Jurisdictional Statement — Williams v. Virginia State Board of Elections

a i Te ee ee es ' “oO

. ¢

IN THE

Supreme Court of the United States

OcroBER TERM, 1968

J. Harvis WituiAMs, JuLtus PRurFER, Epwarp WEST,

Jr., Cectn C, LATFIELD, Ropert A. PECK, BERNARD

W. FrEUND, Grack T. Seat, GRAYSON G. FENTRISS,

WimiiaM GrossMaAN, and Jor KE. Swieer, at-

citizens of. the U nited States resident in Virginia,

Appellants,

Vv.

VIRGINIA STATE Boarn oF ELections, L. STANLEY Harp-

-AWAY, Secretary, Minus E. Gopyix, Jr., Governor

of the. Commonwealth of Virginia, and MARTHA

BELL Conway, Secrethry of the Commonwealth of

Virginia, « ”

Appellees

On Appeal From the United States District Court for the

Eastern District of Virginia, at Alexandria

«

JURISDICTIONAL STATEMENT

Howarp S. SPERING

1000 Connectieut* Avenue

Washington, D.C. 20036

Telephone: 659-1777

Ropert L. Montacur, II

Suite 3, 100 South Royal Street

ig Alexandria, Virginia 22314

Telephone: 549-2225

. Attorneys for Appellants

November 12, 1968

' Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D.C.

”

3 Pie - Page

Opinion Below ............- need Paar ee ee

Jurisdiction ......... kid ioakeneeaxwmeneces Serer ee

ematins Teena oo. ee sis giaxceedeewca nas _ ie

ee ee rere eee ee Tee LoL ote elem”

The. Questions Are Substantial...........0ceccceeees 12

A. The Word ‘‘State’’ in Article IT, Seution 1, Means

Only the Geographical Area and the Inhabitants

Thereof, Not the State as an Organized Pohtical

ME sch nw eeneed cas nkwaS chsseealevssey ts —

B. Procedural kids in Legislature May Not

Defeat Substantial Rights of Citizens to ‘‘Repre- . ‘

sentative’? Electors .............:. erreer rrr 19

Conclusion ........... Sasbeseweune piabaeeneee ean 20

APPENDIX: :

Opinion of Three J |, Ee ere re la

Order on Opinion PATE eee eT Te i

ME OE I oki kip hic kidegeccvens te eeee wee. La

ED 5 inca bees eUk a0s okie ns kaos ee cu hawe wes 15a

TABLE OF CASES AND AUTHORITIES CITED

CASES: .

Anderson v. Martin, 375 U.S. 399, 84S. Ct. 454 (1964) 5

Puen ©. Chm, GS TLR. onan cnn cs ccnacasneennias 16

Davis v. Maun, 377 U.S. 678, 84 S. Ct. 1441 (1964) .. 5

Ray v. Blair, 343 U.S. 214, 72 $.\Ct. 654 (1956) ... 75,15

- Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 196i) 5

St. John v. Wisconsin Employment Relations Board,

340 US. 411,.71 S. Ct. 375 (1951).............. 5

Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526 (1964)

5, 15, 16, 17

ui / _Page —

ConsTITUTION oF THE UNITED StarEs:

Article I, Section 2............ eer rrerr Trey ee 3, 12, 18.

Article I, Section 4 ..... APR aS TE NT OE PE ee 18

. Article II, Sk Ee erry 3, 13, 15, 16, 17, 19 .

" - Article IIT, ee Pls Nie Se ehaa ad cape kee e..

Amensgiont a ee Dheshaewasdannh ere 3

Amendment XIV, Section 1 ........ aa ghee eae ae he

Amendment XIV, -‘Section’2 ..............04. kee 3,12

7 ; : :

STATUTES : 7

” 2 U.S.C.A. 2a, Apportionment Act of 1929:..:..... 21

3 « | Seen Seer rrr rrr ee 4

/ Bip o Bp. RP eleneenesre Ce eA KEM ER EEA NARS 3

RE ees a ener ea ere 3

ES errrirerr rratrer cr rers eee 3

a es a See kG ak wana 3

cack hgh ecb nbueeseel see neaee 3, 4

ee a Lede Ockanennusae acess ee 3

Ge WE as cr inqiccecs theteckaneitantunen’ ae

Oe EE pc awkdcebadn kane seks ey ccgessusds ‘3

Act of December 14, 1967, P.L. 50-196, 81 Stat. 581, .

amending ‘2 U.S.C.A, 2a. ........ cece emcee eeees 21°

Code of Virginia, Volume 5 (1964 replacement volume) :

