Oklahoma City Public Schools Board of Education v. Dowell Brief in Opposition to Certiorari

    In The

Supreme Court of the United States

October Term, 1963

No. 29

THE MARYLAND COMMITTEE FOR FAIR 
REPRESENTATION, et al.,

Appellants,
v.

J. MILLARD TAWES, GOVERNOR, et al.,
Appellees.

A ppeal from the: Court of A ppeals of Maryland

BRIEF ON BEHALF OF APPELLEES

Thomas B. Finan,
Attorney General of Maryland,

Robert S. Bourbon,
Assistant Attorney General 

of Maryland,
Suite 1200, One Charles Center, 
Baltimore 1, Md.,

For Appellees,

The Daily Record Co., Baltimore 3, Md.



IN D E X

Table of Contents
page

Opinions of the Court Below......................................

Jurisdiction ......................................................................
Statutes and Constitutional Provisions Involved

Question Presented

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

Summary of A rgument..................................................

Argument :
I. Maryland Senate apportionment does not in­

vidiously discriminate against Appellants and 
others similarly situated

II. The Federal Plan analogy is applicable to the
Maryland Senate ................................................

III. The General Assembly as a whole

Conclusion

1

1

2

2

2

7

12

38
46

53

Table of Citations 
Cases

BakS ^ arr: 36^ D:s : 186^ M M S ^ , 4 6 . 4 9
Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L.

Ed. 884 ....................................................................  1U’ ^“
Caesar v. Williams, 84 Ida. 254, 371 P. 2d 241 8,15,18, 34
Clark v. Carter, 218 F. Supp. 448 15
Daniel v. Davis, .... F. Supp..........................................  8’ 22
Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L Ed.

g21 ................................................. 8,15,16,17, 28



11

Jackman v. Bodine, 78 N.J. Super. 414, 188 A. 2d
642 ...........................................................................8,22,23

Levitt v. Maynard, 104 N.H. 243, 182 A. 2d 897........ 8,17, 34
Lindsley v. National Carbonic Gas Co., 220 U.S. 61,

55 L. Ed. 369.............................................................  36
Lisco v. McNichols, 208 F. Supp. 471........................  8,34
MacDougall v. Green, 335 U.S. 281, 69 S. Ct. 1,

93 L. Ed. 3......................................................... 8,16,17, 40
Mann v. Davis, 213 F. Supp. 577.................................8, 28, 29
Maryland Committee for Fair Representation, et al. 

v. Tawes, Governor, et al., 229 Md. 406, 184 A.
2d 715 ...................................................................... 3, 8, 17

McGowan v. State of Maryland, 366 U.S. 420, 81 S.
Ct. 1101, 6 L. Ed. 2d 393..........................................  9, 36

Metropolitan Casualty Insurance Co. v. Brownell, 294
U.S. 580, 79 L. Ed. 1070.........................................  36

Moss v. Burkhart, 207 F. Supp. 885.............................  27
Nolan v. Rhodes, 218 F. Supp. 953............8,10,11, 22, 42, 49
Ocampo v. United States, 234 U.S. 91, 58 L. Ed. 1231 44
Pressman v. D’Alesandro, 211 Md. 50, 125 A. 2d 35 6
Salsburg v. Maryland, 346 U.S. 545, 74 S. Ct. 280,

98 L. Ed. 281............................................................. 44

PAGE

Scholle v. Hare, 367 Mich. 176, 116 N.W. 2d 350, 369
U.S. 429, 82 S. Ct. 910, 8 L. Ed. 2d 1.......................  14, 26

Sincock v. Duffy, 215 F. Supp. 169 8,10, 27, 37, 42
Sobel v. Adams, 208 F. Supp. 316......................... 8,15, 20, 34
South v. Peters, 339 U.S. 276, 70 S. Ct. 641, 94 L. Ed.

834 ............................................................................ 17
State v. Dashiell. 6 H. & J. 268 6
State v. Shillinger, 6 Md. 449 .......................................  6
Sweeney v. Notte,.... R .I ......., 183 A. 2d 296..............  26
Toombs v. Fortson, 205 F. Supp. 248...........................  25
W.M.C.A., Inc., et al. v. Simon, Secretary of State of 

New York, et al., 208 F. Supp. 368, 370 U.S. 190,
82 S. Ct. 1234, 8 L. Ed. 2d 430..........8, 9,14,15,19, 34, 40

Wright v. Hammer, 5 Md. 370....................................  6



Statutes

Annotated Code of Maryland:
Article 25A (1957 Edition, 1962 Supplement)....  31
Article 40, Section 42 (1962 Supplement)..........  2

Constitution of Idaho:
Article III, Section 2 19

Constitution of Maryland:
1776, Articles II, IV, V ..........................................  4

Articles XIV, XV, XVI............................... 5, 49
1851, Article III, Section 2 .............................  5

Section 3 ................................... 4
1864, Article III, Section 3 ............................  6

Section 4 ................................... 5
1867, Article III, Section 2 ................................... 5, 6

Section 3 ................................... 5
Section 4 ................................... 5
Section 5 ................................... 5
Section 6 ..................................  5

Article XI, .................................................... 6
1867, as amended, Article III, Section 2 ..........  2

Section 9 ...........  37
Article IV, Section 14 ........  37
Article XI-A .........................  31

Constitution of Tennessee:
Article II, Section 6................................................ 23

Constitution of the United States:
Fifth Amendment .................................................. 10, 42
Fourteenth Amendment ..................... 2, 3,12,17,18, 23,

35, 36, 38, 42
Laws of Maryland:

1796, Chapter 68 6
1918, Chapter 82 ...................................................  6
1963, Chapter 617 .................................................  52

I ll

PAGE



IV

28 U.S.C.:
1257(2) ..................................................................... 1
2101(c) ....................................................................  1

PAGE

Miscellaneous
Baltimore Morning Sun:

July 28, 1962, page 5.................................................... 14
January 3, 1963...........................................................  52

Bell, The Legislative Process in Maryland...................... 10
Bickel, Reapportionment and Liberal Myths, Com­

mentary, June, 1963...................................... 31, 32, 41, 44
Book of the States, 1962-63, Council of State Govern­

ments ..........................................................................  49
Federalist, The, Wesleyan University Press (1961) 48
Federalist Papers, The, No. 63......................................  10, 42
Hall, History of Baltimore, Volume 1.........................  6
38 Indiana L. J. 252, The Significance of Baker v. Carr

for Indiana ................................................................. 27
Journal of the Constitutional Convention, G. P. Put­

man Sons, 1903................................................... 10, 34,42
61 Michigan L. Rev. 107, Jerold Israel, On Charting a 

Course through the Mathematical Quagmire:
The Future of Baker v. Carr...............................14, 34,40

61 Michigan L. Rev. 645, Robert B. McKay, Political 
Thickets and Crazy Quilts: Reapportionment 
and Equal Protection 14

61 Michigan L. Rev. 711, Jo Desha Lucas, Legislative 
Apportionment and Representative Govern­
ment: The Meaning of Baker v. Carr 14, 33

Niles, Maryland Constitutional Law...........................  4, 5, 6
16 Oklahoma L. Rev. 59, Maurice H. Merrill, Blazes 

through the Thicket of Reapportionment 14



V

Report of Committee on More Equitable Representa­
tion in the General Assembly of Maryland, Feb­
ruary 14, 1947 ...........................................................  45

Scharf, History of Baltimore City and County (1881) 6
Tyler, Court Versus Legislature (27 Law and Con­

temporary Problems 390)..................................... 9,34
Walsh, Final Report of The Commission on More 

Equitable Representation in the General As­
sembly of Maryland..............................................  43

Washington Evening Star, July 28, 1962....................  14
Washington Post and Times Herald, September 25,

1963 ..........................................................................  29
65 West Virginia L. Rev. 129, James Edmundson, Jr.,

Legislative Reapportionment, Baker v. Carr........ 33
72 Yale L. J. 968, Baker v. Carr and Legislative Ap­

portionments: A Problem of Standards.............  26, 51

PAGE



In The

Supreme Court of the United States

October Term, 1963

No. 29

THE MARYLAND COMMITTEE FOR FAIR 
REPRESENTATION, et al.,

Appellants,
v.

J. MILLARD TAWES, GOVERNOR, et al.,
Appellees.

A ppeal from the Court of Appeals of Maryland

BRIEF ON BEHALF OF APPELLEES

OPINIONS OF THE COURT BELOW
Appellees accept Appellants’ statement outlining the 

Opinions of the Court below.

JURISDICTION
Appellants allege that the Supreme Court of the United 

States has jurisdiction pursuant to 28 U.S.C. 1257(2) and 
28 U.S.C. 2101 (c).



2

STATUTES AND CONSTITUTIONAL 
PROVISIONS INVOLVED

This case involves:

(1) Section 1 of the Fourteenth Amendment to the 
Constitution of the United States, containing the equal 
protection and due process clauses, printed in Appendix 
A, Appellants’ Brief, page 76; and

(2) Section 2 of Article III of the Maryland Constitu­
tion, printed in Appendix A, Appellants’ Brief, page 76.

QUESTION PRESENTED
Does the Fourteenth Amendment to the Constitution 

of the United States require that the membership of the 
Senate of the State of Maryland “be based on, or reason­
ably related to, the present population” of the various 
political subdivisions of the State?

STATEMENT OF THE CASE
The sole question properly presented by this appeal 

is the validity, consistent with the Fourteenth Amend­
ment to the Constitution of the United States, of the 
present apportionment plan of the State Senate of Mary­
land, as embodied in Article III, Section 2, of the Mary­
land Constitution. Appellants in the trial court con­
ceded that, at least for the present, the somewhat re­
cently enacted stopgap legislation regarding the com­
position of the Maryland House of Delegates (Chapter 1, 
Acts of the 1962 Special Session of the General Assembly 
of Maryland, also known as Article 40, Section 42, Anno­
tated Code of Maryland, 1962 Supplement, printed in Ap­
pendix A, Appellants’ Brief, page 77) satisfied the de­
mands of the Equal Protection Clause of the Fourteenth 
Amendment. In the Court of Appeals of Maryland, Ap­



3

pellants revised their position and alternatively prayed 
that the General Assembly be treated as a “whole” . In 
their Brief in this Court, Appellants allege as their second 
“Question Presented” the question of “total representa­
tion” as falling short of the demands of the Fourteenth 
Amendment.

In its Opinion of September 25, 1962, reported at 229 
Md. 406, 184 A. 2d 715, printed at R. 162, 164, the court 
stated:

“No question is presented as to the validity of the 
‘stopgap’ legislation or the reapportionment of the 
House of Delegates.”

And in his dissent to the above-quoted majority opinion, 
Chief Judge Brune confirmed this when he said, for the 
minority (R. 176):

“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.”

And the above is further confirmed by the language of 
the trial court’s opinion (R. 114), where Judge Duckett 
states:

“ .. . Petitioners have conceded that the Lower House 
has been legally reapportioned according to popula­
tion.”

Consequently, it is clear that Appellants attempt here 
to raise obliquely what they cannot raise directly; the 
question of proper apportionment in the Maryland House 
of Delegates or of “ total representation” in the General 
Assembly is not now before this Court.

Insofar as this appeal is concerned, the gravamen of 
Appellants’ claim is set forth in Paragraph 22 of the Bill 
of Complaint (R. 8), to wit:



4

“ Section 1 of the Fourteenth Amendment requires 
that representation in the State Senate of Maryland 
be based on, or reasonably related to, the present 
population of the counties and the City of Baltimore, 
and that the total number of members in that body 
to' which the counties of Anne Arundel, Baltimore, 
Montgomery, Prince George’s and the City of Balti­
more are entitled is 22, instead of the 10 Senators 
through whom they are now represented in that body 
(assuming no increase in its present membership of 
29 Senators).”

