McCleskey v. Kemp Petitioners Reply Brief

    SUPREME COURT OF THE UNITED STATES

No. 29.— October Term, 1963.

The Maryland Committee for 
Fair Representation et al., 

Appellants, 
v.

J. Millard Tawes, Governor, 
et al.

On Appeal From the 
Court of Appeals of 
Maryland.

[June 15, 1964.]

M r. Chief Justice W arren delivered the opinion of 
the Court.

This case involves an appeal from a decision of the 
Maryland Court of Appeals upholding the validity, under 
the Equal Protection Clause of the Fourteenth Amend­
ment to the Federal Constitution, of the apportionment 
of seats in the Maryland Senate.

I.

Appellants, residents, taxpayers and voters in four 
populous Maryland counties (Anne Arundel, Baltimore, 
Montgomery and Prince George’s) and the City of 
Baltimore, and an unincorporated association, originally 
brought an action in the Circuit Court of Anne Arundel 
County, in August 1960, challenging the apportionment 
of the Maryland Legislature. Defendants below, sued 
in their representative capacities, were various officials 
charged with duties in connection with state elections. 
Plaintiffs below alleged that the apportionment of both 
houses of the Maryland Legislature, pursuant to Art. I ll, 
§§ 2 and 5, of the 1867 Maryland Constitution, as 
amended, discriminated against inhabitants of the more 
populous counties and the City of Baltimore by accord­



2 MARYLAND COMMITTEE v. TAWES.
ing these persons substantially less representation than 
that given to persons residing in other areas of the State. 
They contended that the alleged legislative malappor­
tionment violated the Equal Protection Clause of the 
Fourteenth Amendment since that provision prohibits 
any State from “denying, diluting or restricting the 
equality of voting rights or privileges among classes of 
otherwise eligible voters similarly situated,” and asserted 
that there was no political remedy practicably available 
under Maryland law to obtain the relief sought.

Plaintiffs below sought a declaratory judgment that 
Art. I ll , §§ 2 and 5, of the Maryland Constitution deny 
them and those similarly situated rights protected under 
the Equal Protection Clause, and that the failure of the 
Maryland Legislature to reapportion its membership in 
accordance with a formula which would reasonably re­
flect present population figures deprived them of their 
constitutional rights. Plaintiffs also requested a declara­
tion that the failure of the Maryland General Assembly 
to convene a constitutional convention as approved by a 
majority of the State’s voters in the general election of 
1950 violated various provisions of the State Constitution.

Plaintiffs requested that, unless the November 1962 
election and elections thereafter were conducted on an 
at-large basis, the Court enjoin defendants from perform­
ing various election duties until such time as the General 
Assembly should submit for a referendum vote by eligible 
state voters an amendment to Art. I ll, §§ 2 and 5, which 
would reapportion the membership of the Maryland Leg­
islature on a population basis in conformity with the 
requirements of the Fourteenth Amendment. Plaintiffs 
also asked the court to retain jurisdiction of the case until 
the General Assembly submitted such a constitutional 
amendment to the State’s voters.

On February 21, 1961, the Circuit Court sustained 
defendants’ demurrers to plaintiffs’ complaint and dis­



MARYLAND COMMITTEE v. TAWES. 3

missed the complaint without leave to amend. On 
appeal, the Maryland Court of Appeals, on April 25,1962, 
splitting 5-to-2, reversed the order of the Circuit Court 
and remanded the case for a hearing on the merits. 228 
Md. 412, 180 A. 2d 656. Finding that the federal ques­
tions raised were not non justiciable in a Maryland state 
court, the Maryland Court of Appeals, after discussing 
this Court’s decision in Baker v. Carr, 369 U. S. 186, 
stated that

“ if any action needs to be taken in order to bring the 
State’s system of legislative apportionment into con­
formity with the requirements of the Fourteenth 
Amendment . . . , it is preferable from the point of 
view of responsible self-government that the State’s 
own duly constituted officials and the people them­
selves undertake the task, rather than leave to the 
Federal judiciary the delicate and perhaps unwelcome 
task of doing so.” 1

While recognizing that “ there was no need in Baker v. 
Carr . . .  for the Supreme Court to pass upon the power 
of a State court to deal with questions of State legislative 
apportionment,” the Maryland Court of Appeals found 
“ implicit in the vacation of the judgment and remand by 
the Supreme Court of the United States to the Supreme 
Court of Michigan of the case of Scholle v. Hare”  this 
Court’s view that cases challenging the constitutionality 
of state legislative apportionments are “ appropriate for 
consideration by a State court . . . . ” 2 Finding “a 
strong implication in the Baker decision that there must 
be some reasonable relationship of population, or eligible 
voters, to representation in the General Assembly, if an 
apportionment is to escape the label of constitutionally- 
prohibited invidious discrimination,” the Maryland court

1 228 Md., at 419, 180 A. 2d, at 659.
2 Id., at 428, 180 A. 2d, at 664.