Title 24, Chapter 1, Section 24-7; p. 202 ...... 4,5,8

Title 24, Chapter 11. A, Section 24-290.4 to 290.6, . ©

p. Ue occas PF eer rer ery 4, 5, 6, 8

ee w

MISCELLANEOUS: — 7 hy

41 Annals of Congress 169-170 (ee # a a

: ae | thre Continued

House of Representatives Report No. 909; 2 Con-

gress, 2nd Session, entitled “Apportionment Bill”’

and dated July 16, 1842 ............2......0.... 16

Reform of the Electoral System, by Lucius ‘Wilmerding, -

Jr.,in the March 1949 Issue of the Political Science

Quarterly, and republished in Senate J udiciary

Commitfee Hearing (1955) entitled ‘‘ Nomination

and Election of President, and Vice President’’,

page 383, at page 385 ................. aeaKe a+ oe

IN THE

Supreme Court of the United Stas

- OcroBER TERM, 1968

»

No.

.

J. HARVIE. Wrutiams, Jutius ny EpwarpD WEST,

Jr., Ceci, C. HATFIELD, Ropert A. Peck, BERNARD

W: Freunp, Grace T. Seat, Grayson G. FENTRISS,

WiiiiAM GROSSMAN, and JoE E. Swicer, all

citizens of the United States resident in Virginia,

. Appellants,

| v.

VIRGINIA STATE Boarp oF Evections, L. STANLEY Harp-

AWAY, Secretary, Mitts E. Gopwin, Jr., Governor

of the Commonwealth of Virginia, and MarTHA

-BEeLL Conway, Secretary of the Commonwealth of

Virginia, 3 Anpelon

On Appeal From the United States District Court for the

Eastern District of Virginia, at Alexandri

JURISDICTIONAL STATEMENT

Appellants appeal from the Order on Opinion of a>

Three Judge Court entered on July 16, 1968, in the

United States District Court for the Eastern District of

Virginia, at Alexandria. The Order denied, after -

notice and hearing, the permanent injunction against

Sen ieee ir al a ti ee eee eel .

ecpiirae eos ii ceddaaaiaacmaitiagsis: A

ait eel

‘pT hin sty COPE BIC A ART I Lit field t gle peae

\ P

‘ q i

lay Aig 5 bach EE LaN A LEAN Ae ae ci NGS LENG pS he CANE Sita te Pl Cabtos BEE

. P

2

the appellees, prayed for in the appellant’ s ( lomplaint,

that would have enjoined, on constitutional grounds,

the enforeement, oper ation or exceution by the appel-

leos of certain provisions of the State election statutes

of Virginia: ¢a) that impose the general ticket system

of cleeting, on a state-wide: basis, al! cleetors of the

President and Viee Presideit.of the United States to

be cleetod in Virginia; and (b)-that-prevent the cleetion

oof the “vopresentative’™ eleetors of the President and

Vieo President in’ single-member national (Congres-

sional) districts solely by the people residing in the re-

spective district votingyas citizens of the United States,

as Representatives in Congress are cleeted,

This appeal is brought by the following ten citizens

of. the United States who are residents one of each

of Virginia's ten Congressional distriets, as indicated

by the distriet number following each name, and who,

as plaintiffs in the court below, brought the legal

proceeding as a class action in behalf of ‘all-citizens of

Virginia similariy sitnated: J. Harvie Williams, sth,

Julius Prifer, cth, Mdward West, Jrj 3rd, Ceeil C.

Hattield, 9th, Robert A. -Peek, 10th, Bernard W.

Freund, 2nd, Grace Ty Seat, 5th, Grayson (. Fentriss,

ist, William Grossman, 4th, and Joe EB. Swiger, 7th.

Appellants seek a review on this appeal by this Honor-

able Court of all portions of the final Order on Opinion

that dropped | the Governor of Virginia as a party de-

fendant. that denied the pravers of the Complaint. for

a declaratory judgment and for a permanent injune-

tion against the appellees in their official character, as

shown above, and dismissed the complaint, that ordered

that the defendants recover of the plaintiffs the costs

of, the action, and that ordered that the action be

stricken —_ the docket.

SERIA

we ———

g ui:

en ee

3

the Supreme Cort of the United States has jurisdic-

tion of the appealmd that substantial que stions are

_ presented. ne :

~ "The rk this Statement to show that

OPINION BELOW

_ The Opinion of the Three Judge Court in the United

States Distriet Court for the Eastern District of Vir-

ginia, at Alexandria, is reported in 288 Fed. Supp. 622 -:

Copies of the Opinion, the Order on Opinion, and the

Notice of Appeal are attached hereto as Appendix

(Pages 1a-14a).. For the Convenience of the Court,’

aeopy of the € fomplaint ais filed. by the appellants is .

