At Issue; 39; The Fight for an Equal Vote

In 1894, New York's political leaders gathered to choose the apportionment formula for electing New York's legislators. During the debate, delegate Henry J. Cookehan-Ham rose with this argument. I say, without fear of contradiction, that the average citizen in the rural district is superior in intelligence, superior in morality, superior in self-government to the average citizen of the great cities. Cookehan-Ham carried the convention. In 1894, rural New Yorkers took the political reins and held them until this year. I am Al Prometer, our subject, a Supreme Court decision. National Educational Television presents, at Issue, a commentary on events and people

in the news. This week, at Issue, look at the fight for an equal vote. The story of one man's protest that eventually stirred action by the Supreme Court of the United States. For the United States Supreme Court, this has been a year of decision and controversy. Just two weeks ago, on June 15, the highest court handed down a ruling that promises to change the political structure of most of the nation. It called for the reapportionment of state legislatures, so that each vote within a state would have equal weight. The decision was a victory for a small group of individuals who valued their votes enough to fight for them. In New York State, the chronology of victory begins with a retired New York lawyer and former city councilman, Max Gross. He talks with Howard Felscher. Mr. Gross, what was the purpose of your fight? To ban for all time a malaportionment in New York State of the legislatures in that 37 percent of the people in the state currently would control the legislature in the assembly

and 38 percent would control the Senate. This would deny to a greater part of the population in the metropolitan areas of a fair share of representation. Well, couldn't the legislatures themselves have done something about it? They certainly could, but they wouldn't, because if they did, they would themselves have would throw themselves out of their own seats, and we could not expect them to do it. I found there was no other way to correct the situation than by a resort to the federal courts, even as high as up to the United States Supreme Court. Well, what did you do about this new plan, of yours? I tried to interest a great many knowledgeable people in this state, got nowhere except the acknowledgments, until I had written the letter to Mr. Nathan Strauss, president then, of the radio station WMCA.

That was in January 1961. By April 1961, they were again in touch with me. Mr. Strauss had sent Mr. Stand to confer with me, and there was a brochure I had written, which was, which explained, how come we can go to the United States Supreme Court, and that Avenue was open, but that Avenue was opened by the United States Supreme Court's decision in the segregation cases. Peter Strauss picked up the tradition left by his father, Nathan Strauss. He used ownership of WMCA as a force for service. When we got this letter from Max Gross, we gave it close attention in a careful reading my father and I, and we discussed it a good deal. It seemed to us that this was classically the kind of thing that a radio station serving a community should do, the kind of fight that a radio station ought to take on in its community. And so after this study, we got in touch with our counsel Leonard Sand to ask his views

about the whole matter. Leonard Sand is General Counsel for WMCA. He was formerly with the United States Elicitor General's Office. Leonard Sand read the letter, studied the Presidents, and examined the history of listless legislative attempts at self-improvement. He recommended Peter Strauss that WMCA get into the fight. WMCA got into the fight immediately. On May 2, 1961, it went on the air with this editorial. WMCA takes a stand. An editorial by WMCA President R. Peter Strauss. There are 25 counties in upstate New York, which taken together, have barely a third the population of Brooklyn, but they cast more votes than Brooklyn in the New York State Assembly. Why? Because seats in both houses of the New York State Legislature are assigned throughout the state under a formula which favors rural New York over New York City.

WMCA is doing something about it. This week, WMCA filed a suit in federal court aimed at winning more equal representation for oil voters in the state. As the owner and operator of the commercial radio station, which is supposed to show a profit, why did you decide to editorialize so strongly? We felt very strongly about editorializing and about reapportionment-powered because we discovered, as the first station in the country, regularly to editorialize on the air, that most of the problems that we thought needed solving in our area, in our broadcasting area, in our state and in our city seemed to founder on this bedrock problem of a malaportion legislature. And so when we found that, we decided that we had to tackle that underlying problem also. And how long ago was that? Well, that's something like four years ago now. Mr. Sand, what was the basis of your argument the first day you went to court and against

whom did you bring that suit? We brought the suit against the Attorney General of the State of New York, the Secretary of State, and other state and local officials who were in charge with administering the election laws. Our contention was that the equal protection clause of the 14th Amendment precluded a state from so structuring its voting system and its legislature so that one group was favored over another group. When we brought the suit, we asked that there be convened a special three-judge court, which is the procedure followed when a claim is made that state law violates the federal constitution. At this time, the state of New York moved to dismiss our suit, saying that the questions

which we were raising were so insubstantial as to be frivolous. Who represented New York State in court against you? New York State was represented in court by Irving Gold, the Assistant Solicitor General of the State of New York at that time. Mr. Strauss, at the same time, the City of New York, which was supposed to be defending itself against you and against your complaints, admitted in court that your complaints were true and valid and joined the fight on your side. That's right. We did and they have since then cooperated very substantially in the further pursuit of this action in court. Were you granted the special hearing before a three-man court? Yes, we were. The judge ruled in our favor and convened a three-judge court to hear our case. New York was represented in court by Assistant Solicitor General Irving Gold.

