Roman v Sincock Brief Amicus Curiae

    No. 307

J n  t o  JSttjjitmt dfoort of t o  ttito it  JStatea
October Term, 1963

M abel V . R oman, Clerk of the P eace for N ew  
Castle County, et al., appellants 

v.
R ichard Sincock, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE DISTRICT OF DELAWARE

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ARCHIBALD COX,
Solicitor General, 

BRUCE J. TERRIS,
Assistant to the Solicitor General, 
RICHARD W . SCHMUDE,

Attorney,
Department of Justice, Washington, D.C., 20530.



I N D E X

Paga
'Opinions below________________________________________  1
Jurisdiction____________________________________________  1
Questions presented_________
Interest of the United States.
.Statement:

1. The complaint_______
2. The pre-decision proceedings in the district court.
3. The evidence___________________________________  6

a. The apportionment before the 1963 con­
stitutional amendment__________________  6

b. The apportionment after the 1963 constitu­
tional amendment_______________________ 8

4. The decision and decree of the district court_____  10
Argument:

Introduction and summary_________________________ 13
I. In determining whether an apportionment of 

legislative representatives violates the equal
protection clause, the basic standard of com­
parison is the representation accorded qualified
voters per capita____________________________ 16

II. The Delaware apportionment creates gross 
discrimination among voters without a ra­
tional foundation in policy__________________  23

III. Even if the apparently capricious apportion­
ment of the Delaware legislature had an in­
telligible foundation, the discrimination would 
violate the equal protection clause unless based 
upon criteria relevant to legislative apportion­
ment________________________________________  32

1. The principle___________________________ 32
2. Application to the instant case_________  43

(i)714- 431— 63----------- 1

to
 

to
 t

o



II

Argument—Continued
IY. The apportionment of the Delaware legislature 

violates the equal protection clause by sub­
ordinating popular representation to the rep­
resentation of political subdivisions to such a 
degree as to create gross inequalities among 

voters and give control of both houses of the paga
legislature to small minorities of the people— 45

Y. The injunction ordered by the district court is
not an abuse of discretion------------------------------- 56

Conclusion_____________________________________________  59
Appendix----------------------------------------------------------------------- 61

CITATIONS
Cases:

Armstrong v. Mitten, 95 Colo. 425, 37 P. 2d 757-------  56
Ashury Park Press, Inc. v. "Woolley, 33 N.J. 1, 161

A. 2d 705________________________________________ 57
Baker v. Carr, 369, U.S. 464------------  16,23,27,33,37,39,54
Brooks v. State, 162 Ind. 568, 70 N.E. 980---------------  56
Brown v. Board of Education, 347 U.S. 483-------  52, 53, 54
Butcher v. Trimarchi, 28 D. & C. 2d (Pa.) 537------ 57
Davis v. Mann, 213 F. Supp. 577, pending on appeal,

No. 69, this Term_______________________________  56
Denny v. State, 144 Ind. 503, 42 N.E., 929---------------  56
Fortner v. Barnett, No. 59, 965, Chancery Court,

First Judicial District, Hinds County, Mississippi- 58
Goesaert v. Cleary, 335 U.S. 464------------------------------  16
Gomillion v. Lightfoot, 364 U.S. 339-----------------------  37
Gray v. Sanders, 372 U.S. 368___________  37,38,40,41,42
Griffin v. Illinois, 351 U.S. 12---------------------------- 18, 20,43
Legislative Reapportionment In re, 374 P. 2d 66—  57
Lein v. Sathre, 205 F. Supp. 536----------------------------  57
Magraw v. Donovan, 163 F. Supp. 184---------------------- 57
Maryland Committee for Fair Representation v.

Tawes, No. 29, this Term_______ 2,21,23,31, 32,33,39, 46
Mikell v. Rousseau, 183 A. 2d 817------------ ---------------- 57
Moss v. Burkhart, U.S. D.C., W.D. Okla., decided

July 17, 1963___________________________________  58
Nixon v. Condon, 286 U.S. 73---------------------------------  37
Parker v. State, 133 Ind. 178, 32 N.E. 836---------------  56



n i

Cases— Continued paga
Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865___  56
Rogers v. Morgan, 127 Neb. 456, 256 N.W. 1_______ 56
Scholle v. Secretary of State, 367 Mich. 176, 116 N.W.

2d 350___ ;_______________________________________ 56
Sims v. Frink, 208 F. Supp. 431, pending on appeal 

sub nom. Reynolds v. Sims, Nos. 23, 27, 41, this
Term____________________________________________ 56, 58

Skinner v. Oklahoma, 316 U.S. 535_________________  43
Sobel v. Adams, 208 F. Supp. 316__________________  58
South v. Peters, 339 U.S. 276______________________  35
State ex rel. Attorney General v. Cunningham, 81

Wis. 440, 51 N.W. 724____________________________  56
State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53

N.W. 35_________________________________________ 56
State v. Warwick, 108 A. 2d 85____________________  52
Stevens v. Faubus, 354 S.E. 2d 707________________  58
Stiglitz v. Scliardien, 239 Ky. 799, 40 S.W. 2d 315_ 56
Sweeney v. Notte, 183 A. 2d" 296____________________  40
Thigpen v. Meyers, U.S. D.C., W.D. Wash., decided 

May 3, 1963, pending on appeal, No. 381 this Term 56 
Toombs y. Fortson, U.S. D.C., N.D. Ga., decided

September 5, 1962_______________________________  58
Wesberry v. Sanders, No. 22, this Term____________  51
WMCA, Inc. v. Simon, No. 20, this Term_________ 32
Young, ex parte, 209 U.S. 123______________________ 56

Constitutions and statutes:
U.S. Constitution:

Article I :
Sec. 2-----------------------------------------------------------49,50
Sec. 3_____________________________________  49

Fourteenth Amendment_____________________ 2 3, 4, 6,
11, 14, 18, 20, 21, 22, 23, 28, 32, 36, 40, 43, 46, 48, 
52, 53, 59

Statutes:
Civil Rights Act, 42 U.S.C. 1983______________  4, 6
2 U.S.C. 2a___________________________________  51
28 U.S.C. 1343_______________________________  3
28 U.S.C. 2201___________________
28 U.S.C. 2281_______________________________  4
42 U.S.C. 1988_______________________________  3



IV

Constitutions and statutes— Continued
Delaware Constitution: pag9

Article 2, Sec. 2___________________ 4,5, 6,8,10,11,12
Article 16:

Sec. 1________________________   22,57
Sec. 2_______________________________________10,22

Florida Constitution of 1868______________________  55
Georgia Constitution of 1868______________________  55
Louisiana Constitution of 1868____________________  55
Massachusetts Constitution of 1780:

Part II, Ch. I :
Sec. 2, Art. I ______________________________  67
Sec. 8, Art. I I _____________________________  67

South Carolina Constitution of 1868_______________  54
Virginia Constitution of 1870_____________________  55

Miscellaneous:
Blackstone, Commentaries, pp. 114—116_____________  7
80 Cong. Globe 3024_______________________________  53
I  Farrand 179---------------------------------------------------------  69
I  Farrand 323---------------------------------------------------------  72
I  Records of the Federal Convention (Farrand ed.,

1911)________________________________________    61



Jit tU djrmrt of t\u Mnltd states
October Term, 1963

No. 307

M abel Y . R oman, Clerk of the P eace for N ew  
Castle County, et al., appellants 

v.
R ichard Sinoock, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE DISTRICT OF DELAWARE

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the district court (R. 491-531) is 
reported at 215 P. Supp. 169. Prior opinions of the 
district court (R. 66-76, 214-217, 319-332) are re­
ported at 207 P. Supp. 205 and 210 P. Supp. 395 
and 396.

j u r i s d i c t i o n

The judgment o f the district court was entered 
on April 17, 1963 (R. 532-533). Notices o f appeal 
to this Court were filed on May 28 and June 12, 
1963, and probable jurisdiction was noted on October 
21, 1963 (R. 541-545, 551-554). The jurisdiction of 
this Court rests upon 28 TT.S.C. 1253.

( i )



2

QUESTIONS PRESENTED

1. Whether the provisions o f the Delaware Consti­
tution apportioning the Delaware legislature, which 
create serious disparities in per capita representation 
in both houses without any permissible or even ra­
tional justification and give control o f the legislature 
to a small minority of the people, violate the equal 
protection clause of the Fourteenth Amendment.

2. Whether the decree of the district court enjoin­
ing further elections pursuant to the unconstitutional 
apportionment was an abuse of discretion.

INTEREST OP THE UNITED STATES

This is one o f five reapportionment eases pending 
disposition in which the Court is called upon to formu­
late under the Fourteenth Amendment constitu­
tional principles applicable to challenges to malappor­
tionment o f a State legislature. The Court has heard 
argument in the New York, Alabama, Maryland, and 
Virginia cases. The United States has filed its prin­
cipal brief in Maryland Gommittee for Fair Repre­
sentation v. Tawes, No. 29, in which we attempted to 
present a compendious analysis of principles which 
we deem applicable in the reapportionment field. The 
instant case raises specific problems in the application 
of those principles.

STATEMENT

1. The Complaint.— On June 5, 1962, the plain­
tiffs—seven citizens and taxpayers of the United 
States and the State of Delaware, who are residents 
and qualified voters of New Castle County, Dela­
ware—filed a complaint in the United States District



3

Court for the District o f Delaware, in their own be­
half and on behalf of all persons similarly situated, 
challenging the apportionment o f the Delaware legis­
lature (R. 1-28). The defendants, who were sued 
in their representative capacities as officials charged 
with the performance of duties in connection with 
State elections, included the State Election Commis­
sioner, the members of the Department of Election 
for each o f the State’s three counties, the members 
o f the Board of Canvass of the three counties, and 
three Clerks of Peace (R. 5-7). The complaint al­
leged deprivation o f rights under the equal protection 
clause of the Fourteenth Amendment, and asserted 
that the district court had jurisdiction under the 
Fourteenth Amendment, 42 U.S.C. 1983 and 1988, and 
28 U.S.C. 1343 and 2201 (R. 3).

The complaint alleged that the appoidionment of 
the Delaware legislature resulted in “ invidious dis­
crimination as to the inhabitants of New Castle Coun­
ty and the City of Wilmington” (R. 10-14). It 
alleged that the plaintiffs had the right “ to cast votes 
[for legislators] that are of equal effect with that of 
every other citizen of the State of Delaware” ; that the 
malapportionment of the legislature has operated to 
deny those rights to the plaintiffs; and that such 
malapportionment constituted “ arbitrary and capri­
cious state action which denies to petitioners a full 
vote in equality with other voters of the State of 
Delaware by reason of the failure to provide a reason­
able classification of voters and members of the Gen­
eral Assembly,”  in violation of, inter alia, the equal



4

protection and due process clauses of the Fourteenth 
Amendment (R. 14-15).

Plaintiffs also alleged that they were without any 
other adequate remedy inasmuch as the legislative 
apportionment was “ frozen” into the State constitu­
tion ; that the legislature was dominated by representa­
tives from the less populous counties; and that it was 
impossible to amend the constitution or to convene a 
constitutional convention for the purpose of reappor­
tioning the General Assembly (R. 16). They asserted 
that the General Assembly “ has prevented reappor­
tionment by repeatedly failing to take appropriate 
restorative action” (R. 13-14).

Plaintiffs requested: (1) that a three-judge district 
court be convened under 28 TJ.S.C. 2281; (2) that 
the court enter a declaratory judgment that Article 
2, Section 2 o f the Delaware Constitution, which 
established the apportionment of the Delaware legis­
lature, is unconstitutional under the Delaware Consti­
tution, the Fourteenth Amendment, and the Civil 
Rights Act, 42 U.S.C. 1983; (3) that the court enjoin 
the defendants from conducting or engaging in any 
elections held pursuant to Article 2, Section 2 of the 
State Constitution; (4) that the court either apportion 
the Delaware legislature in accordance with the popu­
lation of the State or direct that the general election 
o f November 6, 1962, be conducted on an at-large 
basis; and (5) that the court retain jurisdiction for 
the entry of “ such other and further relief as may 
be necessary and proper”  (R. 17-18).

2. The Pre-decision Proceedings in the District 
Court.—A  three-judge district court was convened



5

(R . 29-30). On July 25, 1962, the court entered an 
order staying the proceedings until August 7, 1962, 
“ in the hope and expectation that some appropriate 
action [might] be taken by the 121st General Assem­
bly”  (R. 66-76, 77). 207 P. Supp. 205. The court 
noted that inasmuch as the Delaware Constitution 
required the Secretary of State to publish any pro­
posed constitutional amendment in newspapers in 
each county at least three months prior to the succeed­
ing general election (in this case, the general election 
of November 6, 1962), it would serve no useful pur­
pose to grant a stay beyond August 7, 1962 (ibid.).

On July 30, 1962, the 121st General Assembly ap­
proved a proposed amendment (Del. H.B. 534) to Arti­
cle 2, Section 2 of the Delaware Constitution (R. 275- 
277; PL Exs. 2 and 8). It could not, however, become 
effective unless adopted by the next session of the 
legislature.

On August 7, 1962, the district court held that the 
complaint properly alleged a cause of action within 
the jurisdiction of the court, and denied motions to 
dismiss (R. 214-217). 210 P. Supp. 395. The court 
noted that it had no desire to substitute its judgment 
for the collective wisdom of the Delaware General As­
sembly in matters of apportionment of the legislative, 
but that it had no alternative but to promptly proceed 
in the matter (ibid.). Some of the defendants ap­
plied for a further stay of proceedings so that the 
122d General Assembly coming into office on January 
8, 1963, would have an opportunity to agree to the 
proposed amendment (R. 219-220).