4 MARYLAND COMMITTEE v. TAWES.
nevertheless stated that it was not “ possible (or advisable 
if it were possible) to state a precise, inflexible and in­
tractable formula for constitutional representation in the 
General Assembly.” 3 In remanding to the lower state 
court to “receive evidence to determine whether or not 
an invidious discrimination does exist with respect to 
representation in either or both houses” of the Maryland 
Legislature, the Court of Appeals stated that, if the 
Maryland constitutional provisions relating to legislative 
apportionment were held invalid as to the November 
1962 election, the Circuit Court should “ also declare that 
the Legislature has the power, if called into Special Ses­
sion by the Governor and such action be deemed appro­
priate by it, to enact a bill reapportioning its membership 
for purposes” of that election.

On May 24, 1962, the Circuit Court, after receiving 
various exhibits and hearing argument, held that the 
apportionment of the Maryland House of Delegates in­
vidiously discriminated against the people of Baltimore, 
Montgomery and Prince George’s Counties, but not 
against the people of Baltimore City or Anne Arundel 
County, and that therefore Art. I ll , § 5, of the Maryland 
Constitution, which apportions seats in the House of 
Delegates, violates the Equal Protection Clause of the 
Fourteenth Amendment. Although stating that the ap­
portionment of the Maryland Senate might be “ constitu­
tionally based upon area and geographical location regard­
less of population or eligible voters,” the Circuit Court 
refrained from formally passing on the validity of the 
senatorial apportionment. The lower court also stated 
that the Maryland Legislature had the power to enact a 
statute providing for the reapportionment of the House 
of Delegates as well as to propose a constitutional amend­
ment providing for such a reapportionment. It with­

3 Id., at 433-434, 180 A. 2d, at 667-668.



MARYLAND COMMITTEE v. TAWES. 5
held the granting of injunctive relief but retained juris­
diction to do so before the November 1962 electipn if 
such became appropriate.

On May 31, 1962, the Maryland Legislature, called 
into special session by the Governor, enacted temporary 
“ stop-gap” legislation reapportioning seats in the House 
of Delegates, by allocating 19 added seats to the more 
populous areas of the State.4 However, the legislature 
failed to pass a proposed constitutional amendment re­
apportioning the Maryland House. The newly enacted 
apportionment statute expires automatically on January 
1, 1966, except that, if a constitutional amendment super­
seding the statutory provisions is submitted to the voters 
at the 1964 general election and is rejected, the statute 
will continue in force until January 1, 1970. The statute 
further provides that upon its expiration the House of 
Delegates shall again be apportioned according to Art. 
I ll, § 5, which the Circuit Court had previously held 
unconstitutional. No appeal was taken from the Circuit 
Court’s decision holding invalid the existing apportion­
ment of the Maryland House of Delegates.

Following the Circuit Court’s failure to rule upon the 
validity of the senatorial apportionment, plaintiffs ap­
pealed this question to the Maryland Court of Appeals. 
On June 8, 1962, the Court of Appeals ordered the case 
remanded to the Circuit Court for a prompt decision on 
whether Art. I ll , § 2, of the Maryland Constitution, 
apportioning seats in the Senate, was valid or invalid 
under the Equal Protection Clause. On June 28, 1962, 
the Circuit Court held that the apportionment of the 
Maryland Senate did not violate the Federal Constitu­
tion because it felt that an apportionment based upon 
area and geographical location, without regard to popu­
lation, served to protect minorities, preserve legislative

4 Md. Ann. Code (1962 Supp.), Art. 42, §40.



6 MARYLAND COMMITTEE v. TAWES.
checks and balances, and prevent hasty, though tempo­
rarily popular, legislation, and accorded with history, tra­
dition and reason, placing considerable reliance on a 
comparison of that body of the Maryland Legislature 
with the Federal Senate.