attached hereto as Appendix ( pages er

JURISDICTION

. This suit was brought by the appellants under

aie ‘le LI, Seetion 2 of the Constitution of the United

States and under the provisions of 28 U.S.C.A. 1331

(federal question), 28 U.S.C.A. 1343, 42 U.S.C.A, 1983,

42 U.S.C.A. 1988 ( deprivation of rights of citizens),

28 U.S.C.A. 2201, 28 U.S.C.A. 2202 (declaratory judg- -

ment), and 98 U.S.C.A. 2281 and 28 U.S.C.A. 2284

(three judge court for injunction against enforcement

of a state statute on constitutional grounds), and the

Constitution of the United States. Some of the par-

tieular-sections of the Constitution under which the

action was brought are: Article IT, Section I; the

apportionment provisions of Article L Section 2, and

of the Fourteenth Amendment, Section 2;.the. pro-

_ visions of the Privileges and Immunities Clause, of

- the Due Process Clause, and of the Equal Protection

Clause of the Fourteenth Amendment, Section 1; and.

the provisions of the Twelfth. Amendment, of the

Constitution. |

The action was brought to challenge the constitu-

tional validity of certain provisions ef the State elec-

‘tion statutes of Virginia relating to the election of.

electors of the President and Vice President, namely.:

Séction 24-7, Chapter 1-of Title 24 of the Code of

Virginia providing that each voter may vote for one

elector from each Congressional district of the state;

and Sections 24-290.4 to 290.6, Chapter 11.1 of Title 24

of the Code of Virginia providing for a uniform official ~

ballot throughout the state on which qualified voters

ean only designate their preference by marking a -

square preceding the name ofa particular ‘political °

party or group of their choice and for ballots so

marked to be counted as if squares preceding the names |

of each of the individual electors of the respective

group or party had been so marked.

The Complaint also questioned the constitutional

validity of thesé statutes insofar as they deny to

Plaintiffs the right and opportunity to select one elec-

tor in each of Virginia’s ten Congressional districts

exclusively ‘by the votes cast in that respective district.

2. The Opinion and the Order on Opinion sought to

be reviewed on this appeal were entered on July 16,

1968 by the Three Judge Court in the AJnited States

District Court for the Eastern District of Virginia

at Alexandria. Appellants’ Notice of Appeal, which .

_ seeks to review all portions of the Order on Opinion,

was filed on September 12, 1968 in said United States .

District Court for the Eastern aaa! of Virginis at

Alexandri

3. The sutteidiating of the Supreme Court to review

the decision and Order on Opinion entered in this case

by direct appeal is conferred by Title 28 United States

— Code, Sections 1253 and 2281.

4. The following decisions sustain the jurisdiction

of the Supreme Court to review the judgment on di-

rect appeal in this case: Davis ‘v. Mann 377 U.S. 678,

84 S.Ct. 1441 1964); Reynolds v. Sims, 377 U.S. 533.

84 S.Ct. 1362 (1964) ; Anderson v. Martin, 375 U.S.

399, 84 S.Ct. 454 (1964); Wesberry v. Sanders, 376

U.S. 1, 84 S.Ct. 526 (1964) ; Ray v. Blair, 343 U.S. 214, -

72 S.Ct. 654 (1952); St. John v. Wisconsin Kmploy-

ment. Relations Board, 340 U.S. 411, 71 S.Ct. 375

(1951). | 2 ;

5. The provisions of the State election statutes in-

volved in this appeal are cited as: Section 24-7,

Chapter 1 of Title 24 of the Code of. Virginia, found

at page 202 of Volume 5 (1964 replacement volume) ;

Section 24-290.4, Chapter 11.1 of Title 24 of the Code

éf Virginia, found at page 283 of Volume 5 (1964 re-

placement volume) ; and Section 24-290.5, Chapter 11.1

of Title 24 of the Code of Virginia, found at page 283

of Volume 5 (1964 replacement volume). These sec-

tions respectively read as follows: P

“Section 24-7 Electors for President and Vice

President.—There shall be chosen by the qualified

voters of the Commonwealth, at the election to be

held on the Tuesday after the first Monday in No-

vember, nineteen hundred and forty eight, and at

elections to be held on the Tuesday after the first

Monday in November in each fourth year there-

after, so many electors for President and Vice

President of the United States as this State shall

be entitled to at the time of such election under

the Constitution and laws of the United States.