6

On August 8, 1962, the plaintiffs applied in the 
district court for a preliminary injunction in order 
to enjoin the conduct of the November 1962 general 
election “ until the present discrimination against the 
Plaintiffs and all others similarly situated is corrected” 
(R. 224). Thereafter, the court permitted the plain­
tiffs to amend their complaint (1) to have the 
proposed constitutional amendment declared uncon­
stitutional as violative of the Fourteenth Amendment 
and the Civil Rights Act, 42 TT.S.C. 1983; and (2) 
to request an order provisionally reapportioning the 
Delaware legislature (R. 280-282, 316-318).

On October 16, 1962, the district court denied both 
the applications for a preliminary injunction and for 
a further stay (R. 319-332, 333). 210 F. Supp. 396. 
After extended pretrial proceedings, the court, on 
November 27, 1962, entered a pretrial order in which 
the parties agreed to the accuracy o f a series of ex­
hibits, statistics, statistical computations, and the like 
(R . 368^400).

In early January 1963, the 122d General Assembly 
approved the proposed constitutional amendment (Del. 
H.B. 574) by the requisite two-thirds vote. As a result, 
the amendment to Article 2, Section 2 became effective 
on January 17,1963.

3. The Evidence, a. The apportionment before the 
1963 constitutional amendment.-—At the time of the 
adoption of the Constitution o f 1897, Kent County, 
Sussex County, and “ rural”  New Castle County (i.e., 
the area outside Wilmington) were each apportioned 
10 representatives and 5 senators (R. 377). The City 
of Wilmington, which had considerably more popu-



7

lation than any one o f the rural areas, was given 5 
representatives and 2 senators (R. 377). The 35 rep­
resentative districts generally followed the boundaries 
o f a “hundred,”  a geographical subdivision of a 
county in Delaware since its founding.1 Many of the 
representative districts coincided with a particular 
hundred; others consisted o f a portion of a hundred, 
or of a hundred and a portion of another hundred, 
or of two or more hundreds or portions o f hundreds. 
Wilmington City (apparently within the bounds of 
the ancient Wilmington Hundred) was divided into 
5 representative districts (Court Ex. 2, pp. 57-58; PI. 
Ex. 23). The 17 senatorial districts, which were like­
wise specified in the Constitution, were composed either 
of two representative districts each (the situation ap­
plicable to Kent and Sussex Counties), or of two or 
more hundreds or portions of hundreds (the 3d, 4th, 
5th, 6th and 7th districts of Hew Castle County), 
or of portions o f Wilmington City (the 1st and 2d 
districts of New Castle County). 1

1 In early England, “hundreds” were subdivisions of counties 
or shires based upon the number of families of freeholders 
residing there. Each hundred consisted of ten towns or tith- 
ings, and each town or tithing consisted of ten families of 
freeholders. Each county or shire was composed of an indefi­
nite number of hundreds. 1 Blackstone, Commentaries, pp. llT - 
116.

Hundreds were used as geographic subdivisions in the early 
days of the colonies of Virginia, Maryland and Pennsylvania. 
In Delaware, the hundreds are simply ancient subdivisions of 
the counties established under the authority of William Penn 
(R. 1019-1020; Court Ex. 2, p. 58). There are 11 hundreds 
in New Castle County, including Wilmington Hundred, which 
is coterminis with the City of Wilmington; 9 hundreds in 
Kent County; and 13 hundreds in Sussex County.



8

The evidence showed that in the six years prior 
to the institution of this case, about 7 bills providing 
for reapportionment of the legislature or for calling 
a constitutional convention for that purpose were in­
troduced in the General Assembly but were either not 
reported out of committee or else failed to pass (R. 
51-57, 60-65, 271-274, 389; PI. Exs. 6, 7, 8, and 9).

b. The apportionment after the 1963 constitutional 
ameyidment.— The amendment to Article 2, Section 2 
of the Delaware Constitution, which became effective 
on January 17, 1963, increased the size of the Senate 
from 17 to 21 members and allotted the 4 additional 
senators equally to Sussex and Kent Counties, thereby 
giving each of the three counties 7 senators (R. 385; 
PI. Ex. 8). The sixth senator for Kent County was 
to be elected at large from the first, second, fifth, 
seventh, and eighth representative districts of that 
county, and the seventh senator for Kent County was 
to be elected at large from the third, fourth, sixth, 
ninth, and tenth representative districts {ibid.). The 
sixth senator for Sussex County was to be elected at 
large from the first through the fifth representative 
districts of that county, and the seventh senator was to 
be elected at large from the sixth through tenth repre­
sentative districts of that country {ibid.). As a result, 
each voter in Kent and Sussex County would have 
been entitled to vote for one representative and two 
senators.

As for the House of Representatives, the amend­
ment provided that each representative district with 
a population in excess of 15,000 persons was to be 
alloted an additional representative for each addi­
tional 15,000 persons or major fraction thereof (R. 384;



9

PL Ex. 8). The boundaries of the original 35 repre­
sentative districts were not affected.2 The net effect of 
the amendment in terms of immediate representation in 
the House would have been to allot an additional 10 rep­
resentatives to various districts in Hew Castle County, 
increasing the size of the House to 45 members (R. 
384).3 The representation of Kent and Sussex Coun­
ties would not have been affected.

The populations of each senatorial and representa­
tive district, both before and after the 1963 amend­
ment, are set forth in the opinion of the court (R. 496- 
497, 499, 503-505).

The constitutional amendment also provided that in 
in the event that a constitutional convention was con-

2 Districts receiving additional representatives were to be 
divided so that each of the new districts would elect one repre­
sentative. The new districts -were to be “ as nearly equal in 
population as possible to the other new districts being created” 
from, the same representative district.

The actual reapportionment of representatives and redis­
tricting of the districts was to be performed by a Redistricting 
Commission consisting of the Governor and the state chair­
men of the two political parties receiving the largest vote for 
governor at the preceding gubernatorial election as advisors 
to the Governor. The reapportionment and redistricting wais to 
be completed by the Commission within 120 days following the 
official reporting to the President of the United States of each 
decennial census. In the event that the Commission failed to 
act within the 120 days, any qualified voter, within the fol­
lowing 30 days, might, by mandamus or otherwise, compel 
the Governor to reapportion and redistrict the House of Repre­
sentatives. These provisions, however, relate solely to the 
reapportionment and redistricting within the existing 35 repre­
sentative districts.

3 The 10 additional representatives would have been alloted 
as follows: one each to Districts 2, 5, and 8; two each to 
Districts 7 and 10, and three to District 6 (R. 384, 503).



10

vened, as provided for in Article 16, Section 2 of 
the Constitution, the number of delegates and their 
method of election was not to be affected by the addi­
tion of representatives as a result of the amendment. 
For the purpose of any future constitutional conven­
tion, the representative districts were to elect dele­
gates on the basis of the apportionment provided by 
Article 2, Section 2 as it existed prior to the amend­
ment (R. 387; PI. Ex. 8). Article 16, Section 2 pro­
vides that the General Assembly, by a two-thirds vote, 
may submit to the voters at the next general election the 
question whether a constitutional convention to revise 
and amend the constitution shall be convened, and, if  a 
majority of the people voting at the election approve, 
the General Assembly must convene the convention. 
The number of delegates would continue to be 41, one 
from each of the original 35 representative districts 
and 2 elected at large from each of the three counties.4

4. The decision and decree of the district court —  
On April 17, 1963, the district court, in an opinion by 
Circuit Judge Biggs, held that Article 2, Section 2 
o f the Delaware Constitution, as it existed prior to 
the 1963 amendment as well as after the amendment, 
resulted in gross and invidious discrimination against 
the plaintiffs and others similarly situated, in viola­
tion of the equal protection clause of the Fourteenth 
Amendment. The court could find no rational or rea­
sonable basis for the apportionment under Article 2, 
Section 2, either before or after the amendment. 215

4 In addition to other witnesses, three political scientists testi­
fied at length at the trial concerning proper methods of ap­
portionment (R. 591-706, 709-886, 890-918, 927-1010, 1166- 
1295).



11

F. Supp. at 184-189. The court concluded that the 
matter of reapportionment was basically a legislative 
function, and that a further opportunity should be 
given to the General Assembly properly to reappor­
tion itself in accordance with the Fourteenth Amend­
ment. In this regard, the court noted that minimal 
constitutional standards required that at least one 
house of the Delaware General Assembly be ap­
portioned on an “ equal population basis” with the 
overriding aim of “ one vote, one person” ; and that, 
with one house so apportioned, other cogent and rele­
vant factors (i.e., history, geography, custom) might 
be given some weight along with population in appor­
tioning the other house. 215 F. Supp. at 189-191. 
However, the weight given to such factors “ should not 
be thought of as necessarily destroying the founda­
tion principle of majority rule, or effecting invidious 
discrimination or irrationality in apportionment.”  
Id. at 191. Due to the closeness of the 1964 general 
election, the court gave the General Assembly until 
October 1, 1963, to enact a reapport.ionment statute.

Chief District Judge Wright concurred that Article 
II, Section 2 of the Delaware Constitution, before as 
well as after amendment, was unconstitutional, and 
that at least one house of a State legislature must be 
apportioned strictly on a population basis. He agreed 
with the “precatory observation” of Judge Biggs that 
the upper house must also be based “ substantially 
upon population * * * so long as the majority prin­
ciple is adhered to.”  215 F. Supp. at 195.

District Judge Layton concurred in that portion of 
the opinion holding Article 2, Section 2 of the Con­



12

stitution, prior to as well as after the 1963 amend­
ment, unconstitutional as applied to the House o f 
Representatives. Judge Layton pointed out that, 
since the 1963 amendment did not contain a severa­
bility provision, the whole amendment was unconsti­
tutional because of the House provisions and, there­
fore, no need existed to consider whether the Senate 
provisions were constitutional. Judge Layton said 
that it was constitutionally permissible for a State to 
pattern one house upon an equal area basis where the 
other house was apportioned upon a “ strict popula­
tion basis” inasmuch as such a system would be pat­
terned upon the Federal Congress. Id. at 196-197.

A  decree was entered declaring Article 2, Section 
2 of the Delaware Constitution to be unconstitutional 
(R. 536-537). The court reserved jurisdiction to 
order injunctive or other relief if  this appeared nec­
essary. On May 20, 1963, the court enjoined the de­
fendants from conducting any special or primary elec­
tion, or the general election of November 1964, for the 
General Assembly under the apportionment provi­
sions of Article 2, Section 2 of the Delaware Con­
stitution as they existed prior to or after the 1963 
constitutional amendment. The court again reserved 
jurisdiction to make such further orders as it might 
deem necessary (R . 540). The decree does not em­
body any of the “ precatory observations”  about the 
apportionment to be made by the Delaware legislature.

The defendants thereafter filed notices o f appeal to 
this Court. On June 27, 1963, Mr. Justice Brennan 
stayed the district court’s injunction pending dispo-



13

sition of the ’case by this Court. Probable jurisdic­
tion was noted on October 21, 1963.

ARGUMENT

INTRODUCTION AND SUM M ARY

This is by far the easiest of the reapportionment 
cases now before the Court on the merits. The ap­
portionment of the Delaware legislature plainly vio­
lates any standard of equal protection. Appellants’ 
elaborate argument that a State may model repre­
sentation in its legislature after the federal analogy 
is totally irrelevant. The Delaware legislature is 
constituted upon a radically different basis from the 
federal Congress, and the apportionment results in 
gross discrimination that the federal system has never 
created.5 Nor is the question raised by the decree * 1

5 For convenience we list here some of the reasons, discussed 
in the Argument, showing why this case raises no questions 
of the constitutionality of a State apportionment of seats in a 
bicameral legislature analogous to the Congress of the United 
States:

1. The Delaware House o f Representatives is not appor­
tioned in accordance with population. The federal House of 
Representatives is so apportioned, subject to the very minor 
qualification that each State is assured one representative. 
This basic contrast is evident from the fact that a majority 
of the representatives in Delaware’s lower house come from 
districts containing only 28 percent of the population—less 
than one-third—whereas it takes, under the constitutional ap­
portionment of Congress, almost half the people to elect a 
majority of the United States House o f Representatives.

2. The Delaware Senators are not chosen as representatives 
of the counties. The 21 Senators are chosen one each from 
21 districts established solely for the purpose of their election. 
Each Senator represents his district, not the county. The only 
point o f resemblance to the United States Senate is that the

714-431— 63------2



14

of the district court, which merely adjudicates the 
unconstitutionality of the present apportionment.

In our briefs and arguments in the previous ap­
portionment cases, we have submitted and sought to 
justify four basic principles by which the unconsti­
tutionality of a State’s apportionment should be de­
termined. There is no occasion to repeat the argu­
ment here. In this brief we content ourselves with 
showing how the four principles apply to this case, 
supplementing the basic analysis only where neces­
sary to deal with questions brought out in oral argu­
ment and inadequately covered in our prior briefs.

The starting point, we argued, should be the arith­
metical comparison of the representation accorded 
qualified voters per capita. W e discuss the proposition 
here only to the extent necessary to show that the com­
parisons of per capita representation are a proper 
measure o f the political equality guaranteed by the 
equal protection clause o f the Fourteenth Amendment.

W e then turn to the second proposition—that an 
apportionment which creates gross inequalities in per 
capita representation without any intelligible founda­
tion violates the Fourteenth Amendment—and show 
that the Delaware apportionment, not as an imaginary 
“ federal plan”  but as it actually exists, creates that 
form of unconstitutional discrimination.
legislature, in an effort to create an analogy, created the same 
number of districts in each county.

3. There is no rational basis for the apportionment of seats 
in either house of the Delaware legislature. The apportion­
ment of seats in each branch of Congress is based upon a 
coherent political philosophy.



