The City Vote and the Rural Monopoly
Publicist, and public-spirited, HELEN HILL MILLER was educated at Bryn Mawr and Oxford. She has been a correspondent for the London ECONOMIST, NEWSWEEK, and the NEW REPUBLIC,and takes a close interest in the political fortunes of Virginia, for whose governorship her husband fought a close but losing campaign against the Byrd machine.
BY HELEN HILL MILLER
IN A rush to the courts during the last six months, suburbanites and urbanites have successfully sought relief from the political monopoly of legislative power long exercised by America’s rural minorities. For decades, district lines controlling representation in general assemblies and state senates and in the federal House of Representatives have given an exaggerated weight to voters in country districts, to the constantly increasing disadvantage of citizens in the nation’s growing metropolitan areas.
There are 108 million Americans of voting age. Over 30 million of them live in the hundred largest cities. Eleven and a half million of them live in five great centers — New York, Chicago, Los Angeles, Philadelphia, and Detroit, it was with them in mind that President (then Senator) Kennedy, writing on The Shame of the Cities in 1958, said, “The apportionment of representation in our Legislatures and (to a lesser extent) in Congress has been either deliberately rigged or shamefully ignored so as to deny the cities and their voters that full and proportionate voice in government to which they are entitled.”
From time to time, outvoted city citizens have taken their case to the courts. But until 1962, the United States Supreme Court denied them relief through the judicial process. Since March, however, times have changed, and changed unbelievably fast.
The procession of successful plaintiffs was led by a group of urban citizens of Tennessee, including several politically powerful mayors, who declared that their state’s current apportionment of the 33 seats in the state senate and the 99 seats in the general assembly denied to them, and to other urban Tennesseans, the equal protection of the laws guaranteed in the federal Constitution by the fourteenth amendment.
Tennessee’s constitution of 1871 required the legislature to reapportion the house and senate every ten years in accordance with a census of qualified voters. For three decades, through 1901, the legislature observed the constitution. But thereafter, down to 1962, it sidestepped its obligation; the state’s district lines therefore remained as drawn sixty years ago.
During those sixty years, Tennessee’s population grew and distributed itself in new patterns. At the turn of the century, the state had 2,020,616 citizens, of whom 487,380 were declared eligible to vote; the 1960 federal census counted 3,567,089 Tennesseans, of whom more than 2,000,000 were of voting age. At the turn of the century, Tennessee was an agricultural state with a few towns — Memphis, the largest city, numbered only 102,320 people; today, the counties where the largest cities are located contain 43 percent of the state’s entire population.
But because of the way the old district lines were drawn, the citizens of the city areas have until now chosen only 19 of the 99 assemblymen and only 7 of the 33 state senators. Representation that gave equal weight to the votes of all voters would have entitled them to twice as many senators and to 42 assemblymen. In other words, the areas of the state that remained rural have succeeded in holding onto political power in the proportions in which it was distributed at a time when six out of ten Americans lived in the country, and urban areas were the exception rather than the rule.
Through all those years, reapportionment was unobtainable in Tennessee, because a majority of the legislature had no intention of giving up the power which an outdated and inequitable structure enabled them to continue to exercise. They knew that modernization of apportionment would relocate lines and give effective voice to new groups of voters; in the process, at least 17 solons would be likely to lose their seats. And since Tennessee is one of the twenty-nine states that have no law providing for popular initiative and referendum by the voters at large, no mechanism other than these outmoded districts was available for the expression of the will of Tennessee’s urban people.
The callousness of the Tennessee legislature in denying a voice to the cities is by no means exceptional. Thirty-six of the fifty state constitutions stipulate periodic reapportionment, but as of 1961 six other legislatures besides Tennessee’s had taken no action for more than a quarter of a century. In fourteen cases, apportionment in accordance with the constitution would have caused a change great enough to shift the balance of power in at least one house from the rural to the city areas. The roster of these states exhibits the extent to which unconstitutional disfranchisement of urbanites has been practiced far and wide — Colorado, Indiana, Idaho, Kansas, Louisiana, Minnesota, Missouri, Nebraska, Nevada, Oklahoma, Oregon, Tennessee, Utah, and Wisconsin.
Passive failure to obey the constitution is not the only method by which modern and growing areas have been disfranchised; they have also been diminished overtly, by statute. In Delaware, for example, district lines drawn in 1897, and unchanged since, have caused the citizens of Wilmington, who form almost four fifths of the population, to be represented by only slightly more than two fifths of the members of the legislature.
In California, the more than 6,000,000 residents of Los Angeles County have been restricted to choosing a single state senator; in Texas, the 1,250,000 residents of Houston have shared a similar plight. In Michigan, state senatorial district lines equated the votes of 61,000 inhabitants of four counties in the Upper Peninsula with those of 530,000 citizens of suburban Detroit.
