C onstitution  of th e  U nited S tates

Article 1, Section 2, Clause 3. Apportionment of repre­
sentatives and taxes.

Representatives and direct Taxes shall be apportioned 
among the several States which may be included within this 
Union, according to their respective Numbers, which shall 
be determined by adding to the whole Number of free 
Persons, including those bound to Service for a Term of 
Tears, and excluding Indians not taxed, three fifths of all 
other Persons. The actual Enumeration shall be made 
within three Years after the first Meeting of the Congress 
of the United States, and within every subsequent Term of 
ten Years, in such Manner as they shall by Law direct. 
The Number of Representatives shall not exceed one for 
every thirty Thousand, but each State shall have at Least 
one Representative; and until such enumeration shall be 
made, the State of New Hampshire shall be entitled to 
chuse [sic] three, Massachusetts eight, Rhode-Island and 
Providence Plantations one, Connecticut five, New-York 
six, New7 Jersey four, Pennsylvania eight, Delaware one, 
Maryland six, Virginia ten, North Carolina five, South 
Carolina five, and Georgia three.

Article 1, Section 9, Clause 4.

No Capitation, or other direct, Tax shall be layed unless 
in proportion to the Census or Enumeration hereinbefore 
directed to be taken.

Article 14, Section 2. Apportionment of representatives.

Section 2. Representatives shall be apportioned 
among the several States according to their respective

A p p e n d i x  o f  C o n s t i t u t i o n a l  a n d  S t a t u t o r y

P r o v i s i o n s  I n v o l v e d



46

numbers, counting the whole number of persons in 
each State, excluding Indians not taxed. But when 
the right to vote at any election for the choice of 
electors for President and Vice President of the United 
States, Representatives in Congress, the Executive and 
Judicial officers of a State, or the members of the 
Legislature thereof, is denied to any of the male in­
habitants of such State, being twenty-one years of age, 
and citizens of the United States, or in any way 
abridged, except for participation in rebellion, or other 
crime, the basis of representation therein shall be 
reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male 
citizens twenty-one years of age in such State.

U nited  S tates S tatutes

2 U.S.C. §2a. Reapportionment of Representatives; time 
and manner; existing decennial census figures as basis; 
statement by President; duty of clerk.

(a) On the first day, or within one week thereafter, 
of the first regular session of the Eighty-second Con­
gress and of each fifth Congress thereafter, the Presi­
dent shall transmit to the Congress a statement show­
ing the whole number of persons in each State, ex­
cluding Indians not taxed, as ascertained under the 
seventeenth and each subsequent decennial census of 
the population, and the number of Representatives to 
which each State would be entitled under an appor­
tionment of the then existing number of Representa­
tives by the method known as the method of equal 
proportions, no State to receive less than one Member.

Appendix of Constitutional and Statutory
Provisions Involved



(b) Each State shall be entitled, in the Eighty-third 
Congress and in each Congress thereafter until the 
taking effect of a reapportionment under this section 
or subsequent statute, to the number of Representa­
tives shown in the statement required by subsec­
tion (a) of this section for a State to receive less than 
one Member. It shall be the duty of the Clerk of the 
House of Representatives, within fifteen calendar days 
after the receipt of such statement, to send to the ex­
ecutive of each State a certificate of the number of 
Representatives to which such State is entitled to un­
der this section. In case of a vacancy in the office of 
Clerk, or of his absence or inability to discharge this 
duty, then such duty shall devolve upon the Sergeant 
at Arms of the House of Representatives; and in case 
of vacancies in the office of both the Clerk and the 
Sergeant at Arms or the absence or inability of both 
to act, such duty shall devolve upon the Doorkeeper 
of the House of Representatives.

(c) Until a State is redistricted in the manner pro­
vided by the law thereof after any apportionment, the 
Representatives to which such State is entitled under 
such apportionment shall be elected in the following 
manner: (1) If there is no change in the number of 
Representatives, they shall be elected from the dis­
tricts then prescribed by the law of such State, and if 
any of them are elected from the State at large they 
shall continue to be so elected; (2) if there is an in­
crease in the number of Representatives, such addi­
tional Representative or Representatives shall be 
elected from the State at large and the other Repre-

Appendix of Constitutional and Statutory
Provisions Involved



48

sentatives from the districts then prescribed by the 
law of such State; (3) if there is a decrease in the 
number of Representatives but the number of districts 
in such State is equal to sxich decreased number of 
Representatives, they shall be elected from the dis­
tricts then prescribed by the law of such State; (4) if 
there is a decrease in the number of Representatives 
but the number of districts in such State is less than 
such number of Representatives, the number of Repre­
sentatives by which such number of districts is ex­
ceeded shall be elected from the State at large and the 
other Representatives from the districts then pre­
scribed by the law of such State; or (5) if there is a 
decrease in the number of Representatives and the 
number of districts in such State exceeds such de­
creased number of Representatives, they shall be 
elected from the State at large.

