The Franchise

by
Samuel S. Wilson¹

The case discussed in this paper most likely to be discussed again in the Circuit's tri-centennial history is Baker v. Carr.² The case not only plunged the federal courts into new and complex remedies but also realigned political power both in Congress and in the state legislatures.³

Before Baker v. Carr, the nation's basic constitutional scheme gave state legislatures not only the authority to divide their own states into the geographical districts each legislator would represent⁴ but also the primary authority to do the same for the United States House of Representatives.⁵ The latter power was subject to some review by Congress.⁶

Generally this geographical division was supposed to be based on population⁷ and to be redone periodically to reflect shifts in population.⁸ In practice it didn't work that way. Reapportionment, which came to be the standard word for this process, required a remarkably unselfish state legislator. After all, each state legislator had been elected under the existing system. To change would risk political extinction. As the existing districts became farther and farther out of line with actual population distribution this risk became greater and greater.⁹

Since the major population shifts were from rural to urban areas, the result was under representation for the cities and legislative control in the rural areas.¹⁰ In Tennessee, where Baker v. Carr arose, the discrepancy between counties in legislative representation proportionate to population reached 19 to 1 in some cases.¹¹ In Georgia, the ratio reached 99 to 1;¹² in California 297 to 1, and in Connecticut 300 to 1.¹³

Legislatures so constituted were naturally not very solicitous about many urban problems.¹⁴ This point was made in an amicus brief by the National Institute of Municipal Law Officers in Baker v. Carr:

Since World War II, the explosion in city and suburban population has created intense local problems in education, transportation and housing. Adequate handling of these problems has not been possible to a large extent, due chiefly to the political weakness of municipalities. This situation is directly attributable to considerable under representation of cities in the legislatures of most states.¹⁵

Before Baker v. Carr numerous actions had been filed on various constitutional theories to correct this imbalance. The federal courts had carefully avoided the problem. The issues were deemed "political questions" inappropriate for judicial intervention. The leading case was Colegrove v. Green.¹⁶ That case involved an attack on congressional apportionment in Illinois. Only seven justices participated in the decision. There were three opinions. Four judges agreed that the courts should not grant relief but they disagreed as to the procedural basis. Three said the question was simply non-justiciable; the fourth thought the question unsuitable for equitable relief. Three dissenters would have granted relief.¹⁷

After Colegrove, the Supreme Court disposed of apportionment cases rather routinely. In fact, in the late 1950's, the Court dismissed an appeal from a Tennessee Supreme decision¹⁸ involving the same Tennessee problem as that in Baker v. Carr and also dismissed an appeal in a case where the plaintiff used the same equal protection theory as Baker.

Against this background, qualified voters¹⁹ of five of Tennessee's more heavily populated counties²⁰ filed an action in the Nashville Division of the United States District Court for the Middle District of Tennessee. The complaint alleged that apportionment for the Tennessee legislature violated the plaintiffs rights under the Equal-Protection Clause of the Fourteenth Amendment. Actually the Tennessee legislature had not followed its own state constitution. Enumeration of qualified voters was supposed to take place every 10 years²¹ and the two houses of the legislature were supposed to be reapportioned generally according to the number of qualified voters.²² In fact, the legislature had not been reapportioned since 1901 and wide discrepancies had developed between population and representation.²³ Plaintiffs constitutional attack was on the 1901 apportionment statute²⁴ as it was being applied in 1959. Defendants, who were Tennessee state officials,²⁵ moved to dismiss the complaint without convening a three-judge District Court. They maintained that plaintiff's claim was obviously without merit.

District Judge William E. Miller overruled the motion. Prophetically he observed that "it would appear to be at least debatable whether that the U.S. Supreme court has foreclosed the question in all cases of legislative apportionment."²⁶ Circuit Judge Shackelford Miller, Jr. , as Acting Chief Judge of the Circuit, then convened a three-judge court composed of Circuit Judge John D. Martin, District Judge Marion Speed Boyd and William E. Miller. That court did dismiss the action.²⁷ The bases for the dismissal were lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The court was sympathetic to plaintiff s position but felt bound by prior Supreme Court decisions.²⁸ It also foresaw the massive problems involved in fashioning and administering a remedy in this type of case.²⁹ The opinion was per curiam and unanimous.

