Reynolds v Sims Brief Amicus Curiae

    Nos. 23, 27, 41

Jn  to  Jsstprtme Gfourt of to  ® nM States
O ctobee T erm , 1963

B. A . R eynolds, et al ., appellants

v.
M. O. S im s , et al.

D avid J. V ann  and R obert S. V ance, appellants
v,

A gnes B aggett, Seceetaey op S tate op the  State op 
A labama , et al.

J ohn  W . M cConnell, J e., et al., appellants

v.
A gnes B aggett, Seceetaey op S tate of the S tate of 

A labama, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR  
THE M ID D LE DISTRICT OF ALABAM A

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

A R C H IB A L D  COX,
Solicitor General, 

BRUCE J. T E R R IS ,
Assistant to the Solicitor General, 
R IC H A R D  W . SCHMXTDE,

Attorney,
Departm ent o f Justice, Washington, D.C., 20530.



I N D E X

Opinions below____________________________________________  2
Jurisdiction__ .____________________________________________ 2
Questions presented__________________________    2
Constitutional provisions, statutes, and proposed constitu­

tional amendments involved_____________________________  3
Interest o f the United States_______________________________  3
Statement_________________________________________________  4
Argument:

Introduction and summary_____________________   17
I. The pre-existing apportionment of the Alabama 

legislature violated the equal protection clause 
because it created gross inequalities in per capita
representation without rhyme or reason_______ 22

II. The apportionment provided by the proposed con­
stitutional amendment would violate the equal 
protection clause by subordinating popular rep­
resentation to the representation of political 
subdivisions to such a degree as to create gross 
inequalities among voters and give control of 
both houses o f the legislature to small minorities
o f the people________________________________  30

III. The apportionment provided by the Crawford- 
Webb Act would violate the equal protection 
clause, first, by preserving the crazy-quilt upon 
equal representation in the Senate and, second, 
by subordinating popular representation in the 
legislature as a whole to the representation of 
political subdivisions to such a degree as to 
create gross inequalities among voter’s and give
control to small minorities of the people_______  37

IV . The temporary apportionment ordered by the dis­
trict court as interim relief is not an abuse of
discretion____________________________________  43

Conclusion________________________________________________  43
Appendix_________________________________________________  49

709- 522— 63------ 1 . . .



II

CITATIONS
Cases:

Anbury Park Press, Inc. v. Wooley. 33 N.J. 1, 161 A. Pag0
2d 705__________ 1_________________________________ 45

Askew v. jHale County, 54 Ala. 639______ :_____________ 35
Baker v. Carr, 206 F. Supp. 341_____________________29,45
Baker v. Cart', 369 U.S. 186_________________________  8,

9,10,13,18,20,22,28 
Borden's Farm Products Co. v. Baldwin, 293 U.S. 194_ 29
Butcher v. Trimarchi, 28 Pa. Dist. & County Rep.

2d 537____________________________________________ 45
Fortner v. Barnett, No. 59,965, Chancery Court, First

Judicial District, Hinds County, Mississippi______44,46
Goesaert v. Cleary, 335 U.S. 464______________________ 23
Gray v. Sanders, 372 U.S. 368__ ___________________ 34
Harris v. Shanahan, District Court, Shawnee County,

Kansas, decided July 26, 1962_____________________ 45
Hartford Steam Boiler Ins. Co. v. Harrison, 301 U.S.

459_______________________ ______ 1_______________  29
International Boxing Club v. United States, 358 U.S.

242_______________________   44
International Salt Co. v. United States, 332 U.S. 392_ 44
League of Nebraska Municipalities v. Marsh, 209 F.

Supp. 189_________________________________________ 45,46
Legislative Reapportionment, In re, 374 P. 2d 66_____ 45
Lein v. Sathre, 205 F. Supp. 536_____________________ 45
Magraw v. Donovan, 163 F. Supp. 184______________  45
Mann v. Davis, 213 F. Supp. 577, pending on appeal,

No. 69, this Term_________________________________ 29,45
Maryland Committee for Fair Representation v. Tawes,

No. 29, this Term________________________  3, 30, 31, 33, 35
Maryland Committee for Fair Representation v. Tawes,

228 Md. 412______________________________________  45
Maryland Committee for Fair Representation v. T awes, 

Circuit Court, Anne Arundel County, Maryland, de­
cided May 24, 1962______________________________  45

Mercoid Corp. v. Mid-Continent Investment Co., 320
U.S. 661_____________ ____________ - _________ __1 44

Mikell v. Rousseau, 183 A. 2d 817----------------------------  45
Moore v. Walker County, 236 Ala. 688,185 So. 175____ 35
Moss v. Burkhart, 207 F. Supp. 885------------------------   45
Moss v. Burkhart, U.S.D.C., W.D. Okla., decided July

17, 1963______    19,30,44
Opinion of the Justices, 263 Ala. 158, 81 So. 2d 881------ 7,15



xn
Cases—Continued PagB

Opinion of the Justices, 254 Ala. 185, 47 So. 2d 714__  7,15
: Rice, E x parte, 143 So. 2d 848______________________ 7

Sincock v. Duffy, 215 F. Supp. 169, pending on appeal
sub. nom. Roman v. Sincock, No. 307, this Term___ 29, 45

Sincock v. Terry, 207 F. Supp. 205___________ _______  45
Skinner v. Oklahoma, 316 U.S. 535__ ____ ___________  34
Sobel v. Adams, 208 F. Supp. 316_____________  19, 29, 44,45
State v. Butler, 225 Ala. 191, 142 So. 531____________  35
Stevens v. Faubus, 354 S.W. 2d 707__ ________________  44
.Sweeney v. Notte, 183 A. 2d 296_____________________ 30
Thigpen v. Meyers, 211 F. Supp. 826, pending on

appeal, No. 381, this Term________________________29,45
Toombs v. Fortson, U.S.D.C., N.D. Ga., decided Sep­

tember 5, 1962__________________________________19,44,45
Toombs v. Fortson, 205 F. Supp. 248 ____________  29, 45, 46
United States v. Oarolene Products Co., 304 U.S. 144_ 35
Virginian Ry. Go. v. System Federation No. Ifi, 300

U.S. 545_________________________________________  43
Waid v. Pool, 255 Ala. 441__________________________  7
Wesberry v. Sanders, No. 22, this Term_____________  36
Tick Wo. v. Hopkins, 118 U.S. 356__________________ 34

Constitution and statutes:
U.S. Constitution:

Fourteenth Amendment_____________________________  4,
6, 7,12,14,17,19, 20,21, 26,29,31,33, 40,48

Civil Eights Act, 42 U.S.C. 1983 and 1988__________  4
28 U.S.C.:

Sec. 1343_______________________________________ 4
Sec. 2281_______________________________________ 7

Alabama Constitution of 1901:
Article IV ; Sec. 50____________________________ 3, 4,49
Article I X _____________________________________ 5

Secs. 197-201______________________________  3; 49
Secs. 198, 200______________________________ 16, 22
Sec. 200____________________________________ 0
Secs. 202, 203______________________________  5,7

Article X V I I I ; Sec. 284___________________ 3 ,9, 15, 50
Alabama Keapportionment Act of 1962, Alabama 

House Bill No. 59, Special Session, 1962 (Crawford-
Webb A ct)_______________________________________ 3

6, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 30, 37, 38, 40, 42,’ 
46, 48, 54.



IV

U.S. Constitution—Continued
32 Alabama Code (1958) : Page

Secs. 1 and 2--------------- i --------------------------- 3,5,7,9,51
Miscellaneous:

House Bill No. 130, Special Session, 1962------------------- 17
Proposed Constitutional Amendment No. 1,1962, Ala­

bama Senate Bill No. 29, Special Session, 1962 (“ 6 7 -  
Senator Amendment” ) _ 3,11,12,16,17,18,19,20,30,31,52



J n  the S u p rem e (jjtotrt rrf the ® n M  jS taies
October T erm , 1963 

No. 23
B. A . R eynolds, et al ., appellants

v.
M. 0 .  S im s , et al .

No. 27
D avid J. V ann  and R obert S, V ance, appellants

v.
A gnes B aggett, Secretary op S tate of the  State of 

A labama , et al .

No. 41
J ohn  W . M cConnell, J r., et al., appellants

v.
A gnes B aggett, Secretary of S tate of th e  S tate of 

A labam a , et al .

ON APPEAL FROM  THE UNITED STATES D ISTRICT COURT FOR  
THE M IDDLE DISTRICT OF ALABAM A

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

(1)



2

O PIN ION S BELOW

The opinion of the three-judge district court (R. 
137-167) is not yet reported. A  prior opinion of the 
three-judge district court (R. 62-65) is reported at 
205 F. Supp. 245.

JU R ISD IC T IO N

The judgment of the three-judge district court was 
entered on July 25, 1962 (R. 173). Notices of appeal 
and cross-appeal to this Court were filed on August 17 
and August 23, 1962, and probable jurisdiction was 
noted on June 10,1963 (R. 197-200, 201-203, 204-205,. 
206). The jurisdiction of this Court rests upon 28 
U.S.C. 1253.

QUESTIONS PRE SEN TED

1. Whether the preexisting apportionment of both 
houses of the Alabama legislature violates the equal 
protection clause of the Fourteenth Amendment by 
creating gross inequalities in per capita representation 
without rhyme or reason.

2. Whether the district court properly held that the 
plaintiffs’ constitutional rights would also be violated 
by the apportionments provided by a proposed con­
stitutional amendment, and by standby legislation 
which was to take effect upon failure of the amend­
ment.

3. Whether the district court abused its discretion 
in ordering a temporary apportionment combining the 
most equitable provisions of the proposed amendment 
and the standby legislation, in order to allow the legis­
lature to reapportion itself.



3

C O N STITU TION AL PROVISION S, STATU TES, AN D  PROPOSED 

C O N STITU TION AL A M E N D M E N T IN V O LV E D

Article IV, Section 50, of the 1901 Alabama Con­
stitution is set forth in the Appendix, p. 49. Article 
IX , Sections 197-201, of the 1901 Alabama Constitu­
tion is set forth in the Appendix, pp. 49-50. Article 
X V III, Section 284, of the 1901 Alabama Constitution 
is set forth in the Appendix, pp. 50-51. Sections 1 
and 2 of 32 Alabama Code (1958) are set forth in the 
Appendix, pp. 51-52.

Proposed Constitutional Amendment Xo. 1 of 1962, 
Alabama Senate Bill No. 29, Special Session, 1962 
(the so-called “ 67-Senator Amendment” ), is set forth 
in the Appendix, pp. 52-54. The Alabama Reappor­
tionment Act of 1962, Alabam House Bill No. 59, Special 
Session, 1962 (the “ Crawford-Webb Act” ) is set forth 
in the Appendix, pp. 54-56.

IN T E R E ST  OE T H E  U N IT E D  STATES

This is one of four cases pending argument on the 
merits in which the Court will be called upon to 
formulate under the Fourteenth Amendment the con­
stitutional principles applicable to challenges to mal­
apportionment of a State legislature. The United 
States has filed its principal brief in Maryland Com­
mittee for Fair Representation v. Tawes, No. 29, be­
cause of an earlier due date. There we attempted to 
present a compendious analysis applicable to all four 
cases showing their relation to each other. The in­
stant case raises specific problems in the application 
of those principles.



