Thomas C. Lynch, Attorney General of California, Charles E. Corker and Charles A. Barrett, Assistant Attorneys General, Sanford N. Gruskin, Deputy Attorney General, and Herman F. Selvin for appellants.
Phill Silver, appellee, pro se.
The motion of the appellant the Senate of the Legislature of California to take judicial notice of official judicial records is denied. The motion to strike the motion to dismiss or affirm is also denied. The motion to affirm is granted and the judgment is affirmed.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK and MR. JUSTICE STEWART join, concurring.
The California Constitution reserves to the people of the State the initiative power to propose constitutional amendments by filing a petition with the Secretary of State. 1 If the petition is signed by 8% of the persons who voted in the preceding gubernatorial election, the proposed amendment will be submitted to the people at the next general election, and only a bare majority vote of the people is required in order to pass the amendment.
Prior to 1926 the California Constitution, Art. IV, 6, provided that both houses of the legislature would be apportioned on the basis of population. 2 In 1926 an [381 U.S. 415, 416] initiative measure, known as Proposition 28, was submitted to the voters which deleted the requirement that the Senate be apportioned on a strict population basis, leaving the method of apportioning the Assembly unaffected. 3 The statements accompanying the measure, which were distributed to all voters, described the proposition as an attempt to provide a federal-type plan for California, similar to the apportionment of the United States Congress, and summarized the arguments pro and con the proposal. 4 Proposition 28 was approved by a [381 U.S. 415, 417] popular vote of 437,003 to 363,208 in the November 1926 election, and the following year the legislature adopted apportionment statutes to effectuate the constitutional [381 U.S. 415, 418] amendment. This legislation was submitted to the people as required by state law, and was approved by them in the 1928 election. 5 The amendment provided that the [381 U.S. 415, 419] Senate would be composed of 40 members, to be elected from senatorial districts; the districts would be based on population, but no county could contain more than one district, and no district could consist of more than three counties. 6
Since the adoption of these changes, various initiative measures have been submitted to the voters on more than one occasion in an attempt to change this apportionment system for the Senate. In 1948 such a proposition was defeated by a vote of 2,250,937 to 1,069,899. 7 In 1960 such a proposition was defeated by a vote of 3,408,090 to 1,876,185. 8 And in 1962 another such proposition was defeated by a vote of 2,495,440 to 2,181,758. 9
The Court today summarily affirms the decree of the District Court holding this senatorial apportionment, consistently approved by a majority of the people of California voting in general elections, to be invalid under the decisions of this Court in Reynolds v. Sims, 377 U.S. 533 , and companion cases. Were I able to detect in any of those cases the slightest basis for optimism that the Court might consider last Term's reapportionment pronouncements to leave room for the people of a State to choose for themselves the kind of legislative structure they wish to have - at least when the democratic processes employed are as straightforward and flexible as those of California - I would vote to "Note" and hear this case. Finding, however, that the judgment of the District Court is [381 U.S. 415, 420] squarely required by Lucas v. Forty-fourth General Assembly, 377 U.S. 713 , 10 I reluctantly acquiesce in the Court's summary affirmance. 11
[ Footnote 2 ] "For the purpose of choosing members of the legislature, the state shall be divided into forty senatorial and eighty assembly districts, as nearly equal in population as may be, and composed of contiguous [381 U.S. 415, 416] territory, to be called senatorial and assembly districts." Calif. Const. of 1879, Art. IV, 6, in Calif. Laws 1925, p. XI.
[ Footnote 3 ] "For the purpose of choosing members of the legislature, the state shall be divided into forty senatorial and eighty assembly districts to be called senatorial and assembly districts. Such districts shall be composed of contiguous territory, and assembly districts shall be as nearly equal in population as may be. Each senatorial district shall choose one senator and each assembly district shall choose one member of assembly. . . . [I]n the formation of senatorial districts no county or city and county shall contain more than one senatorial district, and the counties of small population shall be grouped in districts of not to exceed three counties in any one senatorial district . . . ." Calif. Laws 1927, p. lxxxv.
Another measure, Proposition 20, was also submitted to the voters in the 1926 election, which would have preserved the apportionment of both houses on a strict population basis. This proposition was defeated by a vote of 492,923 to 319,456. Record 37.
[ Footnote 4 ] "Argument in Favor of Legislative Reapportionment Initiative Measure.
[ Footnote 5 ] Record 37. The vote was 692, 347 in favor, and 570,120 opposed.
[ Footnote 6 ] Calif. Const., Art. IV, 6. The present effect of this apportionment is that Los Angeles County, with a population of over 6,000,000, has one Senator, and the three smallest counties, which together have a population of 14,294, also have one Senator. There is no claim made, however, that the Assembly is not apportioned solely on the basis of population.
[ Footnote 7 ] Proposition 13 on the 1948 ballot. Record 37-38.
[ Footnote 8 ] Proposition 15 on the 1960 ballot. Record 38.
[ Footnote 9 ] Proposition 23 on the 1962 ballot. Record 78.
[ Footnote 10 ] The gleam of a distinction between that case and this, which is suggested by what the Court said at p. 731 of its Lucas opinion, is wholly dissipated by what appears shortly thereafter at pp. 736-737.
[ Footnote 11 ] This affirmance does not of course touch the propriety of any relief that the District Court may later grant, or the extent to which provisions of the California Constitution are still binding on the State Legislature in drafting apportionment legislation, see Forty-fourth General Assembly v. Lucas, 379 U.S. 693 .