Back in 1928, H. L. Mencken made the pungent comment on his home state of Maryland that “The yokels hang on because old apportionments give them unfair advantages. The vote of a malarious peasant on the lower Eastern Shore counts as much as the vote of twelve Baltimoreans.” Recently, the most underrepresented Marylanders have ceased to be downtown Baltimoreans; they are the residents of four suburban counties — Baltimore, Anne Arundel, and Prince Georges and Montgomery, the counties that flank Washington, D. C. These four areas contain 47 percent of the state’s population, but until 1962 they were permitted to choose only 19 percent of the house of delegates and less than 15 percent of the state senate.
THE grievances of underrepresented citizens are set forth in detail for every state in the union in the up-to-date study by Paul T. David and Ralph Eisenberg of the University of Virginia in their Devaluation of the Urban and Suburban Vote; for the congressional situation, facts are obtainable in the Congressional District Data Book and the atlas of congressional districts, published this year by the Federal Bureau of the Census. These findings make clear that the Tennessee urbanites who brought the first successful case are no worse off than millions of other urbanites the country over, though distribution of Tennessee’s nine-man congessional delegation also illustrates underrepresentation in the federal Congress: the 1,936,000 Tennesseans who live in the districts that include the large cities send four representatives to Washington, while the 1,355,000 who live in the rest of the state send five.
Such congressional lopsidedness, moreover, conveys only part of the dominance exercised by the country’s rural areas on the mood in legislative Washington. Of the fifty states, all but eleven are more than half urban. Of the 437 congressional districts, 300 are at least half urban. In 188 districts, the urban population comes to at least 70 percent, and in 122 it ranges from 90 to 100 percent. On the record, it looks as though majorities such as these should be overwhelming. Why do they often seem hardly to count at all?
One reason is that the great majority of congressmen — and many senators are congressmen before they move on to the upper house — get their first political experience on the state level. With only rare exceptions, they must rely on their party’s state organization for their initial preferment and for the supporting structure of their subsequent campaigns. Consequently, even though discrepancies in representation are somewhat less glaring in the drawing of congressional districts than in the establishment of lines controlling entry to the statehouse, the rural bias of the states carries over into national politics.
Furthermore, the rural influence under which most congressmen serve their apprenticeships is fortified by the seniority system that governs advancement of members of the House and Senate to chairmanships of committees. A man who can get to Congress, stay there, and outlive his colleagues automatically becomes the decisive personality presiding over a major section of national decisions, from taxes to appropriations, from foreign affairs to social security.
The rural minorities are particularly potent in the one-party states of the South, where there is a tendency (noticeable also in core areas of the big cities with concentrations of minority groups or of the foreign-born) to re-elect the same man biennium after biennium; the beneficiaries of these repeat performances can easily advance to the tops of committee ladders in competition with representatives from areas where there is a twoparty balance and where seats are not treated as personal fiefs.
The U.S. Senate has sixteen standing committees. In the present Congress, not one of the chairmen comes from a state containing a really big metropolitan area. Indeed, though twenty-eight of the fifty states are urban by 60 percent or more, not one chairman comes from a state that is as much as three quarters urban, and only seven from states as much as 60 percent urban.
The current roster of states with a senator who is a chairman, with the percentage of urban population in each, reads thus: Alabama (54.8), Arizona (74.5), Arkansas, with two chairmen (42.8), Georgia (55.3), Louisiana (63.3), Mississippi (37.7), Montana (50.2), Nevada (70.4), New Mexico, with two chairmen (65.9), Oklahoma (62.9), South Carolina (41.2), Virginia, with two chairmen (55.6), Washington (68.1).
In the House, there are twenty standing committees. Nine of these are chaired by men from states with very large cities; the three chairmen from New York and the one from Chicago represent districts that are 100 percent urban, and the one from California, 98 percent. Speaker McCormack of Massachusetts also represents a 100 percent urban district in Boston. None of the other eleven chairmen comes from a district that is as much as 65 percent urban. The chairman of the powerful House Rules Committee is elected in a district that is 21.8 percent urban. The chairman of the Ways and Means Committee is sent by one of the nine districts in the nation that are under 20 percent urban; of the Appropriations Committee, by one that is 35.7 percent urban; of the Foreign Affairs Committee, by one that is 34.2 percent urban. Under their gavels national decisions are made.