4

ST A TE M E N T

1. The Complaint.—On August 26, 1961, the plain­
tiffs (the appellees in No. 23)1—fourteen citizens and 
taxpayers of the United States and of the State of 
Alabama, who are residents and registered voters of 
Jefferson County, Alabama—filed a complaint in the 
United States District Court for the Middle District 
of Alabama, in their own behalf and on behalf of all 
voters of Alabama who are similarly situated, chal­
lenging the apportionment of the Alabama legislature 
(R. 1-39). The defendants (the appellants in No. 23), 
who were sued in their representative capacities as 
officials charged with the performance of duties in 
connection with State elections, included the Secretary 
of State and the Attorney General of Alabama ; the 
Chairmen and Secretaries of the Alabama State Dem­
ocratic Executive Committee and the Republican Exec­
utive Committee; and three Judges of Probate of three 
counties as representatives of all the probate judges 
of Alabama (R, 1, 3-8). The complaint alleged depri­
vation of rights under the Alabama Constitution and 
under the equal protection clause of the Fourteenth 
Amendment, and asserted that the district court had 
jurisdiction under the Civil Rights Act. 42 U.S.C. 1983 
and 1988, as well as 28 U.S.C. 1343 (R. 2, 8-14).

The complaint stated that the Alabama legislature 
consisted of a House of Representatives of 106 mem­
bers and a Senate of 35 members.2 It set out (R. 13-

1 Two groups o f intervenor-plaintiffs (see p. 8 below) are 
cross-appellants in Nos. 27 and 41.

2 Article IY , Section 50, of the Alabama Constitution (Appen­
dix, p. 49) provides that the Legislature shall consist o f not



5

14; Appendix, pp. 49-50) relevant portions of Article 
IX  of the Alabama Constitution of 1901 which provide 
that “ [t]he members of the House of Representatives 
shall be apportioned by the legislature among the sev­
eral counties of the state, according to the number of 
inhabitants in them, respectively, as ascertained by 
the decennial census of the United States * * *” ; 
that the Senate districts “ shall be as nearly equal to 
each other in the number of inhabitants as may be 
* * that “  [representation in the Legislature shall 
be based upon population, and such basis of represen­
tation shall not be changed by constitutional amend­
ments” ; that it is the duty of the legislature to reap­
portion after each census; that each county (there are 
now 67) is entitled to at least one member of the House 
of Representatives; and that each Senate district shall 
have only one member and no county may be divided 
between two Senate districts (thereby placing a limit 
of one Senator for any county).3

more than 35 senators and 105 representatives, except that, in 
addition to the 105 members, each county thereafter created 
shall be entitled to one representative. The House increased 
by one member in 1903 when Houston County was created out 
of Dale, Geneva and Henry Counties (E. 166). Houston 
County was joined to Henry County to form the thirty-fifth 
senatorial district, which up to 1903 consisted only of Henry 
County (E. 17).

Article IX , Sections 202 and 203, of the Constitution, which 
was based on the 1900 census, established the precise senatorial 
and representative districts of the State until a new reappor- 
tionment, was made by the legislature. Sections 202 and 203, 
as modified by the creation of Houston County in 1903, were 
enacted into the Alabama Code of 1907 and 1923, and were 
re-enacted as 32 Alabama Code (1958) 1,2.

3 The cross-appellants in Xo. 27 (Br. 15—16) say that the 
Alabama Constitution forbids the division o f a county only

709 - 522— 63 2



6

The complaint alleged that the last apportionment 
of the Alabama Legislature was based on the 1900 
federal census despite the requirement of the Alabama 
Constitution that the legislature be reapportioned 
every ten years; and that, since the population growth 
of the various counties in the State from 1900 to 1960 
had been uneven, Jefferson and other counties were 
now victims of serious discrimination (R. 18-20, 35- 
39). As a result of the failure of the legislature to 
reapportion itself, plaintiffs asserted that they were 
denied “ equal suffrage in free and equal elections 
* * * and the equal protection of the laws” in viola­
tion of the Alabama Constitution and the Fourteenth 
Amendment to the Federal Constitution (R. 8-9).

Plaintiffs also claimed that they had no adequate 
remedy at law, and that they had exhausted all forms 
of relief other than that which might be available to 
them through the federal courts. They asserted that 
the legislature had established a pattern of conduct 
from 1911 to the present time which “ clearly demon­
strates that no reapportionment * * * shall be ef-

when one or both pieces will be joined with another county 
to form a multi-county district, i.e., counties entitled by popu­
lation to two or more senators can be split into the appropriate 
number of districts. The argument is based on the fact that 
prior to the Constitution of 1901, the Alabama Constitution so 
provided. Appellants say that there is no reason to believe 
that the 1901 Constitution was intended to effect any change. 
However, this view seems contrary to the words of Article IX , 
Section 200, of the Alabama Constitution and to the practice 
under it. The only apportionments under the 1901 Constitu­
tion, the 1901 apportionment and the Crawford-Webb Act (see 
pp. 11-12, 54—56 below), gave no more than one seat to a comity 
even though by population several would have been entitled to 
more.



7

fected” ; that representation at any future constitu­
tional convention would be established by the legisla­
ture, a fact which would make it “ extremely unlikely” 
that the membership of any such constitutional con­
vention would differ from that of the legislature; and 
that, while the Alabama Supreme Court had ruled that 
the legislature had not complied with the Alabama 
Constitution, the court nevertheless held that it would 
not interfere with the question of reapportionment4 (R. 
.20- 21) .

Plaintiffs requested the convocation of a three-judge 
district court under 28 U.S.C. 2281. They sought: 
(1) a declaratory judgment that Article IX , Sections 
202 and 203 of the Alabama Constitution and 32 
Alabama Code 1, 2, which establish the present appor­
tionment of the legislature, are unconstitutional under 
the Alabama Constitution and the due process and 
equal protection clauses of the Fourteenth Amend­
ment; (2) an injunction enjoining the defendants 
from executing their duties in connection with elec­
tions of the legislature until such time as the legisla­
ture reapportions itself in accordance with the Ala­
bama Constitution; (3) a mandatory injunction (until 
such time as the legislature properly reapportions) 
requiring the defendants to conduct the 1962 general 
election at large over the whole State; and (4) any 
.other relief which “may seem just, equitable and 
proper” (R. 25-33).

4 Waid v. Pool, 255 Ala. 441, 51 So. 2d 869; E x parte Rice, 
143 So. 2d 848 (Ala. Sup. C t.) ; Opinion of the Justices, 254 
Ala. 185, 47 So. 2d 714; Opinion of the Justices, 263 Ala. 158, 
81 So. 2d 881.



8

2. The Pre-decision Proceedings in the District 
Court.—A three-judge district court was convened to 
hear and determine the cause. Three groups of citi­
zens, taxpayers and qualified voters of Alabama and 
the Counties of Jefferson, Mobile, and Etowah, were 
granted leave to intervene in the action as intervenor- 
plaintiffs; two of the groups are cross-appellants in 
Nos. 27 and 41 (R. 47, 65-66, 76-77). With minor 
exceptions, all the intervenors adopted the allegations 
and prayers of the plaintiffs’ amended complaint 
(R. 46, 60-61, 69).

On March 29, 1962 (three days after this Court had 
decided Baker v. Carr, 369 U.S. 186), the plaintiffs 
moved for a preliminary injunction requiring the 
defendants to conduct at large the May 1962 Demo­
cratic primary elections and the November 1962 
general elections of the legislature (R. 47-50). The 
motion was set for hearing by the three-judge court 
in an order which stated the court’s tentative view 
upon two points: (1) that an injunction was not 
required before the primary elections of May 1962 
to protect plaintiffs’ constitutional rights; and (2) 
that no action should be taken by the court, which is 
not “ absolutely essential” for the protection of as­
serted constitutional rights, before the Alabama Legis­
lature has had “ further reasonable but prompt oppor­
tunity to comply with its duty” under the Alabama 
Constitution (R. 57-59).

On April 14, 1962, the court, after reiterating the 
views expressed in the order of March 30, 1962, re-set 
the case for hearing on July 16 (R. 62-63). The



9

court noted that the importance of the case, together 
with the necessity for effective action within a limited 
period of time, required an early announcement of 
its views. The court then indicated (1) that, under 
Baker v. Carr, 369 TJ.S. 186, it had jurisdiction of 
the cause, the complaint stated a justiciable cause 
o f action, and the plaintiffs had standing to bring the 
suit; (2) that it was taking judicial notice of facts 
which were “well known” to the Justices of the 
Supreme Court of Alabama and the people of Ala­
bama—that there had been population changes in the 
counties of Alabama since 1901, that the present 
representation of the Alabama Legislature as pro­
vided for in 32 Alabama Code 1 and 2 is not on a 
population basis, and that the legislature had never 
reapportioned its membership as required by the 
Alabama Constitution; (3) that if the legislature 
complied with the provision of the Alabama Consti­
tution (Art, X V III, Sec. 284) that “Representation 
in the legislature shall be based upon population,” 
there could be no valid objection on federal constitu­
tional grounds to any such apportionment and the 
complaint in the instant case would be dismissed; 
(4) that if the legislature failed to act, or its actions 
did not meet constitutional standards, the court would 
be under a “ clear duty” to take some action on the 
matter before the general elections of November 1962 
(action which it said should be kept to the minimum 
necessary for the guaranteeing of constitutional rights 
to Alabama citizens) ; (5) that, to such an end, the 
“ present thinking” of the court was for adherence to



10

the plan suggested by Mr. Justice Clark in his con­
curring opinion in Baker v. Carr—that is, awarding- 
seats released by the consolidation or revamping of 
existing districts to counties suffering the most 
“ egregious discrimination,”  thereby releasing the 
stranglehold on the legislature sufficient to permit it 
to reapportion itself; and (6) that, while retaining 
jurisdiction, the court would defer further action in 
the case until the newly elected legislature had “ full 
opportunity”  to reapportion itself, which would permit 
the dismissal of the case (R. 62-65).

On July 2, 1962, Judge Johnson permitted the 
plaintiffs to amend their complaint to add a further 
prayer for relief (R. 76). The plaintiffs requested 
that, since the legislature (-which was assembled in 
special session) “ appears to be giving no serious con­
sideration to any act reapportioning the House o f 
Representatives and redistricting the Senate * * *“ 
on a population basis prior to the November, 1962, 
general election”  in accordance with the court’s opin­
ion of April 14, 1962, the court provisionally reap­
portion the House of Representatives and the Senate., 
The plaintiffs asked that the court consolidate exist­
ing election districts and distribute the seats thus re­
leased to those counties suffering the most “ egregious; 
discrimination” so that the stranglehold on the legis­
lature would be relaxed enough to permit it to reap­
portion its membership. The plaintiffs then sug­
gested that the court defer further action until the- 
newly elected legislature had full opportunity to reap­
portion its membership in accordance with the Ala­



11

bama Constitution; and that the court enjoin the de­
fendants from performing their election duties except 
in accordance with the provisional plan of reappor­
tionment (ft. 69-70).5 6

On July 12, 1962, an extraordinary session of the 
Alabama Legislature advanced two reapportionment 
plans to take effect in 1966. One was a proposed 
constitutional amendment, called the “ 67-Senator 
Amendment”  (see Appendix, pp. 52-54). It provided 
for a House of Representatives consisting of 106 mem­
bers apportioned by giving one seat to each of the 67 
counties and distributing the others according to popu­
lation by the “ equal proportions”  method. Using this 
formula, the constitutional amendment specified the 
number of representatives for each county until a new 
apportionment could be made on the basis of the 1970 
census. The Senate would be composed of 67 mem­
bers, one from each county. The act provided that 
the proposed amendment should be submitted to the 
voters for ratification at the general election of No­
vember 1962.