15

Since counsel suggest no rationalization of the 
idiosyncrasies that permeate the apportionment of 
both houses of the Delaware legislature and none are 
apparent, it may be superfluous to go further; but 
out of an abundance of caution we submit that any 
criteria of differentiation offered by way o f explana­
tion would be insufficient to justify the discrimination 
unless relevant to the permissible purposes of legisla­
tive apportionment. The critical distinction, which 
we elaborate below, is between (a) rules serving the 
purpose of making representative government work 
better, the operation of which may have the collateral 
consequence of creating per capita inequalities in rep­
resentation, and (b) rules whose only function is to 
create classes of voters with preferred political rights 
giving them voting power disproportionate to their 
number. Whatever may be true in the first case, the 
discrimination is unconstitutional in the second.

Finally, we show that the Delaware apportionment 
violates the equal protection clause because, apart 
from all else, it creates inequalities in per capita rep­
resentation and submerges the principle of majority 
rule to a degree so utterly disproportionate to any 
permissible purposes accomplished as to be arbitrary 
and capricious. In the Senate there are inequalities 
in the treatment of voters in different districts within 
the same county that run as high as 15 to 1. In 
the House of Representatives there is “ one disparity 
as high as 12 to 1, several at 11 to 1, 10 to 1, and 
9 to 1, [and] many at 8 to 1”  (R. 510). A  numerical 
majority of the House comes from districts contain­
ing only 28 percent of the people. A  majority of the



16

Senate comes from districts containing less than 20 
percent of the people. The discrimination runs in 
the same direction in both houses of the legislature.

I
IN' DETERMINING W H ETH ER AN  APPORTIONMENT OF LEGIS­

LATIVE REPRESENTATIVES VIOLATES TH E EQUAL PROTEC­
TION CLAUSE, TH E BASIC STANDARD OP COMPARISON IS 
TH E REPRESENTATION ACCORDED QUALIFIED VOTERS PER 
CAPITA

“ The Constitution in enjoining the equal protection 
of the laws upon States precludes irrational discrimi­
nation as between persons or groups of persons in the 
incidence of a law.”  Goesaert v. Cleary, 335 U.S. 464, 
466. Baker v. Carr, 369 U.S. 186, 226, shows that this 
principle is applicable to the apportionment of repre­
sentation in a State legislature.

To show inequalities in representation, the complain­
ants in the several reapportionment cases, like our­
selves, have made many statistical comparisons of the 
per capita representation of the voters of the dis­
tricts from which representatives were elected. A  
member of the Court suggested, however, that the re­
sulting ratios were merely sixth grade arithmetic 
perhaps lacking relevance to the issues at bar. The 
comment doubtless was intended to raise the funda­
mental inquiry, whether the equal protection clause 
is concerned with uniform apportionment per capita 
or with some broader concept of equal representation. 
I f  the latter, do figures showing the per capita repre­
sentation afforded voters in different geographical dis­
tricts truly reflect the equality or inequality of repre-



17

sentation, or must the focus be widened to encompass 
other aspects of State government before one can de­
termine whether the particular governmental system 
denies some voters equal protection of the law?

Our answer is that State action which gives rise to 
hostile or capricious discrimination in the per capita 
apportionment of representatives is so related to un­
equal representation in the larger sense as to violate 
the constitutional guarantee of equal protection of the 
law, however fairly other aspects of the State govern­
ment have been constructed.

Deciding whether an unreasonably discriminatory 
apportionment of representatives violates equal pro­
tection is a more specific task than establishing an 
ideal form of representative government. One at­
tempting to establish an ideal “ representative govern­
ment”  would face, at the threshold, the task of defin­
ing “ representativeness.” Even if it were agreed that 
a perfectly representative legislature would be a 
microcosm of the whole people, reproduced in exact 
proportions, it would still be apparent that the alloca­
tion of representatives in exact proportion to the 
population of the several districts would not alone 
ensure the objective. Where party loyalties are 
strong or few issues divide the electorate, skillful 
gerrymandering of the district lines may enable a mi­
nority of the people to elect a majority of the legisla­
ture. Even without gerrymandering, a population 
that was divided 60-40 on a critical issue might con­
ceivably choose a legislature having a unanimous view, 
because the vote could divide 60-40 in every district.



18

Thus, the political scientist planning Utopia or the* 
statesman organizing a new framework of govern­
ment must concern himself with such questions as 
where the district lines will be drawn, with “ wasted 
votes,”  and with whether and how to make the legisla­
ture reflect the divisions and intensity of opinion with­
in the individual districts. Sundry plans of propor­
tional representation and other devices have been di­
rected at those ends. Nothing we have argued casts 
doubt upon their constitutionality. Whether the 
Fourteenth Amendment reaches such questions is not 
in issue. Any inability to guarantee “ equal repre­
sentation”  in the largest sense would be no better 
reason for upholding an arbitrary classification in ap­
portionment than is the inability to offset all the dis­
advantages from which the outcast pauper suffers at a 
criminal trial a reason for withholding from him the 
transcript necessary for appeal that the rich can pur­
chase. Cf. Griffin v. Illinois, 351 U.S. 12.

But if the apportionment of representatives among 
geographical districts in direct ratio to their popula­
tion is not enough to guarantee “ fair representation”  
in the broadest sense, arbitrary and capricious dis­
crimination in per capita representation will ahnost 
always defeat “ equality”  in any sense of the word. 
The arithmetical comparisons undeniably measure the 
comparative influence that the ballot of each voter in 
different districts can have on the composition of the 
legislature, and thus on the course of legislation. I f  
one starts with gross and capricious discrimination at 
that point, it is virtually certain that the inequality 
will persist. The diversions, dilutions, distortions, 
and cross-currents that are felt before the votes cast



19

for representatives are reflected in action on the floor 
of the legislature, would rarely, if  ever, rectify gross 
inequalities in the ratio of seats to population. No 
one, to the best of our knowledge, has ever attempted 
to show that the apparently capricious apportionment 
of seats in a State like Delaware is intended to offset 
other inequalities and so ultimately to produce equal 
representation. The most extraordinary combination 
o f circumstances would be required. There is not the 
slightest reason to suppose that Delaware’s per capita 
divergencies of 12 to 1, 9 to 1 and 8 to 1 as well as the 
many smaller discrepancies, all scattered as if by a 
throw of the dice, somehow mysteriously operate to 
cancel out a hidden gerrymander or other distortions 
of the per capita vote. It would be the wildest co­
incidence if the members of the Delaware House o f  
Representatives from the grossly overrepresented Dis­
trict 8 in Sussex County, Districts 3, 4 and 6 of Kent 
County, and Districts 12, 14 and 15 of New Castle 
County accurately reflected the wishes of those whose 
candidates lost the elections in the grossly underrep­
resented districts. It is even less likely that the 
underrepresented voters of New Castle District 9 are 
being represented by the representative of an over­
represented district, such as 14 or 15. Even if  that 
could be the fact, it would be no answer to the com­
plaint. Those who raised the cry, “ No taxation with­
out representation”  could not have been satisfied by 
an argument that they were being represented in the 
English Parliament by Edmund Burke and Charles 
James Eox.



20

The extent of the legislature’s participation in the 
law-making process is also irrelevant. The equal pro­
tection clause does not require a representative legis­
lature, but it does guarantee all voters against arbi­
trary discrimination in the incidence of any laws 
creating a legislature and apportioning its seats. 
Cf. Griffin v. Illinois, 351 U.S. 12. That the role 
of the legislature may be confined, or that it may 
be supplemented by the initiative and referendum, 
does not affect the problem. For it is no answer to 
the victims of arbitrary discrimination in respect to 
the influence of their votes upon the composition of 
the legislature to tell them that the role of their 
legislature is less important than in other States, or 
that there are special ways of making laws in which 
there is no denial of equal protection.

Since the right to be free from capricious discrimi­
nation based upon no policy is a personal right, it is 
immaterial whether the discrimination was adopted, 
or can be changed, by initiative and referendum or 
some other exercise of the popular will. The central 
purpose o f the Fourteenth Amendment is to protect 
minorities. That principle, which is clear in other 
fields of constitutional law, is controlling here. A  
simple illustration is enough to put the point beyond 
dispute. I f  a State with 21 identical counties, each 
containing 60,000 voters, divided each of 20 counties 
into six equal districts, with each district to elect 
one representative, but allocated only one represent­
ative to the twenty-first county, for a total of 121 
representatives, it would take representatives elected 
by 610,000 voters or 48 percent of the population to



21

elect a numerical majority of the legislature. The 
entire State, except the victims of the discrimi­
nation living in the underrepresented county, might 
favor the apportionment. Nevertheless, the capricious 
discrimination would violate the Fourteenth Amend­
ment.

This is also true when the apportionment is attacked 
under our third basic proposition as an instance of 
systematic discrimination based upon criteria that 
are invidious or irrelevant to any of the permissible 
purposes of legislative apportionment. I f  the dis­
crimination is based upon grounds condemned by 
the concept of equal protection, then it matters not 
that the victims suffer at the hands of a majority of 
the people.

On the other hand, the ease with which an appor­
tionment can be changed by a majority of the people 
in a State may be relevant in applying the fourth 
of the proposed principles—that the equal protec­
tion clause is violated by an apportionment which sub­
ordinates the principle of popular representation to 
other permissible considerations to such a degree as 
to create gross inequalities in the representation of 
voters and give control of the legislature to small 
minorities of the people. Under this head the issue 
turns upon the reasonableness of the balance the State 
has struck between the interest in equality of repre­
sentation and opposing objectives that we assume 
arguendo to be permissible objectives of legislative 
apportionment.6 The balance depends upon the degree

6 See Brief for the United States in Maryland Committee 
for Fair Representation v. Tawes, No. 29, this Term, pp. 24-25.



22

of inequality and submergence of the popular will. 
I f  the popular will can find expression in other out­
lets, such as the initiative and referendum, or if  a 
majority of the people can readily correct the mal­
apportionment, then the degree of minority control 
of the legislature is somewhat less important than 
would otherwise be the case. Such institutional ar­
rangements may be relevant to the application of the 
fourth proposition, therefore, even though they have 
no bearing upon the others.7

While such questions must be answered in any com­
prehensive rationale, they are not raised in the pres­
ent case. A  majority of the people of Delaware are 
unable to reapportion the legislature by initiative and 
referendum or even a constitutional convention.8 
There are no other institutions by which the popular 
will may express itself in the enactment or repeal of 
legislation.

A  statistical comparison o f the per capita represen­
tation of the voters in the districts into which a 
State is divided, standing alone, is insufficient to prove 
violation of the Fourteenth Amendment. The arith­
metic leaves open all of the legal questions. It is a

7 The availability of methods of constitutional reform may 
also bear upon the propriety of equitable intervention, but no 
such question is presented here.

8 The Delaware Constitution may be amended in only two 
ways: First, an amendment may be passed by a two-thirds 
vote in both houses of the legislature at two consecutive ses­
sions. Art. 16, § 1. Second, the General Assembly may, by 
a two-thirds vote, submit to the voters the question whether 
to hold a constitutional convention. I f  a majority of voters 
approve, a convention must be called. Art. 16, § 2. Thus, the 
legislature has complete power to block any amendment of the 
constitution.



23

means of comparison, and for that purpose it is a 
useful, if  not indispensable, tool. Be it easy or diffi­
cult, it measures exactly the extent to which the State 
has introduced a source of discrimination between 
persons and groups in the influence their votes may 
have on legislation through participation in the choice 
of representatives in the law-making body. While the 
process of measurement answers none of the legal 
issues, its simplicity should not be allowed to hide or 
denigrate the basic importance of what is being meas­
ured—equality or inequality of voting power in the 
selection of the composite legislature. For unequal 
voting power almost surely means unequal repre­
sentation.

I I
TH E DELAWARE APPORTIONMENT CREATES GROSS DISCRIM­

INATION AMONG VOTERS W ITH OUT A RATIONAL FOUNDA­
TION IN  POLICY

The Fourteenth Amendment’s condemnation of irra­
tional discrimination as between persons or groups of 
persons in the incidence of a law is squarely ap­
plicable to the apportionment of representatives in 
a State legislature. Baker v. Carr, 369 U.S. 186, 226. 
See also Brief for the United States in Maryland 
Committee for Fair Representation v. Tawes, No. 29, 
this Term, pp. 38-39, 50-51, and cases cited.

Under this principle the apportionment o f seats in 
the Delaware legislature is manifestly unconstitu­
tional. Taking the House of Representatives first, 
the district court, in an opinion by an able and ex­
perienced circuit judge, found as a fact that there was



24

“ no rational basis for the apportionment”  (R. 510). 
This ultimate finding was based upon such subsidiary- 
findings as that even under the 1963 reapportionment 
there is (R. 510)—

one disparity as high as 12 to 1 
and also—

several at 11 to 1, 10 to 1 and 9 to 1 
as well as— 

many at 8 to 1.
The district court also foimd that there are (Hid.) —

vagaries existing in representative districts even 
contiguous to each other both in rural areas and 
in the City of Wilmington.

The result, the court pointed out, is to increase the 
power of favored districts to such an extent that a 
numerical majority of the Delaware House of Rep­
resentatives is elected by districts having only 28 per­
cent of the people.