Paragraph 14 of Appellees’ Answer (R. 91, 92) denied 
the above allegations and affirmatively stated, inter alia, 
that representation in the Maryland Senate need not be 
based on or reasonably related to the present population of 
the counties and Baltimore City.

Historically and theoretically, the two houses of the 
Maryland General Assembly were designed to represent 
different segments or ideologies present in the State. The 
House of Delegates, according to the Constitution of 1776,1 
was comprised of four delegates from each county, plus 
two from Annapolis and Baltimore Town (then a part 
of Baltimore County). The Constitution of 1851 and each 
succeeding Constitution provided for membership in the 
House of Delegates to be based generally on a population 
ratio.

The Constitution of 18512 provided that each county 
should be allotted representation generally based on popu­
lation, as determined by the census of 1860, subject, how­
ever, to the provision that no county should have less than 
two delegates.

1 Articles II, IV  and V  (Niles, Maryland Constitutional Law, Page 
360).

2 Article III, Sec. 3 (Niles, Maryland Constitutional Law, Page 
406).



5

Similarly, the Constitution of 18643 apportioned the 
House on the basis of population, with one delegate for 
the first 5,000 persons, and thereafter each delegate to 
represent a graduated scale of the population.

The Constitution of 18674 originally allotted seats in 
the House based upon a graduated scale of population, 
permitting, however, each county or legislative district of 
Baltimore City, regardless of population, to have a mini­
mum of two delegates.5 6

By contrast, the Senate of Maryland under the Consti­
tution of 1776® was composed of 15 Senators, six from the 
Eastern Shore and nine from the Western Shore, chosen 
by an electoral college of 40 members. Each county sup­
plied two electors and Annapolis and Baltimore Town 
were allotted one each.

Starting with the Constitution of 1851,7 each county was 
allotted one Senator, as was Baltimore City (Baltimore 
City for the first time having been made a separate and 
independent political subdivision).

3 Article III, Sec. 4 (Niles, Maryland Constitutional Law, Page 
442).

4 Article III, Sec. 3 (Niles, Maryland Constitutional Law, Page 
485).

5 It is interesting to note that in Article III, Sections 3, 4 and 5 
of the Constitution of 1867, prior to amendment, in establishing and 
providing for the members in the House of Delegates, the word 
“ population”  itself is used on at least ten occasions. This clearly in­
dicates that the framers of the Constitution intended that the House 
be based upon, or reasonably related to, population. Also of interest 
is the fact that by Section 6 of Article III of the Constitution of 1867, 
before amendment, members of the House were elected for a term 
of two years. (This was changed by the quadrennial election amend­
ment of Article X V II  of the Maryland Constitution in 1922.) By 
contrast, in Article III, Section 2 of the Constitution of 1867, before 
amendments, the word “ population” is not used.

6 Articles X IV , X V  and X V I of the Maryland Constitution (Niles, 
Maryland Constitutional Law, Pages 362, 363).

7 Article III, Section 2 (Niles, Maryland Constitutional Law, Page 
406).



6

The Constitution of 18648 continued to allot one Senator 
to each county, but also permitted one each from the three 
legislative districts of Baltimore City. This provision was 
re-adopted in the Constitution of 18679 and has remained 
in force, with the exception of Baltimore City, which re­
ceived an additional legislative district in 1900 and two 
additional legislative districts in 1922, subsequent to the 
annexation of portions of Baltimore County and Anne 
Arundel County in 1918 (Chapter 82, Laws of 1918).10

There seems to be some confusion regarding the status 
of the City of Baltimore and it is therefore deemed 
desirable to discuss briefly its history. Although it was 
chartered in 1796 (Acts of 1796, Chapter 68), it was by 
virtue of the provisions of the Constitution of 1851, that 
the City of Baltimore was recognized to be a separate, 
distinct and independent political subdivision of the 
State.11 * By virtue of the provisions of Article XI of the 
Constitution of 1867, Baltimore City was granted the con­
stitutional right to maintain its own local government, 
subject, however, to control by the General Assembly.13 
In this respect the governmental functions of Baltimore

8 Article III, Section 3 (Niles, Maryland Constitutional Law, Page 
442).

9 Article III, Section 2 (Niles, Maryland Constitutional Law, Page 
485).

10 On Page 51 of the Appellants’ Brief there is quoted portions of 
Governor Ritchie’s statement relative to increased representation in 
the Legislature for Baltimore City. Unfortunately, the Appellants 
have quoted out of context and the full sentence of the statement of 
Governor Ritchie to the General Assembly is as follow s:

. . The growth of population in Baltimore by reason of exten­
sions of its territory and many other considerations, entitles the 
city to increased representation in both houses of the General 
Assembly. . . .” . (Emphasis supplied.)

11 Scharf, History of Baltimore City & County (1881), pp. 62-63,
Hall, History of Baltimore, Vol. 1, p. 151, Wright v. Hammer, 5 Md. 
370; State v. Shillinger, 6 Md. 449; cf. State v. Dashiell, 6 H. & J. 
268.

13 See Pressman v. D’Alesandro, 211 Md. 50, 57, 125 A. 2d 35.



7

City were placed in a unique position comparable in the 
United States only to that of the City of St. Louis.

The Appellees also' wish to emphasize that the use of 
a combination of certain counties and Baltimore City for 
purposes of comparison is an artificial attempt to justify 
the Appellants’ position. It must be remembered that the 
said political sub-divisions, with the exception, perhaps, 
of Baltimore City and County, in many respects have 
no common economic, social or other basis for com­
parison. While it is conceded that each of the four counties 
and Baltimore City are rapidly growing urban areas, 
nevertheless, large portions of each of those counties are 
devoted to farming and other rural pursuits. Therefore, 
the urban-rural cleavage stressed by the Appellants exists 
within the very counties which the Appellants claim are 
adversely affected by the urban-rural conflict. Likewise, 
for example, the people of Baltimore City, because of its 
industrial concentration, do not share the problems of 
the tobacco farmers of Prince George’s and Anne Arundel 
Counties or those of the dairy farmers in the northern 
part of Baltimore County or western part of Montgomery 
County. It is therefore urged that these combinations are 
artificial and may at times create an illusory impression.

SUMMARY OF ARGUMENT
I. Maryland Senate apportionment does not invidiously 

discriminate against Appellants and others similarly sit­
uated.

While Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 
2d 663, determined jurisdiction, justiciability and stand­
ing to sue, it decided those various questions and nothing 
more. Neither did it decide nor indicate what constitutes 
unconstitutional apportionment, nor whether population 
is the sole permissible basis for legislative apportionment 
under the equal protection clause.



8

Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 
2d 821, does not decide questions relating to composition 
of the state or federal legislatures, nor does it lay down 
“basic ground rules implementing Baker v. Carr” . See 
Opinion of Mr. Justice Douglas, speaking for the Court, 
83 S. Ct. at 807, and concurring opinion of Mr. Justice 
Stewart, at 809. Further, it does nothing to limit the ap­
plication of MacDougall v. Green, 335 U.S. 281, 69 S. Ct. 
1, 93 L. Ed. 3, wherein this Court spoke of not denying 
a state “the power to assure a proper diffusion of political 
initiative as between its thinly populated counties and 
those having concentrated masses” .

The ruling of the Court of Appeals of Maryland below 
(229 Md. 406, 184 A. 2d 715), wherein it held that his­
torical precedent furnishes justification and constitutes 
a rational basis for the present apportionment of the 
Maryland Senate, is supported in Caesar v. Williams, 84 
Ida. 254, 371 P. 2d 241; Sobel v. Adams, 208 F. Supp. 316; 
W.M.C.A., Inc. v. Simon, 208 F. Supp. 368; Nolan v. 
Rhodes, decided June 12, 1963, 218 F. Supp. 953; Daniel
v. Davis, decided June 28, 1963,.... F. Supp........ ; and Jack-
man v. Bodine, 78 N.J. Super. 414, 188 A. 2d 642. See also 
the dissenting opinions in Sincock v. Duffy, 215 F. Supp. 
169 and Mann v. Davis, 213 F. Supp. 577.

Interests other than population must be taken into ac­
count in the apportionment of the Maryland Senate, where 
as in this case, the apportionment of the House of Dele­
gates is not under attack, nor in question. See Lisco v. 
McNichols, 208 F. Supp. 471, recognizing as a relevant 
factor representation of industrial interests; Sobel v. 
Adams, supra, representation of general regional in­
terests; Caesar v. Williams, supra, protection of sparsely 
settled areas; Levitt V. Maynard, 104 N.H. 243, 182 A. 2d 
897, recognizing as “rational,” wealth and the proposition



9

of total taxes paid by a district; W.M.C.A., Inc. v. Simon, 
supra, a state apportionment plan “of historic origin” 
and “not irrational” , which “clearly gives weight to 
population within the state’s counties which forms a basis 
for the ingredient of area, accessibility and character of 
interest” , and Tyler, Court Versus Legislature, 27 Law and 
Contemporary Problems, 390, 391, 393, economic interests.

Under the Maryland plan, history and tradition may be 
found to be a rational exercise of state policy in connection 
with the apportionment here under attack. The state is to 
be allowed every reasonable latitude and the Maryland 
Constitution will not “ . . . be set aside if any state of facts 
reasonably may be concerned to justify it . . .” . McGowan 
v. State of Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 
2d 393.

II. The Federal Plan analogy is applicable to the Mary­
land Senate.

The evolution of the Maryland Senate finds analogy 
and precedent in the Federal Plan, insofar as the United 
States Senate is concerned. Based upon compromise, as 
was the continued expansion of the Federal Union, Bal­
timore City’s periodic apportionment of additional Sena­
tors, because of that city’s unique position, geographically, 
as a great port city, industrially and otherwise, represents 
a rational exercise of State policy.

The allocation to each county of a single Senator, on 
a nonpopulation basis, is rational where, as found by the 
court below, the counties in Maryland “have always pos­
sessed and retained distinct individualities” (R. 166). See 
W.M.C.A., Inc. v. Simon, supra.

The counties, in relation to the states, may be compared 
to the states in relation to the Federal Government. Only 
the original 13 states may have possessed sovereignty and,



10

in reality, none of them possess now many, if any, true 
attributes of such sovereignty.

Appellees question how a defense may be made of a 
federal Senate system which results in a gross dilution of 
individual voting power up to a ratio of 75 to 1, over 
twice the maximum complained of here. Is the rationale 
of Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 
884, applicable to the present apportionment of the United 
States Senate, under Amendment V of the Bill of Rights’.

The Federal analogy finds support in Nolan v. Rhodes, 
supra. And see the dissenting opinion of Judge Layton in 
Sincock v. Duffy, supra.

The Maryland Senate system served as a model in many 
respects for the Federal Senate. The Journal of the Con­
stitutional Convention, G. P. Putnam Sons, 1903, page 202; 
No. 63, The Federalist Papers.

Recognition of Baltimore City in additional Senate rep­
resentation constituted an exception to the so-called Fed­
eral Plan rather than an abandonment of it.

The recognition of the many factors surrounding Balti­
more City’s unique position in Maryland is a reasonable 
and rational State policy. Its Senate apportionment was 
increased because of its size. Bell, The Legislative Process 
in Maryland.