The “ Crawford-Webb Act”  (see Appendix, pp. 54- 
56), was enacted as standby legislation to take effect 
in 1966 if the proposed constitutional amendment 
should fail." The act provides that the Senate should

0 Interveners Vann and Vance (cross-appellants in No. 27) 
had previously asked for similar relief (E. 60-61).

6 The Act itself merely says that it will take effect in 1966. 
However, the proposed constitutional amendment also provides 
that it will take effect in 1966. The amendment would take 
precedence if it was adopted by the voters and not held uncon­
stitutional. As the district court stated, the Act is a stand-by



12

consist of 35 members representing 35 senatorial dis­
tricts, established along county lines. The act altered 
10 out of the former 35 districts (compare R. 35-36 
with Appendix, pp. 54—55). As for the House of 
Representatives, the statute apportions the represent­
atives among the counties as follows: Jefferson, 12 mem­
bers ; Mobile, 6 members; Montgomery, 4 members; Cal­
houn, Etowah, Madison, and Tuscaloosa, 3 member's 
each; Baldwin, Colbert, Cullman, Dallas, Houston, 
Lauderdale, Lee, Marshall, Morgan, Russell, Talla­
dega, and Walker, 2 members each; and all the re­
maining counties, 1 member each (R. 113, 161).7 The 
Crawford-Webb Act also provides that it shall be 
effective “ until the legislature is reapportioned ac­
cording to law,”  but it provides no standard for such 
a reapportionment.8 * * * 12

measure designed to take effect in the event that the voters 
rejected the “ 67-Senator Amendment" or the federal courts re­
fused to accept the proposed amendment as effective action com­
plying with the Fourteenth Amendment (see E. 143-144).

7 While no formula for this apportionment is stated, one can 
be extrapolated (see the Brief for Appellants, B. A. Eeynolds, 
et al., p. 39) : each county with less than 45,000 people
receives one representative; counties with 45,000 to 90,000 peo­
ple, 2 seats; counties with 90,000 to 150,000 people, 3 seats;
counties 150,000 to 300,000 people, 4 seats; counties with 300,-
000 to 600,000 people, 6 seats; counties with over 600,000 people,
12 seats.

s Presumably, future apportionments would be based on the 
existing provisions of the Alabama Constitution which the 
statute, unlike the proposed constitutional amendment, would 
not effect. The State constitutional provisions are plainly in­
consistent with the statute’s apportionment of both houses.



13

3. The Evidence.—The basic facts consist of two sets 
of incontrovertible figures: (1) the population for 
each county in Alabama and for each senatorial dis­
trict according to the 1960 census; (2) the number 
of representatives apportioned to each county under 
each of the plans at issue—the apportionment under 
the 1901 statute, the proposed constitutional amend­
ment, and the Crawford-Webb Act. Under all three 
plans, each senate district would be represented by one 
senator. Convenient compilations of these figures are 
found at R. 35-39 and are also attached as appendices 
to the opinion of the district court (R. 163-167).

4. The Decision and Decree of the District Court.— 
On July 21, 1962, the district court, relying on Baker 
v. Carr, 369 U.S. 186, held that it had jurisdiction over 
the cause; that the complaint alleged a justiciable 
cause of action; and that the plaintiffs had standing 
to challenge the Alabama apportionment statutes (R. 
140-141). The court then ruled that the existing in­
equality in representation in Alabama was the result 
of “ invidious discrimination”  in violation of the equal 
protection clause of the Fourteenth Amendment, a 
finding which the court noted had been “ generally 
conceded”  by the parties to the litigation (R. 144).

. “ Jefferson (634,864), Mobile (314,301), Montgomery (169,- 
210), Etowah and St. Clair (122,368), Madison, (117,348), Tus­
caloosa (109,047), Baldwin,' Escambia, and Monroe (104,971), 
and Lauderdale and Limestone (98,135) (R. 35-36, 166).

709 - 522— 63— — 3



14

In support of this conclusion, the court referred to 
appendices to its opinion (R. 163-165) which showed 
that the growth and shifts in population between 
1901 and 1960 had converted the preexisting popula­
tion into a crazy-quilt utterly lacking rhyme or reason.

The court then considered the proposed constitu­
tional amendment and the Crawford-Webb Act to 
ascertain whether the legislature had taken “ effective 
action” to remedy the unconstitutionality of the exist­
ing apportionment (R. 146). The apportionment of 
one Senator to each county under the proposed con­
stitutional amendment, the court held, would be “ even 
more invidious than at present”  because (1) the 
present control of the Senate by 25.1 percent of the 
people of Alabama would be reduced to 19.4 percent;
(2) the 34 smallest counties, whose total population 
is less than that of Jefferson County, would have a 
majority of the total membership of the Senate; and
(3) senators elected by 14 percent of the population of 
Alabama could prevent the submission of any future 
proposal to amend the State constitution (R. 148). 
The court noted that the “ only conceivable rationali­
zation”  of the senatorial provisions is that it is based 
on political units within the State and is analogous to 
the United States Senate, but it rejected the analogy 
on the ground that the Alabama counties are merely 
involuntary political divisions of the State created by



15

statute to aid in the administration of government 
(R. 148-149).10 The court also concluded that the 
proposed apportionment of the House of Representa­
tives—one representative for each of the 67 counties 
with the remaining 39 distributed according to popu­
lation—was “ based upon reason, with a rational re­
gard for known and accepted standards of apportion­
ment”  (R. 153).

Turning next to the Crawford-Webb Act, the district 
court held that an apportionment of the House of 

-Representatives giving additional seats to the popu­
lous counties in diminishing ratio to their population 
(i.e., 3 for 90,000 to 150,000 people and 4 for 150,000 
to 300,000) was “ totally unacceptable”  (R. 152). 
Each representative from Jefferson and Mobile Coun­
ties would represent over 52,000 citizens while repre­
sentatives from eight “ Black Belt”  counties would 
each represent less than 20,000 citizens (R. 153). 
The court regarded the apportionment of the Senate 
provided in the Crawford-Webb Act as but a “ slight

10 The court also noted that the proposal “ may not have complied 
with the State Constitution” since not only does Article X V III , 
Section 284, of the Alabama Constitution provide that the popula­
tion basis of the Legislature “ shall not be changed by constitutional 
amendments” but the Alabama Supreme Court had earlier indi­
cated that Section 284 could be altered only by constitutional 
convention (R. 147-148). See Opinion o f the Justices, 254 Ala. 
185, 47 So. 2d 714; Opinion o f the Justices, 263 Ala. 158, 81 
So. 2d 881.



16

improvement over the present system of representa­
tion”  since the net effect of switching a few seats 
from the less populous - to more populous counties 
would merely increase the minority electing a ma­
jority of the Senate from 25.1 percent to 27.6 percent 
of the population (R. 152). The court pointed out 
that the vote of a citizen in the senatorial district 
consisting of Bibb and Perry Counties would be worth 
twenty times that of a eitizen in Jefferson County; 
that the vote of a citizen in the six smallest districts 
would be worth fifteen or more times that of a citizen 
in Jefferson County; and that, in twenty-two districts, 
a citizen would have eight or more times the voting 
strength of a citizen in Jefferson County (R. 152). 
The court then held that the Crawford-Webb Act was 
“ totally unacceptable” as a “ piece of permanent leg­
islation”  which, under the Alabama Constitution (Art. 
IX , Sec. 198, 200), would remain in effect without 
alteration until the next decennial census (R. 154).

The district court then adopted as a provisional re­
apportionment the provisions relating to the House 
contained in the “ 67-Senator Amendment”—one seat 
for each county with the other 39 distributed accord­
ing to population—and the provisions of the Craw- 
ford-Webb Act relating to the Senate (R. 154). The 
court retained jurisdiction and deferred any hearing 
on the plaintiffs’ motion for a permanent injunction 
“ until the Legislature, as provisionally reappor­
tioned * * *, has an opportunity to provide for a true 
reapportionment of both Houses of the Alabama 
Legislature”  (R. 155-156). The court emphasized



17

that its “ moderate”  action was designed to break the 
stranglehold on the legislature and would not suffice 
as permanent reapportionment (R. 156).

On July 25, 1962, a decree was entered in accord­
ance with the foregoing rulings (R. 173-191).

After the district court’s decision, new primary 
elections were held pursuant to House Bill No. 130, 
Special Session, 1962, which was passed at the same 
session as the proposed constitutional amendment and 
the Crawford-Webb Act, to be effective in case the 
district court itself ordered reapportionment. The 
general elections in November 1962 were likewise 
held on the basis of the court’s apportionment. Con­
sequently, the present Alabama legislature is appor­
tioned according to the district court’s decree.

Appeals to this Court were noted by the defendants 
(appellants in No. 23) and by two groups of plain­
tiff-intervenors (cross-appellants in Nos. 27 and 41) 
(R. 197-205).

AR G U M E N T

INTRODUCTION AND SUMMARY

The initial question is whether the apportionment 
existing in Alabama prior to the district court’s de­
cision—the apportionment provided by the 1901 legis­
lation-violated the plaintiff’s rights under the Four­
teenth Amendment. That was not only the 
apportionment in effect when the bill was filed but 
even on the date of the district court’s decision the 
election officials were obliged to follow it unless pre­
vented by the court. Furthermore, it is far from 
clear that either the “ 67-Senator Amendment”  or



18

the Crawford-Webb Act has become effective as a 
matter of State law. The amendment has not been 
submitted to the voters. The Crawford-Webb Act 
was apparently intended to take effect in 1966 only if the 
proposed amendment was rejected by the people 
or held unconstitutional in a final adjudication.

We submit, for reasons stated below in more detail, 
that the preexisting apportionment is plainly uncon­
stitutional as applied today whatever its validity 
when enacted in 1901. During the 60-year interval 
the passage of time and shifts in the distribution of 
population made the apportionment into a crazy- 
quilt. The resulting gross inequalities violate the 
equal protection clause. That proposition is plainly 
implied in the opinions of the prevailing Justices in 
Baker v. Carr, 369 U.S. 186, and is supported by a host 
of subsequent decisions in the lower courts.

It is unnecessary to decide whether either the 
“ 67-Senator Amendment”  or the Crawford-Webb 
Act was properly before the district court on the 
merits. The proposed amendment, not having been 
ratified, has never become effective, and whether the 
Crawford-Webb Act actually came into force may be 
debatable as a matter of Alabama law. The question 
need not be decided because both measures had to be 
considered in formulating a remedy for the vindica­
tion of the constitutional rights which defendants 
were threatening to violate by adhering to the 1901 
apportionment in the November election.