The undisputed evidence fully supports the findings. 
The population of each district, as the districts were 
constituted by the 1963 amendment, is set forth below 
(R. 504):



25

Sussex Comity
District Population

1 ________________ 9, 641
2 ________________ 6, 439
3 ________________ 9,437
4 _____________ -  5,318
5_________________  8,140
6__________________ 8, 010
7 ________________ 6,623
8 ________________ 2, 957
9 ________________ 4,271

10___________________12,359

Total____________ 73,195

Kent County
District Population

1 _________________ 6, 084
2 __  17,806
3 ________________  3, 361
4 ________________  3,716
5 ________________  9,125
6 ________________  2,626
7 ________________  7,880
8 ________________  5,168
9 ________________  4, 956

10___________________ 4, 929

Total__________  65,651

New Castle County 
(Wilmington)

District Population
1__________________ 7, 814
2A_________________ 16,886
2B 1________________ 16,886

New Cattle Cou/nty—Con. 
( Wilmington)

District Population
3 ________________ 18,359
4 _______________  5, 394
5A_________________ 15,244
5B_________________ 15,244

Total__________  95,827

New Castle County (Outside 
Wilmington)

District Population
6A_______________  14, 557
6B_______________  14, 557
6C_______________  14, 557
6D_______________  14, 557
7A_______________  15,836
7B_______________  15, 836
7C_______________  15,836
8A_______________  11,714
8B_______________  11,714
9________________  20, 040

10 A _______________  13,431
10B_______________  13,431
10C_______________  13,431
11 _______________ 9,325
12 _______________ 3,401
13 _______________ 5,218
14 _______________ 2, 534
15 _______________ 1, 643

Total__________ 211,619
Total New Cas­

tle County—  307,446

1 The figures in this table for districts which will be divided under the 
1963 amendments assume that the old districts will be divided so the new 
districts will be exactly equal in population. The governor has, since the 
opinion of the court below, issued a proclamation forming these districts 
(Appendix to App. Br., pp. 6a-10a). The actual population figures of these 
•districts are, as far as we can ascertain, not available.



26

The inequalities are too numerous and too obvious 
to catalog but it may be permissible to mention the 
most egregious:

(a) District 15 in New Castle County has 10 times 
the representation of Districts 2A, 2B and 3 in the 
City o f Wilmington. District 14 has five times the 
average representation in all seven districts in the 
City of Wilmington.

(b) There are two districts in Sussex County and 
five in Kent County that have more than three times 
the representation of each of five districts in the 
City of Wilmington.

(c) On the average, a voter in Kent County has just 
under twice the representation of voters in New 
Castle County. A  voter in Sussex County has more 
than 1.6 times the representation.

(d ) Within each of the three counties (omitting 
Wilmington) the inequalities are egregious. In New 
Castle County the smallest district has 12 times the 
representation of the largest; in Sussex, the ratio is 
4 to 1, and in Kent, 6% to 1.

(e) The net effect of the discrimination in favor 
of minorities is so great that representatives elected 
by only 28 percent of the people constitute a numeri­
cal majority of the lower house of the legislature.

In the selection o f the Delaware assembly, the dis­
criminations between persons and groups in the allo­
cation of voting power are as capricious as they are 
egregious. There is no meaningful or even consistent 
policy in the composition of the districts. Although 
the district lines often correspond to a “hundred” —a 
subdivision of a county in Delaware (see p. 7,



27

note 1 above)—they frequently differ. While the 
representative districts in New Castle County outside 
Wilmington each formerly consisted of a single hun­
dred, those in Wilmington consisted of two to four 
wards or portions of wards. In Sussex and Kent 
Counties, the districts consist of all or part of one, 
two, or three hundreds. (Even if the district lines 
were to conform to the ancient “ hundreds,”  that fact 
would not justify the discrimination because the 
hundreds have no political or governmental sig­
nificance.)

Viewed alone, the 1963 amendment was rational 
insofar as it provided that each representative district 
should receive an additional representative for each 
15,000 people or major fraction thereof above a base 
o f 15,000 people. The districts would then be subdi­
vided. The total effect is to leave the apportionment 
of seats in the assembly still a crazy-quilt because no 
changes were made in the districts containing less 
than 15,000 people. Since there are 25 districts out 
of a total of 45 in which the ratio of representation 
is greater even than 1 to 10,000 persons, superimposing 
a rational rule upon a fraction of an irrational base did 
little to correct the capricious pattern described above.

Appellants offer no explanation of the gross dis­
crimination in representation in the House of Repre­
sentatives. The omission speaks volumes, for the case 
was tried long after the decision in Baker v. Carr and 
their brief was filed after the briefs in the first group of 
apportionment cases had focused attention upon the 
proposition that gross discrimination in per capita 
representation, resting upon no policy, violates the



28

Fourteenth Amendment. Appellants’ only arguments 
upon this fundamental issue are that the legislature 
might have done better if more time had been avail­
able, and that over a long period the growth of the 
population may remove the injustices. The first point 
is obviously unsound: if the discrimination violates 
the complainants’ constitutional rights, the Court will 
not render an adjudication that there is no violation 
because the continuing wrong was initiated in a 
hurry. I f  more time is needed, it can be afforded in 
framing the decree. The second point is equally un­
tenable : the possibility that time and changes in popu­
lation may, at some remote day, eliminate the 
inequalities is not the slightest justification for toler­
ating the present deprivation of constitutional rights.

The apportionment of seats in the Delaware Senate 
is equally capricious. The State constitution prior to 
the 1963 amendment created 7 senatorial districts in 
Few Castle County, each of which was allocated one 
senator, and 5 districts in both Kent and Sussex Coun­
ties, each of which was apportioned one senator, mak­
ing a total of 17. The 1963 amendment gave Kent 
and Sussex two additional senators apiece, but it re­
tained the old senatorial districts and superimposed 
two new floterial districts on each county.9 Although

9 Rather than disturb the existing districts in Kent and 
Sussex Counties, the Delaware Legislature gave each county 
two additional Senate districts by having part of each county 
elect one o f its additional senators and the other part elect the 
other, in addition to the Senators from the five existing dis­
tricts. We have difficulty in following appellants’ assertion 
(Brief, p. 9) that the districts were formed by dividing the



29

each county is now allocated an equal number of 
senatorial districts in an apparent effort to justify 
the gross discrimination in per capita representation 
by reference to the United States Senate, the differ­
ences are plain. Delaware’s senators do not repre­
sent the counties but geographical districts within 
the counties. The composition of the districts, within 
the counties, has no intelligible basis, as shown by the 
following table (R. 385, 505) :
State into eastern and western halves, for the new seventh dis­
trict in Kent County and the new sixth district in Sussex County 
stretch from the eastern half to the western half of the State. 
As a result, every voter in Kent or Sussex County votes 
for two senators: one from the pre-1963 district and one from 
the new floterial district in which he lives, while in New Castle 
County a citizen votes for only one senator (R. 386-387, 516).

The district court held this discrimination to be unconstitu­
tional. We pretermit the question because the apportionment 
is unconstitutional however the question be decided. I f  each of 
the three counties had the same population and the districts 
within each county contained the same numbers of people, a 
mathematical argument could be made for the proposition that 
there was substantial equality. This can best be shown by an 
example: I f  each county had 70,000 people and seven senators, 
each voter in New Castle would be in a district of 10,000 people 
and would therefore elect 1/10,000 of a senator. On the other 
hand, voters in Kent and Sussex Comities would each be in two 
districts, one with 14,000 people and one with 35,000. They 
would therefore elect 1/14,000 of a senator plus 1/35,000 of 
a senator, which is 1/10,000 of a senator. We are not pre­
pared to say, however, that the mathematical equality means 
that there is no substantial discrimination.

714-431— 63-------3



30

New Castle County Kent County Sussex County
1 -  ___ 52,131 1. __  ___ 23,890 1_________ 16,080
2_______ 43, 696 2.-  ____ 7,077 2 ____ 14,755
3 ___ 64, 345 3. 17,005 3_ _ 16,150
4 _ ____ 64, 820 4.-  ____ 7,582 4_ __ _ 9, 580
5 _____ 63, 734 5. 10,097 5 ____ 16, 630
6 _ 14, 543 6 1________(46,063) 6 1 (38,975)
7_ _______ 4,177 7 1—  _ (19,584) 7 1 ___ ___ (34,220)

Total____ 307,446 Total__  65, 651 Total__ 73,195
1 These are floterial districts which, between them, cover the entire

county. See pp. 28-29, note 9 above.

Voters in the most overrepresented district in New 
Castle County have more than three times the repre­
sentation o f voters in any other New Castle district; 
they have more than 15 times the representation of 
the voters in the three most underrepresented districts. 
Voters in the second most overrepresented district in 
New Castle County have four times the representation 
of voters in three other districts. In Kent County dis­
parities run in the ratio of 2 and 3 to 1. In Sussex 
County one district has iy 2 times the representation 
of any other. Every district in Sussex County has six 
times the representation of the voters in the three most 
populous districts in New Castle County. The result 
of the disingenuous effort to make the apportionment 
o f the Delaware Senate look like the composition of 
the Senate of the United States was greatly to increase 
the overrepresentation o f the voters of Kent and Sus­
sex Counties.

We can discover no explanation for the idiosyn­
crasies in the senatorial apportionment and districting. 
Appellants suggest no explanation whatever, save the 
obviously false analogy to the United States Senate.



31

The analogy would be false even if  the relationship 
o f a county to a State were like that o f a State to 
the United States. In the United States Senate, the 
Senators represent their States and are chosen by the 
people thereof. In the Delaware Senate, the Senators 
come, not from the counties, but from geographical dis­
tricts within the counties and are chosen by the people 
of the districts. There is nothing in the composition 
of the United States Senate remotely comparable to 
Delaware’s gross and capricious discrimination in the 
representation of voters in different senatorial districts 
within a single county. Consequently, there is no need 
to discuss here whether the so-called “ federal analogy”  
is pertinent in a State which apportions one branch of 
the legislature according to population and arranges 
to have its counties represented in the upper house in 
the same maimer as the States are represented in the 
United States Senate.10 The portions of the opinion 
below dealing with this subject are no part of the 
decree.

It follows that the apportionment of representation 
in the Delaware legislature denies the complainants 
equal protection of the law.

10 See Brief for the United States in Maryland Committee 
for Fair Representation v. Tames, No. 29, this Term, pp. 73-82.



I I I
EVEN IF TH E APPARENTLY CAPRICIOUS APPORTIONMENT 

OF THE DELAWARE LEGISLATURE HAD AN INTELLIGIBLE 
FOUNDATION, TH E DISCRIMINATION WOULD VIOLATE TH E 
EQUAL PROTECTION CLAUSE UNLESS BASED UPON CRI­
TERIA RELEVANT TO LEGISLATIVE APPORTIONMENT

1. The principle

Since the districting and apportionment of repre­
sentatives in elections for both branches of the Dela­
ware legislature apparently has no intelligible founda­
tion of any kind, it is probably superfluous to discuss 
which criteria of systematic differentiation might be 
constitutionally acceptable and which would violate 
the Fourteenth Amendment. But because some 
rationalization may be suggested, and because the oral 
argument of the previous reapportionment cases re­
fined (but did not change) our analysis, we reiterate 
the proposition that a discriminatory apportionment 
violates the equal protection clause unless the differ­
ences in per capita representation bear a rational 
relationship to permissible objectives of legislative 
apportionment. See Briefs for the United States in 
Maryland Committee for Fair Representation v. Tawes, 
No. 29, this Term, pp. 39-43, and WMCA, Inc. v. Simon, 
No. 20, this Term, pp. 20-33.11 11

11 Strictly speaking, the crazy-qnilt test is probably insufficient 
standing alone. It must be applied in company with an addi­
tional rule, either implicit or explicit, that separates the per­
missible and impermissible bases of discrimination. I f  a State 
may prefer farmers over store-keepers in matters o f apportion­
ment, bankers over wage-earners, port cities over manufacturing 
centers, cities with a population of between 20,000 and 50,000 
over both towns with less than 20,000 and cities with more than

32



33

In those briefs we suggested but did not adequately 
articulate the critical distinction between permissible12 
and impermissible objectives of legislative apportion­
ment. The distinction is between (a) rules serving 
the purpose of making representative government 
work better, the operation o f which may have the 
collateral consequence of creating per capita inequali­
ties in representation, and (b) rules whose only func­
tion is to create classes of voters with preferred 
political rights disproportionate to their number, 
which we say are impermissible.

A  legislature need not be simply a mirror to public 
sentiment like a Gallup poll. A  legisature is a de­
liberative body, and deliberation requires knowledge. 
For that reason it might be thought to “make repre­
sentative government work better”  to take steps to 
ensure that representatives in one house of the legisla­
ture come from geographical districts small enough 
for them to know the distinct problems of every
50,000 and so forth, and if the rationalization can be supplied 
after the event because the Court cannot plumb the legislatures’ 
true motives, then anyone with sufficient time and imagination 
could always find somewhere in the jumble of facts and 
potential policies some rule or compromise between many con­
flicting rules that would rationalize the apportionment. Com­
pare the dissenting opinion of Mr. Justice Harlan in Baker v. 
Carr, 369 U.S. 330, 333-344.

In a case like Baker v. Carr or the instant case, there is hardly 
need to formulate the implicit limitation upon the acceptable 
kinds of rationalization, for the apportionments are so capri­
cious and internally inconsistent that the defendants may be 
required to come forward with any explanation in terms of 
State policy and judgment will go against them if they fail.

12 As repeatedly pointed out in these briefs, we assume them 
to be permissible for the purpose of these cases. See Brief for 
the United States in Maryland Committee for Fair Representa­
tion v. Tawes, No. 29, this Term, pp. 24-25.



34

locality, whether a unique local industry or a special 
need for schools or roads and bridges. Nantucket and 
Martha’s Vineyard in Massachusetts are excellent ex­
amples. Geographically small districts might also be 
thought to enable the people to know their representa­
tives better. Again, a legislature might conceivably 
be better informed and more representative if the 
apportionment recognized political subdivisions with 
an historic coherence and identity of their own. In 
an earlier age local political subdivisions formed a 
meeting place for discussion and the interchange of 
ideas, and the representative who went up to the 
legislature was speaking for the consensus in that com­
munity rather than for so many individuals. Even 
today the town hall or county court house may serve 
as the nerve center o f a political organism attuned to 
local needs and opinions.