Each voter may vote for one elector from each

congressional district ef the State, as the same

shall be constituted and apportioned for the elec-

tion of representatives in the Congress of the

United States from this State at the time when

@

6

auch election shall be held, and for two! eleetors

from the State at large; ands if at the time of

choosing eleetors, the law shall provide for one or

more representatives from the State at large in the

Congress, oeelr voter may at sueh cleetion vote

for sugke number of cleetors from the State at

large Cin addition fo the two hereinbefore pro

vided for), as shall correspond with the miumber of

sueh represent: Mives at large, so that the wrote

number af eleetors to be chosen at. any eleetion

shall always be equal to the whole number: of

senators and wok Sie witatives fo whieh the State

may at that time be entitled in the Congress,

"Section 24.290.4 How ballots to be

Iteshall thereupon be the duty of the State Suns

of Hlections immediately to so notify. the seere

tary Gf the eleetoral board of eaeh eounty and

eity of the State, and to certify to each said seere-

tary the, form of ofieial ballot whieh shall be uni-

form throughout the State. Tt shall beeome the

duty of the electoral board of each of the several

counties and cities within the State, at least forty

days preeeding such election, to cause to be pr inted

on the uniform ofieial ballot: provided for in this

section, and in Chapter I oof this title, the name

of each said political party and the party name

specitiod by the persons naming electors by peti-

tion, and underneath or below the party name in

" parenthesis *the words ‘Electors for ooo... ....

President and ...'....... Viee President’? with

the blanks tilled in with the names of the ean-

didates for President and Vice President for

whom said candidates for electors are expected to

vote in the Eleetoral College, after which the

names of the electors. nominated by said political

parties or groups or petitioners shall follow; and

to print a square preceding the name of each such

party and party designation.”’

“Section 24-290.5 How ballots to be marked.—

The qualified voters at said election shall designate

=

:

their preference for candidates for electors of

President and Viee President by marking, as pro-

vided in § 2h 245, the square preceding the name of

the politiead party or party. name of his choice, and

the Pallett: so marked shall be counted as if squares

preceding the names of the tndividual electors:

nominated or selected by sueh political parties or

fhe group of petitioners had been so marked.”’

QUESTIONS PRESENTED

1. Is a State election statute, whieh establishes the

state-wide general ticket system for electing those elee-

tors of the President and Vice President who are ap-

portioned to the people as Representatives in Congress

are, unconstitutional as violating the rights of citizens

of the United States 7

2. Does the Constitution of the Onited’ States re-

quire that the “representative”

dent. and) Viee President apportioned to the people

he cleeted in single-member national districts, as their

counterpart: Representatives in Congress are elected?

3. Do the duties to be performed by the Governor of

a State, in determining and certifying the names of

the persons elected as presidential electors, make the

(overnor of Virginia a necessary or proper party de-

fefendant in this netion y -

STATEMENT

On April 1, 1968, the 10 appellants herein filed a

Complaint in the United States District Court for the

Kastern District of Virginia, at Alexandria, as a class

action against the Virginia State Board of Elections,

its Secretary, the Governor of Virginia, and the Secre-

tary of the Commonwealth of Virginia. A copy of

the Complaint is attached hereto as Appendix, at

/

electors of the Presi- .

Si Balt eS tate, Bid Si ia Cathal

poo

s

pages PDas8a. The Complaint eliallenged the con

stitutionality of certain provisions of the Virginia

State cleetion statutes, Seetion 24-7, Chapter 1 of Title.

24, and Seetions 22004 and 24-2905 of Chapter i114

of Tithe 24, of the Code of Virginia, ua set forth above,

and prayed for a deelaratory judgment and fora

permanent injunetion to enjoin the enforcement, oper

ation or exeeution of certain portions of sueh provi-

-sious of Virginia's election statutes,

The 10 appellants, who brought this suit} as) plain-

litfs, are citizens of the United States each resident

in, and oa duly quatitied and registered voter in, a

different one of the 10 national (Congréssional) dis

triets of Virginia. They brought the action as a elass

action on behalf of themselves and in behalf of all

other citizens of the United States similarly situated

who, like themselves, planned: to participate in’ the

eleetion of the President. and Viee President of the

United States: by voting in the election of presidentiaf

electors.

On April 8, 1968, the appellants filed a motion for.

designation of a Three Judge Court, together with

points and authorities. On April 9. 1968, Judge Oren

R. Lewis requested designation of a Three Judge

C.urt. On April 15, 1968, Chief Judge Clement F.

Havnsworth, Jr., of the United States Court of Ap-

peals for the Fourth Cireuit entered an Order desig-

nating a Three Judge Court to hear and determine

the constitutional issues raised in said action. On

April 24, 1968 the appellees filed a Motion to dismiss.

On April 29, 1968, a Pre-Trial Order was entered __

establishing a procedural schedule and setting the

date for hearing on the merits and all motions on.

‘)

June 5, 1968, On May 7, 1968, the appellees ‘filed an

Answer whieh simply denied the material allegations

of the Complaint: On May 9, 1968, the appellants, as _

plaintiffs, filed a Motion for Summary Judgment.

On May 28, 1968, appellants filed plaintiffs’ srief

hefore — ~ on the mer its, sh de fendants’ motion

joiner On June 5 1968, apppettanita Tiled their.

list of witnesses and seequeed exhibits. On June 11,

1968, appellees, as defendants, filed objections to cer-—

fain of plamtiffs’ proposed exhibits solely on grounds

of alleged immateriality, but waived formal proof, On

— dune 11, 1968, an Order was entered advancing the date

of the hearing to June 24, 1968. On June 13, 1968,

the appellees, as defendants, filed their Brief, and

on Jitne 20, 1968, a Brief for amicus curiae was filed.