19

Having found tlie preexisting apportionment un­
constitutional, the district court was required to pro­
vide an effective remedy. Legislative apportionment, 
however, is primarily a matter for the State legis­
latures, both because it is a State problem, within the 
confines of the Fourteenth Amendment, and because 
it involves the exercise of a wide range of legislative 
choice. I f  the legislature has plainly set forth its 
preference as to a substitute apportionment that satis­
fies the requirements of due process and equal pro­
tection, it would be an error of law to disregard the 
legislature’s action in favor of a judicial apportion­
ment framed by the court. Compare Sob el v. Adams, 
208 F. Supp. 316, 319-322 (S.D. Fla.) ; Toombs v. 
Fortson, U.S.D.C., N.D. Ga., decided September 5, 
1962 (passing on both proposed constitutional amend­
ment and proposed statutes); Moss v. Burkhart, 
U.S.H.C., W.D. Okla., decided July 17, 1963 (passing 
on proposed statute, but declining, because it was 
unlikely to be adopted, to pass on proposed con­
stitutional amendment except to say that it was of 
doubtful constitutionality) d1

The “ 67-Senator Amendment” set forth the Ala­
bama legislature’s preference with respect to future 11

11 There was considerably less warrant to consider the con­
stitutionality o f the constitutional amendments and statutes in 
the cases cited above than in this case. In those cases, the 
constitutional amendment might be rejected by the people or 
the statutes not passed by the legislature. Here, unless a new 
constitutional amendment or statute is adoped in the meantime, 
either the “ 67-Senator Amendment” or the Crawford-Webb Act 
would, according to their terms, be effective in 1966.



20

apportionment, even though it had not yet been 
ratified. The Crawford-Webb Act was adopted by 
the legislature as an alternative. Only if  both were 
unconstitutional under the Fourteenth Amendment 
could the district court properly proceed to frame 
an interim judicial apportionment to be effective pend­
ing further legislative action.

In the second part of our Argument, therefore, we 
address ourselves to the apportionment proposed in 
the “67-—Senator Amendment” and show that although 
it is not a crazy-quilt, being based upon intelligible 
principles, it is nonetheless unconstitutional because 
the principle of popular representation has been sub­
ordinated to the representation of political subdivi­
sions to such an extent as to create very gross in­
equalities in per capita representation and give con­
trol of both branches of the legislature to small 
minorities of the people. The controlling legal prin­
ciple is stated as the fourth proposition in our Mary­
land brief in the general analysis of the standards to 
be applied in implementing Baker v. Carr (pp. 46-50) 
and is elaborated there as applied to the Maryland 
apportionment (pp. 57-90). In our view, the instant 
case is indistinguishable. Not only are the populous 
counties grossly underrepresented in the Alabama 
legislature in comparison with other comities but 
senators representing as few as 19.4 percent of the 
people would constitute a majority of the Senate while 
representatives chosen by no more than 42.4 percent can 
control the House of Representatives.

In Point III, we take up the Crawford-Webb Act 
and show that it violates the same principle for essen-



21

tially the same reasons: the inequalities in per capita 
representation are no less gross; 27.6 percent of 
the people could control the Senate and 37 percent, 
the House. In addition, the inequalities in the pro­
posed representation in the Senate defy rational 
explanation.

Finally, we turn to the issue raised by the cross­
appellants—whether the district court erred in not 
requiring both houses of the Alabama legislature to 
be apportioned strictly on the basis of population. 
It is essential, in this field, for the courts to give the 
legislatures as much opportunity as possible, con­
sistent with protecting basic constitutional rights, to 
make their own apportionments since this is primarily 
a State and legislative responsibility. In our view 
the district court properly gave the Alabama legisla­
ture time to act. When the legislature took inadequate 
action, it was proper to adhere as closely as prac­
ticable to the apportionments approved by the repre­
sentatives of the people of Alabama, provided that this 
course offered reasonable hope that minority control 
would be broken sufficiently to result in an early 
legislative apportionment recognizing plaintiffs’ con­
stitutional rights. I f  the hope proves vain, the dis­
trict court can provide a more complete remedy, for 
it recognized that its decree was only an interim 
measure and retained jurisdiction to grant further 
relief if necessarj  ̂ to secure the plaintiffs their full 
constitutional rights.12

12 For the above reasons, we find it no more appropriate here 
than in the companion cases to consider whether substantially 
equal representation per capita is required by the Fourteentla 
Amendment in both branches of a State legislature.

7 0 9 —5 2 2 — 6 3 - ■4



22

I

THE PRE-EXISTING APPORTIONMENT OE THE ALABAMA 
LEGISLATURE VIOLATED THE EQUAL PROTECTION CLAUSE 
BECAUSE IT CREATED GROSS INEQUALITIES IN PER CAPITA 
REPRESENTATION WITHOUT RHYME OR REASON

The legislative apportionment in effect in Alabama 
prior to the institution of the present action illus­
trates the causes of the kind of gross malapportion­
ment that prevailed in a number of States prior to the 
decision in Baker v. Carr. The apportionment act 
was enacted in 1901. It was based on the Alabama 
Constitution which provides that the Senate shall be 
apportioned according to population, except that no 
county may have more than one senator,13 and that 
the House of Representatives shall be apportioned by 
giving one seat to each county with the remaining 39 
distributed according to population. Article IX , See. 
198, 200 (Appendix, pp. 49, 50). While these rules 
allowed 41 percent of the people to elect a majority of 
the Senate and 44 percent to elect a majority of the 
House even in 1901, the inequalities were at least the 
result of an intelligible system, whether or not it 
might be unconstitutional upon some other ground.

13 The limitation to one senator for a county results from 
provisions that no county may be divided in forming senatorial 
districts and no district may have more than one senator. 
Art. IX , Sec. 200 (App., p. 50). It would seem that the pro­
hibition against dividing a county between districts might 
well have been read to prohibit splitting off parts of a county 
for combination with another county without preventing divi­
sion of a county into two or more whole districts; but the 
State s own interpretation is to the contrary and is plainly 
controlling.



23

Since 1901, Alabama, like most States, has experi­
enced both growth and change in the distribution of 
population. Instead of 1,828,697 people, there are 
now 3,266,740, an increase of 78 percent (R. 39). 
Twenty-four of the 67 counties have lost population 
(R. 37-39) and others have grown at different rates. 
Mobile County has grown over five times from 62,740 
to 314,301 (R. 38). Meanwhile the legislature failed 
to comply with the mandate of the State constitu­
tion requiring decennial reapportionment. The re­
sult is that the apportionment became a crazy-quilt and 
25.1 percent, instead of 41 percent of the people be­
came able to elect a majority of the Senate (R. 148), 
and 25.7 percent, instead of 44 percent, could elect a 
majority of the House of Representatives.

The gross discrimination that exists today in per 
capita representation is not simply the result of 
the limitation of one senator to any one county or 
the minimum of one representative for each county. 
Those inequalities have at least an intelligible basis. 
In contrast, the discrimination resulting from shifts 
in population has no justification. Such discrimina­
tion is plainly unconstitutional under familiar princi­
ples. “ The Constitution in enjoining the equal pro­
tection of the laws upon States precludes irrational 
discrimination as between persons or groups of per­
sons in the incidence of a law.”  Goesaert v. Cleary, 
335 U.S. 464, 466.

In the House of Representatives, Barbour County 
had 35,142 people in 1901, over twice the average pop­
ulation per representative in the State, and therefore



24

was assigned two representatives. Bullock County 
had 31,944 people and likewise had two representa­
tives. Baldwin County then had only 13,194 people 
and therefore only one representative. Today Bar­
bour has only 24,700 people, an average of 12,350 per 
representative,14 and Bullock County has only 13,462 
people, or 6,731 per representative, but the popula­
tion of Baldwin County has grown to 49,088. Thus, 
Barbour has half the population of Baldwin, and Bul­
lock has about 4̂, but both have twice the representation 
of Baldwin. Conversely, the voters in Barbour have 
four times and voters in Bullock have iy 2 times, the 
representation of voters in Baldwin.15

In 1901, Dallas County had 54,657 people and three 
representatives, i.e., 18,219 per representative. Etowah 
then had 27,361 and two representatives, or one for each 
13,681. Mobile County, in 1901, had 62,740 and three 
representatives, an average of 20,913 per representative. 
And Montgomery County had 72,047 people and four 
representatives, an average of 18,012 per representa­
tive. As of 1960, Dallas’ population had risen merely 
to 56,667 or 18,889 per representative. Etowah and 
Mobile Counties’ popidation, however, had soared to 
96,980 and 314,301 so that they now have 48,490 and 
104,767 people per representative, respectively. Mont­
gomery’s population is now 169,210 or 42,303 per rep­
resentative. Thus, Dallas has three representatives

14 In our brief in the Maryland case, we mistakenly said that 
Barbour County has only 12,350 people.

15 The population figures in this paragraph, as well as most of 
those in the remainder of this brief, are taken from the tables in 
the record at pp. 35-39.



25

while Etowah has two, although Etowah has over 70 
percent more people. Voters in Dallas County have 
well over 2 ^  times the representation of those in 
Etowah. Similarly, Dallas and Mobile have the same 
number of representatives although Mobile has almost 
six times as many people. This means that voters in 
Dallas County have almost six times the representa­
tion of those in Mobile. In addition, Mobile, while 
having almost twice the population of Montgomery 
County, has one less representative. As a conse­
quence, voters in Montgomery County have over 2% 
times the representation of those in Mobile (although 
less than half the representation of those in Dallas 
County). And voters in Bullock County have almost 
16 times the representation of those in Mobile.

Finally, the most populous county in the State, 
Jefferson County, has grown from 140,420 in 1901 to 
634,864. Its seven representatives represent an aver­
age of 90,695 today as compared to 20,060 in 1901. 
As a result, voters in Jefferson County have less than 
Yis the representation of those in Bullock County and 
about y5 the representation of those in Dallas County.

These examples could easily be multiplied. It is 
sufficient to say that, applying Alabama’s own Con­
stitution—which gives one seat to each county and 
distributes the rest according to population—15 of the 
30 counties with more than one seat16 are overrepre­
sented and six are underrepresented; thus, the vice 
affects 70 percent. Moreover, the two largest coun­

16 The discrimination in favor of counties with one seat is, 
at least in part, because of the guarantee of one seat to each 
county provided by the Alabama Constitution.



26

ties have been deprived, without justification, of over 
half their representation: Jefferson has only 7 seats 
instead of the 17 to which it would be entitled by the 
formula in the State constitution, and Mobile has only 
3 instead of 8. While we are of course not arguing 
that the violation of the State constitution constitutes 
a violation of the Fourteenth Amendment, the State 
here offers no explanation for these deviations from 
its own standard.

The discrimination is equally egregious in the Sen­
ate. Wilcox County, which in 1901 had 35,631 people, 
now has only 18,739. Yet, it has a representative all 
to itself. Bordering Wilcox County, is a district 
composed of Monroe, Baldwin, and Escambia Coun­
ties, which is the second most populous multi-county 
district in the State.17 Whereas, those three counties 
had only 48,180 people in 1901, they now have 104,971. 
Consequently, voters in Wilcox County have over 5y2 
times the representation of those in the adjoining 
district. The arbitrariness of this discrimination is 
plain since the two districts could be made substan­
tially more equal by either placing Monroe (with 22,- 
372 people) in the same district as Wilcox or joining 
both Escambia County (with a population of 33,511) 
and Monroe with Wilcox.