On July 23, 1962, the Maryland Court of Appeals, 
splitting 5-to-3, in a per curiam order affirmed the Circuit 
Court’s decision holding valid the apportionment of the 
Maryland Senate, noting that its reasons would be stated 
in an opinion to be filed at a later date. Plaintiffs’ mo­
tion for reargument, calling attention to recent decisions 
and developments relating to legislative apportionment, 
was denied by the Maryland Court of Appeals on Septem­
ber 11, 1962. On September 25, 1962, the Court of 
Appeals filed its opinion. 229 Md. 406, 184 A. 2d 715. 
It stated initially that the appeal did not question the 
apportionment of the Maryland House. Continuing, the 
Maryland court indicated that it was affirming the deci­
sion below and upholding the constitutionality of the 
senatorial apportionment, on the grounds that: (1) Each 
Maryland county has since 1837 had the same number 
of Senate seats, except that Baltimore City had periodi­
cally been given additional representation, and Maryland 
counties “have always been an integral part of state gov­
ernment” and have consistently possessed and maintained 
“ distinct individualities” ; (2) Since the idea of a bicam­
eral legislature assumes two different methods of appor­
tionment in the two Houses to check “hasty and ill- 
conceived legislation,” one house can be constitutionally 
apportioned on a nonpopulation, geographical basis; and 
(3) Geographical representation in the Maryland Senate, 
based on political subdivisions, is closely analogous to the 
representation of the States in the Federal Senate. The 
dissenting judges pointed out that the House of Dele­
gates, even as reapportioned, was still not apportioned 
on a population basis, and that gross disparities from



MARYLAND COMMITTEE v. TAWES. 7

population-based representation existed in the senatorial 
apportionment. The dissenters found that neither his­
tory nor reliance on the so-called federal analogy pro­
vided a rational basis for such gross disparities from 
population-based representation as were found in the 
apportionment of the Maryland Legislature, before and 
after the 1962 reapportionment. Since the Maryland 
Court of Appeals upheld the senatorial apportionment 
plan, the November 1962 election of senators was con­
ducted pursuant thereto, and delegates were elected under 
the scheme provided by the 1962 legislation. Notice of 
appeal to this Court from the Maryland Court of Appeals’ 
decision was timely filed, and we noted probable jurisdic­
tion on June 10, 1963. 374 U. S. 804.

II.
The Maryland Constitution of 1867 vests legislative 

power in a bicameral General Assembly consisting of a 
Senate and a House of Delegates. According to official 
census figures, Maryland had a 1960 population of 
3,100,689, and the combined population of the five most 
populous political subdivisions of Maryland— the coun­
ties of Anne Arundel, Baltimore, Montgomery and Prince 
George’s, and the City of Baltimore—was 2,336,409. 
Thus, about 75.3% of the State’s total population lived in 
these five most populous subdivisions, as of 1960, while 
about 24.7% lived in the remaining 19 counties of the 
State. Under Art. I l l ,  § 2, of the Maryland Constitu­
tion, each of the State’s 23 counties is allocated one seat 
in the Maryland Senate, and each of the six legislative 
districts of the City of Baltimore is also entitled to one 
Senate seat— resulting in a total of 29 seats in the Mary­
land Senate. Thus, the five most populous political sub­
divisions, with over three-fourths of the State’s total 1960 
population, are represented by only 10 senators, or slightly 
over one-third of the membership of that body. On the



8 MARYLAND COMMITTEE v. TAWES.
other hand, the remaining 19 counties, with an aggregate 
population of less than one-fourth of the State’s popula­
tion, are nevertheless represented by 19 senators, almost 
two-thirds of the members of that body.5 And the 15 
least populous counties, with only 14.1% of the total 
state population, can elect a controlling majority of the 
members of the Maryland Senate. A maximum popula­
tion-variance ratio of almost 32-to-l exists between 
the most populous and least populous counties. Kent 
County, with a 1960 population of 15,481, and Calvert 
County, where only 15,826 resided, are each entitled to 
one Senate seat, while Baltimore County, with a 1960 
population of 492,428, is likewise entitled to only one 
senator.