The compromise so evident in the evolution of the Mary­
land Senate system, which gave representation to the 
State’s varied and diverse interests, reflected the State’s 
collective judgment, from time to time, as to what best 
served and suited those interests, is rational and should 
be upheld.



11

III. The General Assembly as a whole.

The alleged malapportionment of the General Assembly 
“as a whole” is not now before the Court. (See R. 114, 162, 
164, 176.)

Representative government, whether upon the State or 
Federal level, has clearly recognized the lesser unit of 
government as a basis for political representation.

The so-called “principle of majority rule” , as advanced 
by Appellants, has never been a part of either the Federal 
or state systems; the foundation stone of democratic gov­
ernment is the protection of minorities from the “tyranny 
of the majority” . See the dissenting opinion of Mr. Justice 
Frankfurter, in Baker v. Carr (369 U.S. at 301); Nolan v. 
Rhodes, supra, 218 F. Supp. at 958.

Baltimore City, together with Baltimore County, or the 
four populous counties of Baltimore, Anne Arundel, Prince 
George’s and Montgomery together, might, if given the 
representation urged by Appellants, create a new mal­
apportionment far worse than that here complained of. 
Can such reorientation assure any “proper diffusion of 
political initiative” ?

If this Court should inquire into the question of whether 
the Maryland governmental structure as presently consti­
tuted actually possesses “responsiveness” , it should be 
noted that the role of a strong Governor, as Maryland has 
had in recent years, with his base of popular support, tends 
to offset some discrepancy in Senate representation.



12

ARGUMENT
I.

M ARYLAND SE N A T E  APPO RTIO N M EN T D O ES NOT IN V ID IO U SLY 
D ISC RIM IN A TE A G A IN ST A PPE LLA N T S AND 

O TH E R S SIM ILA R LY  SIT U A T E D ,

Unquestionably, the immediate point of beginning of 
this and other current reapportionment suits in the land­
mark decision of this Court in Baker v. Carr, 369 U.S. 186, 
82 S. Ct. 691, 7 L. Ed. 2d 663. There, appellants, qualified 
voters of the State of Tennessee, sued in the United States 
District Court for the Middle District of Tennessee, alleg­
ing deprivation of federal constitutional rights, in that the 
state apportionment statute governing members of the 
General Assembly of Tennessee among the state’s 95 coun­
ties denied them the “equal protection of the laws accorded 
them by the Fourteenth Amendment to the Constitution 
of the United States by virtue of the debasement of their 
votes . . .” . This Court, speaking through Mr. Justice 
Brennan (at 369 U.S. 197), stated:

“ In light of the District Court’s treatment of the 
case, we hold today only (a ) that the court possessed 
jurisdiction of the subject matter; (b) that a justiciable 
cause of action is stated upon which appellants would 
be entitled to appropriate relief; and (c) because ap­
pellees raise the issue before this Court, that the appel­
lants have standing to challenge the Tennessee appor­
tionment statutes.”

Mr. Justice Stewart, concurring (369 U.S. at 265-266), 
stated:

“The Court today decides three things and no more: 
‘ (a) that the Court possessed jurisdiction of the sub­
ject matter; (b) that a justiciable cause of action is 
stated upon which appellants would be entitled to ap­
propriate relief; and (c) . . .  that the appellants have 
standing to challenge the Tennessee apportionment 
statutes’.



13

“ The complaint in this case asserts that Tennessee’s 
system of apportionment is utterly arbitrary — with­
out any possible justification in rationality. The Dis­
trict Court did not reach the merits of that claim, and 
this Court quite properly expresses no view on the 
subject. Contrary to the suggestion of my Brother 
Harlan, the Court does not say or imply that ‘state 
legislatures must be so structured as to reflect with 
approximate equality the voice of every voter’. Post., 
p. 332. The Court does not say or imply that there is 
anything in the Federal Constitution ‘to prevent a 
State, acting not irrationally, from choosing any elec­
toral legislative structure it thinks best suited to the 
interests, temper and customs of its people’. Post., p. 
334. And contrary to the suggestion of my Brother 
Douglas, the Court most assuredly does not decide the 
question, ‘may a State weight the vote of one county 
or one district more heavily than it weights the vote 
in another?’. Ante, p. 244.

“In MacDougall v. Green, 335 U.S. 281, the Court 
held that the Equal Protection Clause does not ‘deny 
a State the power to assure a proper diffusion of politi­
cal initiative as between its thinly populated counties 
and those having concentrated masses, in view of the 
fact that the latter have practical opportunities for 
exerting their political weight at the polls not avail­
able to the former’. 335 U.S. at 284. In case after case 
arising under the Equal Protection Clause the Court 
has said what it said only last Term — that ‘the Four­
teenth Amendment permits the States a wide scope of 
discretion in enacting laws which affect some groups 
of citizens differently than others’. McGowan v. Mary­
land, 366 U.S. 420, 425. In case after case arising under 
that Clause we have also said that ‘the burden of 
establishing the unconstitutionality of a statute rests 
on him who assails it’. Metropolitan Casualty Ins. Co. 
v. Brownell, 294 U.S. 580, 584.

“Today’s decision does not turn its back on these 
settled precedents. I repeat, the Court today decides 
only: (1) that the District Court possessed jurisdic-



14

tion of the subject matter; (2) that the complaint pre­
sents a justiciable controversy; (3) that the appellants 
have standing.”

Neither Scholle v. Hare, 369 U.S. 429, 82 S. Ct. 910, 8 
L. Ed. 2d 1, “remanded to the Supreme Court of Michigan 
for further consideration in the light of Baker v. Carr . . ”  
or W.M.C.A., Inc., et al. v. Simon, Secretary of State of 
New York, et al., 370 U.S. 190, 919, 82 S. Ct. 1234, 8 L. Ed. 
2d 430, remanded on the same basis, can be said to do other 
than confirm the narrowness of the holding in Baker v. 
Carr, supra, notwithstanding Appellants’ protestations to 
the contrary (Brief, pages 15, 29).

Certainly Mr. Justice Stewart was of the opinion, in 
staying the order for apportionment in Scholle, that “ . . . 
the issues decided by the Michigan Supreme Court are new 
issues; ones that were not decided in Baker v. Carr.”  See 
Baltimore Morning Sun, July 28, 1962, page 5; Washington 
Evening Star, July 28, 1962, page 5 (R. 170). Baker neither 
decided nor indicated what constitutes unconstitutional 
apportionment. Jerold Israel, On Charting a Course 
through the Mathematical Quagmire: The Future of Baker 
v. Carr, 61 Mich. L. Rev. 107, 112. Nor does Baker answer 
the question of whether population is the sole permissible 
basis for legislative apportionment under the equal pro­
tection clause. Maurice H. Merrill, Blazes through the 
Thicket of Reapportionment, 16 Oklahoma L. Rev. 59, 63. 
Even Robert B. McKay’s Political Thickets and Crazy 
Quilts: Reapportionment and Equal Protection, 61 Mich. 
L. Rev. 645, and Jo Desha Lucas’ Legislative Apportion­
ment and Representative Government: The Meaning of 
Baker v. Carr, 61 Mich. L. Rev. 711, admit the narrowness of 
Baker v. Carr while asserting, as do Appellants here, that 
it must have meant much more.



15

As the Court stated in W.M.C.A., Inc, v. Simon, 208 F. 
Supp. 368, 372, 373 (on remand):

. . we are unable to premise an invalidity of the 
provisions of the State of New York upon the Baker 
v. Carr determination by reason of the absence of 
applicable indicia. . . . Counsel for plaintiffs has con­
ceded that ‘there is nothing in the explicit opinion of 
Baker against Carr which would indicate how ulti­
mately the cases were to be resolved on the merits’ , 
although counsel contended that there was ‘much in 
Baker against Carr which is implicit’ . . . This Court 
is unable to discern this result for which plaintiffs 
here argue.”

See Clark v. Carter, 218 F. Supp. 448, 452 (Kentucky Con­
gressional redistricting statute); Caesar v. Williams, 84 
Ida. 254, 371 P. 2d 241, 244; Sobel v. Adams, 208 F. Supp. 
316.

Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 
821, decided on March 18, 1963, cited by Appellants as in­
volving a principle “equally applicable here” (Brief, page 
42), struck down the Georgia Unit Vote System as used 
by that state for counting votes in primary elections for 
state-wide offices. Mr. Justice Douglas, speaking for the 
Court, set forth in unmistakably clear language (83 S. Ct. 
at 807):

“Nor does the question here have anything to do 
with the composition of the state or federal legislature. 
And we intimate no opinion on the constitutional 
phases of that problem beyond what we said in Baker 
v. Carr, supra. The present case is only a voting case.” 
(Emphasis supplied.)

Mr. Justice Stewart, whom Mr. Justice Clark joined, 
concurring, said (83 S. Ct. at 809):

“This case does not involve the validity of a State’s 
apportionment of geographic constituencies from



16

which representatives to the State’s legislature as­
sembly are chosen, nor any of the problems under 
the Equal Protection Clause which such litigation 
would present. We do not deal here with ‘the basic 
ground rules implementing Baker v. Carr’. This case, 
on the contrary, involves statewide elections of a 
United States Senator and of state executive and 
judicial officers responsible to a statewide constituency. 
Within a given constituency, there can be room for 
but a single constitutional rule — one voter, one vote. 
United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 
85 L. Ed. 1368.”

The county unit system, of course, no longer prevails 
in Maryland, as of the judgment of the United States Dis­
trict Court for the District of Maryland entered May 10, 
1963, in Maryland Committee for Fair Representation, 
et al. v. J. Millard Tawes, et al., Civil Action No. 14452 
(consent decree in which Maryland’s Attorney General 
participated, on behalf of Defendants).

Presumably, for the reverse has nowhere been shown 
nor has it even been suggested by Appellants, Gray v. 
Sanders, supra, does nothing to overrule or limit the appli­
cation of MacDougall v. Green, 335 U.S. 281, 69 S. Ct. 1, 
93 L. Ed. 3, where this Court said:

“To assume that political power is a function ex­
clusively of numbers is to disregard the practicalities 
of government. Thus, the Constitution protects the in­
terests of the smaller against the greater by giving 
in the Senate entirely unequal representation to popu­
lations. It would be strange indeed, and doctrinaire, 
for this Court, applying such broad constitutional con­
cepts as due process and equal protection of the laws, 
to deny a State the power to assure a proper diffusion 
of political initiative as between its thinly populated 
counties and those having concentrated masses, in 
view of the fact that the latter have practical oppor­
tunities for exerting their political weight at the polls



17

not available to the former. The Constitution — a 
practical instrument of government — makes no such 
demands on the States.” (Quoted from approvingly 
in Mr. Justice Stewart’s concurring opinion in Baker 
v. Carr, supra, 369 U.S. at 265, 266.)

And see South v. Peters, 339 U.S. 276, 70 S. Ct. 641, 94 
L. Ed. 834, affirming the principle of MacDougall, but per­
haps in turn silently overruled by Gray on other grounds. 
See Dissenting Opinion of Mr. Justice Harlan in Gray v. 
Sanders, supra (83 S. Ct. at 809).

While it may be true, as stated by Chief Judge Brune in 
his dissent to the latest opinion below (R. 173), that Baker 
v. Carr could not well have determined the exact point at 
which protection against the debasement or dilution of 
voting rights through state legislative apportionment of 
representation will be afforded in any specific case; none­
theless, it certainly can be said that an absence to date of 
any “guidelines for formulating specific, definite, wholly 
unprecedented remedies” has resulted in a wide diverg­
ence of opinion and action among the various state and 
federal courts and among the judges of those courts, not 
only as to right but as to remedy. See Mr. Justice Frank­
furter’s dissenting opinion in Baker (369 U.S. at 267). 
Because of a lack of guiding judicial principles upon which 
to rely, perhaps too many courts may find it considerably 
more difficult to determine what type of discrimination, 
in legislative apportionment matters, invidiously violates 
the commands of the Fourteenth Amendment than to de­
termine what does not. Surely any attack such as the 
present one, striking as it does at the very taproots of the 
Maryland political and governmental system, ought not 
to be sustained on such a basis.