Wilcox also adjoins Lowndes Comity. That coun­
ty, which had 35,651 people in 1901, now has 15,417 
and is the least populous senatorial district in the

17 The more populous single-county districts result from the 
provisions in the Alabama Constitution limiting a county to only 
one senator and not from shifts of population since 1901.



27

State. Bordering both Wilcox and Lowndes Counties 
is the district composed of Butler, Conecuh, and Cov­
ington Counties which in 1901 had 58,621 people, but 
now has 77,953. The people in this district thus have 
only Vs the representation of those in Lowndes County. 
The transfer of Butler (with a population of 24,560) 
to the same district as Wilcox would make the two 
districts almost equal in population. Or, if Wilcox 
and Lowndes Counties were joined, the result­
ing district would still be one of the smallest in the 
State. The extra seat could be used, for example, to 
give Lee and Russell Counties with a total popula­
tion of 96,105 a senator each. The resulting districts 
would have 49,754 and 46,351 people, respectively.

To take one last example, Barbour County, which 
had 35,152 people in 1901 but has only 24,700 today, 
has a senator to itself. The adjoining district, con­
sisting of Lee and Russell Counties, now has 96,105 
people in comparison to the 58,909 it had in 1901. 
Thus, voters in Barbour County have Sy2 times the 
voting strength of those in the multi-county district. 
This discrepancy could be largely eliminated by a 
series of changes which would include joining Bar­
bour to a neighboring county.

Much of the discrimination in the Senate results 
from the requirement of the Alabama Constitution 
which allows a county only one seat. Thus, Jefferson 
County with 634,864 people would be discriminated 
against even if the provisions in the State constitution 
wTere faithfully applied on the basis of present popu­
lation. However, the disparities in representation



28

between populous counties like Jefferson and the most 
overrepresented counties is in part the result of the 
failure of the legislature to reapportion because small 
districts like Lowndes should be joined to neighbor­
ing districts. As a result, while voters in Lowndes 
County now have over 41 times the voting strength of 
those in Jefferson, this could be reduced by over half. 
Moreover, other slightly less populous comities are the 
victims of gross discrimination because they are joined 
to other counties. Etowah County has 96,980 people 
and yet is joined together with St. Clair, to form a 
senatorial district having a population of 122,368. This 
district is the most populous multi-county district in 
the State; indeed, there are only two other multi­
county districts more populous than Etowah County 
alone. Such discrimination is utterly without justi­
fication.

An apportionment that imposes such capricious 
inequalities upon the people m per capita representa­
tion in the legislature plainly violates the Fourteenth 
Amendment. The equal protection clause safeguards 
the right to participate in the processes of self-govern­
ment. See our Maryland brief pp. 28-29. “ [I ]t  has 
been open to the courts since the enactment of the 
Fourteenth Amendment to determine, if on the par­
ticular facts they must, that a discrimination reflects 
no policy, but simply arbitrary and capricious action”  
{Baker v. Carr, 369 U.S. 186, 226).

The inequalities in Alabama’s preexisting appor­
tionment are a consequence of legislative inaction. 
They have no apparent basis in policy. Appellees



29

suggest none; on the contrary, in the district court 
it was virtually agreed “ by all the parties that the 
present apportionment of both Houses of the Legis­
lature of the State of Alabama constitutes ‘invidious 
discrimination’ in violation of the Equal Protection 
Clause of the Fourteenth Amendment”  (R. 144). 
With sufficient ingenuity and willingness to overlook 
rough edges, one might possibly conceive a policy or 
combination of policies that would explain the dis­
crimination. No such process of rationalization 
should be supplied in dealing with the basic demo­
cratic right to fair representation, especially where 
the inequalities result from failure to comply with 
the State’s own constitution. Even in the field of eco­
nomic regulation, “ [discriminations are not to be sup­
ported by mere fanciful conjecture.”  Hartford 
Steam Boiler Ins. Co. v. Harrison, 301 U.S. 459, 462; 
Borden’s Farm Products Co. v. Baldwin, 293 U.S. 
194, 209.

The district court was therefore correct in holding 
that the preexisting Alabama apportionment violated 
plaintiffs’ constitutional rights. Accord, Baker v. 
Carr, 206 P. Supp. 341, 346-348 (M.D. Tenn.); 
Toombs v. Fortson, 205 E. Supp. 248, 254-255, 256 
(N.D. Ga.) ; Sobel v. Adams, 208 E. Supp. 316, 323- 
324 (S.D. Fla.) ; Thigpen v. Meyers, 211 E. Supp. 826, 
831 (W.D. Wash.), pending on appeal, No. 381, this 
Term; Sincock v. Duffy, 215 E. Supp. 169, 184 (D. 
Del.), pending on appeal sub nom. Roman v. Sincock, 
No. 307, this Term; Mann v. Davis, 213 E. Supp. 577, 
584 (E.D. Ya.), pending on appeal, No. 69, this Term;



30

Moss v. Burkhart, U.S.D.C., W.D. Okla., decided July 
17) 1963; Sweeney v. Notte, 183 A. 2d 296, 305 (R.I. 
Sup. Ct.).

I I

THE APPORTIONMENT PROVIDED BY THE PROPOSED CON­
STITUTIONAL AMENDMENT WOULD VIOLATE THE EQUAL 
PROTECTION CLAUSE BY SUBORDINATING POPULAR REP­
RESENTATION TO THE REPRESENTATION OF POLITICAL 
SUBDIVISIONS TO SUCH A DEGREE AS TO CREATE GROSS 
INEQUALITIES AMONG VOTERS AND GIVE CONTROL OF 
BOTH HOUSES OF THE LEGISLATURE TO SMALL MINORI­
TIES OF THE PEOPLE 18

Alabama s 67 Senator Amendment”  is not subject 
to attack as creating a crazy-quilt of unequal repre­
sentation based upon no intelligible rule. Seats in the 
Senate would be apportioned one to each county. 
Sixty-seven seats in the House would go one to each 
county, but the remaining 37 seats would be distributed 
among the counties as nearly as possible in proportion 
to population. The apportionment is apparently 
based upon a principle of corporate representation 
through equal political subdivisions combined, in the 
lower chamber, with the principle of direct popular 
representation. The “ 67—Senator Amendment” rests 
upon the same basis as the Maryland apportionment 
involved in No. 29 (disregarding the special provisions 
relating to the City of Baltimore).

The reasons for concluding that the court below properly 
ruled upon the constitutionality of the “ 67— Senator Amend­
ment and the Crawford-Webb Act are discussed in the Intro­
duction and Summary, pp. 19-20, supra.



31

Although the Fourteenth Amendment condemns an 
apportionment which creates capricious inequalities 
in per capita representation without rhyme or reason, 
a showing that seats are allocated according to some 
intelligible rule is not sufficient per se to satisfy the 
guarantee of equal protection. The rule of classifi­
cation may not violate another specific constitutional 
policy or introduce differentiations that are invidious 
or irrelevant to any tolerable purpose of govern­
mental organization. More important here is the nec­
essity of weighing the degree of inequality against the 
policies that the per capita discrimination seeks to 
secure. Objectives that might furnish acceptable jus­
tification for smaller variations 19 become so relatively 
insignificant as to leave the discrimination arbitrary 
and capricious where there are grosser inequalities 
in representation and a total disregard for the prin­
ciple of majority rule. We submit that the “ 67- 
Senator Amendment,” like the Maryland apportion­
ment at issue in No. 29 where we discuss the appli­
cable principles at greater length, violates the equal 
protection clause by subordinating popular represen­
tation to the representation of political subdivisions 
to such a degree as to create gross inequalities and 10

10 Since the instant case, like the three companion cases, 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 assumption is made arguendo, 
reserving further judgment until the issues are presented.



32

give control of the legislature to representatives 
elected by small minorities of the people.

The facts of discrimination and resulting minority 
control are readily demonstrated. Appendix D to the 
opinion of the district court shows the wide varia­
tions in population among the 67 counties. Since 
each county would have one senator, there would be 
equally great inequalities in per capita representa­
tion. The disparity between the most overrepresented 
district (Coosa Comity) and the most underrepre­
sented (Jefferson County) would be more than 59 to 
1 . There are five counties with a population in ex­
cess of 105,000 and eight with a population of less 
than 15,000; between any pair drawn from both classes 
the discrimination would be at least 7 to 1. The nine 
most populous counties (Jefferson, Mobile, Madison, 
Montgomery, Tuscaloosa, Etowah, Calhoun, Talladega 
and Dallas) which hold 50.8 percent of the population, 
would elect only nine of the 67 senators, or 13.4 per­
cent—one-fourth their aliquot share.

In the House the inequalities and resulting minor­
ity control would be less objectionable but still gross. 
The disparity between the most overrepresented 
county (Coosa) and the most underrepresented 
(Houston) would be almost 5 to 1. The nine most 
populous counties, with 50.8 percent of the popula­
tion, would have only 45 out of 106 seats, or 42.4 
percent.

The discrimination in both houses runs in favor of 
the same relatively unpopulous counties and against 
the more populous; thus, the inequality in one house



33

adds to the severity o f the discrimination in the other.
I f  one house of a State legislature is apportioned 

substantially in accordance with population, there may 
be room for variation in the other,20 but surely there 
can be no justification for substantial discrimination 
against the same people in their per capita represen­
tation in both houses. In this respect there is no sig­
nificant difference between the Maryland case and the 
present aspect of the instant controversy. Having 
fully presented our argument there (pp. 29-34, 43-50, 
57-90), we content ourselves here with a summary.

The principles of voter equality and majority rule 
are too vital a part of our constitutional heritage to 
suppose that the Fourteenth Amendment permits the 
States to submerge them in the interest of recognizing 
equality of political subdivisions, either for its own 
sake or because of the collateral consequences. The 
founding fathers firmly believed that the State legis­
latures should be apportioned according to population. 
At the Philadelphia Convention and also in the State 
conventions which ratified the Constitution there was 
general agreement that any legislature operating di­
rectly on the people should, as a matter of funda­
mental fairness, be apportioned in both houses accord­
ing to population. See Appendix B to our Maryland 
brief. Constitutional practice has also favored the 
principle, for although a number of State constitu­
tions have always called for limiting the principle by 
some recognition of political subdivisions or a limita­

20 Here, as in the Maryland case, we make this assumption 
arguendo because no decision upon the question is required.



34

tion upon the representation of a few densely popu­
lated areas, the formal rules did not then create the 
grave injustices, gross inequalities and rule by small 
minorities that they yield in Maryland and Alabama 
today. “ The conception of political equality from the 
Declaration of Independence to Lincoln’s Gettysburg 
Address to the Fifteenth, Seventeenth and Nineteenth 
Amendments can mean only one thing—one person, 
one vote” ( Gray v. Sanders, 372 U.S. 368, 381). The 
meaning cannot be altogether different in legislative 
representation.