A  legislature may also be better informed and 
more representative, in the sense that it is closer to 
its constituents, if  there is a measure o f continuity 
and stability in political arrangements; thus a State 
may limit the frequency with which it reapportions 
the legislature. Since effective political organiza­
tions help to make a legislature representative in this 
sense, a State might desire to conform the boundaries 
o f election districts to the boundaries of local political 
subdivisions in order to reduce the number o f geo­
graphical entities for which a separate organization 
must be created.

The foregoing illustrations are suggestive, not ex­
clusive. We consider below (pp. 45-48) whether there 
is any limit upon a State’s freedom in making an



35

apportionment on the basis of rules that serve the 
foregoing functions. Our point here is that those 
rules are different from differentiations or classifica­
tions among voters whose only function is to give 
farmers more representation than wage earners, ship­
ping interests more representation than the manu­
facturing community, city dwellers more than 
suburbanites, or Protestants more than the Jews. 
The latter kind of distinction, when applied to po­
litical rights including representation, is the very 
antithesis of equality before the law. “ The creation 
by law of favored groups of citizens and the grant 
to them of preferred political rights is the worst of 
all discriminations under a democratic system of gov­
ernment.”  South v. Peters, 339 TT.S. 276, 279 (Jus­
tices Black and Douglas dissenting).

W e find the support for this proposition in four 
areas. First, the principle that the policy knows no 
distinction in the political worth of one man as op­
posed to another, or of one group as opposed to another, 
is a fundamental strain in our political philosophy. 
The long appendix to our brief in the Maryland case 
shows the extent to which the idea of equal repre­
sentation per capita was accepted in the Constitu­
tional Convention of 1789 and the ratifying 
conventions as a principle applicable to any govern­
ment dealing directly with its citizens. Two quali­
fications were widely accepted, but neither is relevant 
here. One was the principle that in a federation of 
sovereign States the States should have equal repre­
sentation. That principle is manifestly inapplicable



36

within a State and, at most, it would justify repre­
sentation by political subdivisions, not the creation 
of preferred classses. The other qualification was 
the view that there should be an upper house not 
directly chosen by the people. This was the theme 
of the remarks by Governor Randolph which the 
amicus brief o f the Attorneys General of several 
States in the Maryland case cites (pp. 36-37) along 
with a quotation from James Madison in an effort to 
show that the constitutional convention was not in 
agreement that State legislatures ought to be appor­
tioned according to population. Randolph’s views 
upon the indirect election of the upper branch have 
nothing to do with the geographical apportionment 
o f representatives elected by the people. His state­
ment on the latter point unequivocally supports our 
reading of the records. Appendix B to the govern­
ment’s brief in the Maryland case, pp. 51-52. The 
burden of the quoted passage from Madison is un­
clear, but he often insisted that representatives should 
be apportioned in direct ratio to population. Id. at 
4, 15-16, 22-24, 27, 32, 38-39, 45, 48, 53, 60-61, 70-71, 
117-118. The only proposals to weight apportion­
ment so as to preserve the political power of the 
original States were rejected.13 Id. at 40, 50, 53.

The thrust of the Fourteenth Amendment is to­
ward the elimination of all class distinctions in the 
exercise of political and other civil rights. There are 
no qualifications upon the equal protection clause. It

13 For the possible convenience of the Court we have set 
forth in the Appendix an analysis of the historical materials 
in the brief o f the State Attorneys General.



37

has general application. It has been applied spe­
cifically to laws dealing with participation in demo­
cratic self-government. Nixon v. Condon, 286 U.S. 
73; Gomillion v. Lightfoot, 364 U.S. 339, 349 (Mr. Jus­
tice Whittaker concurring) ; Gray v. Sanders, 372 U.S. 
368. Nothing could he more inconsistent with the basic 
spirit of the Amendment than the creation o f special 
political classes with preferred voting rights or pre­
ferred representation.

There is nothing to the contrary in the history cited 
by appellants. The constitutions of the States re­
admitted to the Union after the enactment o f the 
Fourteenth Amendment were all before the Court in 
Baker v. Carr, despite appellants’ claims o f original­
ity, for Air. Justice Frankfurter developed essentially 
the same arguments in his dissenting opinion in an 
effort to show that the Amendment is not concerned 
with legislative apportionment. 369 U.S. 186, 266, 315- 
317. The Court found the history unpersuasive, 
doubtless because it fails to show that Congress either 
concerned itself with the apportionment provisions of 
the State constitutions or was aware of their practical 
consequences. In addition, nothing is more apparent 
than that the limits o f the guarantee of equal protec­
tion as applied in 1963 are not to be found in the con­
stitutions and laws of the several States during the 
Reconstruction Period. See pp. 52-56 below. Even 
if it were otherwise, appellants’ argument would be 
irrelevant to the point that we are now making—that 
our whole political history rejects the creation o f fa­



38

vored political classes as a legitimate function o f elec­
tion laws or the apportionment of representatives.14

Although practice often fell short of the professed 
ideal,15 each stage in our history has brough the ideal 
of per capita political equality closer to reality. As 
the Court said in Gray v. Sanders, 372 U.S. 368, 379- 
381:

The concept of “ we the people”  under the Con­
stitution visualizes no preferred class o f voters 
but equality among those who meet the basic 
qualifications.

* * * * *
The conception of political equality from the 
Declaration of Independence, to Lincoln’s 
Gettysburg Address, to the Fifteenth, Seven­
teenth, and Nineteenth Amendments can mean 
only one thing— one person, one vote.

Occasionally, one finds a political figure praising the 
unique virtue of the rural voter or defending the pre­
ferred voting power of special interests, but we know 
of no eminent statesman or political philosopher who 
has avowed the view it is proper to weight the legis­
lature so as to assign to the farm interests, the wage­

14 We have shown above the irrelevance o f appellants' his­
torical arguments as an answer to the fundamental defect 
charged against the Delaware apportionment—that it introduces 
gross and capricious discrimination into the apportionment of 
both houses o f the legislature without even an intelligible 
foundation. See pp. 23-31 above.

We show below that the history, even if otherwise relevant, 
does not support such gross inequalities in both houses of the 
legislature as exist under Delaware’s current constitution.

15 There is scant support in practice for the extreme discrimi­
nation in many States today, which is chiefly a consequence 
o f the more rapid growth o f cities and suburbs.



39

earning interest, the urban interest, or any other class 
o f voters political power disproportionate to its 
number.

Second, the practice in framing State constitutions 
bears out this contention. The central principle, quite 
uniformly, has been to base representation primarily 
upon population.16 There are qualifications and lim­
itations but they are nearly all consistent with the 
basic distinction which we are emphasizing. The lim­
itations have been addressed, with rare exceptions, to 
making the legislature more representative by avoid­
ing the creation of excessively large districts, by 
recognizing the coherent and independent identity of 
historic political subdivisions, by preserving a meas­
ure of stability, etc. No State constitution has ever 
openly espoused the view that it is a proper function 
o f apportionment to allocate power to different social 
or economic classes out of proportion to their numbers. 
Few have provided for discrimination against popu­
lous areas merely because they are populous.17 The 
practice has sometimes been different, but our short­
comings are not the measure of constitutional protection.

16 A  brief survey of State constitutions is set forth in our 
brief in Maryland Committee for Fair Representation v. Tawes, 
No. 29, this Term, pp. 30-31. See also the dissenting opinion 
of Mr. Justice Frankfurter in Baker v. Carr, 369 U.S. 266, 
309-318.

17 New York systematically discriminates against citizens in 
counties having more than 6 percent of the State’s popula­
tion.

Maine, Oklahoma, Pennsylvania and Rhode Island limit 
the number of representatives a single city or town may have 
in one or both branches of the legislature. The Pennsyl­
vania limitation has no practical effect because no city, on 
the basis o f population, is entitled to more than the limit.



40

Third, it is plain that in closely related areas the 
equal protection clause prohibits the kind of discrimi­
nation which we are discussing. No one would 
argue that a State might deny the vote to bankers, 
or wage earners, or lawyers, or farmers. It seems 
equally clear that in electing a legislature it cannot, 
consistently with the Fourteenth Amendment, give 
10 votes to every banker, 5 to every wage earner, 1 
to every lawyer, or 50 to every farmer. How then can 
the State accomplish the same discrimination by giv­
ing some classes greater representation per capita and 
others less, in apportioning the seats ?

Fourth, following the last point a step further, we 
submit that Gray v. Sanders is decisive of the point 
at issue. There, the Court squarely rejected the argu­
ment that the votes in rural areas could be weighted 
more heavily than votes in urban areas in choosing 
a governor (372 U.S. at 379) :

Once the geographical imit for which a rep­
resentative is to be chosen is designated, all 
who participate in the election are to have 
an equal vote— whatever their race, whatever 
their sex, whatever their occupation, whatever 
their income, and wherever their home may be 
in that geographical unit.

I f  the rural voter is not entitled, by reason o f his 
interests or residence alone, to have the State give him 
a greater voice in the selection of a governor than an
The Rhode Island Supreme Court has held the Rhode Island 
limitations unconstitutional. Sweeney v. Notte, 183 A. 2d 296.

Georgia, Maine and Texas give somewhat less representation 
per capita as the population of an area increases.



41

urban voter, then the rural voter is not entitled, by 
reason of that fact alone, to have greater representa­
tion in the legislature. This is not to say that Gray v. 
Sanders is decisive upon all aspects of the State ap­
portionment cases. It is different because a legisla­
tive apportionment, unlike an election within a given 
area, may serve functions, such as those we have out­
lined, the achievement of which requires some depar­
ture from per capita equality of representation. An 
apportionment that serves such a purpose is not in­
valid merely because it happens to result, if  measured 
by per capita representation, in classifications more or 
less corresponding to economic, occupational, or geo­
graphic groups. But Gray v. Sanders necessarily 
holds that the equal protection clause prohibits giving 
some classes of voters more weight than others on the 
ground that they have unusual virtue or special 
importance.18

The point may be clarified by a simple example. 
Assume a State with four counties, each with a popu­
lation of 50,000 and also identical in every other re­
spect save that one county, Poliak County, is 
pastoral :

18 We have discussed above (pp. 16-23) the reasons for reject­
ing any distinction based upon an argument that although 'per 
capita comparisons measure equality in an election within a 
single constituency they do not truly measure equality or in­
equality in a representative body.



42

Spritzer County 
Population _ _ 50,000

Friedman County 
P opu lation  KÔ  OOf)

Unit Votes__  ____ 10
Representatives __  10

Unit V otes____ ____ 10
Representatives_____ 10

Barnett County 
Populat ion _ 50, 000

Poliak County 
{Pastoral)

P opu lation  KOj 000
Unit Votes 10 
Representatives _ 10

Unit Votes- ___  _ 31
Representatives_ _ 31

Gray v. Sanders squarely holds that the discrimina­
tion inherent in giving the 50,000 people o f Poliak 
County 31 unit votes in the election of a governor as 
opposed to the people of Spritzer, Friedman and 
Barnett Counties, who receive only 10 unit votes 
apiece for 50,000 people, cannot be justified by an 
alleged State policy of fostering the pastoral way of 
life. It follows that the policy is equally irrelevant 
as a justification for giving Poliak County 31 repre­
sentatives in the legislature as opposed to the 10 rep­
resentatives apiece allocated to the other counties 
despite their identical size and population. The 
equal protection clause bars laws which serve only the 
function of creating o f favored political classes 
whether it be in the choice of a governor or the selec­
tion of a legislature.

We recognize that such distinctions are not uncon­
stitutional in every context. In enacting tax or regu­
latory laws and in granting appropriations or other 
benefits, a State is free, within reason, to encourage 
one industry or discourage another, to protect the 
wage earner against the employer or the employer



43

against the union, etc. It may take into account the 
special problems of the farmer as opposed to the con­
sumer and grant exemptions or privileges not accorded 
to others. But that kind of classification, we submit, 
is not permissible in respect to political rights. The 
Fourteenth Amendment guarantees the rich and the 
poor, the banker and the wage earner, the farmer and 
the city dweller, like the Catholic and the Protestant, 
equality before the law defining the opportunities for 
participation in self-government.

Precedent amply sustains the view that differentia­
tions which may be permissible in one context become 
irrelevant in another. A  man’s income may be rel­
evant for purposes of taxation, but since it has no 
bearing upon his guilt or innocence when charged 
with crime, a State cannot give an appeal to the man 
who can afford to buy a transcript but deny it to one 
who is too poor. Griffin v. Illinois, 351 U.S. 12. The 
nice lines between larceny and embezzlement may be 
constitutionally acceptable in the ordinary adminis­
tration of criminal justice but not in relation to so 
fundamental a human right as procreation. Skinner 
v. Oklahoma, 316 U.S. 535.

2. Application to the instant case

W e can discover no policy to support the capricious 
discriminations in the apportionment of both branches 
of the Delaware legislature. A fortiori there is none 
that can be defended as relevant to the permissible 
purposes of legislative apportionment. Delaware’s 
apportionment nowise resembles the State constitu­
tions that guarantee each county at least one repre-



44

sentatiVe, or provide for an upper branch made up 
' of representatives of the counties, chosen by the equal 

votes of all the county’s citizens.
Appellants state (Br. 9) that the two additional 

senators given to Kent and Sussex Counties by the 
1963 amendment were allocated to the eastern and 
western halves of each county. Since one new dis­
trict in each county extends across the whole State, 
we question the accuracy of the assertion. Even if 
accurate, it is irrelevant. Surely the distinction be­
tween the eastern and western halves of Kent County 
is not an adequate justification for constituting the 
districts so that District 7 with a population of 
19,584 has the same representation in the Senate as 
District 6 with a population of 46,063, a ratio of worse 
than 2 to 1. And, of course the method of appor­
tioning the two additional seats given to each of the 
two counties does nothing to justify the gross inequali­
ties not only between the counties but among the dis­
tricts within the counties.