He talks with Andrew Stern. Mr. Gold, you asked Judge Levitt to dismiss. He didn't. Did you make any changes in strategy for the three-man court? No, we did not. We simply renewed our original motion to dismiss the complaint, urging not only that there was lack of jurisdiction on the part of the court, but more substantially that the complaint failed to raise a substantial federal question in charging that that factors other than population rendered the New York formula unconstitutional. We felt that they were not raising a substantial federal question and so the court apparently felt and dismissing the complaint ultimately. And when did you go to court? In mid-November of 1961. Last week, WMCA took a licking in court and in a sense you did too. We had asked a federal tribunal to rule that the apportioning of seats in our state legislature

discriminates against voters in New York City. WMCA claimed that this discrimination violates your rights under the U.S. Constitution. The court held otherwise. Nevertheless, WMCA still believes that a system which denies this city, its fair share of votes in the state legislature, is unconstitutional. WMCA does not intend to let this matter drop. An appeal from last week's decision will soon be made to the Supreme Court of the United States. Though the decision of the district court was a letdown, it was not really a defeat. The Supreme Court had already indicated its interest in the issue by agreeing to hear arguments in Baker versus Carr, a Tennessee reapportionment case. So Leonard Sand appealed to the Supreme Court using the same argument he had used in the lower court. At that point, Nassau County, which also had been a defendant in the suit, changed its stand and came into the case on the side of WMCA.

The decision was made by the new Nassau County executive Eugene Nicherson. Now we believe that this reapportionment should have been accomplished long before. We had approximately the same population before I came in office. And yet the administration, prior to the time that I came in, did not move to reapportion and indeed they fought the plaintiffs in this case. And the reason for that is purely partisan because the upstate, rural areas controlled the legislature and they were given aid and sucker by their friends in our suburban counties. Now we're glad that that has been changed. We will get our true weight in the legislative, both legislative branches. And we think it will mean a lot in terms of meeting the problems, the great vast problems that we have for the future. Mr. Gaul, did you ask the Supreme Court to dismiss the WMCA appeal? We did.

We pointed out that the recent decision, the then very recent decision in the Tennessee case, Baker against Carr, was really not the positive of the case in favor of WMCA. We pointed out that Tennessee, unlike New York, had a crazy quilt system of apportionment and New York's was perfectly rational. Not only that, but Tennessee had failed in a period of some 70 years to once reapportion its legislature. On the other hand, New York systematically and regularly, just about every 10 years, reapportioned its legislature. We also noted that the Supreme Court in the Baker case had not destroyed the principle that a state may properly ensure a proper diffusion of political initiative as between its thinly populated counties and its more massively populated counties. In such a manner that the latter will not entirely submerge the lesser populated counties. And on those grounds, principally, we urged dismissal of the appeal taken by WMCA.

Mr. Strauss, what was the gist of the Supreme Court decision? The Supreme Court agreed with our view sufficiently to rule that we were to have our day in court. And so they sent the case back to the district court with instructions to hear the matter on the merits, to hear the substance of what we had to say. This could have been the deciding battle coming up, but you had to fight that battle in front of the same court that had rejected you earlier. How did you decide to handle it this time? The issues were different before the court on this particular occasion. Although the Supreme Court had said that there was a claim here, which merited a full hearing, it had not, at this point, enunciated what the standards were to be, how far a state might disregard population and consider other factors. Our contention before the court was that government represents people, and that it was not

permissible for the state to give some people a preferred position. And so Mr. Gross and I worked on the development of this theme that the right is a right of the individual, and that in fact it was so far disregarded in New York State as to have a profound effect on the operation of state government, and to prejudice those people who lived in the underrepresented areas, the cities and the suburbs. Mr. Goalt, you won in the lower court, lost in the Supreme Court, and now you were back in the same lower court where you'd won earlier. What positions did you decide to take this time? Well actually, Mr. Stern, we did not lose on that occasion in the Supreme Court. They simply sent it back to the District Court for reconsideration in the light of the

Supreme Court's intervening decision in the Tennessee case, Baker, against car. We argued before the District Court, first that WMCA had utterly failed to establish any injury to the urban majorities of the state, the urban population, the urban centers. We pointed out, for example, that the 10 most heavily populated counties of the state, all of them highly urbanized, had a combined citizen population of approximately 73 and one-half percent of the state's entire population, that they actually had representing them in the state legislature, some 65 and one-half percent of the state senate, and about 62 percent of the state assembly, so that they had a clear and well-defined majority in the legislature of the state.