Altogether the Court has had few cases involving 
the right to fair representation, its decisions under 
the equal protection clause in other fields make it plain 
that strong justification is required for any legislative 
classification affecting fundamental rights. For exam­
ple, in Skinner v. Oklahoma, 316 U.S. 535, 541, the 
Court, noting that procreation is “ one of the basic 
civil rights of man,”  held that “ strict scrutiny of the 
classification which a State makes in a sterilization 
law is essential, lest unwittingly or otherwise, invidi­
ous discriminations are made against groups or types 
of individuals in violation of the constitutional guar­
anty of just and equal laws.” Earlier, in Yick Wo. v. 
Hopkins, 118 U.S. 356, 370, the Court made clear that 
voting “ is regarded as a fundamental political right, 
because preservative of all rights.”

The reason for the rule is also applicable. Dis­
crimination in legislative representation, as the recent 
history of Alabama indicates, prevents effective resort 
to the political process which can ordinarily be expect­



35

ed to bring about the repeal of unjust legislation. 
Cf. United States v. Carotene Products Co., 304 U.S. 
144, 152, Note 4.

Appellants in No. 23 suggest (Br. 14) that the “ 67- 
Senator Amendment”  is constitutional by analogy to 
the United States Congress. However, for reasons 
argued in our brief in the Maryland case (pp. 7 3 -  
82), there is no federal analogy to the State legisla­
tures. The Congress reflects the mixed nature of the 
federal government; the House of Representatives 
reflects its national aspect with the States in a sub­
ordinate role, the Senate reflects the continued sov­
ereignty and equality of the States. As the framers 
recognized, the State governments are no such mix­
ture; they operate directly on the people. The coun­
ties of Alabama are mere subdivisions of the State, 
created by the State to carry out the functions which 
the State chooses to assign to them. E.g., Askew v. 
Ilale County, 54 Ala. 639, 641; State v. Butler, 225 
Ala. 191, 193, 142 So. 531; Moore v. Walker Comity, 
236 Ala. 6 88, 690,185 So. 175.

The federal analogy does not apply for an addi­
tional reason. The very most the federal analogy could 
be supposed to show is that the upper house may deviate 
substantially from equality on the basis of population if 
the lower house is apportioned fairly. The federal 
House of Representatives is, in effect, apportioned by 
the Constitution among the States almost exactly in con­
formance with population. While each State is guar­
anteed at least one representative, only four States 
have less than 1435 of the population. Thus, it



36

takes representatives from States with almost 50 per­
cent of the population to constitute a majority of the
House.21 In contrast, only 42.4 percent of the people 
of Alabama live in counties electing over half the 
State House of Representatives. Forty of the 67 
counties have less than Vio6 of the State popula­
tion. Thus, the federal analogy cannot apply, even 
assuming its underlying validity, because Alabama’s 
proposed constitutional amendment does not require 
that either house be apportioned substantially on the 
basis of population.

Appellants in No. 23 also contend (Br. 36-37) that 
apportionment of the Senate in the proposed consti­
tutional amendment is justified as preventing domina­
tion of the legislature by a few populous cities. I f  
this means that Alabama simply prefers rural voters 
over urban, the preference plainly constitutes in­
vidious discrimination against the populous counties 
As we discuss fully in our Maryland (pp. 39-46) and 
New York (pp. 14-33) briefs, it is as much a denial 
of equal protection for a State to give voters who live 
in populous counties less representation than other 
voters as it would be to prefer or discriminate against 
counties with a certain percentage of Protestants, 
Catholics, Negroes or businessmen. Appellants’ ar­
gument also fails on the facts. As they acknowledge

21 Unfair districting within the States, however, by the State 
legislatures, has resulted in having a majority of representa­
tives elected from districts having only 42 percent of the popu­
lation. Such unfair districting is probably unconstitutional. 
See the government’s brief in Western/ v. Sanders, No. 22, this 
Term, pp. 30-35.



37

(Br. 52), it takes a minimum of ten counties to make 
up 52 percent of the State’s population. Rule by ten 
counties scattered over different parts of the State 
can hardly be described as domination of the majority 
by a few populous cities. Since they are scattered, 
there is no reason that their interests would be uni­
formly the same. The Court can take judicial notice 
that they vary in size and social and economic char­
acter as well as location. Indeed, to make up their 
majority, appellants have been forced to include cities 
with a rather small population—-Oxford, 3,603, Tus- 
cambia, 8,944 and Sheffield, 13,499.

Finally, even if some weighting might be acceptable, 
the argument wholly fails to justify allocating to a 
majority of people only ten out of 67 senators, or less 
than 15 percent.

I l l

THE APPORTIONMENT PROVIDED BY THE CRAWFORD-WEBB 
ACT WOULD VIOLATE THE EQUAL PROTECTION CLAUSE, 
FIRST, BY PRESERVING THE CRAZY-QUILT OF REPRESEN­
TATION IN THE SENATE AND, SECOND, BY SUBORDI­
NATING POPULAR REPRESENTATION IN THE LEGISLATURE 
AS A WHOLE TO THE REPRESENTATION OF POLITICAL 
SUBDIVISIONS TO SUCH A DEGREE AS TO CREATE GROSS 
INEQUALITIES AMONG VOTEKS AND GIVE CONTROL TO 
SMALL MINORITIES OF THE PEOPLE

The Crawford-Webb Act modified the preexisting 
apportionment of the Alabama legislature in two re­
spects. It made a few changes in the existing sena­
torial districts, such as putting less populous counties 
into multiple county districts and giving at least one 
populous county, Etowah, a senator to itself instead of



38

making it part of a multicounty district. The statute 
also reapportioned the House by assigning a specific 
number of seats to each county without establishing 
general criteria. An intelligible basis can be extrap­
olated from the figures, however, for the legislature, 
after allocating one seat per county, apparently gave 
one additional seat to each county with 45,000 to 90,000 
people, two additional seats to each county of 90,000 to 
150,000 people, three additional seats to each county 
with 150,000 to 300,000 people, five additional seats to 
counties of 300,000 to 600,000 people and eleven addi­
tional seats to counties with over 600,000 people. See 
Brief for the Appellants in No. 23, p. 39.22

Under the Crawford-Webb Act, despite the changes, 
the apportionment of the Senate would still create 
gross inequalities in per capita representation without 
rhyme or reason. Since the population of Alabama 
is 3,266,740, and the Act provides for 35 senators, the 
ratio—the population of an ideal district—is 93,335 
(R. 36). That ratio cannot be achieved, however, be­
cause the Alabama Constitution, as construed by the 
State, prevents any one county from having more 
than one senator, so that the seven counties with popu­
lations in excess of 93,335 cannot receive equal per 
capita representation with the rest of the State unless

22 Appellants in No. 23 also suggest (Br. 38-39) that the 
Crawford-Webb Act apportions the House according to popu­
lation using the method of smallest divisors. However, they 
admit three deviations from the result yielded by that method 
which give seats that would have gone to Jefferson and Mobile 
Counties to other less populous counties. It seems plain, there­
fore, that if the legislature applied any formula it is the for­
mula described in the text.



39

the constitutional restriction be held invalid. How­
ever, even if its validity be assumed, there are still 
28 senators for the remaining counties, with a total 
population of 1,729,112, which should yield one sena­
tor for every 61,572 people. The apportionment would 
be based upon that figure if the legislature had con­
formed to the State constitution.

In fact, the Crawford-Webb Act makes no attempt 
to conform to any systematic rule.23 For example, the 
district with Colbert, Franklin, and Marion Counties 
has 90,331 people; if Marion County were detached, 
this district would still have a population of 68,494. 
The adjoining district of Pickens and Lamar Coun­
ties now has a population of only 36,153. Thus, 
voters in the latter district have 2;l/2  times the repre­
sentation of those in the former. I f  Marion County 
were added to this district, its population would still 
be 57,990.

Similarly, Butler, Conecuh, and Covington Counties 
form a district with 77,953 people. The neighboring 
district of Wilcox and Monroe Counties has 41,111 
people. Thus, voters in the latter district have almost 
twice as much representation as those in the former. 
On the other hand, if Conecuh were moved to the 
district with Wilcox and Monroe, that district would 
have 58,873 people and the district, comprising Butler 
and Covington would have 60,191.

As one last example, the district of Autauga, Chil­
ton, and Shelby Counties has a population of 76,564

23 The Senate districts under the Crawford-Webb Act and the 
population of each is set forth at R. 129 and 167.



40

while the adjoining district of Bibb and Perry Coun­
ties has 31,715. Thus, the disparity in representation 
is approximately 2y2 to 1. I f  Autauga County were 
moved to the latter district, this district would have 
a population of 50,454. Chilton and Shelby Counties 
would then form a district with 57,825 people.

The State of Alabama has suggested no justification 
for these discrepancies. More of them are based on 
the limitation of one Senator to a county. The only 
possible explanation is that the legislature appar­
ently desired to correct only the worst of the inequali­
ties which previously existed (see pp. 11-12, 37-38 
above). However, serious inequalities remain and, 
since they have no intelligible basis, the apportionment 
violates the Fourteenth Amendment under the prin­
ciples stated earlier.

2. The apportionment under the Crawford-Webb 
Act would also be unconstitutional, we submit, for the 
same reason as the “ 67-Senator Amendment”—the 
interests advanced by the departure from per capita 
equality do not furnish a reasonable basis for the 
gross discrimination and utter disregard for the 
principle of majority rule.

In the Senate the people of every county, however 
populous, are limited to a single representative. Jef­
ferson County with 20 percent of the total population 
of Alabama chooses only three percent of the Senate. 
Mobile County with 10 percent of the total population 
also chooses only three percent. A voter in the aver­
age. senatorial district has three times the representa­
tion of a voter in Mobile County and six times the



41

representation of a voter in Jefferson. There is simi­
lar, albeit less severe, discrimination against Mont­
gomery, Madison and Tuscaloosa Counties. A ma­
jority of the senators would come from districts con­
taining 27.6 percent of the people.

In the House, as explained above, the counties 
would be assigned additional representatives on the 
basis of population, not in direct proportion but 
within increasingly wider brackets for each additional 
representative. The number of people per repre­
sentative in the middle of the second bracket is 33,750; 
the number per representative in the middle of the 
third bracket is 40,000; the number per representative 
in the middle of the fourth bracket is 56,250 (how­
ever, Montgomery would be the only county in this 
bracket and it would have 42,303 people per repre­
sentative) ; the number of people per representative 
in the middle of the fifth bracket is 75,000 (however, 
Mobile would be the only county in this bracket and 
it would have 52,384 people per representative) ; and 
the number of people per county at the bottom of the 
last bracket would be 50,000 (however, Jefferson 
County would be the only county in this bracket and 
it would have 52,905 people per representative). 
Thus, there would be more population per representa­
tion as counties were more populous. The conse­
quence is that seven counties, all in the second bracket 
(i.e., having two representatives) would have twice 
the representation of Jefferson and Mobile Coun­
ties; and 12 counties in the second bracket and 
two in the third bracket would have over 1% times the



42

representation of Jefferson and Mobile. A majority 
of the House would come from counties containing as 
little as 37 percent of the people.