Also on June 20, 1968, or as plaintiffs, filed

their Reply Brief.

On June 2A, 1968, trial proceedings were held as the

ease came on for hearing on the merits and on all

motions, and arguments were heard, before the panel

of three jndges who took the case under advisement.

On June 26, 1968, appellants, as plaintiffs, filed an

affidavit together with two exhibits.

On July 16, 1968, the panel of three judges issued

its Opinion, ruling that the state-wide general ticket

system of election of all presidential eléctors from a

state is but another form of the unit rule and that, not- _

withstanding its ‘‘disfranchisement”’ of voters and

other ‘‘objectionable results’’, the Constitution permits

it to be adopted by a state legislature.

The Court, in its Opinion, also stated that.the ‘‘State

unit system’s cancellation of a State’s minority votes —

SOS a ee

Sra li oli adie lich Bi

10

causes inequities and distortions “of \voting rights

among citizens of the several states, isolating the effects

of votes cast,%y persons of a particular political per-

suasion or party in one State, from those cast: by voters -

of the same persuasion or party in other States.”’

Nevertheless the Court ruled that ‘‘disparities of this .

sort’’, ‘‘this unevenness’’, and ‘‘the injustice’’ thereof

‘‘eannot, be corrected by suit,’especially one in which

but a single State is impleaded.’’ See Pages 11a-12a.

Stating that the merits and advantages of plain-

tiffs’ thesis are readily recognizable, the Court’s Opin-

ion concludes that ‘‘the change to a district system

- would not ... warrant Virginia or any other State

to adopt an individual plan. Whatever the pattern,

to succeed it must be nation-wide. As was aptly

stated by Professor-Robert G. Dixon, ‘... any modi-

fication of the electoral college system should be on

a uniform national basis in order to avoid creating ad-

ditional inequities on an interstate basis’.’’

Notice of Appeal was filed by appellants on Septem-

ber 12, 1968. See page 13a-14a. ;

Among the material facts proved in the case are the

following:

1. In.the 1960 election, the popular vote in Virginia

for the Republican nominee was only 52.4 per cent, and

the Democratic nominee received 47 per cent of the

vote cast, but the Republican nominee received 100. per

eent of the 12 electoral votes from Virginia and the

Deimocratie nominee received none.

2. If the ‘‘representative’’ electors had heen elected

‘by single-member districts in Virginia, in 1960 the

Republican nominee would have received 9 electoral

11

votes from ‘Virginia and -the Democratic nominee

would have received 3 electoral votes from Virginia.

3: In the 1964 election, the popular vote in Virginia

for the Democratic nominee was 53.5 per cent and for

the Republican nominee was 46.2 per cent, but the

Democratic nominee received 100 per cent of the 12

electoral votes from Virginia and the Republican

nominee received none.

4. If the ‘‘representative’’ electors had been elected

_ by single-member districts in Virginia, in 1964 the

Democratic nominee would have received 8 electoral

votes from Virginia and the Republican nominee would .

‘have received 4 electoral votes from Virginia.:

5. Of the 435 Congressional districts and corre-_

sponding ‘‘representative’’ electors in the nation; the

number of national (Congressional) districts that were

won in recent national elections of electors of the

President and Vice President by one party’ s nominee,

but were Jost-to the other party’s nominee by the over-

riding state-wide elections, were as follows:

. Presidential Elections

1964 1960 1956 1952

- By Democrats - 9 43 64 82

_ By Republicans 29 103 eu 15

Total Districts won, but lost -

by state-wide-election 38 146 ee

6. A citizen of New. York participates in, and in-

fluences, the election of 43 presidential electors’ of

which 41 are ‘‘representative’’ electors apportioned to

the people in New York; while a citizen of Virginia

participates in, and influences, the election of only 12

presidential electors of which 10 are ‘‘representative”’

electors apportioned to the people in Virginia.

a

—— TS Bi AKIN in ate EE, 2 KE sg ARB CE Sa et Ss BaF RA Sa He BE oa Shatybedty

2

12

‘THE QUESTIONS ARE SUBSTANTIAL

The decision of the Court below in this case is the

first decision of any court in the land that rules, after

hearing on the merits, that a State election statute, that

imposes the state-wide general ticket system of elect-

ing all of the presidentia! electors to be elected in the’

State, is constitutional.