Nor is there any indication that senators or repre­
sentatives are distributed on the basis o f area in an 
effort to give each part of the State representation in 
the legislature. The contrary appears clear from the 
widely differing size of the districts. Moreover, dis­
tricts large in area often have greatly more popula­
tion than those much smaller, yet each has only one 
representative. For example, the second representa­
tive district of Kent County has well over twice the 
population and size of that county’s seventh district. 
The tenth representative district of Sussex County has 
almost three times the population and size o f that



45

county’s ninth district. The first senatorial district 
of Kent County has one-third more population than 
the third district although the former is approximately 
four times larger.

The boundaries of the ancient “ hundreds” (see 
p. 7 above) play some part in the districting, but it 
is plain that they neither explain nor justify the in­
equalities. Sometimes hundreds or portions of hun­
dreds are combined; sometimes they are subdivided. 
Furthermore, it is plain that the hundreds have no 
governmental functions or other meaningful identity 
that could be supposed to give its representation as 
such a useful function in making representative 
government work better.

IV
TH E APPORTIONMENT OF TH E DELAWARE LEGISLATURE VIO­

LATES TH E EQUAL PROTECTION CLAUSE BY SUBORDINAT­
ING POPULAR REPRESENTATION TO TH E REPRESENTATION 
OF POLITICAL SUBDIVISIONS TO SUCH A DEGREE AS TO 
CREATE GROSS INEQUALITIES AMONG VOTERS AND GIVE 
CONTROL OF BOTH HOUSES OF TH E LEGISLATURE TO 
SM ALL MINORITIES OF TH E PEOPLE

Apart, from the fatal defects already discussed, the 
apportionment o f the Delaware legislature is unconsti­
tutional because any otherwise permissible objectives 
that disparities in per capita representation might be 
supposed to secure are insufficient to justify such 
gross inequalities and total disregard for the princi­
ple of majority rule as exist in the selection of rep­
resentatives to both the Senate and House of Repre­
sentatives. As we have shown in our previous briefs, 
objectives that might furnish acceptable justification

714- 431— 63------------4



46

for some variations from equal representation per 
capita19 become so relatively inconsequential as to 
render the discrimination arbitrary and capricious 
where the inequalities are grosser and the principle 
of majority rule has been totally submerged in both 
houses of the legislature. See especially Brief for the 
United States in Maryland Committee for Fair Rep­
resentation v. Tawes, pp. 46-50, 57-73.

Measured by any reasonable standard, the appor­
tionment o f the Delaware legislature creates gross in­
equalities among voters and allows a small minority 
to control the legislature. We have seen above (pp. 
24-30) the wide disparities of voting power among 
persons residing in the various counties and senatorial 
and representative districts. The disparities are as 
high as 15 to 1 in the Senate and 12 to 1 in the House 
of Representatives. There are gross disparities be­
tween districts within the same county as well as 
across county lines.

A  majority of the members of the House is elected 
by persons residing in districts with only 28 percent 
of the population. A  majority of the Senate is 
elected by persons residing in districts with only 21 
percent of the population—a reduction o f 1 percent

19 Since the instant case, like the State apportionment cases, 
argued earlier this Term, can be decided without ruling upon 
whether the Fourteenth Amendment requires substantially equal 
representation per capita in both houses of a State legislature, 
we assume here, as we have in those cases that there may be 
permissible objectives of legislative apportionment that would 
justify some departure from equality per capita. The asssump- 
tion is made arguendo reserving further judgment until the 
issues are presented.



47

as a result of the 1963 amendments. The Delaware 
legislature considered as whole is worse apportioned 
than any of the States involved in the State apportion­
ment cases argued last month. Indeed, measured by 
the percentage of votes able to elect a majority of the 
two houses, it is the third worst apportioned legisla­
ture in the country.20

The discrimination in both houses seems to run 
almost entirely in favor of the same areas. For ex­
ample, the two least populous house districts in the 
State (numbers 14 and 15 in New Castle County), 
comprise the least populous senatorial district (num­
ber 7 in New Castle County). The second and third 
least populous districts in Kent County (niunbers 3 
and 4), form the least populous Senate district in 
that county (number 2). The least and fifth least 
populous house districts in Kent County (numbers 6 
and 9) form the second least populous Senate district 
in the county (number 4). The least and fifth least 
populous house districts in Sussex County (numbers 7 
and 8) form the county’s least populous Senate dis­
trict (number 4). Conversely, the 20 most populous 
house districts (New Castle County numbers 2A, 2B,
3, 5A, 5B, 6A, 6B, 6C, 6D, 7A, 7B, 7C, 8A, 8B, 9, 10A, 
10B, 10C; Kent County number 2; Sussex County 
number 10) are in seven of the eight most populous 
Senate districts (New Castle County numbers 1, 2, 3,
4, 5; Kent County number 1; Sussex County num­

20 The worse apportioned legislatures from this standpoint are 
Florida and Nevada. Maryland is approximately the same as 
Delaware. This ranking has been calculated by adding to­
gether the percentage of the voters needed to elect a majority 
of each of the two houses of the 49 bicameral State legislatures.



48

ber 5 ) ; only the seventh most populous Senate dis­
trict (Kent County number 3) is formed of less pop­
ulous house districts.21

In short, the inequality in each house adds to the 
inequality in the other. W e submit that, where, as 
here, a small part of the people is given complete 
control of the legislature, the apportionment violates 
the Fourteenth Amendment regardless of any justi­
fication that can now be advanced. The justifications 
sometimes put forward by larger States would carry 
less weight here even if  they fitted the apportionment. 
Delaware is the second smallest State in the country. 
Seventy-one senators and forty-one representatives 
would, if apportioned directly on the basis of popula­
tion, still represent extremely small districts. Kent 
County, the least populous county, would still be en­
titled to three senators and six or seven representa­
tives for an area of less than 595 square miles—an 
average of less than 100 square miles per representa­
tive.

It is plain that the analogy appellants seek to 
draw between the apportionment of the Delaware 
legislature and the Congress of the United States is 
no answer to the point we have been making. There 
is plainly no analogy, among other reasons because 
the actual apportionment of the Delaware legislature 
bears no resemblance to the constitutional apportion­
ment of the Congress.

21 In considering the Senate districts, we have not included 
the Senate districts created by the 1963 amendments in Sussex 
and Kent Counties which overlap with the earlier districts.



49

First, the Constitution of the United States pro­
vides an obviously intelligible basis for apportioning 
Congress. Each State is entitled to two members of 
the Senate. Art. I, Sec. 3. The members of the 
House of Representatives are apportioned on the 
basis of population, except that each State is guar­
anteed a minimum of one. Art. I, Sec. 2. In con­
trast, as. we have seen above (pp. 23-31), the 
apportionment of both houses of the Delaware legis­
lature is a crazy-quilt, having neither rhyme nor rea­
son. Both the Senate and House districts vary 
widely in population without any intelligible ex­
planation.

Second, the limitations on apportionment based 
strictly on population in the Constitution concerning 
the United States Congress are relevant to the repre­
sentative process. They are intended to give each 
State, i.e., each political subdivision, equal represen­
tation in the Senate and minimum representation in 
the House of Representatives. Delaware’s apportion­
ment has no comparable objectives.

Third, even if it were not a crazy-quilt, the Dela­
ware Senate is not apportioned like that of the United 
States. While each county has seven senators, the 
Senate is actually elected from districts within the 
counties rather than by the counties themselves. 
These districts are merely arbitrary units formed for 
election purposes which are unequal in population. 
Thus, unlike the United States Senate, the Delaware 
Senate does not consist o f representatives of govern­



50

mental subdivisions which are given equal numbers of 
legislators who represent the subdivision on a cor­
porate basis. Instead, the Delaware Senate is com­
posed of representatives from individual districts with 
no corporate existence or governmental significance 
apart from elections.

Fourth, the apportionment o f the Delaware House 
o f Representatives is so lacking in relation to popula­
tion that a numerical majority comes from districts 
containing only 28 percent o f the people. The history 
o f the Constitution and its ratification shows that the 
framers intended that the federal House of Repre­
sentatives would be apportioned between the States 
on the basis o f population. While each State is as­
sured of at least one Representative, it is clear that 
the framers expected that each State would have 
enough population to entitle it to one Representative 
without this guarantee. Thus, the Constitution sets 
the minimum ratio of Representatives to popula­
tion at one to 30,000 (Art. I, Sec. 2), which was be­
low the population of any o f the States at the time. 
And the first apportionment of the House o f Repre­
sentatives, which is contained in the Constitution itself 
(Art. I, Sec. 2), gives more than two representatives 
to every State except Rhode Island and Delaware, 
and those two States would have been entitled to such 
representation on the basis o f their population.

Today only four States have less than 1/435 of the 
population.22 All have over half the ratio and would 
be entitled to a representative, even without the mini­

22 Vermont, Wyoming, Nevada, and Alaska.



51

mum guarantee, under the equal proportions method 
of allocating representatives which Congress now 
follows. 2 U.S.C. 2a, Thus, the federal House of 
Representatives, in effect, is apportioned by the Consti­
tution among the States almost exactly in conformity 
with population. It takes representatives from States 
with almost 50 percent of the population to constitute 
a majority of the House.23

The apportionment of the Delaware House of Rep­
resentatives between counties is based only partially 
on population. New Castle County is guaranteed fif­
teen representatives and Kent and Sussex ten apiece; 
thus, 35 of the present 45 representatives are allocated 
wholly without regard to population.24 Furthermore, 
the 35 representatives are distributed within the coun­
ties with no real regard for population, being elected 
from grossly unequal districts arbitrarily established

23 Unfair districting within the States by the State legisla­
tures, however, has resulted in having a majority o f repre­
sentatives elected from districts having only 42 percent of the 
population. Such unfair districting is probably unconstitu­
tional. See the government’s brief in Wesberry v. Sanders, No. 
22, this Term, pp. 30-35.

24 In addition, the other ten representatives are allocated 
according to the population of arbitrarily formed election dis­
tricts rather than on a basis of the population of the county 
as a whole. Thus, a county could be given additional repre­
sentation if one of its districts was populous even though the 
other districts were so unpopulous that the county as a whole 
would be entitled to no more representation. At present, this 
has not occurred since only the most populous county, New 
Castle, has received additional representation under the 1963 
amendment. However, if the second representative district of 
Kent gains less than 5,000 people it will receive an additional 
representative although the county as a whole is overrepre­
sented now.



52

for election purposes. The net result is that only 28 
percent of the people of Delaware live in districts 
electing over half the State House of Representatives. 
The federal analogy, therefore, does not apply, since 
Delaware does not apportion either house of the legis­
lature on the basis o f population.25

Nor can anything be found in the history of the 
readmission of the seceded States that supports the 
notion that the equal protection clause permits the 
gross discrimination in per capita representation 
found in both houses o f the Delaware legislature. 
In the first place, as the history set forth by the 
appellants shows, Congress did not even advert 
to the problem of apportionment in readmitting the 
Southern States.28 For, at that time, unlike the time

25 Even if the apportionment of the Delaware General Assem­
bly was factually similar to the apportionment o f Congress, 
the federal analogy would not apply. The equality o f repre­
sentation by States in the United States Senate recognized 
that the new government was in part a continuation of the old 
confederation o f sovereign States. See our brief in the Mary­
land case, pp. 73-82. Whether or not the three counties of 
Delaware were sovereign for three months in 1776 as appel­
lants contend, they are today “nothing more than political sub­
divisions of [the] State [s]” with “ restricted powers and duties” 
delegated by the legislature. State v. Warwick, 108 A. 2d 85, 89 
(Del. Superior Ct.). And of course the application of the 
Fourteenth Amendment depends on present facts and circum­
stances. Brown v. Board of Education, 347 U.S. 483, 492-493.

20 Appellants state (Br. 67) that, “ the Federal pattern for 
a legislature was discussed in the course of the debates.” The 
relevant “ excerpts from the debates” included in appellants’ brief 
(pp. 112-132) contain no discussion whatever of the apportion­
ments provided in any o f the State constitutions under exami­
nation. Perhaps appellants’ are referring to a speech by 
Senator Sumner (App. Br. 119-121) which discusses the 
equality o f the States under the 1789 Constitutions, and par-



53

of the adoption o f the original Constitution and again 
during the last few decades, apportionment was not an 
issue of major importance. There is no way to know 
whether, if  the issue had been squarely posed, Con­
gress would have considered that the equal protec­
tion clause applied to apportionment of State legis­
latures at all and, if it did, what standards were 
appropriate.

Second, this Court long ago made it clear that the 
protection afforded by the Fourteenth Amendment 
cannot be limited by historical research into the con­
scious intent of its framers. In Brown v. Board of 
Education, 347 U.S. 483, massive briefs and “ [r]ear- 
gument [were] largely devoted to the circumstances 
surrounding the adoption of the Fourteenth Amend­
ment in 1868. [They] covered exhaustively consider­
ation of the Amendment in Congress, ratification by 
the states, then existing practices in racial segregation, 
and the views of the proponents and opponents of 
the Amendment.”  Id. at 489. Despite this extensive 
historical analysis, the Court found that history was 
“ inconclusive”  (ibid.) :

The most avid proponents of the post-War
Amendments undoubtedly intended them to
remove all legal distinctions among “ all per-

ticularly equal representation in the Senate. However, Sen­
ator Sumner does not even suggest that this equality among 
sovereign States is relevant to the apportionment of State 
legislatures. Indeed, he explicitly stated that he was speaking 
on an entirely different subject ( “What I  have to say today will 
be confined to a single topic. I  shall speak of the validity and 
necessity of fundamental conditions on the admission of States 
into the body of the Nation * * * (emphasis in original)). 80 
Cong. Globe 3024.