As to the apportionment of the Maryland House of 
Delegates, Art. I ll , § 5, of the Maryland Constitution, 
in force when this litigation was commenced but subse­
quently held unconstitutional by the Maryland courts 
and superseded by the temporary legislation enacted in 
1962, prescribed the representation accorded to each of 
the State’s political subdivisions in the Maryland House. 
The membership of the House was numerically fixed at 
123 by this constitutional provision, with each county 
being given at least two House seats. Seven counties 
were given two seats each, five counties were allocated 
three seats, and four counties were given four House 
members. The remaining seven counties, including all 
of those four populous counties where appellants reside, 
were each allotted six House seats, and the six legislative 
districts of the City of Baltimore were given six delegates

5 Included as Appendix B to the dissenting opinion of the Mary­
land Court of Appeals is a chart comparing the senatorial repre­
sentation of the City of Baltimore and the four most populous coun­
ties with that of the other counties in the State. 229 Md., at 430, 
184 A. 2d, at 730.



MARYLAND COMMITTEE v. TAWES. 9
each.6 Under the existing House apportionment, the 
five most populous political subdivisions, with 75.3% of 
the State’s 1960 population, elected only 60 delegates, or 
less than one-half of the members of the House of Dele­
gates, while the other 19 counties, with only 24.7% of the 
population, were represented by 63 delegates, or 51.3% 
of the total membership. A maximum population- 
variance ratio of over 12-to-l existed between the most 
populous and least populous counties. Baltimore County, 
with a 1960 population of 492,428, had only the same 
number of House seats, six, as did Garrett and Somerset 
Counties, whose combined 1960 population was 40,043.

Under the 1962 temporary legislation reapportioning 
the Maryland House of Delegates, the only practical 
effect is to add 19 House seats, increasing the member­
ship of that body from 123 to 142, for the four-year terms 
of delegates elected in November 1962. Seven seats were 
added for Baltimore County, four delegates each were 
added for Montgomery and Prince George’s Counties, two 
of Baltimore City’s legislative districts were given two 
and one additional seats, respectively, and one seat was

6 Article III, § 4, of the 1867 Maryland Constitution provided for 
a minimum of two delegates per county, with increases proportional 
to population up to a total of six when a county’s population reached 
55,000, but made no provision for additional delegates after a county’s 
population reached and exceeded 55,000. In 1950, Art. I ll, § 5, was 
adopted as a constitutional amendment freezing the representation 
in the House of Delegates on the basis of the allocation of House 
seats under the 1940 federal census. The purpose of this amend­
ment was to prevent the smaller counties from continuing to receive 
increased House representation at the expense of the larger political 
subdivisions which, under the 1867 formula, were not entitled to any 
more than six delegates after their population had reached 55,000, 
regardless of how much it might increase thereafter. Additionally, 
Art. I ll, § 4, of the Maryland Constitution, as amended, provides for 
altering the boundaries of the legislative districts of the City of Balti­
more to provide for approximately equal population among the six 
districts.



10 MARYLAND COMMITTEE v. TAWES.
added for Anne Arundel County. The basic scheme em­
bodied in the temporary legislation is to allocate two 
House seats to each county and to each of the six Balti­
more City legislative districts, and then to distribute the 
remaining seats, out of a fixed number of 123, among the 
counties on a population basis. The new law pro­
vided, however, that during the initial four-year period 
of its operation, “ and for any additional period during 
which . . . [it] may be extended,” each county and legis­
lative district would be entitled, as a minimum, to the 
number of House seats that it had on January 1, 1962. 
Thus, this means that in actuality there will be more than 
123 delegates and that the counties and legislative dis­
tricts which were allegedly overrepresented under the old 
constitutional provisions will retain much of their former 
relative power. Under the new legislation, the five most 
populous subdivisions, with 75.3% of the State’s 1960 
population, elect 79 delegates, or 55.6% of the members 
in the Maryland House. The remaining 19 counties, 
with less than one-fourth of the State’s population, elect 
44.4% of the members of the House of Delegates. Coun­
ties with only 35.6% of the State’s total population elect 
a majority of the members of the House under the 1962 
legislation. A maximum population-variance ratio of 
almost 6-to-l still exists between the most populous and 
least populous House districts. A delegate from Somer­
set County represents an average of 6,541 persons, 
whereas a delegate from Baltimore County represents an 
average of 37,879. Under both the previous and present 
apportionment provisions, members of both the Senate 
and the House of Delegates in Maryland are all elected 
to serve four-year terms.7 None of the Maryland coun­
ties, under either the old or revised House apportion­
ment schemes, were divided into districts for the purpose