The case was appealed directly to the Supreme Court. It was argued for the first time on April 29-20, 1961, and reargued on October 9, 1961. The decision came on March 26, 1962. Basically the Supreme Court decided that federal courts should get into reapportionment. Then it tossed the remedy problem back to the lower federal courts.³⁰

Writing for the court, Justice William J. Brennan, Jr. pointed out that Colegrove really didn't foreclose relief. Three judges had said that it did, and three that it didn't, Justice Brennan said, but the swing judge had only thought the case inappropriate for an equitable remedy. He also reviewed the various categories of "political question," concluding:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non- judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case . . ., there should be no dismissal for non-justiciability on the ground of a political question's presence."³¹

Reapportionment of a state legislature did not fall into any of these categories, Justice Brennan concluded, at least when the claim was based on the Equal Protection Clause rather than the Guaranty Clause.³² Justice Brennan said little about remedy. The plaintiffs had maintained that once the courts asserted their authority the state legislatures would appropriately reapportion themselves.

In dissent, Justice Felix Frankfurter termed this a "euphoric hope."³³ The other dissenter, Justice John M. Harlan, added that "the majority has wholly failed to reckon with what the future may hold in store if this optimistic prediction is not fulfilled."³⁴

Upon remand, the "optimistic" prediction was quickly tested and proved wrong. On May 7, 1962, some six weeks after the Supreme Court decision, the Tennessee Attorney General reported to the District Court³⁵ that the Governor was calling a special session of the legislature on reapportionment. One month later the Governor approved reapportionment acts passed by the legislature.

The plaintiffs immediately challenged the constitutionality of the new legislation. The court found the reapportionment of the House to be satisfactory except for the retention of the two-thirds rule³⁶ but held the Senate reapportionment to be irrational.³⁷ The court permitted the 1962 election of a new legislature to proceed under the 1962 Act but instructed the new legislature to try again using numbers of qualified voters as the only factor.³⁸

The legislature again passed a reapportionment act; the plaintiffs again challenged its constitutionality; the court again found that the act failed to meet constitutional requirements.³⁹ The House was properly reapportioned but the Senate reapportionment was deficient in that many rural districts were given one senator even though their population was less than that per senator in the urban counties. The court tentatively adopted a plan proposed by plaintiffs for the Senate. Defendants were given a chance to object.

During the following spring (1964) defendants filed an alternative plan for the Senate and plaintiffs renewed an argument previously rejected by the court, that both houses must be apportioned strictly according to population. Soon thereafter plaintiffs' position was adopted by the U.S. Supreme Court in the 1964 "one man-one vote" decisions.⁴⁰

In accord with these decisions, the District Court modified its order to approve the plans submitted by the plaintiffs for both the House and Senate. Defendants were given a chance to propose changes but the plaintiffs plans including any modifications accepted by the court were to become effective by June 1, 1965, whether or not adopted by the Tennessee legislature. Reapportionment legislation was, in fact, adopted and signed by the governor on May 28, 1965.

The plaintiffs challenged the newest legislation and the litigative cycle began once more. Finally, this time, the court approved the legislation and Baker v. Carr came to an end.⁴¹

Of course, the Sixth Circuit was not thus free of reapportionment problems. Cases arose in the federal courts of Ohio⁴² and Michigan⁴³ on their way to resolution in the Supreme Court. In fact, Tennessee legislative reapportionment was itself back in the District Court in 1972.⁴⁴ The theme was curiously familiar with the legislature struggling to do one thing and the court holding that it must do quite another.

Baker v. Carr was triply significant.⁴⁵ It defined (or redefined) what kinds of cases presented political questions and were thus nonjusticiable;⁴⁶ it opened the way to a massive realignment of political power,⁴⁷ and it plunged the courts into a complex thicket of remedies problems.⁴⁸ Thus there was a great deal of validity in Chief Justice Warren's view that Baker v. Carr was the most important decision of the Supreme Court during his eventful 15 years as Chief Justice.⁴⁹ Another important voting case arose in the Sixth Circuit in 1968 in connection with the presidential candidacy of George C. Wallace.⁵⁰

Wallace's national political career began in June 1963. As governor of Alabama he had stood in the doorway of a University of Alabama building in an effort more symbolic than practical to prevent the federal authority from integrating the University. This confrontation was nationally televised.