The nub of the Court of Appeals’ ruling here appealed 
from (229 Md. 406, 184 A. 2d 715) (R. 162) is that popula­



18

tion considerations need not be taken into account in 
determining whether the Maryland Senate apportionment 
plan invidiously discriminates in violation of the Four­
teenth Amendment and that historical precedent furnishes 
justification and constitutes a rational basis for the present 
apportionment of the Senate. Appellants’ position, earlier, 
apparently was that the Senate should be based strictly on 
population. They now seem to have retreated somewhat 
to a basis “partly on population and partly on area” (R. 
122, Brief, page 72). However, population should remain 
the “strongly dominant factor” , in their view (Brief, 
page 72).

The Maryland ruling finds support in the following 
cases:

Caesar v. Williams, supra, decided on April 3, 1962, (re­
hearing denied on May 8, 1962). In that case two Idaho ap­
portionment statutes were attacked by persons claiming 
that neither provided substantial equal representation for 
the residents of the more populous counties in the House of 
Representatives. The trial court upheld the claim of un­
constitutionality, but the appellate court reversed and 
stated as follows (371 P. 2d at 247):

“It is clear that the constitutional requirement of 
one representative for each county, superimposed on 
the population requirement of the statute, will lead 
to discrepancies between the number of people who 
will be represented by each individual representa­
tive constituting the house of representatives, on a 
purely numerical basis. Respondent has forcefully 
pointed out such discrepancies, particularly by the 
exhibit in his complaint. Clark County, with a 1960 
population of 915 persons, and Camas County with a 
1960 population of 917, each is entitled to one repre­
sentative under both the 1951 act and the 1933 act; 
Elmore County, with a 1960 population of 16,719, and 
Cassia County, with a 1960 population of 16,121, each



19

likewise is entitled to only one representative under 
the 1951 act; whereas under the 1933 act each would 
be entitled to two representatives. These examples 
illustrate the extremes of the discrepancies in popula­
tion representation. But, is such gross disparity so 
arbitrary and capricious that the 1951 act and the 
1941 act must be stricken down as unconstitutional, 
in favor of the previous 1933 act? Also, is this dis­
parity created by the act itself, or created by the con­
stitution? Another question is whether the disparity 
is the result of application of a set of facts and cir­
cumstances for which the legislation was not de­
signed? Also, in such disparity violative of the equal 
protection clauses of Idaho’s Constitution, Art. I, sec. 
2 and of the United States Constitution, Fourteenth 
Amendment?

“The constitutional limitations of one representa­
tive per county and a maximum of not to exceed 
three times the number of senators immediately de­
stroys any possibility of representation based solely 
on a per-capita or per-voter basis. Attempting to com­
pare the representation afforded by the constitutional 
requirement of one representative per county to the 
representation to be afforded on a per capita basis is 
impossible. . . .

“The members of the Idaho Constitutional Con­
vention were fully cognizant of the impossibility of 
mathematical equality in election of representatives 
by reason of this constitutional requirement of one 
representative per county, . . .”

This decision is of extreme importance because of the 
fact that Idaho, like Maryland, constitutionally elects one 
senator for each county, based upon a geographical distri­
bution of political strength. Article III, Section 2, Idaho 
Constitution.

In W.M.C.A., Inc. v. Simon, supra, on remand, the court 
upheld a New York apportionment plan which, inter alia,



2 0

allows each county in the state, with one exception, at 
least one assemblyman in the State Assembly. Depending 
upon population and on a “ratio” basis, representation is 
increased. See 208 F. Supp. at 371, 383. The Senate is 
based substantially on population. Schuyler County, with 
a population of 15,044, is entitled to one representative, 
while Suffolk County, with a population of 666,784, is en­
titled to three, a variation of almost 15 to 1 between them. 
See 208 F. Supp. at 383, 384. The court held there (208 F. 
Supp. at 376) that the apportionment provisions were “of 
historic origin” and “not irrational” ; the plan “clearly gives 
weight to population within the state’s counties which 
forms a basis for the ingredients of area, accessibility and 
character of interest” .

The court further said that the apportionment scheme 
had “factors adapted to the needs of the State of New York 
constituted as it is of urban, suburban and rural areas, 
with congestion of population in one spot, with areas of 
lesser intensity in other locations and with sparsely settled 
spaces more remote from the centers of population. All 
ingredients are present, there is no arbitrariness in formu­
lae or in the result thereof.”

In Sobel v. Adams, supra, a proposed Florida apportion­
ment plan was approved which resulted in Dade County 
with 19% of the state population (or 935,047) obtaining 
but one of 46 state senators. The State House of Repre­
sentatives is apportioned substantially on a population 
basis.

The court was of the opinion (at 321) that:
“It is not required that, in all events, either or both 

houses of a bicameral legislature must be apportioned 
upon a population basis of either exact or approxi­
mate equality of representation. . . .  It is our con­
sidered view that the rationality of a legislative ap­



21

portionment may include a number of factors in addi­
tion to population.”

In dealing with the House representation question, the 
court said (at 322, 323):

“The zeal of the advocates of strict apportionment 
by a rigid population allocation fails to convince us 
that the results so achieved would be rational. The 
plan proposed by the legislature of a representative 
from each county with additional representatives dis­
tributed on a basis of a population ratio seems to us 
to provide a formula which secures the desirable 
county representation and a reckoning, to the extent 
required, of the population factor.”

Apropos of the State Senate, the court stated (at 323):
“Because such a large portion of the legislative 

function deals with special acts applicable only to a 
single county or municipality, we think it would be 
unwise and illogical to provide for more than one 
Senator from any county, except perhaps from Dade 
which enacts its own local legislation. Under the plan 
before us the House of Representatives would be ap­
portioned by a formula in which population is heavily 
weighted. Because of this we think that population 
need not be a major factor in the apportionment of 
the other House. Such apportionment must, however, 
be made upon a rational basis.”

In analyzing the Senate districting scheme in respect 
of any possible “crazy quilt” attributes, it might possess, 
the court indicated (at 323, 324):

“ It is possible, but we refrain from saying prob­
able, that some of the county alignments or absence 
of alignments were the result of the political neces­
sity of concessions in order to procure the passage 
of the measures we have before us. Disparities and 
departures from the plan may be pointed out but 
these are mainly of a de minimis nature and are not



2 2

such as, in our judgment, render the plan invidiously 
discriminatory or rob it of its rationality. . . . What 
is urban and what is rural, so far as a county is con­
cerned, may depend upon a point of view.”

In Nolan v. Rhodes, decided June 12, 1963, 218 F. Supp. 
953, the court sustained an Ohio constitutional apportion­
ment plan involving the state House of Representatives, 
established on a basis partly of area and partly on popula­
tion. The state Senate was not involved.

Commenting upon a system guaranteeing to each county 
one representative in the House and upholding it against 
an attack on equal protection grounds, notwithstanding a 
ratio maximum of almost 15 to 1, the court said (at 957):

“There does not seem to be much reason for a bicam­
eral legislature if both houses are required to be ap­
portioned on the same basis.”

Daniel v. Davis, decided June 28, 1963, by a statutory 
District Court for the Eastern District of Louisiana, upheld 
a Louisiana apportionment plan for the House of Repre­
sentatives (which reaches an 8 to 1 disproportion ratio) 
where each parish in Louisiana, with one exception, re­
ceived a representative, as does each of the 17 wards in 
New Orleans. The remaining seats in the House are dis­
tributed according to the Method of Equal Proportions.

In Jackman v. Bodine, 78 N.J. Super. 414, 188 A. 2d 642, 
the New Jersey apportionment system, which allows one 
Senator to each county regardless of its population (re­
sulting in a maximum disproportion ratio of 19 to 1) and 
allocates House members on a population basis, was sus­
tained, the court saying (188 A. 2d at 650):

“The fact that the present system of representation 
in our State Senate does not attempt to equalize dis­
proportionate population differences between the vari­



23

ous counties . . .  is not conclusive on the ultimate ques­
tion of whether or not the system discriminates in­
vidiously. To be sure, where the make up of one 
branch of state government completely disregards 
population as a factor in representation, some dis­
crimination must result. But it is only when the dis­
crimination is invidious or when the discrimination 
reflects no policy that the State legislative branch must 
reorganize itself or be reorganized.”

In Jackman, the plaintiffs had argued as Appellants 
here have below that the “Fourteenth Amendment does 
require consideration of population differentials re sena­
torial districts . . .” (at 645).

On June 22, 1962, a three-judge Federal District Court 
reconsidered Baker v. Carr, supra, in light of the Supreme 
Court action remanding the case for further proceedings. 
See 206 F. Supp. 341. At the time of the reconsideration, 
Tennessee had recently enacted legislation reapportioning 
the Tennessee Legislature. The Tennessee Constitution, 
Article II, Section 6, requires that the “ . . . number of sena­
tors which, at the several periods of making the enumera­
tion, be apportioned among the several counties or dis­
tricts according to the number of qualified electors in 
each . . .” . The court found that the apportionment of the 
house resulted in the termination of the “most glaring in­
equities” , but there still remained some inequities in that 
the urban voters were still under-represented. The court 
stated (at 345):

“ . . . One reason for the rule embodies in the Con­
stitution of the state is to afford a measure of pro­
tection to governmental units or subdivisions of the 
state not having a sufficient number of voters to equal 
the full ratio but yet having a substantial population 
and possessing significant and substantial interests in 
state legislative policy. Such a state plan for distri­
bution of legislative strength, at least in one house of



24

a bicameral legislature, cannot, in our opinion, be 
characterized as per se irrational or arbitrary. And 
we think the same conclusion follows if this principle 
is extended in the same legislative house of a bicam­
eral legislature so as to afford substantial representa­
tion to smaller counties by classifying or arranging 
them in floterial districts. We find no basis for hold­
ing that the Fourteenth Amendment precludes a state 
from enforcing a policy which would give a measure 
of protection and recognition to its less populous gov­
ernmental units. . . .”

The court, however, found that the redistricting of the 
state senate required by the constitutional mandate was 
“devoid of any standard or rational plan of classification” . 
The court went on to state (at 346):

“ . . . It creates thirty-three senatorial districts for 
election of the constitutionally prescribed number of 
thirty-three senators, making no pretense to equality 
or substantial equality in numbers of qualified voters. 
Nor are the districts created by the Act equal or even 
remotely equal in area. There are also wide variations 
in the numbers of counties lumped together in the re­
spective districts. The conclusion is irrestible that 
the apportionment wrought by the 1962 Act with 
respect to the Senate can only be described, to use the 
apt phrase of Mr. Justice Clark in his concurring opin­
ion in this case, as a ‘crazy quilt’. It is inexplicable 
either in terms of geography or demography. Neither 
can it be explained upon the theory that it seeks to 
give equal or substantially equal representation to 
governmental subdivisions or units. . . .”  (Emphasis 
supplied.)