This is a substantial and serious ruling that the

Constitution of tle United States permits a State.

election law to déprive citizens of the United States of -

-any right to have an effective vote in the national elec-

tion of the President ‘‘in their capacity as citizens of

the United States’’: As stated in the lower Court’s

Opinion, the state-wide: general ticket system’s ‘‘can-

- eellation of States’ minority votes cause inequities and

distortion of voting rights among citizens of the several

‘states, by arbitrarily isolating the effects of votes cast

by persons of a particular political persuasion or

party in one State, from those cast by voters of the

same persuasion or party in other States.”’

The general ticket system allows the voters in the

States to vote “only as citizens of the State,’’ and de-

nies them any voice on a national scale as citizens of

the United States. Moreover, it defeats the funda-

mental constitutional principle of representation’ of .

people, not just voters,-on the basis of national districts °

of essentially equal numbers of people, with each such

district having one ‘‘representative’’ elector. This basic

principle of representation of people as citizens of the

United States by units of essentially equal numbers in >

national districts is established in the Constitution by

the apportionment provisions of Article I and of the-

Fourteenth Amendment, Section 2. By the provisions

°

13

of Article II, Section I those apportionment provisions

are made to apply as apportionments of ‘‘representa-

tive’’ electors in the same, and inseparable, way as the

apportionments of Representatives in Congress there-

~ “under.

At various points in their Opinion, the lower Court

recognizes, or acknowledges in one form or another,

that the state-wide general ticket system, or the unit

rule to which it is equated by the Court:.

1.

{

‘‘accords no representation among the éléctors to —

the minority of the voters.”’

2. ““ Admittedly, eS: does not produce a group as

w

no)

representative of the people as would an election

of one elector by each district alone.”’

. “Tf plaintiffs’ contention for single-elector district

voting had prevailed, it would have been possible

for the Democratic and Republican parties to have

had a proportionate representation among Vir-—

ginia’s electors in the same degree as they shared .

in the state-wide tally.”’

.““Coneededly, its (the general ticket ene or

unit rule’s) effect is exceptionable in many as-

pects.”’

. Involves, among 2c nargeaaea results :

‘‘disfranchisement of voters”’

‘‘not only extinguishes the voice of State minori-

ties, but it allows State —— to speak for

them’?;

‘‘exhaust(s) the power of millions of individual

votes at the State level before the election is -actu-

ally determined at the national level. They lose —

their effect on the outcome at a preliminary stage ©

in‘the counting. These votes are disfranchised in

‘-™the-sense that their votes have no bearing on the

‘t

3

4

}

14

national elector: il vote totals which determine the

Winner.’’

‘**deprivations”’ ;

‘discrimination against the minority voters”

Resecsyit in the ballot’s worth”;

‘cancellation of State’s minority votes (that)

causes inequities and distortions of voting rights

among citizens of the several states”’;

**disparities”’

‘*unevenness”’

‘‘injustice”’

It is submitted that each of these conditions resulting

under the State election law creating the general ticket

system is. of substantial significance in the life of the

nation and. its people under the QGonstitution and the

form of government under it. The correction of these

inequities is particularly vital to. our people and our

government in the current era when so many people in

the various walks of life seem to have lost confidence

in our government as being a ‘government for the

people and by the people.”’

The greater degree of representation of the peo-

ple as citizens of the United States in the election of

the President and Vice President envisaged in the elec-

tion of ‘representative’. electors apportioned to the

people by single-member national districts should not

be denied them by State statute. The ‘unit rule’’, to

which the lower Court equates the state-wide general

ticket system, has been discredited in the view of the

people by the action of the National Convention of the

Democratic Party taken at Chicago this year, which

discarded the unit rule as. being not representative.

of

-_o. abe} te Wt bg Oe

15

It is submitted that it is an abuse of discretion by.

the Court below to fail to grant equitable relief from

the many glaring inequities suffered by the appellants .

and others similarly situated. The lower -Court’s

Opinion recognizes that the provision of Article ‘II,

Section 1, of the Constitution that each State shall

‘‘appoint, in such manner as the Legislature thereof

may direct,’’ is ‘‘subject to possible constitutional limi-

tation,’ and cites Ray v. Blair, 343 U.S. 214, 72 8. Ct. ©

654 (1952).- The lower Court then states ‘‘In short,

the manner of appointment must itself be free of Con-

- stitutional infirmity.’’- Indeed,-it is believed that the

- recent case in the Supreme Court.in which it was ruled

that the Ohio state laws that severely. restricted the abil-

ity of potential candidates for President (George C.

Wallace in that case) to have their names appear on the

ballot in Ohio ‘for the election of their designated. .

elevtors place unconstitutional obstacles in the way of

candidates, appears further to confirm that State elec-

tion statutes enacted with respect to the election of

electors of the President are subject to constitutional

scrutiny by the Courts. (The official name and citation

of the report of that case has not become known to.

appellants at the time-of this writing).