Moreover they had had many opportunities to go to the polls and exercise their electoral right to repeal the constitutional provisions, substitute new ones, or to have a new constitutional convention convened, which they had repeatedly refused to do. And finally we pointed out the rationality of New York's formula. It's intent, among other things, to see to it that reasonable restrictions were placed on the possibility of over-centralization, by which I mean the opportunity for a tremendous population center, like the city of New York, for example, if represented on a purely per capita basis, to overwhelm the interests of the rest of the state. And these, in essence, were the grounds which we urged for rendering judgment in favor of the state. On August 17, 1962, WMCA lost. The Federal District Court dismissed the case.

New York was not to be reapportioned. Irving Gaul's argument had carried the court. Mr. Strauss, did you expect still another loss before a Federal District Court? No one ever told us the fight was going to be short, or easy, or that we were guaranteed to win it. We simply knew from this decision that we had to fight on if we were going to win eventually. By that time, however, the Supreme Court had ruled in Baker vs. Carr, its decision reapportionment was essential in Tennessee. That seemed strong grounds for a new appeal, so again Leonard Sand went to the Supreme Court, and again, New York State asked the court to dismiss the suit. At that point, Peter Strauss got still another friend in court, the United States. Now it was Strauss, New York City, Nassau County, and the United States taking a position against New York State. In October 1963, just one month before the Supreme Court was scheduled to hear the new arguments, WMCA felt obliged to go on the air again.

At the moment, because of population changes since our legislature was last reapportioned, New York City is not quite so badly underrepresented as usual. So boss Mahoney is calling for a special session of the legislature to take away nine of our city seats in the state assembly and four of our seats in the Senate. Under our state constitution Mahoney can do this, but under the U.S. Constitution, WMCA contends that he may not do it. WMCA suit to knock out our state's unfair system of apportioning the legislature will be heard by the U.S. Supreme Court next month. Mr. Mahoney was given equal time. He personally went on the air to state his position. WMCA has told you listeners that it is challenging the fairness of our constitutional formula in the United States Supreme Court. But what the station has not told you was that a special three-judge federal court has already upheld this formula unanimously.

The court stated in its opinion, quote, the apportionment provisions of the state of New York are rational, not arbitrary, are of substantially historic origin, contain no geographical discrimination, permit an electoral majority to alter and change the same, and are not unconstitutional under the relevant decisions of the United States Supreme Court. It was then almost two years since the battle began, and all that time the New York state legislature could have done something about it and obviated the need for a Supreme Court hearing. But it didn't. And when it became obvious that it wouldn't, even more people joined as friends of the court. The American Civil Liberties Union, the NAACP, and the American Jewish Congress. And that wasn't all. Citizens in other states were feeling the pinch of badly fitted legislative districts. They too filed suit in the Supreme Court. From Alabama, Charles Morgan Jr. Some say that the Supreme Court ruling in Reynolds V. Sims and the New York case and other

cases is a usurpation of states' rights, the Supreme Court enforcing federal power and authority over the state governments. Of course, that's erroneous totally. Because what it really is is an attempt to eliminate states' wrongs for years. The legislatures have not been appropriately apportioned. They haven't been apportioned on the basis of people. And people's what governments all about, really. Because you see, whenever you have a Senate that's apportioned 60 years ago, or a House that's apportioned 60 years ago, and based upon rural domination, then the people who live in the cities, the very places that are growing, with children who have to go to school, with slums that are blighting the entire communities. These people cannot acquire state tax dollars because they don't have representation in their own legislatures. They can't find the means to build the arterial, through ways into town to get rid of the traffic problems. The means to handle the tremendous urban problems that have come to America in the last 60 years. Now, this is simply what the reapportionate case says is one thing. And that is, state legislatures will be a portion on the basis of people. But on the basis of hogs, or cattle, or acres, or trees, or land, but on the basis of people.