In 1964, Wallace entered Democratic presidential primaries in Wisconsin, Indiana, and Maryland. He had considerable success but not enough to challenge Lyndon Johnson seriously. In the fall of 1967, Wallace and his supporters decided to make a national effort as the candidate of a third party, the American Independence Party, or, in some states, the American Independent Party. Their biggest practical problem, the ballot, was not limited to Ohio but was almost nationwide. One political historian observed:

At the level of practical politics, the enormous problem before the Wallace staff was simply to get him on the ballot. The laws of every state of the Union reflect the unspoken Anglo-American tradition that voters in a free country can have only one effective choice -- between a majority and a minority party. To create a third party in America, one must mount a transcontinental assault on habit, tradition, emotion and, above all, fifty different election laws. To field a new party in New York, for example, a group must have at least 12,000 valid voting signatures, of which at least 50 must come from each of New York's 62 counties -- which is easy in big cities, but in counties of less than 4,000 population nearly impossible. . . In Nebraska, a third party is recognized only if it holds a convention. In California even more difficult laws require 66,059 registered signatures from all across the state to form a new party.⁵¹

Eventually, Wallace's candidacy did appear on the ballot in all 50 states but it took a United States Supreme Court decision to do it in Ohio. The case which gave rise to that decision is our subject.

The challenged Ohio election statutes plainly contemplated only presidential candidates from political parties having all the organizational trappings of the major parties -- primary elections, county and state central committees, national conventions, state conventions, and presidential electors selected by the state conventions.⁵² To get candidates for electors on the primary ballot a new party had to file petitions signed by qualified voters equaling in number 15 percent of the total vote in the last gubernatorial election.⁵³ Moreover, in 1968 the filing deadline for such petitions was February 7, ninety days before the primary.⁵⁴

This mare's nest of requirements had been enacted in 1952. Prior to that third-party presidential electors could be nominated by petition in the same way as independent candidates for other offices.⁵⁵

The litigation was begun on July 2, 1968 in the Eastern Division of the Southern District of Ohio, not by the Wallace party, but by the Socialist Labor Party. Its complaint focused on the number of voters required on a nominating petition. Although it had only 108 members in Ohio, it had all of the party apparatus required by Ohio law. However, its electors had not appeared on the presidential ballot since 1948 because of its failure to file petitions bearing the necessary number of signatures.

On July 29, officials of the American Independent Party (AIP) filed their complaint, making a general attack on the Ohio statutes. In fact, the AIP had collected more than enough signatures to meet the numerical requirement. Apparently, however, they had not been collected until long after the deadline for filing.⁵⁶ The AIP also had not complied with the various party organization requirements.

A three-judge district court was convened to hear both cases. The panel consisted of Circuit Judge Lester L. Cecil and District Judges Joseph P. Kinneary and Carl A. Weinman. After separate hearings the Court decided the cases together.⁵⁷ All three judges agreed that the Ohio statutes were unconstitutional and that space must be provided on the Ohio presidential ballot for write-in votes but Judges Cecil and Weinman refused to order the names of the parties' candidates to be printed on the ballot. They relied on the plaintiff's tardiness in bringing the action, the separation of powers among the branches of government⁵⁸ and the difficulty of fashioning relief. Judge Kinneary dissented. He would have ordered that the American Independent Party's candidates should appear on the printed ballot.⁵⁹

The District Court's decision was rendered on August 29. The American Independent Party plaintiffs promptly filed a motion with Justice Potter Stewart, the Circuit Justice for the Sixth Circuit. The motion was for a temporary order to have Ohio print the names of the party's candidates on the ballot. Justice Stewart issued the temporary order requested on September 10.⁶⁰ The Socialist Labor Party filed a similar motion several days after that of the Wallace group. It was denied by Justice Stewart on September 16.⁶¹

With election day fast approaching, the cases were argued on October 7 before the full Court. The decision was announced on October 15.⁶² In it the Supreme Court agreed with the District Court that the Ohio statutes violated the Equal Protection Clause.⁶³ On relief, the full Court followed Justice Stewart's decisions on temporary orders: Ohio must print ballots with the names of the American Independent Party but need not do so for the Socialist Labor Party. Besides the Opinion of the Court by Justice Hugo L. Black, there were five separate opinions: two concurring, by Justices William O. Douglas and John M. Harlan and three dissenting, by Chief Justice Earl Warren and Justices Stewart and Bryon R. White.

In his dissent, Chief Justice Warren said he thought "the ramifications of our decision today may be comparable to those of Baker v. Carr."⁶⁴ He was wrong, at least so far. More minor parties have, indeed, appeared on presidential ballots, but their political influence remains small. If that political fact were to change, however, Williams could well live up to the Chief Justice's estimate.⁶⁵