The court, by its reasoning, clearly laid down the rule 
that the equal protection of the laws is gratified if at least 
one house of the Tennessee Legislature is based upon or 
reasonably related to qualified voters without regard to 
other factors, when it said (at 349):



25

. . We find in the context of this case that equal 
protection requires that such condition be eliminated 
and that apportionment in at least one house shall be 
based, fully and in good faith, on numbers of qualified 
voters without regard to any other factor.”

And, in respect of the proposition stated in Baker v. 
Carr, on remand, see Toombs v. Fortson, 205 F. Supp. 248, 
257, where the court said:

“Granting the plaintiffs’ petition for declaratory 
judgment, we determine and hold that so long as the 
Legislature of the State of Georgia does not have at 
least one house elected by the people of the State ap­
portioned to population, it fails to meet constitutional 
requirements.”

As indicated in our Statement of the Case, (infra, 
pp. 2-3), not only is the makeup and proper apportion­
ment of the Maryland House of Delegates not in question 
here nor before this Court, but it has been conceded by 
Appellants below to be properly apportioned according to 
population, on the basis of the so-called stopgap legisla­
tion of 1962. Thus, if this Court is to hold that at least 
one house of a state assembly must be elected on a purely 
population basis, as have Baker and Toombs, and others, 
the present apportionment of the Maryland Senate must, 
we submit, be considered in conjunction with a House of 
Delegates which, for purposes of this case is properly ap­
portioned according to population.

And apropos of Appellants’ position herein, which, de­
spite some considerable backing and filling, must be said 
to be that the Senate of Maryland should be held to a tight 
or strict population standard, only slightly different from 
that of the House of Delegates, at the most, and if at all, 
the court in Toombs v. Fortson, said (at 257):



26

“It is urged by the plaintiffs here that in its decision 
in the case of Scholle v. Hare, supra, 82 S. Ct. 910, the 
court in effect decided that constitutional standards 
required that not only one House but both Houses of 
a bi-cameral legislature be related to population. . . .

“There is some basis for plaintiffs’ argument in this 
direction, especially when we consider that in Mr. 
Justice Douglas’ dissenting opinion in the United 
States Supreme Court’s decision in MacDougall v. 
Green, he and his colleagues, Justices Black and 
Murphy, seem to have said that the mere fact that 
the Federal Constitution itself sanctions inequalities 
because of the structure of the United States Senate, 
is no justification for a state also to create inequalities 
by having similar differences. See dissenting opinion, 
Mr. Justice Douglas, MacDougall v. Green, 335 U.S. 
281, at page 287, 289. However, that may be, we do not 
find any authoritative decision by the Supreme Court 
that causes us to require that in order to give the plain­
tiff his constitutional rights the state legislature must 
be constituted of two Houses, both of which are 
elected according to population.”

Scholle v. Hare, 367 Mich. 176, 116 N.W. 2d 350, on re­
mand, decided by a badly split court, struck down a 
Michigan Senatorial apportionment scheme. As indicated 
(Appellees’ Brief, page 14), Mr. Justice Stewart stayed 
the judgment on the ground that issues in that case were 
“ones that were not decided in Baker v. Carr” .14

In Sweeney v. Notte, ....  R.I....... , 183 A. 2d 296, the
Rhode Island Supreme Court struck down a state appor­
tionment plan which limited the House of Representatives 
to 100 but which secured representation to each munic-

14 Quite correctly, Baker v. Carr, Legislative Reapportionment, at 
72 Yale L. J. 968, 1003, footnote 167, concludes that Scholle was 
reached by the Michigan Court, on remand, solely on the basis of 
State precedent, upon which is superimposed the federal requirement 
of equal protection of the laws.



27

ipality, the court holding that such “taken together” re­
sults in a denial of equal protection.15

In Moss v. Burkhart, 207 F. Supp. 885, a three-judge 
statutory court struck down the Oklahoma apportionment 
system, which permitted, inter alia, a disproportionate 
ratio of 12 to 1 in the State Senate. The court felt there 
that a disparity of ten to one in the voting strength between 
electoral districts made out a prim,a facie case for invidious 
discrimination and called for strict justification (at 891).16

In Sincock v. Duffy, 215 F. Supp. 169, a statutory three- 
judge District Court (by a vote of 2 to 1) struck down a 
Delaware apportionment system, which, after a 1963 Con­
stitutional amendment, still contained a disproportion of 
15 to 1 in respect of the State Senate. The court concluded, 
inter alia, that insofar as the State House of Representa­
tives, which struck a ratio of 12 to 1 was concerned, the

15 In The Significance of Baker v. Carr for Indiana, at 38 Indiana 
L. J. 240, comments that the court in Sweeney, as in Scholle on 
remand, assume that constitutionality is solely a question of per­
centages and ratios, rather than a broader question of rationality.

16 In respect of Moss, it is not clear from whence comes the au­
thority to strike such a positive ratio, as, e.g., 10 to 1. And Moss 
further seems to fall into the error of Scholle in superimposing a 
federally protected right upon a state requirement. (See footnotes 14 
and 15.) All of this lends credence to the comment in The Signifi­
cance of Baker v. Carr for Indiana, 38 Indiana L. J. 252, 254, that 
of the courts that have decided apportionment controversies since the 
historic Baker v. Carr decision, only five have determined them ac­
cording to the traditional standards of the equal protection clause, 
namely, Sobel v. Adams, supra; Caesar v. Williams, supra; Maryland 
Committee for Fair Representation v. Tawes, supra; Baker v. Carr, 
on remand, supra; and Lisco v. McNichols, 206 F. Supp. 471 (striking 
down Colorado’s apportionment system). All others “ . . . have gone 
beyond the traditional standards of the equal protection clause sug­
gested by the Baker decision, some in an apparent effort to read into 
that clause the court’s own notion of what is and what is not a demo­
cratic system of legislative apportionment. The Baker decision does 
not require courts to choose between competing theories of rep­
resentation and hold that apportionment systems need be based upon 
the population standard.” (Emphasis supplied.)



28

apportionment basis must be one of population, citing Gray 
v. Sanders, supra. The court further concluded that none 
of the “area” and other considerations discussed by it 
should permit any wide deviation from the principle of 
population representation in the apportionment of the 
Delaware State Senate. Judge Wright, in concurring, ob­
serves that the Senate must be based substantially on 
population. Judge Layton, dissenting on the substantial 
question of apportionment of the Senate, stated that he 
could “find nothing constitutionally wrong in the makeup 
of a State legislature composed of a Lower House whose 
members are elected upon a strict population basis and an 
Upper House whose members are elected in equal num­
bers from each county . . .” .

“Since the so-called federal system has withstood 
175 years of stress and strain in the national political 
arena. I can see no valid reason for interfering with the 
composition of a State Legislature modeled exactly on 
it.” (at 196, 197)

In Mann v. Davis, 213 F. Supp. 577, a split three-judge 
District Court struck down, inter alia, the Virginia Senate 
apportionment system, which results in a disproportion 
in ratio of considerably less than Maryland’s, the consid­
eration being, it appears, almost solely of population. 
Judge Hoffman, dissenting (at 586, 591, 592), states:

“In my judgment the decision of the majority places 
too much emphasis upon the weighted vote of one 
county, city, or district as contrasted with the 
weighted vote in another county, city or district. . . . 
When we consider other states, such as New York, 
Maryland and Hawaii, where the concentration of 
population is in one major city, it may be inappro­
priate to rely so heavily on population.”17

17 In this connection, Scholle v. Hare, on remand; Mann v. Davis, 
together with Moss v. Burkhart, supra; Sweeney v. Notte, supra; 
and Levitt v. Maynard, 104 N.H. 243, 182 A. 2d 897, would seem



29

Apparently, however, Judge Edmund W. Hening, Jr. 
of the Richmond Circuit Court, in upholding Virginia’s 
legislative redistricting acts by his order of September 24, 
1963, differs radically in his conclusions from the majority 
in Mann v. Davis, supra. (See Washington Post and Times 
Herald, September 25, 1963.)

The consensus of judicial thinking, to date, as illustrated 
by the foregoing cases would certainly demonstrate, we 
think, that the rationality of any state apportionment is 
not determined solely by applying the “one man — one 
vote” , purely populative theory. On the contrary, it recog­
nizes the applicability of other substantial factors which, 
when applied to the Maryland Senate scheme, supports 
its constitutionality.

Maryland, appropriately given the cognomen of “America 
in Miniature” , is unusually diverse, geographically and 
economically. Stretching from the Atlantic Ocean to its 
western mountains bordering West Virginia, it contains 
vast climatic differences. The Eastern Shore of Maryland, 
which is physically set apart from the rest of the State, 
is economically geared to agriculture, sea-food producing 
pursuits and to coastal recreation. Its climate is more 
temperate than the western regions of the State. Southern 
Maryland’s economy is also agricultural with a strong de­
pendence upon tobacco raising. The two principal popu­
lation centers are found within the central portion of the 
State. One of these centers, composed of Prince George’s 
and Montgomery Counties, partially circumscribes and is 
contiguous to the District of Columbia. The portions of 
these two counties nearest the District are suburban in

to have departed from traditional equal protection standards by 
holding that reapportionment systems must be based upon popu­
lation. See The Sianificance of Baker v. Carr for Indiana, 38 Indiana 
L. J. 240, 250.



30

nature. The southern portion of Prince George’s and the 
western part of Montgomery are rural. The other popula­
tion center includes Baltimore City and the surrounding 
contiguous portions of Baltimore and Anne Arundel 
Counties.

Whereas Baltimore City is urban in character, its two 
neighboring counties are not; like Prince George’s and 
Montgomery Counties, they possess both suburban and 
rural attributes. The economy of mountainous western 
Maryland is largely devoted to agriculture, mining and 
timber. Numerous of its sections are sparsely populated.

While Appellants bemoan the ways in which the four 
most populous counties of the State and Baltimore City 
allegedly have languished and suffered under malappor­
tionment, common experience points to the contrary. At 
the outset, even on Appellants’ theory, Baltimore City in­
sofar as the State Senate is concerned, is said to be over- 
represented. (See Appellants’ Brief, page 30.) Despite 
overrepresentation, still, presumably, it suffers. If Balti­
more and other large cities suffer from decay, it must be 
laid to a great many factors other than malapportionment: 
migration to suburbs of both population and to an extent 
industry, loss of tax base and source of public finance, etc. 
Certainly, Baltimore and the populous counties have had 
no difficulty in obtaining urban renewal authority, although 
the latter hardly need it (with a few isolated exceptions in 
certain municipalities in those counties).

It must be said, despite the “cancer” of malapportion­
ment of which the Appellants speak, that Montgomery, 
Baltimore, Prince George’s and Anne Arundel Counties 
are the most wealthy, prosperous and progressive counties 
in the State. Partly, this may be laid to home rule, under 
which Baltimore and Montgomery Counties operate and



31

which Prince George’s and Anne Arundel Counties are cur­
rently seeking to achieve. Both Baltimore and Mont­
gomery Counties have wide taxing and other powers, with­
in their express powers. The latter county, within very 
recent memory, enacted its own public accommodations 
ordinance and is also included under the Statewide public 
accommodations act.18

Appellants here seem to make much of the rights of 
people vis-a-vis people, but what they argue, in essence, 
is mathematics, formulae, proportions and figures. As Pro­
fessor Bickel puts it, in Reapportionment & Liberal Myths, 
Commentary, June, 1963 (pages 490-491):

“All we have been given are plays on words, plays 
on statistics, and meaningless figures arbitrarily picked 
out of thin air.

*  ❖  *  *  *  *

“What does it mean to juggle ratios or to bewail the 
fact that 20 per cent of a state’s population can elect 
a majority of its legislature, X  percent of the popu­
lation of the United States can elect the President, and 
X  — 10 per cent can elect the Senate? These are not 
facts; such things never happen.”