The lower Court érroneously relies, for its inaction,

upon the unnecessary dictum in the case of Wesberry

v. Sanders, 376, U.S. 1, 7, 84 S. Ct. 526 (1964), that

' the rule, that as nearly as is practicable one man’s vote

in a congressional election is worth as much as ‘an-

other’s, is followed automatically ‘‘when Representa-

tives are chosen as a group on a state-wide basis.’’ In

_the first place, this: cannot be said of the election of

electors of the President if oneregards the ‘‘represent-

_ ative’’ electors at least as officers to be elected by the

Fe

16

citizens of the United States in a nation-wide election

of the highest national officers of the country. As

shown above, and as found by the lower Court, one

United States citizen’s vote in one state is not worth

as much as another’s in another State in presidential

elections. In the second place the Court’s statement

about state-wide elections of Representatives as a group

does not appear to have been necessary for the Court

to reach the rule of the case. Moreover, in contradic-

tion of that statement, see the majority opinion by

Justice Frankfurter in Colgrave v. Green, 329 U.S.

549, 553, 66 S. Ct. 1198, 1200 (1964); and the com-

prehensive statement of Senator Benton of Missouri

in 1824 in 41 Annals of Congress 169-170 and quoted

in Lucius J. Wilmerding’s article entitled ‘* Reform

of the Electoral System’’ in the March 1949 issue of

the Political Science Quarterly. House Report No.

909, 27th Congress, 2nd Session, entitled *‘ Apportion-

ment Bill’? and dated July 16, 1842 sets forth John

Quincy Adams’ view that the election by single-member

. districts is ‘‘the only mode by which the principle of ©

representation, in a to numbers can be car- -

ried into execution”. !

The W esberry case simply rules that Congressional

districts must be essentially equal in numbers of people.

It was decided under provisions of the Constitution —

that ¢éstablish the structure of the Government, with

consideration necessarily placed upon the significance

of the apportionment provisions thereof. 7

It is respectfully submitted that the instant case can.

and should be decided on the basis of a fair and proper

interpretation of similar provisions that establish the

structure of the government, also with emphasis placed

t

17

upon the significance of the apportionment provisions

thereof. These apportionment provisions have caused

the number of ‘‘representative’’ electors to be elected

in New York to.decrease from 45 in 1948 to 41 in 1964

and in Cakfornia to increase from 23 in 1948 to 38 in

1964. This establishes clearly that-such ‘‘representa-

.tive’’ electors belong to the people as citizens of the

' United States, not to the States as organized political

entities, since they follow the requisite numbers of

people to form a national district and to have a Repre-

sentative in Congress and a ‘‘representative”’ elector.

The language of Article II, Section 1, does not, under

a reasonable and careful interpretation of its terms and

other provisions of the Constitution, give the ‘‘repre-

sentative’’’ electors to the States as organized political

entities, and the state’s legislature do not have un-

limited power in effectuating the state’s appointment

of such electors of the President.

A. The Word ° State” in Article II, Section L Means Only the

Geographic Area and the Inhabitants Thereof, Not the

State as an Organized Political Entity.

. Article II, Section 1, of the Constitution provides:

‘*Kach State shall appoint, in such Manner as the

Legislature thereof may direct, a Number of Elec-

tors, equal to the whole Number of Senators and

Representatives to which the State may be entitled

in the Congress ¢

Under our Constitutional system of dual representa-

tion in Congress, the Senators represent the States as

organized political entities, which are entitled to them;

but the Representatives in Congress represent the peo-

ple who are entitled to them under the apportionments

_. according to the numbers of persons. See quotation in

~

thet . J

18

‘ Wesberry v. Sanders, 376 U.S. 1, 12-14, 83 8. Ct. 526,

532-533" (1964) from William Samuel Johnson, ‘‘in one

branch the people, ought to be represented ; in the other,

the States.’’ The States, as organized political entities, |

accordingly are not ‘‘entitled to’’ the Representatives

in Congress.

The statement ‘‘the whole Number of Senators and

Representatives to which the State may be entitled in

_ the Congress,’”’ therefore, requires that the word

‘‘State’’ therein can mean only the geographic area and

the inhabitants thereof, and not the organized political

entity. With this mpaning, the clause is an accurate

' statement, because the geographic area and the inhabi-

tants thereof are entitled to the Representatives directly

and are also entitled to the Senators through their. .

organized political entity.

~

Throughout the Constitution, the word ‘State’ fre-

quently means only the geographic area and the in-

: habitants thereof, and not the organized political entity.

A few of the many examples of this are:

1. In thé first sentence of Section 2, Article I: ‘‘ Peo-

ple of the several States’’; and ««Blectors im each

State’’.

2. In the second sentence of Section 2, Article I: ‘‘In-

habitant of that State in which he shall be chosen’’.

3. In the third sentence of Section 2, Article I: ‘‘Rep-

resentatives and direct taxes shall be apportioned

among the several States which may be included

_ within this Union, according to their numbers, . . .”’