And after all, people's what governments all about. With less than one month to go, Leonard Sand and Max Gross wanted to be sure they'd covered all the questions they might be faced with. We held a mood court, Max, myself, attorneys from the City of New York and NASA County. And we attempted to anticipate the questions which would be asked by the Supreme Court justices. You recall we were at that for some time, weren't we, Max? Yes, and it was a useful job done. Wow. How was it useful, Mr. Gross? Because we're appearing before a court of judges who are profound. They dig into the question before them and probe into the history of the decisions before, into the constitutional intent, and you've got to be ready for them to support the position you're taking.

From all angles, these questions may come sometimes as a surprise. So we wanted to be ready. Mr. Sand, this was your final day in court coming up. It was all over after that argument, I suppose. What was the basis of your final argument? The thrust of the argument continued to be equality. On November 12th and 13th, 1963, the Supreme Court heard arguments. WMCA, Peter Strauss, New York City, Nassau County, the American Civil Liberties Union, the NAACP, the American Jewish Congress, and in effect, Maryland, Virginia, Delaware, Colorado, and Alabama lined up against the existing order. There were months to wait after argument. The Supreme Court moves with careful deliberation. Mr. Strauss, what kind of plans were you making in the event that the Supreme Court rejected your case?

We didn't spend a lot of time worrying about what would happen if we lost. We were fairly busy making plans for what would need to happen if we won and we were concerned about that primarily. Were you hopeful about winning? We were hopeful that the case that we were making out for equality of all voters was a convincing case, and we were hopeful enough of the outcome so that we began to editorialize it about that time to suggest that the state ought to be ready with a plan for a new apportionment in the event that the Supreme Court upheld our view of what was right and just. We wanted a plan ready for immediate application to November 1964 elections even though the time might be short. Was anything done about your request, Mr. Strauss? The answer to that is no. One in June 1964, three years since the beginning, the Supreme Court ruled. For the past three years, WMCA has fought hard in federal courts for a fair system of

representing you in Albany. Now the United States Supreme Court has completely upheld WMCA's arguments by declaring the present apportionment formulas of our state legislature unconstitutional. You have just heard an editorial by WMCA president, R. Peter Strauss. And so because citizen Max Gross, one of 191 million Americans, chose to fight for his rights through the courts, all Americans will have an equal vote. Mr. Gross and his partners in protest won their fight, but not everyone rejoices in the victory. Arthur Crock, Washington columnist for the New York Times. No words in the Constitution give the Supreme Court the power to a null acts of Congress. But in a three-part divided government of federal powers, the assumption was necessary. However, when Chief Justice Marshall imported this authority into the Constitution, he sent an example for the Supreme Court to exercise it with restraint as well as its power over

the acts of state legislature. The president's Supreme Court majority has cast this limitation aside. It is now asserting judicial supremacy in totalitarian form by one, prescribing a revolutionary new public policy when this suits its political, economic, or social ideology. Two, usurping powers specifically reserved in the Constitution to Congress and the executive. Three, exercising judicial supremacy in state areas, which the Supreme Court repeatedly at the past has held to be inviolable. Four, nullifying Article five of the Constitution, which confines procedures for amending the Constitution to a submission by Congress to the states and the people of proposed changes. The Court majority amended the Constitution most flagrantly and twice in the June 22 decisions that extended the absolute anti-incrimination privilege of the Fifth Amendment from federal to state courts and decreed arbitrarily that both branches of a state legislature must be chosen by voting districts of approximately equal population.

These are facts that cannot be quibbled away. The only redress of the American people at large is through higher presidential standards and making appointments to the court of impartial instead of pre-pregnist judges, of judges not chosen as a political reward. An outstanding example of that was President Eisenhower's choice of the Chief Justice, Earl Warren. Another point of view comes from Anthony Lewis, who reports on the Supreme Court for the New York Times. Mr. Lewis is the author of Gideon's trumpet, the recently published study of another Supreme Court landmark case. I think the reapportionment decisions illustrate the vital function that the Supreme Court of the United States plays for all of us. I don't think our country could exist today without that function. We live in an urbanized society with millions of people having no effective voice against the great power of government. The little man in the city had no recourse. There was no way he could achieve equality in government, catch up with the Times, only

this court, which more than any other institution of government looks to the little individual. This court does not deal in great generalities, as Congress necessarily does, doesn't deal with the great issues of the world. As the President does, it deals with little individual human beings, you and me. It cares about whether they have an equal voice in government, whether they are fairly treated by their officials. I think if it were not for the Supreme Court, there would be a tremendous frustration in this country. I think the individual would feel there was no recourse, and so I am always grateful for the existence of the Supreme Court of the United States. The controversy over this Supreme Court will be long lasting. The arguments raised here are part of a growing debate, but on this point there is no dispute. One man's protest became the voice of the people. This is NET, National Educational Television.