54

sons born or naturalized in the United States.” 
Their opponents, just as certainly, were antago­
nistic to both the letter and the spirit of the 
Amendments and wished them to have the most 
limited effect. What others in Congress and the 
state legislatures had in mind cannot be deter­
mined with any degree of certainty.

Furthermore, the Court went on to say that “ [i]n  ap­
proaching this problem, we cannot turn the clock back

'Oto 1868 when the Amendment was adapted, or even in 
1896 when Plessy v. Ferguson was written.”  Id. at 
492.

The silence as to apportionment leaves the historical 
issue in this area even more uncertain. The history 
that appellants invoke was all brought to the Court’s 
attention in Baker v. Carr by the dissenting opinion 
of Mr. Justice Frankfurter. The argument was 
rejected.

Finally, appellants’ history, even if  otherwise per­
suasive, does not sustain the present Delaware appor­
tionment. At most, the history shows that some de­
viations from per capita representation in the re­
admitted States provoked no objection. There is no 
evidence that Congress knew of them; nor that it 
knew whether they were large or small. In point 
of fact, five of the State constitutions, as appellants 
admit (Br. 57), provided for the apportionment of 
both houses on the basis of population. In the other 
five the disparities were small compared to those 
existing today in Delaware. The South Carolina Con­
stitution of 1868 provided for a Senate composed of 
one senator for each county, except Charlestown 
County was to receive two, and a House of Repre­
sentatives apportioned according to population except



55

that each county was given one. As a result, 36 and 
44 percent o f the people lived in counties electing a 
majority o f the two houses.

The Georgia Constitution of 1868 provided no stand­
ard for the reapportionment o f either House. The 
initial apportionment specified in the Constitution 
grouped three counties into each single-member sena­
torial district and gave three seats in the House to 
the six largest counties, two seats to the next 31, and 
one to the rest. Consequently, 36 and 37 percent of 
the people lived in counties electing a majority of the 
two branches.

In Florida, the 1868 Constitution apportioned the 
Senate by districts without stating any standard and 
gave a representative for each county and an addi­
tional representative for each 1,000 “ registered votes.’ ’ 
A  majority of both houses could be elected by persons 
residing in counties with 33 and 27 percent of the 
people, respectively.

The Louisiana Constitution of 1868 provided no 
standard for apportioning the Senate, but apportioned 
the House of Representatives on the basis of popula­
tion with each parish receiving at least one member. 
Under the initial apportionment specified in the con­
stitution, 48 and 40 percent of the people lived in 
counties electing a majority of the two houses.

Finally, the Virginia Constitution of 1870 provided 
no standard for apportionment. The initial appor­
tionment specified in the Constitution resulted in 44 
and 40 percent of the people residing in counties 
electing a majority o f the legislature.

Except for Louisiana, the percent figures are based 
on the 1870 census because the Civil W ar caused sig­
nificant relocation of population. In no State did the



56

malapportionment approach the severity of that now 
existing in Delaware.

Y
TH E INJU N CTION  ORDERED BY TH E DISTRICT COURT IS NOT 

AN  ABUSE OP DISCRETION

The district court, after holding unconstitutional 
the provisions of the Delaware Constitution appor­
tioning seats in the State legislature, entered a declar­
atory judgment and later enjoined the appellant 
election officials from holding elections thereunder. 
Since, as we have shown above, this determination was 
correct, the district court was acting well within its 
discretion in enjoining the existing apportionment. 
The traditional remedy when a State statute is held 
unconstitutional is to enjoin further action thereunder. 
E.g., Ex parte Young, 209 TT.S. 123. The State and 
lower federal courts have in numerous cases used this 
remedy in the field of apportionment. E.g., Sims v. 
Frink, 208 F. Supp. 431 (M.D. Ala.), pending on appeal 
sub nom. Reynolds V. Sims, Nos. 23, 27, 41, this Term; 
Davis v. Mann, 213 F. Supp. 577 (E.D. Va.), pending 
on appeal, No. 69, this Term; Thigpen v. Meyers, U.S. 
D.C., W.D. Wash., decided May 3, 1963, pending on 
appeal, No. 381, this Term; Scholle v. Secretary of 
State, 367 Mich. 176,116 N.W. 2d 350; Parker v. State, 
133 Ind. 178, 32 N.E. 836; Denny v. State, 144 Ind. 503, 
42 N.E. 929; Brooks v. State, 162 Ind. 568, 70 N.E. 
980; Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865; 
Armstrong v. Mitten, 95 Colo. 425, 37 P. 2d 757; 
Stiglitz v. Schardien, 239 Ky. 799, 40 S.W. 2d 315; 
Rogers v. Morgan, 127 Neb. 456, 256 N.W. 1; State ex 
ret. Lamb v. Cunningham, 83 Wis. 90,53 N.W. 35; State



57

ex rel. Attorney General v. Cunningham, 81 Wis. 440. 
51 N.W. 724; Asbury Park Press, Inc. v. Woolley, 
33 N.J. 1,161 A. 2d 705, 713-714.

Appellants contend (Br. 98-110) that the Delaware 
legislature should have been given the opportunity 
to reapportion itself before the injunction was issued. 
The legislature had already had the opportunity. 
After indicating doubt about the existing Delaware 
apportionment, the court in a pre-trial order gave the 
legislature time to act (R. 66-76).27 28 The deadline was 
fixed to meet the requirements of Delaware’s election 
laws (R. 75-76). The legislature, in response, passed a 
constitutional amendment at two successive sessions.23 
In the Senate, the amendment gave the already-over­
represented counties, Kent and Sussex, two additional 
members apiece. The existing wide disparities in 
senatorial districts within the counties (see pp. 28-30 
above) were left unchanged and the percentage of 
people living in districts which elected a numerical 
majority of the Senate was reduced from 22 to 21

27 Several other courts have likewise delayed determining the 
constitutionality of State apportionment so the legislature could 
act. Lein v. Sathre, 205 F. Supp. 536, 540 (D. N .D .); 
Magraw v. Donovan, 163 F. Supp. 184, 187-188 (D. Minn.) ; 
MiJcell v. Rousseau, 183 A. 2d 817, 823 (Yt. Sup. Ct.) ; Asbury 
Park Press, Inc. v. Woolley, 33 N.J. 1, 161 A. 2d 705, 714—715; 
In re Legislative Reapportionment, 374 P. 2d 66, 71-72 (Colo. 
Sup. C t.); Butcher v. Trimarchi, 28 D. & C. 2d (Pa.) 537, 542.

28 The Delaware Constitution provides two procedures for 
amendment, both of which depend on the legislature. First, 
the' legislature may itself adopt an amendment by passage by 
two-thirds vote at two consecutive sessions. Art. 16, § 1. 
Second, the legislature by two-thirds vote may place on the 
ballot the question whether to hold a constitution convention 
and, if a majority of the voters so decide, a convention is 
held. Art. 16, § 2.



58

percent. The amendment gave some additional repre­
sentation in the lower house to populous districts in 
New Castle County but left untouched many of the 
existing disparities between and within counties (see 
pp. 24-28 above). The percentage o f people living in 
districts electing a majority of the House of Repre­
sentatives was raised only from 19 to 28 percent.

In short, the Amendment hardly constituted a seri­
ous effort by the legislature to give fair representation 
in either house to all the people of Delaware. The 
district court in these circumstances was entitled to 
decree a reapportionment, as was done in the Alabama 
case now before the Court. Sims v. Frink, 208 F. 
Supp. 431, pending on appeal sub nom. Reynolds v. 
Sims, Nos. 23, 27, 41, this Term; accord, Moss v. Burk­
hart, U.S. D.C., W.D. Okla., decided July 17, 1963; 
Sobel v. Adams, 208 P. Supp. 316, 318 (S.D. Fla.) ; 
Toombs v. Fortson, U.S. D.C., N.D. Ga., decided 
September 5, 1962. See also Fortner v. Barnett, No. 
59,965, Chancery Court, First Judicial District, Hinds 
County, Mississippi; Stevens v. Faubus, 354 S.W. 2d 
707, 711 (Ark. Sup. Ct.).

The court below stopped short of specifying an 
apportionment. While it indicated guidelines for 
testing the constitutionality of a State legislative 
apportionment in its opinion, they are not part of the 
order. The decree merely enjoins holding a. new elec­
tion under the unconstitutional apportionment, while 
allowing the legislature to reapportion itse lf. I t  is 
true that the legislature will not be able before the 
1964 elections to pass a constitutional amendment at 
two consecutive sessions. B u t, since the existing con­



59

stitutional provisions have been held invalid, there is 
no reason why the new apportionment cannot be en­
acted by statute. No provision in the State constitu­
tion prohibits apportionment by statute where no valid 
apportionment provision exists in the constitution it­
self. Furthermore, the statutory apportionment need 
be only temporary. By passing a valid constitutional 
amendment now, the legislature elected in 1964 can 
adopt it by approving it again.

In these circumstances, the district court plainly 
did not abuse its discretion. The Delaware appor­
tionment violated the Fourteenth Amendment. The 
court decreed the narrowest remedy possible to correct 
an unconstitutional provision o f a State constitu­
tion— an injunction against its continued operation. 
The court could provide time for a constitutional 
amendment without permitting the election of still 
another legislature in violation of the complainants’ 
constitutional rights. The State still retains freedom 
to shape its own system of apportionment subject to 
the requirements of the Fourteenth Amendment.

CONCLUSION

For the foregoing reasons, we respectfully submit 
that the decision of the district court should be 
affirmed.

Ajrchibald Cox,
Solicitor General.

B ruce J. Terris,
Assistant to the Solicitor General.

R ichard W . Schmude,
Attorney.

December 1963.





A P P E N D IX

1. In a brief filed as amici curiae in the four State 
apportionment eases argued earlier this Term, four­
teen State Attorneys General dispute (pp. 19-32) the 
government’s historical analysis of the Constitutional 
Convention of 1787 as supporting the constitutional 
requirement that State legislatures be apportioned on 
the basis of population. First, they say (Br. 20-24, 
26) that the framers repeatedly analogized apportion­
ment of the State legislatures and the apportionment of 
the legislature in the new “national”  government; that 
the apportionment of the State legislatures was fre­
quently not based on population, such as New Jersey 
which gave each county a member of the State Sen­
ate; and that therefore similar apportionments today 
may properly be analogized to the United States 
Senate. It is true that the framers did refer to the 
apportionment of the State legislatures. But, with 
only one exception, they did not approve apportion­
ments which gave some voters more representation 
than others. The amici’s own examples (Br. 22) 
prove this point.

Madison’s statement that “ there was the same rea­
son for different numbers of representatives from dif­
ferent States, as from Counties of different extents 
within particular States” is part o f a speech opposing 
equal representation from every State in the new 
legislature. Madison argued that the new nation 
would no longer be “ a federal one among sovereign 
States” but a “national Governt.”  I  Records of the

(61)

714—431— 63------5



62

Federal Convention (Farrand ed., 1911), p. 37. The 
entire speech, insofar as is relevant is : 1

[WJhatever reason might have existed for the 
equality of suffrage when the Union was a fed­
eral one among sovereign States, it must cease 
when a national Govern! should be put into 
the place. In the former case, the acts of 
Congs. depended so much for their efficacy on 
the cooperation of the States, that these had 
a weight both within & without Congress, 
nearly in proportion to their extent and im­
portance. In the latter case, as the acts of the 
Genl. Govt, would take effect without the inter­
vention of the State legislatures, a vote from a 
small State wd. have the same efficacy & 
importance as a vote from a large one, and 
there was the same reason for different num­
bers of representatives from different States, 
as from Counties of different extents within 
particular States.

Madison refers to State apportionment among coun­
ties to support his position because they likewise are 
not entitled to equal representation, regardless of 
population, in the legislature. The convention, as 
Madison himself recognized in the Federalist Papers, 
rejected his view that the new constitution would form 
a national government and end State sovereignty in 
favor of adopting a mixed national government. 
Appendix B to the government’s brief in the Maryland 
case [hereinafter Appendix B ], pp. 69, 71-72, 77-78. 
Consequently, Madison’s analogy between the new leg­
islature and the State legislatures does not apply to the 
constitution as it actually exists.

The second statement of Madison relied on by the 
amici (p. 22) is that “ [t]he counties in Virginia are

1 This speech, which Strongly supports the government’s 
position, was unfortunately omitted from the Appendix to our 
brief in the Maryland case.



63

exceedingly disproportionate, and yet the smaller has 
an equal vote with the greater, and no inconvenience 
arises.”  This quotation, which comes from the notes 
of Robert Yates, a convention delegate, is, as we 
pointed out in Appendix B, p. 24, note 10, almost 
certainly erroneous. Appendix B contains at least 
twelve statements by Madison (pp. 4, 15-16, 22-24, 
27, 33, 38-39, 45, 48, 53, 60-61, 70-71, 117-118) made 
at the convention and elsewhere strongly supporting- 
representation both in the federal and State govern­
ments based directly on population and attacking 
other methods of apportionment as unjust. More­
over, Madison’s own account of his speech (Appendix 
B, pp. 22-24) contains no such statement. On the 
contrary, he says that “ Counties of the same States 
[are] represented in proportion to their numbers”  
and argues that, since the new government will be 
supreme, just as the States have been, the legislature 
must be apportioned on the basis of population as a 
matter of justice. Thus, again, Madison’s speech 
supports our position that the framers believed that 
a legislature in a government operating directly on 
the people must be apportioned on the basis o f popu­
lation and that therefore this was the only fair 
method of apportioning State legislatures. While, 
as the amici suggest (Br. 21), Madison may have been 
factually wrong in assuming that the State legisla­
tures of his time were all apportioned on the basis 
of population whereas several were not, his view of 
the only fair method of apportionment is plain.