Thus, both branches of the legislature are delib­
erately constituted by rules that discriminate against 
voters who live in the more populous counties. 
Judged simply as discrimination against urban voters, 
in favor of rural voters, which is all that appears on 
the face of the legislation, the Crawford-Webb ap­
portionment is manifestly unconstitutional. The 
equal protection clause forbids a State to create 
favored political classes on the basis of race, religion, 
occupation, or economic status. Where a man lives, 
like the number of his neighbors, is irrelevant to 
any permissible purpose of electoral policy. See our 
briefs in the Maryland (pp. 39-46) and Hew York 
cases (pp. 1A-33).

It may be argued that what appears to be only a 
calculated effort to deprive the residents of populous 
counties of the right of majority rule is really di­
rected at achieving such objectives as geographical 
diffusion of political influence, preserving small and 
compact constituencies and providing some repre­
sentation to every locality which may have unique- 
local interests. In our Maryland brief (pp. 44-50, 
82-90), we have discussed the role of these factors 
in legislative apportionment. The short of the matter 
is that even if they may support some deviations 
from per capita equality, they will not justify such 
gross inequalities and rule by such small minorities- 
as would be created by the Crawford-Webb Act.



43

IV
THE TEMPORARY APPORTIONMENT ORDERED BY THE DIS­

TRICT COURT AS INTERIM RELIEF IS NOT AN ABUSE OF 
DISCRETION

Upon finding that the existing apportionment and 
the alternatives advanced by the Alabama legislature 
were all unconstitutional, the district court was re­
quired to provide appropriate relief. Under other 
circumstances it might have entered only a declaratory 
judgment or an injunction forbidding the election 
officials from conducting the next election according 
to the invalid apportionment, leaving the legislature 
an opportunity to provide an acceptable-substitute. 
See pp. 46-47, infra. The court below had already 
tried that course but the legislature chosen under 
the old apportionment proved unable or unwilling 
to reapportion itself in accordance with the Four­
teenth Amendment. Accordingly, the court directed 
a judicial apportionment with the allocation of seats 
in the Senate based upon the Crawford-Webb Act 
and the allocation in the House based upon the pro­
posed constitutional amendment. Jurisdiction was 
reserved against the possibility that even the legis­
lature so chosen would not adopt a proper apportion­
ment. The cross-appellants challenge the interim 
order on the ground that it does not immediately 
vindicate their full constitutional rights.

The formulation of a decree in equity calls for the 
exercise of discretion, and a district has broad dis­
cretion especially in cases involving important public 
interest. Virginian By. Co. v. System Federation No.



44

40, 300 U.S. 515, 552; Mercoid Corp. v. Mid-Continent 
Investment Co., 320 U.S. 661, 670. See also, Inter­
national Boxing Club v. United States, 358 U.S. 242, 
253; International Salt Co. v. United States, 332 U.S. 
392, 400-401. While there can be little doubt of the 
power of a court to fashion an affirmative remedy in 
an apportionment case,24 the timing and formulation 
o f such a decree calls for balancing competing consid­
erations: The goal, which must be attained, is to secure 
the plaintiffs ’ constitutional rights. Joined with them 
is a strong public interest in equitable apportionment, 
both for its own sake and as a means of revitalizing 
State government. On the other hand, the district 
court must be mindful of the dangers of intruding 
into local self-government. Apportionment also in­
volves a wide range of choices suited to the political 
not the judicial branches of government. Any re­
apportionment ordered by a court is a poor substitute 
for one of the people’s own making.

Mindful of these considerations the federal district 
courts, as well as the State courts, have uniformly 
endeavored to encourage the State legislatures to re­
apportion themselves without judicial intervention. 
Many courts, including the court below (R. 57-58,140- 
141), have delayed deciding the issue of the constitu­

2* Moss v. Burkhart, U.S. D.C., W.D. Okla., decided July 17, 
1963; Sobel v. Adams, 208 F. Supp. 316, 318 (S.D. F la .); 
Toombs v. Forison, 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.).



45

tionality of the apportionment in order to give the legis­
lature time to act. Sincock v. Terry, 207 F. Supp. 205, 
207 (D. D el.); Lein v. Sathre, 205 F. Supp. 536,540 (D. 
N.D.) ; Magraw v. Donovan, 163 F. Supp. 184, 187-188 
(D. Minn.) ; Mikell v. Rousseau, 183 A. 2d 817, 823 
(Vt. Sup. Ct.) ; Asbury Park Press, Inc. v. Wooley, 
33 N. J. 1,161 A. 2d 705, 714-715; In re Legislative Re­
apportionment, 374 P. 2d 66, 71-72 (Colo. Sup. Ct.) ; 
Butcher v. Trimarchi, 28 Pa. Dist. & County Rep. 2d 
537, 542. Other courts have delayed entering a decree 
after ruling that an apportionment was unconstitu­
tional until the legislature should have had time to 
make a new apportionment satisfying the require­
ments of equal protection. Sob el v. Adams, 208 F. 
Supp. 316, 318 (S.D. Fla.) ; Toombs v. Fortson, 205 
F. Supp. 248, 259, and unreported opinion, Septem­
ber 5,1962, U.S. D.C. (N.D. G-a.) ; Baker v. Carr, 206 F. 
Supp. 341, 349, 350-351 (M.D. Tenn.) ; Moss v. Burk­
hart, 207 F. Supp. 885, 894, 898-899 (W.D. Okla.) ; 
League of Nebraska Municipalities v. Marsh, 209 F. 
Supp. 189, 195-196 (D. Neb.) ; Mann v. Davis, 213 F. 
Supp. 577, 585-586 (E.D. Va.), pending on appeal, No. 
69, this Term; Thigpen v. Meyers, 211 F. Supp. 826, 832 
(W.D. Wash.), pending on appeal, No. 381, this Term; 
Sincock v. D ufy, 215 F. Supp. 169, 191-192 (D. Del.), 
pending on appeal, No. 307, this Term; Maryland 
Committee for Fair Representation v. Tawes, 228 Md. 
412, 180 A. 2d 656, 670-671; Maryland Committee for 
Fair Representation v. Tawes, Circuit Court, Anne 
Arundel County, Maryland, decided May 24, 1962; 
Harris v. Shanahan, District Court, Shawnee County,



46

Kansas, decided July 26, 1962; Fortner v. Barnett, 
No. 59,965, Chancery Court, First Judicial District, 
Hinds County, Mississippi. The time given the legis­
lature to act has, where necessary, even been extended 
past the date of the next election. League of Ne­
braska Municipalities v. Marsh, supra, 209 F. Supp. 
at 195-196 ; Toombs v. Fortson, U.S. D.C., N.D. Ha., 
decided October 19, 1962.

In the present case the legislature’s inadequate 
response compelled the court to take further action, 
but the necessity did not lessen the importance of 
minimizing judicial intervention into the political 
processes of local self-government. Accordingly, the 
court adopted the provisions of the proposed consti­
tutional amendment for the apportionment of the 
House and the provisions of the Crawford-Webb Act 
for the apportionment of the Senate, making the 
court-ordered apportionment effective until the legis­
lature should reapportion itself. The rationale is 
well-stated in the court’s own opinion (R. 154-155) :

The duty to reapportion rests on the Legis­
lature. This Court acts in the matter reluc­
tantly because of the long continued default 
and total inability of the Legislature to reap­
portion itself. Even under such circumstances, 
we think that a federal court, in the light of 
its delicate relationship with a state legisla­
ture, should, so far as is possible, accept such 
parts of the Acts of the Legislature as have any 
merit in framing the order of the Court. For 
the purpose of the order of the Court to release 
the strangle hold on the Legislature and permit 
it to reapportion itself, such parts of the Acts of



47

the Legislature need not meet the standard of 
constitutionality required of a permanent Act of 
reapportionment.

The cross-appellants complain that the decree does 
not at once secure their full constitutional rights and 
that it may be ineffective to break the stranglehold 
■of minority interests upon the legislature. But the 
court below, which was closer to local conditions 
than any other federal tribunal, believed that the 
remedy would iead to a new and equitable apportion­
ment (R. 153-155), and the remedy chosen had the 
great advantage that it was based entirely upon the 
work of the Alabama legislature. While plaintiffs’ 
full interests were not immediately secured, a more 
precipitate course of action threatened unnecessary 
intrusion into local political processes and potential 
conflict with State authorities; for the only alterna­
tives were election at large or a judicial apportion­
ment. Although additional steps would be required 
if the interim remedy proved insufficient, the district 
court was not required to rush into the assumption 
of legislative responsibilities and invite conflict with 
the State.

Furthermore, the decree is not a final measure. 
The district court reserved jurisdiction, stating that 
if the legislature did not reapportion itself the court



48

would enter a decree securing plaintiffs’ full rights' 
under the Fourteenth Amendment. (R. 156).20 The 
opinion it expressed concerning the constitutionality 
of the Crawford-Webb apportionment of the House of 
Representatives (R. 153) is a dictum which appar­
ently had no effect upon the choice of an interim 
remedy and which will be open for consideration if 
the necessity for further judicial action should arise.

CONCLUSION

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

A rchibald C ox,
Solicitor General.

B ruce J. T erris,
Assistant to the Solicitor General.

R ichard W . S chmude,
Attorney.

O ctober 1963.

25 The decree does say that the court’s apportionment will 
remain in effect until the legislature reapportions itself con­
sistent with the Fourteenth Amendment (R. 188). However,, 
the opinion also states expressly that the decree is intended 
to be temporary and that it does not meet the full requirements 
of the Constitution (R. 154-156). The court retained juris­
diction “ for the purpose of issuing any and all additional 
orders that may become necessary or appropriate in the judg­
ment of this Court” (R. 190), and stated that it would use 
this power to remedy the violation of federal constitutional 
rights if the legislature did not act (R. 156). When read to­
gether, these, provisions mean that the apportionment specified 
in the decree should terminate as soon as the legislature pro­
vides a constitutional apportionment and that, in default there­
of, the court may grant further relief.



APPEN DIX

Article TV, Section 50, of the 1901 Alabama Con­
stitution provides:

See. 50. The legislature shall consist of not 
more than thirty-five senators, and not more 
than one hundred and five members of the 
house of representatives, to be apportioned 
among the several districts and counties, as pre­
scribed in this Constitution; provided that in 
addition to the above number of representatives, 
each new county hereafter created shall be en­
titled to one representative.

Article IX , Sections 197-201, of the 1901 Alabama 
Constitution provides:

Sec. 197. The whole number of senators shall 
be not less than one-fourth or more than one- 
third of the whole number of representatives.

Sec. 198. The house of representatives shall 
consist of not more than one hundred and five 
members, unless new counties shall be created, 
in which event each new county shall be entitled 
to one representative. The members of the 
house of representatives shall be apportioned 
by the legislature among the several counties of 
the state, according to the number of inhabit­
ants in them, respectively, as ascertained by the 
decennial census of the United States, which 
apportionment, when made, shall not be subject 
to alteration until the next session of the legisla­
ture after the next decennial census of the 
United States shall have been taken.

Sec. 199. It shall be the duty of the legisla­
ture at its first session after the taking of the 
decennial census of the United States in the 
year nineteen hundred and ten, and after each

(49)



50

subsequent decennial census, to fix by law the 
number of representatives and apportion them: 
among the several counties of the state, accord­
ing to the number of inhabitants in them, re­
spectively; provided, that each county shall be 
entitled to at least one representative.