7 According to the provisions of Art. I ll, §§ 2, 6, and 7, of the 
Maryland Constitution.



MARYLAND COMMITTEE v. TAWES. 11

of electing delegates. Rather, all House members are 
elected at large within each county (and legislative dis­
trict), regardless of the number of seats allocated thereto.8

Maryland law makes no provision for the initiation of 
legislation or constitutional amendments by the people.9 
Certain constitutional provisions provide, however, for 
the taking, at a general election each 20 years, of “ the 
sense of the People in regard to calling a Convention for 
altering this Constitution.” 10 Pursuant to these provi­
sions, a statewide referendum on whether a constitutional 
convention, which wTould have the power to propose 
amendments to the Maryland Constitution, including 
amendments relating to the reapportionment of repre­
sentation in the General Assembly, should be called was 
submitted to the State’s voters at the general election in 
1950. An overwhelming majority of the voters (by a 
vote of 200,439 to 56,998) indicated their approval of the 
calling of a constitutional convention. Nevertheless, 
even though numerous bills providing for the convening 
of a constitutional convention were introduced into the

8 Appendix A to the dissenting opinion of the Maryland Court of 
Appeals contains a chart showing the populations, according to 1960 
census figures, and representation of Maryland’s 23 counties and the 
City of Baltimore in the two houses of the Maryland General Assem­
bly, including figures relating to the apportionment of seats in the 
House of Delegates both before and after the 1962 reapportionment 
legislation. Also included in this chart are figures showing the num­
ber of persons represented by each delegate, and computations of 
the relative values of votes for delegates and senators in each of the 
State’s political subdivisions. 229 Md., at 429, 184 A. 2d, at 728-729.

9 Article XVI, §§ 2-5, of the Maryland Constitution provides a 
procedure for the conducting of a referendum vote by the people 
on certain types of legislative enactments, however, upon the filing 
of a petition signed by at least 3% of the State’s qualified voters.

For a discussion of the lack of federal constitutional significance 
of the presence or absence of an available political remedy, see Lucas 
v. The Forty-Fourth General Assembly of the State of Colorado, 
—  U. S. ——, --------— , decided also this date.

10 Md. Const., Art. XIV, § 2.



12 MARYLAND COMMITTEE v. TAWES.
General Assembly between 1951 and 1962, the General 
Assembly repeatedly refused to enact the necessary ena­
bling legislation.11 Thus, despite the- favorable vote of 
the State’s electorate, no constitutional convention has 
ever been convened. The next such vote will not be 
taken until 1970, and, even if the people again approve 
the calling of a constitutional convention, it cannot be 
actually convened without the enactment of enabling leg­
islation by the Maryland General Assembly.

Although over 10 reapportionment bills were introduced 
into the General Assembly between 1951 and 1960, all 
failed to pass because of opposition by legislators from 
the less populous counties. Both houses of the General 
Assembly, during its 1960 regular session, declined to pass 
bills incorporating the limited reapportionment recom­
mendations of a special commission created by the Gov­
ernor in 1959 to investigate and report on the matter of 
legislative reapportionment. Numerous proposed reap­
portionment amendments and reapportionment bills were 
introduced at the regular session of the Maryland 
Legislature in 1961 and 1962, but all failed of passage. 
Relief from the allegedly discriminatory apportion­
ment through constitutional amendment was also appar­
ently unavailable, as a practical matter, to appellants. 
Article X IV , § 1, of the Maryland Constitution requires 
a three-fifths affirmative vote of the membership of both 
houses of the General Assembly in order to have proposed 
constitutional amendments submitted to the State’s voters 
at a referendum. Admittedly, legislators from the less

11 Despite the clear mandate of Art. XIV, § 2, of the State Con­
stitution, which states that “ if a majority of voters at such election 
or elections shall vote for a Convention, the General Assembly, at 
its next session, shall provide by Law for the assembling of such 
convention, and for the election of Delegates thereto.”

Compare the situation existing in Colorado, with respect to the 
availability of a political remedy, as discussed in our opinion in 
Lucas, —  U. 8., a t ------------- .