The representation expressed in the major congressional committee chairmanships when the Democrats are in power — and they have been in power in the House for all but four of the past thirty years — is thus a massive monument to a minority way of life. In the Senate, on the slightly more frequent occasions when the Republicans control it, the situation is little different. Fewer Southerners, more Rocky Mountain and Great Plains men preside, but rural predominance remains. The people of the cities have been downgraded for a very long time, and the people of the suburbs have been even more ruthlessly downgraded. Yet the metropolitan pattern is the contemporary pattern, and suburban living is the recognized norm of American family life.
It is because they have not had a proportionate voice that these urbanites normally receive a disproportionately small share of a state’s appropriations — after supplying a disproportionately large share of a state’s tax revenues. This is why their special problems — transportation, public facilities, housing, recreation, schools — receive only scant attention ; they are not considered problems by the majority of their state’s representatives. Indeed, many of the boys from the sticks build support back home on the record of their resistance to spending for urban needs.
IT WAS against this background that Charles W. Baker and other citizens of five Tennessee urban areas filed their suit against Tennessee’s secretary of state and other officials, asking redress for deprivation of federal constitutional rights.
Since a number of similar cases, from several other states, had been dismissed by the federal Supreme Court in recent years, the lower court judges before whom they brought the case asserted with some assurance that “the federal rule, as enunciated and applied by the Supreme Court, is that federal courts, whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration, will not intervene in cases of this type to compel legislative reapportionment.”
But in November, 1960, the Supreme Court decided to hear an appeal from this ruling, and after spending about three times the amount of time usually devoted to hearing argument announced a precedent-breaking decision on March 26, 1962.
In this decision, the justices divided six to two; Mr. Justice Whittaker’s illness prevented his participation. Mr. Justice Brennan, who delivered the majority opinion, reviewed the grievances of underrepresented urbanites everywhere when he said of the Tennessee plaintiffs, “Their constitutional claim is, in substance, that the 1901 statute constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed by the State’s Constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-à-vis voters in irrationally favored counties,” Accordingly, the case was returned to the lower court with the affirmation that it could properly assume jurisdiction, and that Mr. Baker and his associates had standing to challenge the existing apportionment and would be entitled to relief upon substantiation of their cause.
The two dissenting justices expressed strong misgivings. Mr. Justice Frankfurter regarded the Court’s assumption of jurisdiction as intervention by the judiciary in “the essentially political conflict of forces by which the relation between population and representation has time out of mind been and is now determined.” Mr. Justice Harlan declared that “Those observers of the Court who see it primarily as the last refuge for the correction of all inequity or injustice . . . will no doubt applaud this decision. . . . Those who consider that continuing national respect for the Court’s authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication, will view the decision with deep concern.”
But over the last few years, the judges had responded to appeals for legal protection in other cases of denial of the right to vote and to have one’s vote count; in November, 1960, the Court had unanimously decided, in Gomillion v. Lightfoot, that the Alabama state legislature’s redrawing of the municipal boundaries of the city of Tuskegee to exclude practically all Negroes would, if permitted, “sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions.” So it was not wholly surprising that in 1962 a majority of the Court was willing to recognize that urbanites also can have a grievance susceptible to judicial remedy.
In his brief as amicus curiae, Solicitor General Archibald Cox had said, “The Court could seriously impair its own effectiveness by assuming purely political functions that ought to have been performed by others. But judicial inaction, through excessive caution or a fancied impotence in the face of admitted wrong and crying necessity, might do our governmental system, including the judicial branch, still greater damage.” He likewise noted that Professor Paul Freund of the Harvard Law School has said that “Education and the practice of self-improvement may be fostered by judicious judicial intervention.”
WITHIN a half hour of the time when news tickers clicked out word of the judicial handwriting on the wall, a case had been filed in Georgia to challenge the county unit system of voting in the Democratic primaries, which for decades have been tantamount to elections in that state. The Congressional Quarterly’s count showed that as of May 1 suits had been filed in seventeen states, and in nine others commissions had been set up by the governor or legislature to plan reapportionment and so forestall a court order.
By July, federal courts had ordered action to be taken in Alabama, where the governor, in calling a special session, warned legislators of “the stark fact that three United States judges have stated that they will reapportion the Legislature of Alabama if we do not”; in Colorado, Idaho, Kansas, Maryland, and Mississippi; in North Dakota, where the court refused to prohibit the 1962 election under the old apportionment, but retained jurisdiction in case nothing is done by the legislature in 1963; in Oklahoma and Pennsylvania; in Tennessee, where a new apportionment act, passed following Baker v. Carr, was declared unconstitutional as “inexplicable either in terms of geography or demography” and the legislature was given until June 3, 1963, to do better; in Wisconsin, where, after the Democratic governor vetoed the bill passed by a special session, the judges named a former state supreme court justice as a special master to hold hearings and bring in recommendations (he proposed dismissal of the suit without prejudice, with the plaintiffs allowed to reinstate it next year if the legislature fails to act); and in Vermont, where the apportionment of the senate was successfully challenged as unconstitutional, though no complaint has been made about a vastly unequal distribution of seats in the house.