2 U.S.C. §6. Reduction of representation.

Should any State deny or abridge the right of any of 
the male inhabitants thereof, being twenty-one years of 
age, and citizens of the United States, to vote at any elec­
tion named in the amendment to the Constitution, article 14, 
section 2, except for participation in the rebellion or other 
crime, the number of Representatives apportioned to such 
State shall be reduced in the proportion which the number 
of such male citizens shall have to the whole number of 
male citizens twenty-one years of age in such State.

13 U.S.C. §4. Functions of Secretary; delegation.

The Secretary shall perform the functions and duties 
imposed upon him by this title or he may delegate any of

Appendix of Constitutional and Statutory
Provisions Involved



49

them to such officers, employees, bureaus or agencies of 
the Department of Commerce as he designates.

13 U.S.C. §5. Schedules; number, form, and scope of 
inquiries.

The Secretary shall prepare schedules, and shall deter­
mine the inquiries, and the number, form, and subdivisions 
thereof, for the statistics, surveys, and censuses provided 
for in this title.

13 U.S.C. §6. Requests to other departments and of­
fices for information, acquisition of reports from govern­
mental and other sources.

(a) The Secretary, whenever he deems it advisable, 
may call upon any other department or office of the 
Government for information pertinent to the work 
provided for in this title.

(b) The Secretary may acquire by purchase or other­
wise from States, counties, cities, or other units of 
government, or their instrumentalities, or from private 
persons and agencies such copies of records, reports, 
and other material as may be required for the efficient 
and economical conduct of the censuses and surveys 
provided for in this title.

13 U.S.C. §11. Authorization of appropriations.

There is authorized to be appropriated, out of the Trea­
sury of the United States, such sums as may be necessary 
to carry out all provisions of this title.

Appendix of Constitutional and Statutory
Provisions Involved



50

13 U.S.C. §12. Mechanical and electronic development.

The Secretary is authorized to have conducted mecha­
nical and electronic development work as he determines is 
needed to further the functions and duties of carrying out 
the purposes of this title and may enter into such develop­
mental contracts as he may determine to be in the best 
interest of the Government.

13 U.S.C. §13. Procurement of professional services.

The Secretary shall have authority to contract with 
educational and other research organizations for the pre­
paration of monographs and other reports and materials 
of a similar nature.

13 U.S.C. §14. Reimbursement between appropriations.

Subject to limitations applicable with respect to each 
appropriation concerned, each appropriation available to 
the Bureau may be charged, at any time during a fiscal 
year, for the benefit of any other appropriation available to 
the Bureau, for the purpose of financing the procurement 
of materials and services, or financing activities or other 
costs, for which funds are available both in the financing 
appropration so charged and in the appropriation so 
benefited; except that such expenses so financed shall be 
charged on a final basis, as of a date not later than the 
close of such fiscal year to the appropriation so benefited, 
with appropriate credit to the financing appropriation.

13 U.S.C. §21. Director of the Census; duties.

The Bureau shall be headed by a Director of the Census, 
appointed by the President, by and with the advice and

Appendix of Constitutional and Statutory
Provisions Involved



51

consent of the Senate. The Director shall perform such 
duties as may be imposed upon him by law, regulations, 
or orders of the Secretary.

13 U.S.C. §141. Population, unemployment, and hous­
ing.

(a) The Secretary shall, in the year 1960 and every 
ten years thereafter, take a census of population, un­
employment, and housing (including utilities and 
equipment) as of the first day of April, which shall 
be known as the census date.

(b) The tabulation of total population by States as 
required for the apportionment of Representatives 
shall be completed within eight months of the census 
date and reported by the Secretary to the President 
of the United States.