MARYLAND COMMITTEE v. TAWES. 13
populous counties controlled each house of the Maryland 
Legislature. And even if a constitutional convention 
were convened, representation at the convention would 
be based on the allocation of seats in the allegedly 
malapportioned General Assembly.12 Significantly, the 
Maryland Court of Appeals, in its initial opinion in this 
litigation, stated that “ the chances of the appellants’ 
obtaining relief from the infringement upon their alleged 
constitutional rights, other than from the courts, is so 
remote as to be practically nil.” 13

Neither in the Maryland Constitution nor in the state 
statutes is there any provision relating to the reappor­
tionment of representation in the General Assembly. 
Apart from the limited and temporary reapportionment 
of the House enacted at the 1962 special session of the 
Maryland Legislature, following the holding of the Cir­
cuit Court that the House apportionment provisions of 
the Maryland Constitution were invalid, all efforts since 
1867 to achieve a substantial reapportionment of seats in 
the General Assembly, with two rather minor exceptions, 
have been futile.14 In 1900, the City of Balthnore, 
because of its expanding population, was given an addi­
tional Senate seat and an additional legislative district, 
bringing its total to four senators and legislative districts.

12 Pursuant to Art. XIV, § 2, of the Maryland Constitution, which 
provides: “Each County, and Legislative District of the City of 
Baltimore, shall have in such Convention a number of Delegates equal 
to its representation in both Houses at the time at which the 
Convention is called.”

13 228 Md,, at 432-433, 180 A. 2d, at 667.
14 In fact, there has been no substantial change in the scheme of 

legislative representation in Maryland since 1837, when the system 
of indirect election of senators was abolished. In 1864 the City of 
Baltimore was given additional representation in the form of three 
legislative districts, with one senator for each of the three districts. 
A constitutional convention in 1867, which adopted the existing 
Maryland Constitution, confirmed the increased representation ac­
corded the City of Baltimore, but otherwise based the legislative 
apportionment provisions which it adopted on the 1837 scheme.



14 MARYLAND COMMITTEE v. TAWES.
Two additional senators and two more legislative districts 
were added to Baltimore City’s representation in 1922. 
Apart from these increases in the legislative representa­
tion of the City of Baltimore, membership in the Mary­
land Senate remains as provided for in the 1867 Consti­
tution. And, until 19 additional House seats were 
created and distributed among the five most populous 
political subdivisions in 1962, representation in the House 
of Delegates had been based, for a period of 95 years, on 
the limited-population formula embodied in the 1867 
Maryland Constitution.15

III.
In its unreported opinion holding the Maryland sena­

torial apportionment valid, the Circuit Court, after 
referring to the reapportionment of seats in the House 
of Delegates by the Maryland Legislature, stated: “ It 
appears, therefore, and the Petitioners have conceded, 
that the Lower House has been legally reapportioned 
according to population.”  And the Maryland Court of 
Appeals, in its opinion upholding the Circuit Court’s 
decision that the senatorial apportionment was constitu­
tionally valid, pointed out that the instant appeal was 
from the lower court’s decision on remand of the pre­
viously undecided question as to the validity of the 
senatorial apportionment, and stated: “ No question is 
presented as to the validity of the 'stop-gap’ legislation 
or the reapportionment of the House of Delegates.”  16 
Questioning the validity of the majority’s assumption in 
this regard, the dissenters stated:

“ The majority of this Court in the present case 
seems to accept tacitly, if not expressly, the view

15 For a discussion of various aspects of the Maryland legislative 
apportionment situation, including the instant litigation, see Note, 
Senate Reapportionment—The Maryland Experience, 31 Geo. Wash. 
L. Rev. 812 (1963).

16 229 Md., at 410, 184 A. 2d, at 716.



that if one house of the Maryland General Assembly 
(the Senate) may be apportioned on a basis which 
ignores disparities of population, the other house 
(the House of Delegates) must be apportioned with 
due regard to population, and assumes that the 
House of Delegates now is so apportioned. It is 
true that the apportionment of the House is not 
under attack on this appeal and no question with 
regard thereto is now before us. It is also true, 
however, that even as reapportioned by the May 
1962 Special Session of the General Assembly, con­
siderable disparities still exist in a number of 
instances, though previous disparities have been 
materially reduced. . . . There is no such close 
relationship between population and representation 
as in the case of the Michigan House . . . .  Surely, 
the present Maryland apportionment is not so closely 
related to population as is that of the House of Rep­
resentatives of the Congress of the United States. 
In that respect the Federal analogy is far from 
perfect.” 17