Three actions have also been taken by the United States Supreme Court in this interval: in April, it referred back to the Michigan supreme court, for reconsideration in the light of Baker v. Carr, a case that challenged the inequalities of population among state senatorial districts established in 1952 by an amendment to the Michigan constitution that was subsequently approved by popular referendum. The Court thereupon ruled that this year’s election for the state senate must be at large unless the legislature redistricted by August 2; but Mr. Justice Stewart of the U.S. Supreme Court granted a stay until the full Court could rule on this decision in October.
On June 11, the Court sent back for a district court ruling a challenge to legislative reapportionment in New York; the next day, the governor refused to call a special session to reapportion in an election year, but the matter remains unfinished business.
In Georgia, it is possible that events have rendered moot the case which the Court, on June 18, just before recessing for the summer, agreed to review on its return. Georgia’s method of disfranchising its cities has been perhaps the most extreme of all. Until this year, a vote in Echols, one of the larger but least populous counties, was as effective as ninety-nine votes in Fulton, the county containing Atlanta. In the state Democratic primaries the vote of each county has been cast in its entirety for the candidate who won a plurality there. These were then tallied by a method that specifically deprived the urban counties: the 8 most populous were allotted six unit votes each; the next 30, four unit votes each; and the remaining 121, two unit votes each.
After the filing of the challenge to this system on March 26, the state legislature, foreseeing the inevitable, passed a somewhat less blatant unit formula, but the day after the legislature recessed a three-judge federal court ruled the new version unconstitutional, suggested some guidelines for the future, and forbade the use of a unit system for the September 12 primary in which Democratic voters would, in effect, choose the next state governor. As a result, for the first time in fiftyfour years, Georgia voters went to polls in which equal weight was given to each valid ballot.
As incumbent politicians mount an effort to select their own variety of minimum compliance with the new criteria of equality that are beginning to emerge, emphasis is being given to the use of geographic units as the basis for the upper house, if a rough measure of equality of population must become the basis for the lower. Stalwarts of the status quo realize that even this much of a shift would deprive fellow incumbents of seats, alter balances of power, and in all likelihood increase two-party competition for office; and in their eyes, all of this is bad. But if this much loss is inevitable, legislation that makes counties, towns, and cities the basis of the upper house would at least fasten a checkrein to hold in metropolitan runaways.
The litigation that has occupied Maryland is illustrative. In 1961, Circuit Court Judge O. Bowie Duckett dismissed a suit on the grounds that the judiciary should not enter the “political thicket.” Last May, after Baker v. Carr, he declared the section of the state constitution establishing the house apportionment unconstitutional and required the legislature to redistrict before the 1962 elections if it was to avoid an injunction against the convening of the new house next January. But he also approved geography as a basis for the senate: “If the federal system of checks and balances is good for the nation, it likewise should be good for the states.” This autumn, the Supreme Court will have to consider this issue: the pending Michigan case challenges the constitutionality of using any basis other than population for apportionment of either house.
The results of all this redistricting, as they will affect the political parties, are widely argued. Since the big cities vote Democratic more often than not, a first reaction was to say that this will mean more Democrats in the statehouses and in the federal Congress. So far, the courts have stayed away from rulings on congressional apportionments, in part because in the case of Colegrove v. Green, the leading case until Baker v. Carr, the Supreme Court declined to take a position on the composition of congressional districts, and in part because it is not unreasonable to suppose that a more fairly apportioned legislature may be expected to draw congressional district lines more equitably.
At present, 119 Democrats and 69 Republicans hold the 188 congressional seats that represent districts 70 or more percent urban. At the other end of the scale, however, there is likewise a Democratic preponderance: all 9 of the districts less than 20 percent urban are held by Democrats, and they control 27 of the 31 districts that are less than 30 percent urban. The Republicans do best in the suburban districts that are more evenly divided between town and country.
The suburbs are the growing areas. The central cores of the big cities, where the Democratic machines of the last generation flourished, are now being depopulated. As the incomes of their former inhabitants rise, these people move to the suburbs and lose their sense of Democratic togetherness. Politically, suburbanites are an unknown quantity. They are the citizens with the most visible grievances in regard to underrepresentation, and also those with the least firm party ties. On the whole, they tended to favor the Republicans during the 1950s; how much the Kennedy Administration has changed the image of the Democratic Party then prevalent in the new subdivisions is still not sure. Its drawing power will be tested in November.