4.In the fifth sentence of Section 2, Article I:

‘*When vacancies happen in the Representation

from any State,”’

19

5. In the first. cians of Section 4, Article I: ‘‘The

Times, Places and Manner of holding elections for

Senators and Repr esentatives, shall be prescribed

in each State by the Legislature thereof ;’’.

Moreover, the state legislature is generally regarded

as the supreme authority of the state, as an organized

political entity. If the word “State” in ‘‘Each State

shall appoint’’ were to mean the organized political

entity, the words ‘‘in such Manner as the Legislature

\ thereof may direct’’ would be wholly unnecessary. The

phrase would, in that case, be redundant, since the or-

ganized political entity would have been granted the :

full power to appoint in any manner it should choose

by the first four words standing alone.

It is submitted, therefore, that the drafters of the

Constitution meant the word ‘‘State’’ in Aricle II,

Section 1, to mean only the geographic area and the in-

habitants thereof. Then the succeeding words ‘‘in such

manner as the Legislature thereof may direct’’ serve

a purpose. That purpose is not to establish a substan-.

tive right in apposition to the substantive right already

created in the geographic area and the inhabitants

‘thereof. That purpose is to provide a means of de-

termining a procedure by which the respective geo-

graphic area and the inhabitants thereof shall appoint

the electors to which assed are entitled.

B. Piceodural Authority in Legislature May Not Defeat Sub-

stantive Rights of Citizens to “Representafive” Electors

The words ‘‘in such manner as the Legislature there-

of may direct’’ by their very nature, relate only to

procedure. In view of this fact and the foregoing

construction of the words of Section 1, it follows that

wary

20

the acts of the state legislatures under such procedural

authority should be limited under the Constitution to

‘the enactment of procedures that conform with, and do

not defeat, the substantive rights of the people inher- |

ently created, and actually operative, in the full con-

text of the provisions of Article II, Section 1.

Those substantive rights of the people are granted to |

the inhabitants of the respective geographic area .by

the proper meaning of ‘‘State’’ in the words ‘‘Kach

State shall appoint’’. Those substantive rights of the

- people are further confirmed and established by the

actual operative effect of the -detcbigoraaee establishing

the apportionment of ‘‘representative’’.electors (as dis-

tinguished from ‘‘senatorial’’ electors) according to

the numbers of persons, which is inseparably bound to ae

the apportionment to the people of Representatives in

Congress. ©

‘CONCLUSION

There have been many attempts to amend the Con-

stitution with regard to the election of the President

over the last 150 years to overcome many of the in- ©

equities in it. Although the district method of election

of electors, which was followed by a number of the

' states prior to 1836, has come closest to receiving the

‘necessary two-thirds vote of both houses on several

occasions, history convinces one that it seems almost.

impossible to obtain the necessary two-thirds vote of

both houses on this subject in view of the factional

strength in Congress of some of the political leaders

from some of the larger states: ;

It is submitted that the questions raised in this pro-

ceeding are substantial and«of greatest public im-

21

portance, as shown above. The need for equitable re-

lief is great since the failure of the people as citizens

of the United States to have fair and due representa-

tion in the election of their President and Vice Presi-

dent constitutes an irreparable injury to the people..

If is believed that a fair. and proper interpretation of

the provisions. of the Constitution establishing the

structure of the national government, coupled with

other significant provisions of the Constitution, sup- —

port the position asserted by appellants and the power

and authority of the Supreme Court. to rule that the’

state-wide general ticket system of election of “repre-

sentative’’ electors is unconstitutional. <A finding of

such unconstitutionality can be based, among other

possible constitutional grounds, upon a constitutional ©

requirement that ‘‘representative’’ electors of the

President apportioned to the people be elected in single-

member districts, as their counterpart Representatives

in Congress are elected under the Apportionment Act

of 1929, 2 U.S.C.A. 2a, as amended by Act of December

14, 1967, P.L. 90-196, 81 Stat. 581.

A ruling by the Supreme Court to the effect prayed

by appellants in their Complaint and in this appeal,

of course, can be made to apply effectively as to all

states having more than one Representative. Indeed,

it would appear that the lower Court’s inability to make

its order effective as to all such other states may have

strongly influenced its decision.

It is submitted that the importance to the citizens

of the United States of the questions presented is so

substantial as to require plenary consideration, beyond

' the presentations possible or appropriate in this filing,

22

and to eall for briefs on the merits nnd oral argument

for their resolution,

Respectfully submitted,

llowanp 8. Srnntina

1000 Conneeticut Avene

Washington, D. OG. 20086

Telephone: 659-1777

Ronert L. Monraaun, [II

Suite 3, 100 South Royal Street,

Alexandria, Virginia 22514

1 elephone 49-2225

Attorneys for Appe linete

November 12, 1968