Appellants have continually asserted that not only is 
the constitutional validity of the apportionment of the 
Maryland Senate at issue in this appeal, but that also 
presented for decision is the sufficiency, under the Four­
teenth Amendment to the Federal Constitution, of “ the 
combined total representation provided for in both 
Houses of the Maryland General Assembly.” Appellees, 
on the other hand, have repeatedly contended that the 
sole question presented in this appeal is whether one 
house of a bicameral state legislature, i. e., the Maryland 
Senate, can be apportioned on a basis other than popu­
lation, where the other house is presumably apportioned 
on a strict population basis. Appellees have argued that,

MARYLAND COMMITTEE v. TAWES. 15

17 Id., at 421-422, 184 A. 2d, at 723-724.



16 MARYLAND COMMITTEE v. TAWES.

since the courts below assumed and appellants allegedly 
conceded that the Maryland House of Delegates, as reap­
portioned in 1962, is apportioned on a population basis, 
and since the decisions of the state courts below here 
appealed from considered only the validity of the appor­
tionment of the Maryland Senate, this Court is precluded 
from considering the validity of the apportionment of the 
Maryland House and is required to assume that that body 
is now apportioned on a population basis.

Regardless of possible concessions made by the parties 
and the scope of the consideration of the courts below, in 
reviewing a state legislative apportionment case this 
Court must of necessity consider the challenged scheme 
as a whole in determining whether the particular State’s 
apportionment plan, in its entirety, meets federal con­
stitutional requisites. It is simply impossible to decide 
upon the validity of the apportionment of one house of 
a bicameral legislature in the abstract, without also 
evaluating the actual scheme of representation employed 
with respect to the other house. Rather, the proper, and 
indeed indispensable, subject for judicial focus in a legis­
lative apportionment controversy is the overall repre­
sentation accorded to the State’s voters, in both houses 
of a bicameral state legislature. We therefore reject 
appellees’ contention that the Court is precluded from 
considering the validity of the apportionment of the 
Maryland House of Delegates. We cannot be compelled 
to assume that the Maryland House is presently appor­
tioned on a population basis, when that is in fact plainly 
not so. Furthermore, whether or not the House is ap­
portioned on a population basis, the scheme of legislative 
representation in Maryland cannot be sustained under 
the Equal Protection Clause of the Federal Constitution, 
because of the gross disparities from population-based 
representation in the apportionment of seats in the 
Maryland Senate.



MARYLAND COMMITTEE v. TAWES. 17

IV.
In Reynolds v. Sim s,-----U. S. ------ , decided also this

date, we held that seats in both houses of a bicameral state 
legislature are required, under the Equal Protection 
Clause, to be apportioned substantially on a population 
basis. Neither house of the Maryland Legislature, even 
after the 1962 legislation reapportioning the House of 
Delegates, is apportioned sufficiently on a population 
basis to be constitutionally sustainable. Thus, we con­
clude that the Maryland Court of Appeals erred in hold­
ing the Maryland legislative apportionment valid, and 
that the decision below must be reversed.

We applaud the willingness of state courts to assume 
jurisdiction and render decision in cases involving chal­
lenges to state legislative apportionment schemes.18 
However, in determining the validity of a State’s appor­
tionment plan, the same federal constitutional standards 
are applicable whether the matter is litigated in a federal 
or a state court. Maryland’s plan is plainly insufficient 
under the requirements of the Equal Protection Clause 
as spelled out in our opinion in Reynolds,19

18 A commendable example of an exercise of judicial responsibility 
by a state court in a case involving state legislative apportionment 
is provided by the action of the Kansas Supreme Court in Harris v. 
Shanahan, 387 P. 2d 771 (Kan. Sup. Ct. 1963). In that case the 
Kansas Supreme Court held that the statutory provisions apportion­
ing seats in both houses of the Kansas Legislature were constitu­
tionally invalid, but afforded the legislature a further opportunity 
to enact a constitutionally valid plan prior to the 1964 primary 
and general elections. Of course, this decision by the Kansas Su­
preme Court is not presently before us, and we indicate no view as 
to the merits in that case.

19 The pattern of prolonged legislative inaction with respect to 
legislative apportionment matters and the existence of a rural 
strangle hold on the legislature in Maryland closely parallels the 
situation existing in Alabama, although Maryland, unlike Alabama, 
has no state constitutional provision requiring decennial legislative 
reapportionment.