Appellants complain of gross deprivation while at the 
same time the counties most said to be suffering under 
malapportionment of the State Senate have prospered as 
have no others in the State. They lump together Baltimore 
City with the populous counties because the figures look

18 Indeed, it is the very existence of broad home rule powers made 
available to the counties under Article X I-A  of the Maryland Con­
stitution and implemented by Article 25A of the Annotated Code 
of Maryland which mitigate whatever disadvantage these counties 
may incur in the Maryland Senate. Experience has shown that it 
is the suburban counties that are most likely to avail themselves of 
the home rule option, as indicated above. Home rule counties need 
not return to the legislature for many of those legislative authorizations 
which non home rule counties can obtain only biennally at Annapolis.



32

better; actually, the city and those counties (excepting 
Baltimore) have little in common. The four counties in­
volved here have both heavily populated and suburban- 
type areas and sparsely settled agricultural regions. The 
city dwellers of Baltimore, with their port authority and 
steel production are confronted with problems of a charac­
ter completely different from those facing the four subur­
ban counties. These urban problems, which involve large 
expenditures of funds, concern themselves with adequate 
standards of health, employment and housing for the city 
residents, many of whom are of the lower economic and 
cultural class. The suburban counties, however, are faced 
with problems of prosperity, which, fortunately, do not in­
volve the same expenditure of public funds. Planning, 
zoning, water and sewer, subdivision control and ade­
quate park and new school facilities command the atten­
tion of the more prosperous suburban dweller. Thus, it 
may fairly be said that the suburbs are peopled by the 
“haves” and Baltimore City by the “have nots” . Yet all 
are combined together for purposes of Appellants’ com­
parisons.

If population, in the apportionment of the Maryland 
State Senate, is to be the sole or “strongly dominant” 
criterion, as Appellants insist, then it becomes very prob­
able that not only the rural counties of the State, but 
rural areas of the populous counties, in their turn, will be­
come, in effect, malapportioned, with the specialized in­
terests of those rural areas subordinated to the interests of 
the more densely industrialized and urbanized areas of 
those same counties. The State has a legitimate concern in 
those interests and the State through apportionment should 
be permitted to strike a balance, we submit, to protect them 
both. As Professor Bickel further states it, in Reapportion­
ment & Liberal Myths, Commentary, June, 1963 (page 
486):



33

. . most, if not all, malapportionments favor rural 
interests over urban, allocate more strength propor­
tionately to sparsely populated areas than to densely 
populated ones, and other smaller discriminations 
within these large ones. This may be undesirable, but 
who can say it is irrational? Is it more irrational 
than a farm policy that favors farmers or an anti­
trust policy that favors small enterprise?”

And, as stated by James Kilgore Edmundson, Jr., Legis­
lative Reapportionment, Baker v. Carr, 65 West Virginia 
L. Rev. 129, 141, 142:

. . equal representation does not necessarily mean
good government___For ‘local prejudices’ are spawned
not only in rural areas . . .”

Jo Desha Lucas, in his Legislative Apportionment and 
Representative Government: The Meaning of Baker v. Carr, 
61 Mich. L. Rev. 711, 804, states:

“It is to be hoped that . . . the advantages of sim­
plicity will not prompt adoption of a standard of 
mathematical equality based solely upon population, 
thus ending centuries of experimentation with the 
design of democratic institutions which will accom­
modate within the same unit of government a wide 
variety of interest groups without subjecting all to 
absolute domination by a close majority which is geo­
graphically concentrated and highly organized.”

Clearly, interests other than population must be taken 
into account in the apportionment of the Maryland Senate, 
where, as in this case, the apportionment of the House of 
Delegates is not under attack, nor in question, and is, in 
fact, insofar as the record in this case is concerned, prop­
erly and constitutionally, though not perfectly, appor­
tioned.19

19 One wonders whether population is a proper criterion in any 
event; should voter registration be considered ?



34

Lisco v. McNichols, supra, recognizes as a relevant fac­
tor representation of industrial interests; Sobel v. Adams, 
supra, recognizes representation of general regional in­
terests; Caesar v. Williams, supra, recognizes protection of 
sparsely settled areas; Levitt v. Maynard, 104 N.H. 243, 182 
A. 2d 897, recognizes as “rational” wealth and the propor­
tion of total taxes paid by a district; WM.C.A., Inc. v. 
Simon, supra, recognizes a state apportionment plan “of 
historic origin” as “not irrational” , which “clearly gives 
weight to population within the state’s counties and which 
forms a basis for the ingredient of area, accessibility and 
character of interest” , and Tyler, Court versus Legislature, 
27 Law and Contemporary Problems, 390, 391, 393, recog­
nizes economic interests.

The court below (R. 167, 168), in upholding the Mary­
land Senate apportionment plan on historical grounds, 
quite irrespective of population, did so on the rationale 
that representation on a county basis, with some modifica­
tion in respect of Baltimore City, was deeply rooted in 
Maryland traditions and history, predating, even, the ex­
istence of the Federal Union. In fact, the court found that 
the United States Senate was modeled upon the Maryland 
plan (See R. 166). See Journal of the Constitutional Con­
vention, G. P. Putnam Sons, 1903, page 202.

Starting from Appellants’ beginning point, namely, that 
population must be the sole or dominant criterion in ap­
portionment of the Senate, no other consideration or stand­
ard can then be accepted (see Appellants’ Brief, page 72). 
However, Appellees submit that, on the authority cited 
hereinbefore, under the Maryland plan, history and tra­
dition may be found, by this Court, to be a rational basis 
for the apportionment now under attack. Jerold Israel, 
On Charting a Course through the Mathematical Quag­
mire: The Future of Baker v. Carr, 61 Mich. L. Rev. 107, 
143, comments that a court:



35

“should not, as in the Scholle decision (on remand) 
reject all bases for apportionment schemes other than 
population as arbitrary and therefore insist upon ‘prac­
tical equality’ of representation. Neither should it, 
although most lower courts have done so, permit the 
use of factors other than population only insofar as 
population is still retained as the predominant factor. 
Both of these approaches can be justified only on the 
basis of a fundamental political value in our society 
which demands total equality of representation, and 
. . . sustaining the presence of such a fundamental 
concept necessarily involves the interpretation of the 
‘republican form of government’ guaranteed to the 
states under Article IV, Section 4.”

As the Solicitor General of the United States said, in 
his address before the Tennessee Bar Association on June 
8, 1962 (see Current Constitutional Issues, page 3):

. . History is a powerful influence in constitu­
tional law . . .  it would not surprise me greatly if the 
Supreme Court were ultimately to hold that if seats 
in one branch of the legislature are apportioned in 
direct ratio to population, the allocation of seats in 
the upper branch may recognize historical, political 
and geographical subdivisions provided that the de­
parture from equal representation in proportion to 
the population is not too extreme.”

The Appellants rely heavily upon political theories and 
doctrine, which in their opinion make it desirable to have 
certain reforms effected in the composition of the Mary­
land General Assembly. However, the issue presented to 
the court is not whether the people of the State of Mary­
land have prudently or imprudently adopted provisions in 
their Constitution, but rather whether these provisions of 
the Maryland Constitution transcend the limitations pre­
scribed in the Fourteenth Amendment to the Constitution 
of the United States by denying to the Appellants in their



36

individual capacities equal protection of the laws. When 
a state statute or constitutional provision is attacked as 
being violative of the Equal Protection Clause of the Four­
teenth Amendment, the test to be employed has been set 
down by the United States Supreme Court in Lindsley v. 
National Carbonic Gas Co., 220 U.S. 61, 78, 55 L. Ed. 369, 
377, as follows:

“The rules . . . are these: 1. The equal protection 
clause of the 14th Amendment does not take from the 
state the power to classify in the adoption of police 
laws, but admits of the exercise of a wide scope of dis­
cretion in that regard, and avoids what is done only 
when it is without any reasonable basis, and there­
fore is purely arbitrary. 2. A classification having 
some reasonable basis does not offend against that 
clause merely because it is not made with mathemati­
cal nicety, or because in practice it results in some in­
equality. 3. When the classification in such a law is 
called in question, if any state of facts reasonably can 
be conceived that would sustain it, the existence of 
that state of facts at the time the law was enacted 
must be assumed. 4. One who assails the classifica­
tion in such a law must carry the burden of showing 
that it does not rest upon any reasonable basis, but is 
essentially arbitrary. . . .”

See also Metropolitan Casualty Insurance Co. v. Brownell, 
294 U.S. 580, 584, 79 L. Ed. 1070.

Stated more succinctly, the State is to be allowed every 
reasonable latitude, and the Maryland Constitution will 
not . . be set aside if any state of facts reasonably may 
be conceived to justify it. . . McGowan v. State of Mary­
land, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393.

It is not inequality alone that calls for a holding of un­
constitutionality. Only if the inequality is based on an 
impermissible standard should the court condemn it. In 
resolving the issue here presented, the personal choices of



37

the Appellants or Appellees are not controlling, but, rather, 
does the choice of the majority of the people of Maryland, 
as embodied in their Constitution, deny to the Appellants 
the equal protection of the law.

And, as has been so thoughtfully argued by Appellants 
in their Jurisdictional Statement filed in this Court in 
Roman v. Sincock (Sincock v. Duffy in the United States 
District Court for Delaware), pages 26, 27, 28:

. . it cannot be supposed for one moment that, 
if the Reconstruction Congress had ever considered 
area representation in one house of a state legislature 
to constitute a denial of the equal protection of the 
laws, they would ever have readmitted Georgia — 
much less South Carolina, which had been first to 
secede and first to fire on the flag.

“ . . . So far as we are aware, no court in contro­
versies involving apportionment of a state Senate has 
troubled to look to contemporaneous Congressional 
interpretation of the Equal Protection Clause as shown 
by the readmission of the former Confederate States.”

To require that each house of the General Assembly be 
elected by a system of population proportions, as set forth 
in the Bill of Complaint, would substantially defeat the 
reasons for bicameral legislatures, particularly where the 
terms and qualifications of the members are the same or 
similar to those of the Maryland General Assembly.20 It may 
be significant to note that geographical considerations have 
been recognized by the people of the State of Maryland 
in the composition of the judiciary, and that Article IV, 
Section 14, of the Maryland Constitution, in prescribing 
the composition of the Maryland Court of Appeals, states 
that its membership shall be composed of persons residing 
in certain geographical portions of the State and that the 
Court’s composition is based solely upon these geographical

20 See Article III, Section 9, Maryland Constitution.



38

considerations exclusive of the personal qualifications of 
the individual judges. This is further evidence of the desire 
of the people of the State of Maryland to have representa­
tion, whether in the legislative department or the judicial 
department, based upon nonpopulation considerations.

In summary, it is respectfully urged that the opinion of 
the trial court and of the Maryland Court of Appeals 
below followed the authoritative decisions of this and 
other courts when they ruled that the Fourteenth Amend­
ment does not require that the Senate of Maryland must 
be elected according to population or apportioned on a 
basis which is grounded on considerations other than his­
torical precedent and tradition.

II.
T H E  FE D E R A L PLAN A N ALO GY IS A PPLIC A B LE TO  T H E 

M ARYLAND SEN A T E.