Sec. 200. It shall be the duty of the legisla­
ture at its first session after taking of the de­
cennial census of the United States in the year' 
nineteen hundred and ten, and after each sub­
sequent decennial census, to fix by law the 
number of senators, and to divide the state into- 
as many senatorial districts as there are sena­
tors, which districts shall be as nearly equal to 
each other in the number of inhabitants as may 
be, and each shall be entitled to one senator, 
and no more; and such districts, when formed, 
shall not be changed until the next apportioning 
session of the legislature, after the next decen­
nial census of the United States shall have been 
taken; provided, that counties created after the 
next preceding apportioning session of the legis­
lature may be attached to senatorial districts. 
No county shall be divided between two dis­
tricts, and no district shall be made up of two 
or more counties not contiguous to each other.

Sec. 201. Should any decennial census of the 
United States not be taken, or if when taken, 
the same, as to this state, be not full and satis­
factory, the legislature shall have the power at 
its first session after the time shall have elapsed 
for the taking of said census, to provide for an 
enumeration of all the inhabitants of this state, 
upon which it shall be the duty of the legislature 
to make the apportionment of representatives 
and senators as provided for in this article.

Article X V III, Section 284, of the 1901 Alabama 
Constitution provides in pertinent part:

Sec. 284. * * * Representation in the legis­
lature shall be based upon population, and such



51

basis of representation shall not be changed by 
constitutional amendments.

Sections 1 and 2 of 32 Alabama Code (1958) 
provide:

Section 1. House of representatives.—The 
house of representatives of the legislature con­
sists of one hundred and six members, distrib­
uted among the several counties as follows: The 
counties of Autauga, Baldwin, Bibb, Blount, 
Cherokee, Chilton, Choctaw, Clay, Cleburne,, 
Coffee, Colbert, Conecuh, Coosa, Covington, 
Crenshaw, Cullman, Dale, DeKalb, Escambia, 
Fayette, Franklin, Geneva, Greene, Houston, 
Lamar, Lawrence, Limestone, Macon, Marion, 
Marshall, Monroe, Pickens, Randolph, Shelby, 
St. Clair, Washington, and Winston shall each 
elect one representative. The counties of Bar­
bour, Bullock, Butler, Calhoun, Chambers, 
Clarke, Elmore, Etowah, Hale, Henry, Jack- 
son, Lauderdale, Lee, Lowndes, Madison, Ma­
rengo, Morgan, Perry, Pike, Russell, Sumter, 
Talladega, Tallapoosa, Tuscaloosa, Walker and 
Wilcox shall each elect two representatives. 
The counties of Dallas and Mobile shall each 
elect three representatives. The county of 
Montgomery shall elect four representatives; 
and the county of Jefferson shall elect seven 
representatives.

Section 2. Senatorial districts.—The senate 
of the legislature shall consist of thirty-five 
members, and the state is divided into thirty- 
five senatorial districts, as follows: First, Lau­
derdale and Limestone; second, Lawrence and 
Morgan; third, Blount, Cullman and Winston; 
fourth, Madison; fifth, Jackson and Marshall; 
sixth, Etowah and St. Clair; seventh, Calhoun; 
eighth, Talladega; ninth, Chambers and Ran­
dolph; tenth, Tallapoosa and Elmore; eleventh, 
Tuscaloosa; twelfth, Fayette, Lamar and 
Walker; thirteenth, Jefferson; fourteenth, Pick­



52

ens and Sumter; fifteenth, Autauga, Chilton 
and Shelby; sixteenth, Lowndes; seventeenth, 
Butler, Conecuh, and Covington; eighteenth, 
Bibb and Perry; nineteenth, Choctaw, Clarke 
and Washington; twentieth, Marengo; twenty- 
first, Baldwin, Escambia and Monroe; twenty- 
second, Wilcox; twenty-third, Dale and Geneva; 
twenty-fourth, Barbour; twenty-fifth, Coffee, 
Crenshaw, and Pike; twenty-sixth, Bullock and 
Macon; twenty-seventh, Lee and Russell; 
twenty-eighth, Montgomery; twenty-ninth, 
Cherokee and De Kalb; thirtieth, Dallas; thirty- 
first, Colbert, Franklin and Marion; thirty- 
second, Greene and Hale; thirty-third, Mobile; 
thirty-fourth, Clay, Cleburne and Coosa; thirty- 
fifth, Henry and Houston.

Proposed Constitutional Amendment No. 1 of 1962, 
Alabama Senate Bill No. 29, Special Session, 1962 
(the so-called “ 67-Senator Amendment” ) provides 
(R. 157-159):

Enrolled, An Act, Proposing an amendment to 
the Constitution of Alabama relating to legis­
lative apportionment.
B e it enacted by th e  L egislature of A la­

b a m a :
Section 1. The following amendment to the 

Constitution of Alabama 1901 is proposed and 
shall become valid as a part thereof when 
approved and proclaimed as prescribed by law: 
Proposed Amendment 1. The legislature of 
Alabama shall consist of a senator for each 
county and 106 members of the house of repre­
sentatives, to be apportioned among the several 
counties as herein prescribed; provided, that in 
addition to the above number of representatives 
each new county hereafter created shall be en­
titled to at least one representative. 2. At the 
general election in 1966, and every four years 
thereafter, a senator shall be elected by the



53

qualified electors of each county in the state- 
3. At the general election in 1966, and every 
four years thereafter, until the house of repre­
sentatives is reapportioned as herein provided,, 
the qualified electors of each county in the state 
shall elect such number of representatives as 
may be apportioned to the county as follows: 
The county of Jefferson shall have and elect 
seventeen representatives; the county of Mobile 
shall have and elect eight representatives; the 
county of Montgomery shall have and elect 
four representatives; the counties of Calhoun, 
Etowah, Madison and Tuscaloosa shall each 
have and elect three representatives; the coun­
ties of Dallas, Lauderdale, Morgan, Talladega 
and Walker shall each have and elect two repre­
sentatives; and the remaining counties of the 
state shall each have and elect one representa­
tive. 4. On the first day, or within one week 
thereafter, of the regular session of the legis­
lature in 1971, and every fifth regular session 
thereafter, the clerk of the house of repre­
sentatives shall transmit to the secretary of 
state a statement showing the whole number 
of persons in each county under the most recent 
decennial census of the United States, and the 
number of representatives to which each comity 
will be entitled under an apportionment of the 
then existing number of representatives by the 
method known as the method of equal propor­
tions, no comity to receive less than one represen­
tative. 5. In Section 284 of this Constitution as 
amended, strike out the last sentence thereof and 
insert the following sentence: Representation in 
the house of representatives of the legislature 
shall be based upon population. 6. Article IX  
(sections 197-203) of this Constitution is hereby 
expressly repealed.

Section 2. An election upon the proposed 
amendment is ordered to be held on the date of 
the general election next succeeding the final 
adjournment of the current session of the Legis-



54

lature. The election shall be held in accord­
ance with the provisions of Sections 284 and 
285 of the Constitution of Alabama, as amended, 
and Chapter 1, Article 18, Title 17 of the Code 
of Alabama 1940.

Section 3. Notice of the election and of the 
proposed amendment shall be given by procla­
mation of the Governor, which proclamation 
shall be published once a week for four succes­
sive weeks next preceding the day appointed 
for the election in a newspaper in each county 
of the State. In every county in which no 
newspaper is published, a copy of the notice 
shall be posted at each courthouse and post 
office.

The Alabama Reapportionment Act of 1962, Ala­
bama House Bill No. 59, Special Session, 1962 (the 
“ Crawford-Webb Act” ) provides (R. 160-162) :

Enrolled, An Act, To fix the number of senators 
and representatives in the legislature, divide 
the state into senatorial districts, and appor­
tion the senators and representatives among 
the several districts and counties
B e it exacted by the  L egislature of A la ­

bam a  :
Section 1. The senate of the legislature shall 

be composed of 35 senators representing 35 sen­
atorial districts, each district to elect one sena­
tor and no more.

Section 2. The state is hereby divided into 
35 senatorial districts as follows:

First, the counties of Lauderdale and Lime­
stone; second, the counties of Lawrence and 
Morgan; third, the counties of Cullman and 
Winston; fourth, the county of Madison; fifth, 
the counties of Jackson and Marshall; sixth, 
the county of Etowah; seventh, the county of 
Calhoun; eighth, the county of Talladega; 
ninth, the counties of Randolph and Chambers;



55

tenth, the counties of Elmore and Tallapoosa; 
eleventh, the county of Tuscaloosa; twelfth, 
the comities of Fayette and Walker; thirteenth, 
the county of Jefferson; fourteenth, the coun­
ties of Pickens and Lamar; fifteenth, the coun­
ties of Autauga, Chilton and Shelby; sixteenth, 
the counties of Monroe and Wilcox; seven­
teenth, the comities of Butler, Covington and 
Conecuh; eighteenth, the counties of Bibb and 
Perry; nineteenth, the counties of Clarke, 
Choctaw and Washington; twentieth, the comi­
ties of Marengo and Sumter; twenty-first, the 
counties of Baldwin and Escambia; twenty- 
second, the counties of Blount and St. Clair; 
twenty-third, the counties of Dale and Geneva; 
twenty-fourth, the counties of Barbour and 
Pike; twenty-fifth, the counties of Coffee and 
Crenshaw; twenty-sixth, the counties of Bul­
lock and Macon; twenty-seventh, the counties 
of Lee and Russell; twenty-eighth, the county 
of Montgomery; twenty-ninth, the counties of 
Cherokee and DeKalb; thirtieth, the counties 
of Dallas and Lowndes; thirty-first, the coun­
ties of Colbert, Franklin and Marion; thirty- 
second, the counties of Greene and Hale; 
thirty-third, the county of Mobile; thirty- 
fourth, the counties of Coosa, Clay and Cle­
burne; thirty-fifth, the counties of Henry and 
Houston.

In districts consisting of more than one 
county, the senators shall not be elected for 
more than one term consecutively from any 
one county in the district, but shall reside in 
and lie elected alternately and in turn from 
each of the counties within such district. The 
first, senator to be elected in such districts shall 
reside in the county having the largest popula­
tion, except where that county had the last 
preceding senator. It is provided, however, 
that any senator in office on the effective date 
of this enactment shall be eligible to succeed



56

himself as a member of the Senate, any other 
provision of this paragraph to the contrary 
notwithstanding.

Section 3. The house of representatives o f 
the legislature shall consist of 106 members 
distributed among the several counties of the 
state as follows:

The county of Jefferson shall have and elect 
12, the county of Mobile 6, and the county of 
Montgomery 4: the counties of Calhoun,
Etowah, Madison and Tuscaloosa 3 each; the 
counties of Baldwin, Colbert, Cullman, Dallas, 
Houston, Lauderdale, Lee, Marshall, Morgan, 
Russell, Talladega and Walker 2 each; and the 
remaining counties 1 each.

Section 4. This Act shall take effect for the 
election of senators and representatives at the 
general election to be held in November 1966, 
and shall be effective thereafter until the legis­
lature is reapportioned according to law.

Section 5. The provisions of this Act are 
severable. I f  any part of this Act is declared 
invalid or unconstitutional, such declaration, 
shall not affect the part which remains.

U.S .  GOVERNMENT PRINTING 0 F F I C E : I 9 6 3



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