18 MARYLAND COMMITTEE v. TAWES.

For the reasons stated in Reynolds,20 appellees’ reliance 
on the so-called federal analogy as a sustaining principle 
for the Maryland apportionment scheme, despite signifi­
cant deviations from population-based representation in 
both houses of the General Assembly, is clearly mis­
placed.21 And considerations of history and tradition, 
relied upon by appellees, do not, and could not, provide 
a sufficient justification for the substantial deviations 
from population-based representation in both houses of 
the Maryland Legislature.

In view of the circumstances of this case, we feel it 
inappropriate to discuss remedial questions at the present 
time.22 Since all members of both houses of the Mary­
land General Assembly were elected in 1962, and since all 
Maryland legislators are elected to serve four-year terms, 
the next election of legislators in Maryland will not be 
conducted until 1966. Thus, sufficient time exists for 
the Maryland Legislature to enact legislation reappor­
tioning seats in the General Assembly prior to the 1966 
primary and general elections. With the Maryland con­
stitutional provisions relating to legislative apportion­
ment hereby held unconstitutional, the Maryland Legis­
lature presumably has the inherent power to enact at 
least temporary reapportionment legislation pending 
adoption of state constitutional provisions relating to

20 See Reynolds v. Sims,-----U. S., a t -------------- .
21 Additionally, the Maryland legislative apportionment scheme 

here attacked fails to resemble the plan of representation in the 
Federal Congress in at least two important respects: the Maryland 
House, even as reapportioned in 1962, is clearly not apportioned on 
a population basis, and political subdivisions are not accorded the 
same number of senatorial seats, since, although each of Maryland’s 
23 counties is given only one Senate seat, six senators are allotted 
to the City of Baltimore.

22 See Reynolds v. Sims, ---- U. S., a t ------ .



MARYLAND COMMITTEE v. TAWES. 19
legislative apportionment which comport with federal 
constitutional requirements.23

Since primary responsibility for legislative apportion­
ment rests with the legislature itself, and since adequate 
time exists in which the Maryland General Assembly can 
act, the Maryland courts need feel obliged to take further 
affirmative action only if the legislature fails to enact a 
constitutionally valid state legislative apportionment 
scheme in a timely fashion after being afforded a further 
opportunity by the courts to do so. However, under no 
circumstances should the 1966 election of members of the 
Maryland Legislature be permitted to be conducted pur­
suant to the existing or any other unconstitutional plan. 
We therefore reverse the judgment of the Maryland 
Court of Appeals, and remand the case to that Court for 
further proceedings not inconsistent with the views stated 
here and in our opinion in Reynolds v. Sims.

It is so ordered.

M r. Justice Clark concurs in the reversal for the 
reasons stated in his concurring opinion in Reynolds v. 
Sim s,----- U. S. -----, decided this date.

23 See 228 Md., at 438-440, 180 A. 2d, at 670-671, where the Mary­
land Court of Appeals stated that, if the Maryland constitutional 
provisions relating to legislative apportionment were found invalid 
by the lower court, the Maryland Legislature would have the power 
to enact reapportionment legislation, “because the powers of the 
General Assembly of Maryland are plenary, except as limited by 
constitutional provisions.”  See also the reference to this matter 
earlier in this opinion, ante, a t ---- .



SUPEEME COUET OF THE UNITED STATES

No. 29.— October T erm, 1963.

The Maryland Committee for 
Fair Representation et ah,
Appellants,

v.
J. Millard Tawes, Governor, 

et al.
[June 15, 1964.]

M r. Justice Stewart.
In this case there is no finding by this Court or by the 

Maryland Court of Appeals that Maryland’s apportion­
ment plan reflects “no policy, but simply arbitrary and 
capricious action or inaction.” Nor do I think such a 
finding on the record before us would be warranted. Con­
sequently, on the basis of the constitutional views ex­
pressed in my dissenting opinion in Lucas v. The Forty- 
Fourth General Assembly of the State of Colorado, ante,
p. ------. I would affirm the judgment of the Maryland
Court of Appeals unless the Maryland apportionment 
“ could be shown systematically to prevent ultimate effec­
tive majority rule.” The Maryland court did not address 
itself to this question. Accordingly, I would vacate the 
judgment and remand this case to the state court for full 
consideration of this issue.

On Appeal From the 
Court of Appeals of 
Maryland.

Dissenting opinion by M r. Justice Harlan printed in 
Nos. 23, 27 and 41.