Quite correctly, Appellants contend that the majority 
of the Court of Appeals below points to the so-called Fed­
eral Plan as furnishing analogy and precedent for the com­
position of the Maryland Senate. Quite incorrectly, we 
submit, Appellants advert to the evolution of the State 
Senate of Maryland and not finding what they consider a 
symmetrical, logically tidy development in that body, 
especially as Baltimore City is affected, they conclude that 
there is no valid comparison, that its apportionment scheme 
lacks rationality and demonstrates an absence of any 
policy of the State. Even if there were a valid comparison, 
they continue, the disparities present in that body violate 
Section 1 of the Fourteenth Amendment.

Initially, it must be conceded, we think, that the de­
velopment of the Federal Union, insofar as representation 
in the United States Senate is concerned, was hardly on a 
uniform basis, nor did it represent any discernible policy.



39

Apart from the original thirteen states and the sovereignty 
relinquished by them to the Union, can it be said that 
their sister states (excepting perhaps Texas) thereafter 
gave up sovereignty to become states? Can it not be said, 
e.g., that the entry of Alaska and Hawaii (each with two 
Senators) into the union or the creation of the District of 
Columbia (with no representation in Congress and a vote, 
now, only in Presidential elections) do not constitute a dis­
tinct and substantial modification of the original so-called 
Federal Plan?21 The creation of each state or group of 
states, as we read history, was done on an arbitrary, com­
promise basis. Politics, geography, economics and group 
pressures played their part, pressures by groups not even 
represented in the state-making process. The exigencies 
of the situation, not a cohesive, continuous, clearly charted 
governmental policy, controlled. However, in the Ameri­
can political system, can it be said that such development 
because it worked toward no clearly defined objective, or 
represented no application of stated policy, has been “ irra­
tional” ? And can it be said that a periodic addition to the 
representation of Baltimore City in the State Senate, on 
the basis, undoubtedly, of compromise, because of Balti­
more’s unique position, geographically, as a great port 
city, industrially and otherwise, represents an “ irrational” 
evolution?

By Appellants’ standards, no particular form of repre­
sentation in the State Senate would qualify (except purely 
populative) since Baltimore City is not a county. Yet, 
can the State be said to have acted “ irrationally” in desir­
ing, on the one hand, not to have itself dominated by 
Baltimore City and on the other to have, from time to

21 And it may be questionable whether the states forming the Union 
possessed anything resembling true sovereignty by_ virtue _ of their 
status under the Articles of Confederation. See Amicus Brief of the 
Solicitor General, pages 77, 78.



40

time, increased the City’s representation, so as to strike a 
balance with the rural areas, especially where the in­
creases were voted by a majority of the citizenry?

Is not the action of the State in regard to its Senate 
apportionment the “proper diffusion of political initiative 
as between its thinly populated counties and those having 
concentrated masses” , spoken of in MacDougall v. Green, 
supra?

And can it be said that a plan which allocates to each 
county a single Senator, on a nonpopulation basis, is an 
“ irrational” policy, where, as has been found by the court 
below, the counties in Maryland “have always possessed 
and retained distinct individualities” ? (R. 166). See the 
discussion in W.M.C.A., Inc. v. Simon, supra, at 376, where 
the county is shown to be a more original form of local 
government than any other, “ traced directly to England” . 
And see, in this respect, the opinion of the lower court 
(R. 165).

In respect of the argument that the states, in relation 
to the Federal Government, cannot be compared to the 
county (1) because of the attributes of sovereignty the 
former possess and (2) because the federal system came 
together on a basis of compromise among the original states 
whereas the county exists only at the pleasure of the State, 
it must again be said that the 37 states admitted to the 
Union after 1789 were never sovereign bodies and that 
none of the states now possess many, if any, true attributes 
of sovereignty. With each passing day, they become, more 
and more, mere geographical segments of the whole. And 
apropos of the compromise argument, see Professor Israel’s 
On Charting a Course through The Mathematical Quag­
mire: The Future of Baker v. Carr, 61 Mich. L. Rev. 107, 
121, 122, 124, where he says:

“ . . . it would be anomalous to hold that the Consti­
tution condemns a state’s adoption of a bicameral



41

legislature with one house apportioned essentially on 
the basis of population and the other apportioned with 
reference to the representation of political subdivisions 
when that same constitution adopted just such a legis­
lative system, with substantial numerical inequality 
of representation in the Federal Senate, which has 
been accepted without question since its ratification.

. . the question has been raised as to how an in­
stitutional scheme may be rational if it is the product 
of compromise between equal forces and arbitrary 
when it results from a grant made within the discre­
tion of the granting body.”

Israel concludes:
“The satisfactory operation of Congress seems to 

illustrate the general rationality of a system of appor­
tionment which gives some weight (although not 
necessarily the same as in the federal system) to fac­
tors other than population (including, but not limited 
to, representation of political subdivisions).”

And see Professor Bickel’s comment, in Reapportionment 
& Liberal Myths, Commentary, page 487:

“It is very well to maintain that the federal Senate 
and the federal Electoral College are the product of an 
historical compromise, which is explained by particu­
lar historical circumstances and which is not appli­
cable to the composition of the House of Representa­
tives or of state legislatures. But are we to believe 
that our federal government lacks a feature that is 
‘basic to the successful operation of a democracy’? — 
that, indeed, it contains an inconsistent feature, and 
is therefore not a successfully operating democracy?”

Appellees question how Appellants on the one hand can 
point with dismay to malapportionment and plead in this 
Court for justice, equality and a “one man — one vote” 
principle in respect of State legislative apportionment, and 
yet on the other hand approve, and defend, as they do, a



42

federal Senate system which results in a gross dilution of 
individual voting power up to a ratio of 75 to 1, over twice 
the maximum complained of here. Can the Fourteenth 
Amendment possibly be read in context with the Federal 
Constitution and Bill of Rights so as to prohibit by the 
state a discrimination of the type complained of here, and 
on the other hand permit, even require, a discrimination 
twice as great by the Federal Government in respect of 
individual voting power where a United States Senator 
is concerned? Or is the Fifth Amendment applicable to 
such, under the rationale of Bolling v. Sharpe, 347 U.S. 
497, 74 S. Ct. 693, 98 L. Ed. 884.

While this Court will hardly be bound by a ruling of any 
lower court in these matters, the Federal analogy is not 
without support, in addition to the ruling of the Maryland 
Court of Appeals. See Nolan v. Rhodes, supra. And see the 
dissenting opinion of Judge Layton in Sincock v. Duffy, 
supra.

The argument may continue, pro and con, as to what 
aspects of the Maryland Senate system was admired and 
emulated by Madison and others of the founding fathers 
in their deliberations. However, it seems clear that the 
Maryland Senate system did serve as a model, in many 
respects, for the Federal Senate. The Journal of the Con­
stitutional Convention, G. P. Putnam Sons, 1903, page 202; 
No. 63, The Federalist Papers.

Appellants argue that even if the Federal plan had been 
adopted in Maryland, it has been abandoned because of the 
special treatment given Baltimore City. The reason special 
treatment was given to Baltimore City is clear when it is 
considered that in 1851 Baltimore City became a separate 
and distinct political entity. At the time it became an 
independent government unit, it received the same treat­
ment as the counties, to wit, one senator and membership



43

in the House of Delegates based upon population. Because 
of the large number of delegates to be elected from Balti­
more City, it appeared that elections-at-large in Baltimore 
City produced an unwieldly number of candidates, and 
it was deemed wise and appropriate to divide Baltimore 
City into legislative districts so that up to the 1851 Con­
stitution the Federal plan was substantially in effect.

The Constitution of 1864 was adopted to weaken the 
political strength of several Southern Maryland counties 
which had sympathized with the Confederacy, and had 
the unfortunate effect of disfranchising substantial num­
bers of Maryland citizens. As a result of this Constitution, 
representative government in Maryland came to a stand­
still, and it did not take long for the Constitution of 1867 to 
be drafted and subsequently ratified. In 1864 then, for 
the first time, there was a substantial deviation from the 
Federal plan, which recognized the domination of Balti­
more City in the economic, political and social structure 
of the State. It is respectfully urged that this recognition 
of Baltimore City created an exception to the Federal plan 
rather than an abandonment of the same. It is further 
urged that there was a sound and rational State policy to 
support this exception.

The City of Baltimore at that time, and today, houses a 
vast industrial complex and is the State center of com­
merce. In addition, it is a major world seaport, which 
places Baltimore in a special trading position requiring a 
vast transportation and communications network. Because 
of these factors, unique interests have congregated in the 
City of Baltimore and the making of an exception recog­
nizing these factors is a reasonable State policy.22

22 See Final Report of The Commission on More Equitable Rep­
resentation in The General Assembly of Maryland, Walsh, Chairman, 
page 9.



44

Territorial uniformity is not a constitutional requisite. 
Salsburg v. Maryland, 346 U.S. 545, 74 S. Ct. 280, 98 L. Ed. 
281; Ocampo v. United States, 234 U.S. 91, 34 S. Ct. 712, 58 
L. Ed. 1231.

Baltimore achieved a status of a political subdivision, 
independent of Baltimore County, in 1851. From that time 
until 1864, it had one Senator. In 1864, in recognition of 
its emerging status, it was, by the Constitution of that 
year, given three Senators. In 1867, it received broader 
powers of local government, retaining its three Senators. 
In 1900 an additional legislative district was created and 
again, in 1922, two more districts were created, because of 
an increase of territory by annexation.

Bell, The Legislative Process in Maryland, page 9, states 
that:

“Apportionment of the Senate is based on the prin­
ciple of equal representation of the counties, with 
some concession to Baltimore City because of its size.” 
(Emphasis supplied.)

Bell makes it clear that it was intended, e. g., under the 
1837 amendment to the Maryland Constitution, to limit 
the representation of Baltimore City. Under the Constitu­
tion of 1851, its representation in the General Assembly 
was again limited. Bell does not conclude, as Appellants 
argue, that Baltimore City’s increase in legislative dis­
tricts was because of population, although it cannot be 
denied that its population had increased, in relation to the 
rest of the State.

Bell concludes (page 20):
“The Maryland system of legislative apportionment 

is, as admitted by delegates to the early constitutional 
conventions, a compromise between the ideas of rep­
resentation by counties and representation according 
to population. The principle of county representation 
is obviously given even greater weight in the Senate



45

than in the House of Delegates. Any discussion of 
revising the present distribution of seats must take 
into consideration several factors; the weight of tra­
dition, the concept of county representation, legislative 
practices in passing local legislation, the existence in 
the State of one giant city, and rival theories of rep­
resentation. It is no easy task to devise a system to 
satisfy all needs, and in practice they must be balanced 
by compromise.”

The compromise evident in the apportionment of Balti­
more City, in relation to the State Senate, is, we submit, a 
basis sufficient to support its rationality under the Four­
teenth Amendment. The assignment of Senators to Balti­
more City took place gradually, from 1776 to 1922, approved 
on each occasion of change by the people on constitutional 
referendum. To conclude, as apparently Appellants have, 
that because the adding of Senators and legislative districts 
took place in some general relation to an increase in popu­
lation in Baltimore City, this population growth triggered, 
directly, such increase, is to ignore the other factors present 
in the Maryland system. In the Report of Committee on 
More Equitable Representation in the General Assembly 
of Maryland, February 14, 1947, the committee noted that 
“Maryland, while small, has a great diversity of interests 
scattered among the counties, such as coal, lumber, or­
chards, tobacco, truck farming, sea food, industry and port 
facilities. This fact, the committee observed, makes it es­
sential to continue the present plan of having every county 
and Baltimore City represented in the legislature . . .” .