42 U.S.C. §2000f.

The Secretary of Commerce shall promptly conduct a 
survey to compile registration and voting statistics in 
such geographic areas as may be recommended by the 
Commission on Civil Rights. Such a survey and compila­
tion shall, to the extent recommended by the Commission 
on Civil Rights, only include a count of persons of voting 
age by race, color, and national origin, and determination 
of the extent to which such persons are registered to vote, 
and have voted in any statewide primary or general elec­
tion in which the Members of the United States House of 
Representatives are nominated or elected, since January 1, 
1960. Such information shall also be collected and com­
piled in connection with the Nineteenth Decennial Census,

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Provisions Involved



52

and at such other times as the Congress may prescribe. 
The provisions of section 9 and chapter 7 of title 13, United 
States Code, shall apply to any survey, collection, or com­
pilation of registration and voting statistics carried out 
under this title: Provided, however, that no person shall 
be compelled to disclose his race, color, national origin or 
questioned about his political party affiliation, how he 
voted, or the reasons therefore [sic], nor shall any penalty 
be imposed for his failure or refusal to make such dis­
closure. Every person interrogated orally, by written sur­
vey or questionnaire or by any other means with respect 
to such information shall be fully advised with respect to 
his right to fail or refuse to furnish such information.

Appendix of Constitutional and Statutory
Provisions Involved



The Thirteenth Amendment to the Constitution, effective 
December 18, 1865, abolished slavery in the United States 
and rendered nugatory that portion of Article 1, §2, Cl. 3 
of the Constitution which provided that only three-fifths of 
the whole number of slaves would be counted in deter­
mining the basis of apportionment. Unless the Thirty- 
ninth Congress took action to amend the Constitution, the 
Thirteenth Amendment would swell the representation of 
the former slave states in the House of Representatives 
because of a Negro population which was not permitted to 
vote.1 No result could have been less to the liking of the 
post-Civil War, Republican dominated, Thirty-ninth Con­
gress. The driving motive behind attempts to frame what 
was to become the Fourteenth Amendment became, there­
fore, either to reduce former slave state representation 
in Congress or insure enfranchisement of the Negro in 
order to offset the threatened increase of representation 
in the House.2

Several proposals basing representation in Congress on 
the number of legal voters were introduced in the Thirty- 
ninth Congress, First Session, in December, 1865,3 and

A p p e n d i x  o f  Legislative H i s t o r y  P e r t a i n i n g  to

S e c t i o n  2  o f  t h e  F o u r t e e n t h  A m e n d m e n t

1 “With emancipation, the former slave states would gain an additional 
twelve Representatives.”  See Zuekerman, “A Consideration of the History 
and Present Status of Section 2 of the Fourteenth Amendment,” 30 Ford- 
ham Law Review 93, 94 (1961).

2 “ The vision of thirty Representatives from the South, based upon a 
Negro population which was totally denied the right to vote, did not rest 
well with the majority of members of the Thirty-ninth Congress.”  Ibid. 
“ The Right to Vote and Judicial Enforcement of Section Two of the Four­
teenth Amendment,” 46 Cornell Law Quarterly 108, 109 (1960).

3 Cong. Globe, 39th Cong., 1st Sess. 9, 10.



54

referred to the Joint Committee on Reconstruction. These 
resolutions were opposed successfully by Representatives 
from New England where the number of voters was dispro­
portionately small in comparison with population in gen­
eral.4

On January 12, 1866, Representative Morrill of Vermont, 
moved in the Joint Committee to substitute a more indirect 
scheme for original proposals which based representation 
on the number of voters. His proposal stated:5

Representatives and direct taxes shall be apportioned 
among the several states which may be included within 
this Union according to their representative number of 
persons, deducting therefrom all of any race or color 
whose members or any of them are denied any of the 
Civil rights or privileges.

A number of amendments were made and a final draft 
which passed the Committee by a majority of 12 to 2 read:6

Representatives shall be apportioned among the several 
states which may be included within this Union ac­
cording to their respective numbers, counting the num­
ber of persons in each state, excluding Indians not 
taxed: Provided that whenever the elected franchise 
shall be denied or abridged in any state on account of

Appendix of Legislative History Pertaining to
Section 2 of the Fourteenth Amendment

* Kendrick, The Journal of the Joint Committee of Fifteen on Recon­
struction, 41, 45. See also Cong. Globe, 39th Cong., 1st Sess. 141, 357 
(1866).