The amici then quote Gunning Bedford of Dela­
ware that “ [a]n exact proportion in the Representa­
tion is not preserved in any one of the States.”  Ap­
pendix B, p. 36. Aside from the fact that perfect 
apportionment based on population is a virtual im­
possibility for which no one contends, Bedford’s basic



64

argument is that equal representation in the new leg­
islature is required because there is to be “ a mere con­
federacy of the States,”  n o t11 a perfect consolidation.”  
Ibid. He refers to the State legislatures, like the mal­
apportionment of Great Britain, merely to show that 
all legislatures need not be apportioned by population. 
He does not praise the unequal apportionment of State 
legislatures, and implies that, if  the new government 
were to be a consolidation ending the sovereignty of 
the States, he would not support equal representation 
for the States.

The amici quote (p. 22) a speech by Elbridge Gerry 
stating that in the State legislatures one branch is 
often “ somewhat aristocratic” which he said would 
assure “ a better chance” of refinement in the choice 
of representatives. I Farrand 155.2 This statement 
was, however, made in support of election by the State 
legislatures, rather than the people. It has nothing to 
do with apportionment since apportionment can be 
made on the basis of population whatever method of 
election is used. This is made clear by the fact that 
Gerry stated at the convention that allowing each 
State in the Confederation an equal voice was an “ in­
justice.”  Appendix B, pp. 29-30. He agreed to 
equal representation in the Senate only because a com­
promise was made to form less than “ a proper na­
tional plan.” Appendix B, p. 44.

The statement by Hugh Williamson referred to by 
the amici is part o f a speech supporting apportion­
ment based on population. He (Appendix B, p. 7) :

illustrated the cases by a comparison of the dif­
ferent States, to Counties of different sizes 
within the same States; observing that propor­
tional representation was admitted to be just in

2 This quotation was not included in Appendix B since, for 
the reasons stated above, it is irrelevant.



65

the latter case, and could not therefore be fairly 
contested in the former.

This statement can hardly be used to support an ap­
portionment giving each county equal representation 
regardless of population.

The reference by Randolph cited by the amici 
( I  Farrand 26-27) is to various State legislatures 
which have been feeble and inadequate because they 
were too democratic. But while he obviously did not 
want the people directly to control all organs of the 
government, he did not even suggest that apportion­
ment should be based other than on population. More­
over, Randolph was one of the most vigorous sup­
porters at the convention of apportionment based 
directly on population. See Appendix B, pp. 51-52.

The amici cite (Br. 26) a statement by Hamilton 
that “ individuals forming political Societies modify 
their rights differently, with regard to suffrage. Ex­
amples of it are found in all the States.”  Appendix 
B, p. 28. This was merely a statement of the fact 
that many persons were not entitled to vote. It was 
certainly not a defense of apportionment on some basis 
other than population since Hamilton went on in the 
speech to attack proposals to give each State the same 
representation. And earlier in the convention, Hamil­
ton had stated that equal representation for each State 
“ shocks too much the ideas of Justice, and every 
human feeling * * Appendix B, p. 14.

The amici omit other references to the apportion­
ment of State legislatures. Madison argued for the 
adoption of what is now Article I, Section 4, giving 
Congress power to regulate federal elections because 
unfair apportionment of State legislatures might lead 
to similar results in Congressional districting. Ap­
pendix B, pp. 63-64. He repeated this contention at



66

the Virginia ratifying convention in attacking the in­
justice of South Carolina’s discriminatory apportion­
ment. Appendix B, p. 98. At the Massachusetts 
ratifying convention, Francis Dana and Rufus King 
defended Article I, Section 4, in part by pointing to 
the unfair apportionments of South Carolina, Rhode 
Island, Connecticut, and Great Britain. Appendix B, 
pp. 93-94. At the same convention, John Coffin Jones 
and James Bowdoin praised the State legislatures as 
generally apportioned by population. Appendix B, 
p. 94.

We, and apparently the amici, have found but one 
statement at the convention supporting their position.3 
Nathaniel Gorham of Massachusetts, in support of 
the compromise according each State equal repre­
sentation in the Senate, stated (Appendix B, pp. 
17-18) :

I f  Va. should have 16 votes & Delre. with sev­
eral other States together 16. those from Virga. 
would be more likely to unite than the others, 
and would therefore have an undue influence. 
This remark was applicable not only to States, 
but to Counties or other districts of the same 
State. Accordingly the Constitution of Massts. 
had provided that the representatives of the 
larger districts should not be in an exact ratio 
to their numbers. And experience he thought 
had shewn the provision to be expedient.

3 Gouverneur Morris of Pennsylvania approved of efforts in 
his own State to prevent backwoodsmen from having their fair 
representation in the legislature because he thought that they 
might attain control. Appendix B, p. 53. This was part of 
Morris’ argument that the presentation of new States in the 
national legislature should be limited so that they never could 
attain a majority. However, Madison and others vigorously 
opposed the proposal (Appendix B, p. 53), and the conven­
tion rejected it.



67

Clearly, Glorham was justifying consideration of fac­
tors other than population in apportioning State leg­
islatures just as in the new legislature. He does not, 
however, say that State apportionments can, like the 
new Senate, give equal representation to each county. 
For, he referred to the Massachusetts Constitution of 
1780 which provided that the Senate would be appor­
tioned among the districts on the basis of taxes paid 
(a method of apportionment considered at the time as 
analogous to population) and that the House of Rep­
resentatives would be apportioned by giving to each 
town having 450 voters one member and an additional 
member for every 225 additional voters, except that 
each existing town was given at least one. Part II, 
Ch. I, Sec. 2, Art. I, and Sec. 3, Art. II. Thus, the 
Massachusetts legislature was apportioned largely in 
proportion to taxes and population.

One statement, made by a delegate having no par­
ticularly significant part in the convention, is hardly 
enough to show that the framers believed that the 
apportionment of State Senates was analogous to 
the apportionment of the Senate of the United States. 
This would be so even if  the convention contained no 
other statements on this subject. But, as shown 
above and particularly in our brief in the Maryland 
case (pp. 75-80), the whole history of the Constitu­
tion demonstrates the contrary conclusion.

In short, the references to the States legislature 
apportionments at the Philadelphia convention and 
the subsequent ratifying convention do not support 
the proposition that State Senators are analogous to 
th at o f the United States. The references cited 
above show that framers overwhelmingly believed that 
the only fair method of apportioning State legisla­
tures is according to population. Madison and W il­
liamson argued that the new legislature should like-



6 8

wise be apportioned by population because they de­
sired a truly national government ending State sov­
ereignty and operating directly on the people. But 
this was not the result of the convention. Instead, 
the new government was to be a mixture o f a national 
government and a confederation, with the House of 
Representatives reflecting the former and the Senate 
the latter. Since the States are not such a mixture, 
their legislatures, as the framers plainly believed, 
must be apportioned on the basis of population.

2. The amici Attorneys General also claim (Br. 
27-29) that the federal anology is valid because many 
of the framers o f the constitutional convention pro­
posed limiting the democratic features of the new 
government. This we do not dispute. Our point is 
rather that those supporting a national government 
operating directly on the people strongly supported 
apportionment of the entire legislature, whether it 
was to be one or two houses, on the basis o f popula­
tion. This was true even when they opposed election 
o f the legislature by the people in favor o f election by 
the State legislatures.

The framers cited by the amici made clear that ap­
portionment of the legislature or a non-population 
basis was not intended to be one of the permissible 
checks on control by the people. The amici cite 
(Br. 27-28, 32, 34, 37) Randolph, Gerry, and Madi­
son. Not only do none o f these statements even sug­
gest that apportionment on any basis but population 
is fair, but, as we have seen above (pp. 61-65), all 
three vigorously supported apportionment based en­
tirely on population.

The amici quote (Br. 28-29) a series of statements 
made by proponents of the plan finally adopted of 
equal representation of States hi the Senate. The 
quotations state that equal representation was needed



69

to prevent the populous States from dominating and 
destroying the less populous. It is significant, how­
ever, that these men believed in representation by 
States rather than people entirely because they con­
sidered the new government as either a mere continua­
tion of the old Confederation although with somewhat 
enhanced powers or as a mixture of a Confederation 
and a national government.

In the same speech quoted by the amici in which 
William Paterson of Hew Jersey said he feared that 
his State “ would be swallowed up”  (I  Parrand 179), 
he plainly stated (Appendix B, p. 6) :

A  confederacy supposes sovereignty in the 
members composing it & sovereignty supposes 
equality. I f  we are to be considered as a 
nation, all State distinctions must be abolished, 
the whole must be thrown into hotchpot, and 
when an equal division is made, then there may 
be fairly an equality of representation.4

Later, he said that apportionment based on popu­
lation “ is right in principle” if “ state distinctions are 
done away; but those to certain purposes still exist.”  
Appendix B, p. 12. On several other occasions, he 
made plain that equal representation by States was 
necessary to protect State sovereignty. Appendix B, 
pp. 6, 11, 12. Thus, it is plain that Paterson believed 
that the legislature of a government operating directly 
as the people, such as a State, must be apportioned 
according to population.

David Brearly of Hew Jersey agreed with Paterson 
that equal representation of States was required if 
the Confederation was to be continued, as he desired,

4 Paterson is referring to a proposal of David Brearly of 
Hew Jersey that, if the Confederation is to be ended, the 
States should be abolished, new States should be formed with 
equal population, and representation in the legislature should 
be the same for each State (Appendix B, p. 7).



70

and that representation by population was permissible 
only if  a national government were formed (Appen­
dix B, p. 7) :

I f  the states still remain sovereign, the form 
of the present resolve is founded on principles 
of injustice. He then stated the comparative 
weight of each state—the number of votes 90. 
Georgia would be 1, Virginia 16, and so of the 
rest. This vote must defeat itself, or end in 
despotism. I f  we must have a national gov­
ernment, what is the remedy? Lay the map of 
the confederation on the table, and extinguish 
the present boundary lines of the respective 
state jurisdictions, and make a new division 
so that each state is equal— then a government 
on the present system will be just.

The next delegate cited by the amici (Br. 29), Roger 
Sherman of Connecticut, first proposed the compro­
mise that the Senate be equally apportioned among 
the States and the House of Representatives be ap­
portioned by population. He explained the former 
as an effort to protect State sovereignty (Appendix 
B, p. 9 ) :

* * * as the people ought to have the election 
of one of the branches of the legislature, the 
legislature of each state ought to have the 
election of the second branch, in order to pre­
serve the state sovereignty; and that each state 
ought in this branch to have one vote.

The speech in which Alexander Martin of North 
Carolina states that he feared domination by the pop­
ulous States begins by suggesting that the new gov­
ernment must be a continuation of the Confederation 
(Appendix B, p. 16) :

[The States] entered into the confederation on 
the footing of equality; that they met now to 
to [sic] amend it on the same footing, and that 
he could never accede to a plan that would



71

introduce an inequality and lay 10 States at 
the mercy of Va. Massts. and Penna.

Gunning Bedford, as we have seen (pp. 63-64), 
based his argument for equal representation of States 
on his view that the “ confederacy of the States,”  in 
which each State is sovereign, must be continued.

Oliver Ellsworth of Connecticut supported the Con­
necticut compromise. He based this position explicitly 
on the ground that the new government must be a 
mixture (Appendix B, pp. 30-31) :

We were partly national; partly federal. The 
proportional representation in the first branch 
was conformable to the national principle & 
would secure the large States agst. the small. 
An equality of voices was conformable to the 
federal principle and was necessary to secure 
the Small States agst. the large. * * * The 
existing confederation was founded on the 
equality of the States in the article of suffrage: 
was it meant to pay no regard to this antece­
dent plighted faith.

Ellsworth later repeated essentially the same remarks. 
Appendix B, pp. 32-33.

Numerous other framers made similar statements 
at the Philadelphia convention and the State ratify­
ing conventions. See the government’s brief in the 
Maryland case, pp. 75-79. The amici can cite only 
one statement in response— that by Nathaniel Gorham 
to which we referred earlier (pp. 66-67). This state­
ment, in the face of overwhelming contrary evidence, 
cannot be taken as the sense of the convention. In 
short, the fact that many of the framers wanted to limit 
the democracy contained in the new constitution is 
irrelevant. The fact is that the basis of apportion­
ment was no part of this effort. Those who wanted 
to give the States equal representation in the whole 
legislature or one house did so because they believed



72

the new government must continue the sovereignty o f  
the States.

3. The amici Attorneys General contend (Br. 30) 
that the States, at the time of the convention were 
not truly sovereign. They cite only one statement 
at the convention in support of this argument. Rufus 
King' of Massachusetts said that “ [t]he States were 
not ‘ sovereigns’ in the sense contended for by some” 
and specified various limitations on their sovereignty. 
I  Farrand 323. However, he went on to admit that 
the States were in some respect sovereign (id. at 324) :

I f  the States therefore retained some portion of 
their sovereignty, they had certainly divested 
themselves of essential portions of it. I f  they 
formed a confederacy in some respects—they 
formed a Ration in others.

Moreover, King was a vigorous proponent o f repre­
sentation based on population for the whole legisla­
ture. See Appendix B, p. 35. Indeed, he was willing 
to continue the fight even after Madison agreed to 
the compromise. Appendix B, pp. 58-59. King 
therefore desired to minimize State sovereignty. But 
his view was rejected as to one house of the legislature 
by those who believed that substantial State sover­
eignty existed and should be continued.

U.S. GOVERN VENT PRINTING 0FFICE:!963