It was to assure this continued diversity of interests as 
well as to protect the counties and Baltimore City, as it 
were, from each other, that the present Senate apportion­
ment evolved to its present form. The State, in the only 
fashion in which such things happen under our system, 
haltingly, yet according to State constitutional norms and



46

forms of law, made its collective judgment from time to 
time that this evolution best served its varied interests. It 
cannot be said, we submit, that such an evolution now 
must be deemed not rational because it lacked the type of 
clearly defined goals or objectives these Appellants believe 
the system at every stage should have shown or because 
its long-range aspirations have lacked periodic restate­
ment. Constitutional change comes slowly and is fashioned 
in the crucible of compromise. Even this Court, in Baker v. 
Carr, supra, has not prophesied where we go from here in 
reapportionment matters.

III.
T H E  G E N ER A L A SSEM B LY  A S A W HOLE

As pointed out by Appellees hereinbefore (pp. 2, 3), 
consideration of alleged invidious discrimination or mal­
apportionment of the General Assembly as a whole is 
not before this Court. For purposes of this case and for 
all other purposes, the Maryland House of Delegates is 
now properly apportioned by virtue of the 1962 “stopgap” 
legislation. Chapter 1 of the Special Session of 1962. Ap­
pellants, in pressing this point by a series of irrelevant 
and in fact misleading arguments, have failed to demon­
strate how this Court can reach a question not only not 
decided below, in either the Maryland Court of Appeals or 
in the trial court, but a question which, in another form, 
was expressly conceded by them (R. 114).23

Appellants ingratiatingly point to a recent passage by 
the Senate of three proposals for amending the Constitu­
tion of the United States, all originating with the Council

23 This legislation has been attacked as being unconstitutional and 
a Bill for Declaratory Decree to have the reapportionment legislation 
declared null and void was dismissed on September 24, 1962. (Allen, 
et al. v. Simpkins, et ah, Circuit Court for Calvert County, Equity 
No. 2097.)



47

of State Governments, one of which would have limited 
the authority of this Court in respect of certain matters 
(Appellants’ Brief, pages 63, 64). The lack of relevance 
to this case of the above observation by Appellants requires 
little answer. They then point to a failure by the Senate 
to approve, in 1963, certain legislation passed by the House 
as an indication of the general recalcitrance by the upper 
body of the Maryland General Assembly to participate, 
responsibly, in the legislative process. This is hardly the 
forum in which to argue the worth of particular legislation, 
especially the items selected by Appellants as being repre­
sentative of the popular will, but suffice it to say there 
were substantial numbers who at the time regarded the 
examples cited as lacking in merit.

Appellants vow their commitment to the principle of 
bicameralism, insisting at the same time that it is the 
existence of the two houses, rather than the difference in 
the bases of those houses, that is, the essential aspect of the 
State two-house legislative system. Ever since the earliest 
times in our American Colonies local subdivisions such as 
towns or counties, rather than approximately equal popu­
lation units, were the dominant unit of government. The 
Colonial Assembly and its successor, the State Legislature, 
were composed of representatives from these units of gov­
ernment.24 In fact, the Constitution of Maryland of 1776 
accepted this theory of governmental structure when it 
allotted to each county four members in the House of 
Delegates, regardless of size, population or any other fac­
tor, and also allotted two delegates to Annapolis and 
Baltimore Town,25

24 See discussion by Mr. Justice Frankfurter in his dissenting 
opinion in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 
663, 738.

25 Ibid, Footnote No. 5.



48

Representative government, whether upon the state or 
Federal level, has clearly recognized the lesser unit of 
government as a basis for political representation.

Notwithstanding the foregoing, at least since the adop­
tion of the Constitution of the United States in 1789, the 
states have relinquished their “sovereignty” in the tradi­
tional sense of the word.26 No state may enter into a treaty 
with a foreign nation, exchange diplomatic representatives, 
secede, declare war, alter its boundary or even enter into 
a compact with a sister state without the consent of Con­
gress. There is no question that the states retain certain 
elements of sovereignty, but these elements are becoming 
increasingly more limited.

In reviewing the Maryland Constitution, it has been 
observed:27

“In general, it may be observed that the discussion 
of the day indicates clearly that the most serious prob­
lem which confronted the framers of our Federal and 
State Constitutions was that of securing a practical 
system of checks and balances to prevent the dispro­
portionate increase of power on the part of any one 
arm of the government. They sought the golden mean 
between the possibility of lodging oppressive power in 
the hands of the few or permitting the masses to run 
wild in excesses of sudden emotion or passion. On one 
hand, whilst overthrowing an established ‘nobility’, 
they feared the creation of a new autocracy of wealth 
and position; on the other, they dreaded an irrespon­
sible ‘mobility’, as mass control was then termed. . .

26 “ Sovereign” , according to Webster’s New International Diction­
ary, 2nd Edition, is defined:

“ Independent of, and unlimited by, any other; possessing, or 
entitled to, original and independent authority or jurisdiction; 
as a sovereign state (that is one exercising the usual powers of 
self-government and of declaring peace and war without outside 
control) ; sovereign discretion.”

37 The Federalist, edited by J. E. Cooke, Wesleyan University 
Press (1961), page 430.



49

Likewise, many sister states have deemed it advisable 
to grant unto counties (or towns) equal representation of 
governmental units in at least one house of the legislature. 
See Book of the States, 1962-63, Council of State Govern­
ments, pages 58-62.

Appellants state that “For better or for worse, the people 
of the United States and, if given the chance once again, 
the people of Maryland, follow the principle of majority 
rule” (Brief, page 68). As pointed out earlier, in the Fed­
eral Congress, majority rule is not the general rule; rather 
majority rule is substantially compromised, e.g., in the 
United States Senate and in the District of Columbia pro­
vision. Nor can it be said that the people of Maryland 
have subscribed to the type of “majority rule” Appellants 
advance. On the contrary, under the first constitution of 
Maryland, in 1776 (Article XV),  Appellants’ principle of 
majority rule was not established, and in the subsequent 
constitutional ratifications, in 1837, 1851, 1864, 1867, 1900 
and 1922, the people of Maryland voted in favor of the 
very thing Appellants insist the people of Maryland are 
not in favor of. The principle of pure “majority rule” , as 
defined by Appellants, has never been a part of either the 
Federal or state systems; to hold so is to misapply experi­
ence and to misread history. In fact, the foundation stone 
of democratic government is the protection of the minorities 
from the “Tyranny of the majority.” See Nolan v. Rhodes, 
218 F. Supp. at 958. Illustrative of this is the great volume 
of litigation entertained by this Court in the areas of civil 
liberties, freedom of speech and of religion. As stated by 
Mr. Justice Frankfurter, in his dissenting opinion to Baker 
v. Carr (369 U.S. 301):

“The notion that representation proportioned to the 
geographic spread of population is so universally ac­
cepted as a necessary element of equality between man 
and man that it must be taken to be the standard of



50

a political equality preserved by the Fourteenth 
Amendment — that it is, in appellant’s words ‘the basic 
principle of representative government’ — is, to put 
it bluntly, not true. However desirable and however 
desired by some among the great political thinkers and 
framers of our government, it has never been gener­
ally practiced, today or in the past. It was not the 
English system, it was not the colonial system, it was 
not the system chosen for the national government by 
the Constitution, it was not the system exclusively or 
even predominantly practiced by the states at the time 
of adoption of the Fourteenth Amendment, it is not 
predominantly practiced by the states today.”

Appendix A to the Dissenting Opinion of Chief Judge 
Brune, in the Maryland Court of Appeals (R. 184, 185, 186, 
187) shows that Baltimore County, with 492,428 inhab­
itants, and Baltimore City, with 939,024, on a 1960 basis, 
totaling 1,431,452, slightly under half the population of 
the State, if given Senators on the basis suggested by 
Appellants, could between them now virtually control the 
Senate. Considering their connections and community of 
interests, might it not be said that this combine could as­
sert itself against all opposition, to the detriment of the 
rest of the State, in any given legislative situation? Obvi­
ously, carrying “one man — one vote” to its illogical, and 
unworkable conclusion in this case, pure equality of repre­
sentation would result in a situation (based upon any 
reasonable projection of Baltimore County’s exploding 
population) where Baltimore City and County combined 
would be able to control, and if they chose, run roughshod 
over the rest of the State.28 Appellants, by manipulation

28 Similarly, based upon any reasonable projection of population 
trends, the four suburban counties, if given the senatorial representa­
tion based on population which Appellants seek, could control the 
Senate to the detriment not only of the rural counties but of Baltimore 
City as well. Such a coalition could represent a real threat to Balti­
more City since it is entirely possible that these four prosperous



51

of figures, have, in respect of the above observation, we 
think, become their captive. Can they argue that control 
by Baltimore City and County of the State Senate will 
assure a “proper diffusion of political initiative” ? Appel­
lees submit that the relief which Appellants demand here 
will result in a far worse malapportionment than is now 
complained of, in the words of Mr. Justice Frankfurter, 
369 U.S. at 270, “disappointing to the hope” .

If this Court should inquire into the question of whether 
the Maryland governmental structure as presently con­
stituted actually possesses the “responsiveness” spoken of 
in Baker v. Carr and Legislative Apportionment: A Prob­
lem of Standards, 72 Yale L. J. 968, et seq., it should be 
noted that, the fact of a strong Governor, able to steer his 
program through the Assembly, notably where the Gov­
ernor and the majority party are of the same political 
complexion, would tend to offset some discrepancy in 
Senate representation in favor of certain areas, by vir­
tue of the Governor’s ability to veto bills and by thus 
doing coerce legislators to support his program.

Maryland has traditionally had strong executive leader­
ship. Maryland’s Governors, now elected at large, are there­
fore bound to be responsive to all segments of the popu­
lation of the State. The State has traditionally possessed 
a strong two-party system, with strong factions within 
each party; thus, gubernatorial candidates have been ex­
posed to vigorous statewide primary and general elections. 
Both campaigns give him contact with the various diverse 
elements within the State. In addition, of the last six 
Governors (spanning the period from 1920 to the present)

counties could combine to protect their accumulated wealth to the 
sacrifice of the welfare needs of the economically less fortunate people 
of Baltimore City.



52

four had previously held statewide offices,29 Nor have 
Maryland’s Governors been unresponsive to the urban or 
suburban interests of the State, four of the six having been 
residents of Baltimore City and one of those having served 
as Mayor of Baltimore City. Illustrative of the control 
which Maryland’s Governors have exercised in the General 
Assembly was the success of Governor Tawes in obtaining 
the favorable passage of five of the six items of his 1963 leg­
islative program.30 One of these items, the abolition of slot 
machines in four southern Maryland counties, could hardly 
be regarded as a catering to the rural interests, See Chapter 
617, Laws of Maryland, 1963.

In any event, whatever avenues of inquiry may be ex­
plored by this Court in determining whether invidious 
discrimination prevails in the State Senate of Maryland, 
the form of apportionment, here in question, we submit 
represents rational, though not perfect, State policy. We 
believe sufficient bases have been demonstrated herein on 
which it should be sustained.

29 Governors Ritchie (1920-1934), O ’Conor (1939-1946) and Lane 
(1947-1951) served as Attorneys General prior to their governor­
ship and Tawes (1959 to present) as Comptroller.

30 Baltimore Morning Sun, January 3, 1963.



53

CONCLUSION
For the reasons herein stated, Appellees respectfully 

request this Court to uphold the judgment of the Court of 
Appeals of Maryland.

Respectfully submitted,

Thomas B. Finan,
Attorney General of Maryland,

Robert S. Bourbon,
Assistant Attorney General 

of Maryland,
Suite 1200, One Charles Center, 
Baltimore 1, Md.,

For Appellees.