5 Kendrick, op. cit., supra, at 42.

6 Kendrick, op. cit., supra, p. 58.



0 0

race or color all persons therein of such race or color 
shall be excluded from the basis of representation.7

Objections to this formulation developed rapidly in the 
ensuing course of House debate. Chief among these was 
the feeling that the phrase “ on account of race or color” 
was too easily avoided by the imposition of property or 
educational qualifications.8 A general consensus quickly 
developed that the proposed amendment would not affect 
educational or property restrictions on voting, not aimed at 
race, and that these, would not cause a reduction in repre­
sentation.9 Despite the general uneasiness over this mat­
ter, the proposed amendment was passed by the House by 
the required two-thirds vote, 120 to 46, on February 1, 
1866.10

As consideration passed to the Senate, the objections 
raised in the House fell upon more fertile ground. Con­
siderable fear was expressed that the amendment would 
be rapidly eviscerated by state property and education as 
voter qualifications. These legislators took the position 
that the dominant white race by imposing educational and 
property qualifications for voting would disfranchise a suf­
ficient number of Negroes to retain control of the former 
slave states and, thereby, retain a greater proportion of

7 “ Citizens of the United States in each State” was struck and replaced 
with “ persons in each State, excluding Indians not taxed” for the reason 
that representation in many larger states was based on aliens. The exclu­
sion of “ Indians not taxed”  apparently was enacted to conform with Art. 
I, § 2, which excluded them from the basis of apportionment. Zuckerman, 
op. cit., supra, at 97.

8 See, for example, the remarks of Rep. Jencks, Cong. Globe, 39th Cong., 
1st Sess., p. 376; Rep. Baker at p. 385.

9 Cong. Globe, 39th Cong., 1st Sess., 357-58.

10 Cong. Globe, 39th Cong., 1st Sess., 538.

Appendix of Legislative History Pertaining to
Section 2 of the Fourteenth Amendment



56

power in the National Government than they ever before 
possessed.11 For this reason, after extensive debate, the 
proposal failed to obtain the necessary two-third’s majority 
March 9, 1866. The vote was 25 in favor and 22 opposed.12

After the failure of the Senate to accept the proposed 
amendment, the Joint Committee on Reconstruction of the 
House again considered proposals for apportionment on 
March 9, 1866. On April 28, 1866, the Committee approved 
a measure, 12 to 3, which was with minor alteration to 
become §2 of the Fourteenth Amendment and to replace 
Art. I, §2, Cl. 3 as the constitutional provision governing 
apportionment among the states. It provided that:

Representatives shall be apportioned among the 
several states which may be included within this Union 
according to their respective numbers, counting the 
whole number of persons in each state excluding In­
dians not taxed. But whenever in any state the elective 
franchise shall be denied to any portion of its male 
citizens not less than 21 years of age, or in any way 
abridged, except for participation in rebellion or other 
crime, the basis of representation in such state shall be 
reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male 
citizens not less than 21 years of age.13

This draft differed from the earlier version approved by 
the Committee by not containing the words “ on account of 
race or color” as a limitation on the types of denial or 
abridgement covered by the proposed amendment.

Appendix of Legislative History Pertaining to
Section 2 of the Fourteenth Amendment

11 Cong. Globe, 39th Cong., 1st Sess., 673-764, 1224-1232.

12 Cong. Globe, 39th Cong., 1st Sess., 1289.

13 Cong. Globe, 39th Cong., 1st Sess., 2468.



57

In addition, the earlier version provided that if any in­
dividuals of a particular race were excluded from the 
franchise, all members of the same race would be eliminated 
from the basis of representation. The new formulation 
employed a proportional test: that proportion of the in­
jured who are excluded from the ballot shall also be ex­
cluded from the basis of representation. It was felt that 
the enforcement of this formula would provide considerable 
incentive for the states to provide equality of education 
and opportunity in order to qualify the ex-slaves for the 
ballot as rapidly as possible and thus enlarge the state’s 
basis of representation.14 15

The report of the Joint Committee filed in the House on 
April 30, 1866, stated that the three-fifth’s compromise of 
Art. I, §2, Cl. 3 had been abrogated by the Thirteenth 
Amendment and, therefore, that the powers of the insur­
rectionary states would be greatly increased if the Con­
stitution were not amended. The Committee did not be­
lieve that advantages derived from the former slaves 
should be available to former masters. Secondly, the Com­
mittee continued, “ rights of these persons by whom the 
basis of representation had been increased should be recog­
nized by the general government.”  16 As the states would 
not consent to surrendering their power over the regulation 
of the franchise, utilization of a reduction formula was 
recommended:

Political power should be possessed in all the states 
exactly in proportion as the right of suffrage should 
be granted without distinction as to color or race.

14 Cong. Globe, 39th Cong., 1st Sess., 2502, 2511, 2540.

15 Committee Report, Joint Committee of Fifteen on Reconstruction, 
p. X III.

Appendix of Legislative History Pertaining to
Section 2 of the Fourteenth Amendment



58

The people in each state should be permitted “ all to par­
ticipate” in government in order to afford “a full and ade­
quate protection to all classes of citizens since all would 
have through the ballot box the power of self-protection.” 
On the basis of these principles the Committee stated it 
had proposed the amendment which failed in the Senate 
and was proposing an amendment in another form in order 
to meet these ends.16

The debate in the House was introduced by Thaddeus 
Stevens who considered §2 “ the most important in the 
Article.”

If any State shall exclude any of her adult male citizens 
from the elective franchise, or abridge the right to 
representation in the same proportion, the effect of 
this provision will be either to compel the States to 
grant universal suffrage or so to shear them of their 
power as to keep them forever in a hopeless minority 
in the national government, both legislative and ex­
ecutive.17

There can be no doubt that the framers of §2 believed 
that they had devised a workable and forceful means of 
insuring equal political rights for all citizens. For example, 
in the Senate, Senator Howard, who was serving as floor 
manager of the Bill was asked:

If the Senator will pardon me for a moment, I wish 
to inquire whether his attention was called to the fact 
that if any state excluded any person, say as Massa­

Appendix of Legislative History Pertaining to
Section 2 of the Fourteenth Amendment

16 Ibid.

17 Cong. Globe, 39th Cong1., 1st Sess., 2459.



59

chusetts does, for want of intelligence, this provision 
cuts down the representation of that state.

Senator Howard replied:

Certainly it does. No matter what may be the occa­
sion of the restriction, it follows out the logical theory 
upon which the government was founded, that numbers 
shall be the basis of representation, the only true, prac­
tical, republican principle. If, then, Massachusetts 
should so far forget herself as to exclude from the 
right of suffrage all persons who do not believe with 
my honorable friend who sits near me (Senator Sum­
ner) on the subject of negro suffrage, she would lose 
her representation in proportion to that exclusion. If 
she should exclude all persons of what is known as 
the orthodox faith she loses representation in propor­
tion to that exclusion. No matter what may be the 
ground, whether a want of education, a want of prop­
erty, a want of color, or a want of anything else, it is 
sufficient that the person is excluded from the category 
of voters and the state loses representation in propor­
tion. The principle applies to everyone of the state in 
precisely the same manner and, sir, the true basis of 
representation is the whole population. It is not prop­
erty, it is not education, for great abuses would arise 
from the adoption of one or the other of these two 
tests. Experience has shown that numbers and num­
bers only is the only true and safe basis; while nothing 
is clearer than that property qualifications and educa­
tional qualifications have an inevitable aristocratic 
tendency—a thing to be avoided.18

Appendix of Legislative History Pertaining to
Section 2 of the Fourteenth Amendment

18 Cong. Globe, 39th Cong., 1st Sess., 2767.



60

There are numerous similar statements in the records 
on the proposed amendment in the House. See, for ex­
ample, remarks of Rep. Miller, Cong. Globe, 39th Congress, 
1st Session, p. 2502; Rep. Eliot, at p. 2511; Rep. Farns­
worth, at p. 2540.

On June 8, 1866, proposed amendment was passed by the 
Senate with only slight changes, 33 to 11. The only change 
was the addition of the words: “For the choice of electors 
for President and Vice President of the United States, 
representatives, the Executive and Judicial officers of a 
state or the members of the Legislature thereof,” inserted 
to insure that the penalty could not be invoked when a 
group of citizens was excluded from purely local elections.

The House concurred in this amendment, 120 to 32.
The Fourteenth Amendment was proclaimed in force on 

July 28, 1868, after ratification by three-fourths of the 
states.

Appendix of Legislative History Pertaining to
Section 2 of the Fourteenth Amendment



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