Amicus Curiae Brief — Gordon v. Lance

an ane

of West Virginia

eS.

BRIEF OF NATIONAL SCHOOL BOARDS ASSOCIATION,

Be "Pues or Brace §. Anacs Pustive Ine. Wasamenon, D.C.

TABLE OF CONTENTS

Page

Barer or AMict in Support OF PosiTIoN oF RESPONDENTS 1

INTEREST OF THE AMICI ........--. cece cece eeeeeee 2

SuMMARY OF ARGUMENT ............eeceeeeeeeeenes 7

ARGUMENT:

I. Requiring an Extraordinary Majority for Ap-

proval of Bonds and Excess Tax Levies Violates

the Equal Protection Clause of the United States

Constitution by Debasing and Diluting the Vote

of the Voter Favoring the Proposition on the

EE bake wa Sacbashcentenenacenkscta esate as 7

II. The Extraordinary Majority Requirement for

Bond Issues and Tax Increases Is In Any Event

Violative of the Due Process of Law Clause of

the Fourteenth Amendment, Even if Difficulties

Be Deemed To Exist in the Equal Protection

Argument Extending ‘‘One Man-One Vote’’ to

SE EE WEG eneh's 5 ew eKee eda CKO A SaaS Ka Se es 12

A. Alleged Infirmities in the Equal Protection

MS. neknabrigedeeecanss sancenneteress 12

B. The Extraordinary Majority Requirement at

Issue in Lance Violates the Due Process

Clause of the Fourteenth Amendment Because

It Operates To Give a Minority the Power

To Block Effectuation of Needed Public Ac-

tion as Well as To Safeguard Against Low

I goat ve Vee vaae bu cake Kk so ok a's 15

I a Eee ble ce eo 21

TABLE OF CASES

Baker v. Carr, 369 U.S. 186 (1962) ................ 8,15

Bogert v. Kinzer, 465 P.2d 639 (Idaho 1970) ........ 14

Brenner v. School District of Kansas City, Missouri,

39 U.S.L.W. 2122 (decided August 14, 1970) . .13, 19, 20

Carrington v. Rash, 380 U.S. 89 (1965) ............. 8

Cipriana v. Houma, 395 U.S. 701 (1969) ............ 8,13

Clay v. Thornton, 169 S.E.2d 617 (S.C. 1969) ........ 20

ii Table of Contents Continued

Gray v. Sanders, 372 U.S. 368 (1963) ........ 8, 9, 10, 14, 16

Griswold v. Connecticut, 381 U.S. 479 (1965) ........ :

Hadley v. Junior College District, 397 U.S. 50 (1970) .,

Harper v. Virginia State Board of Elections, 383 U.S.

8 PRP PERNT PETE ET RUT e Tere ere 8

Kirkpatrick v. Preisler, 394 U.S. 526 (1969) .......... 13

Kramer v. Union Free School District, 395 U.S. sa"

PS Clive cite eek nc ep es bhn ev oes uns dewnl 5, 13

McDonald v. Board of Election Comm’rs, 394 U.S. 802

0 | eae rerrrrrert bene e eee e cence nee eesenes 14

Maryland Committee for Fair Representation v. Tawes,

ee EO edb chin nn a whale PM KL oe Aan Cee 16

Nebbia v. New York, 291 U.S. 502 (1934) ..........., 15

Phoenix v. Kolodziejski, 399 U.S. 204 (1970) ........ 13

Reynolds v. Sims, 377 U.S. 533 (1964) ............., 8,13

Skinner v. Oklahoma, 316 U.S. 535 (1942) ............ 1

State ex rel. Witt v. State Canvassing Board, 437 P.2d

Se ne SE: Gad nbd acd casa dees ver ecnsndcens 6

Turner v. Clay, 397 U.S. 39 (1970) .........ccccesese 20

Wells v. Rockefeller, 394 U.S. 542 (1969) ............ 13

Westbrook v. Mihaly, 471 P.2d 487 (Calif. 1970) .... 14

—

IN THE

Supreme Court of the United States

OcToBER TERM, 1970

No. 96

A. T. Gordon, ET AL., Petitioners,

Vv.

GRANVILLE H. LANCE, ET AL., Respondents.

On Writ of Certiorari to the Supreme Court of Appeals

of West Virginia

BRIEF OF NATIONAL SCHOOL BOARDS ASSOCIATION,

AMICUS CURIAE IN SUPPORT OF POSITION OF

RESPONDENTS

This brief is filed with the written consent of the

parties, pursuant to Rule 42.2, Revised Rules of the

Supreme Court of the United States. It supports

and augments the Respondents’ position asserting that

the provisions of the West Virginia Constitution and

7

state statutes requiring an extraordinary majority un.

constitutionally debases and dilutes the votes of Re.

spondents in a referendum to approve the issuance

of general obligation bonds and to authorize excess

tax levies.

2

INTEREST OF

NATIONAL SCHOOL BOARDS ASSOCIATION

The National School Boards Association is a non-

profit corporation organized under the laws of the

State of Illinois for the purpose of working for the

adequate and equitable financial support of the public

schools and for other purposes which tend to improve

public education in the United States (NSBA Con-

stitution, Article IT).

NSBA currently majcing its 30th year of service

is a federation composed of (a) the membership of

each of the fifty state school boards associations; (b)

the direct affiliation of local school boards which are

members of state associations; and (c) the affiliation

of groups which presently include community college

trustees, attorneys for school boards, and a special

group of large city board members. In total the as-

sociation represents approximately 84,000 school board

members or trustees, who in turn, are responsible for

the education of over 95 percent of the nation’s public

school children. It is these citizen leaders who must

fiscally manage local budgets and raise monies for

education through the taxing powers they possess,

Each year a Delegate Assembly determines associa-

tion policy which is articulated in the form of Reso-

lutions. With respect to the question presented in

the present case, Gordon v. Lance, the 1970 Delegate

Assembly adopted Resolution 4 which reads as follows:

,

RESOLUTION 4

State Laws Requiring More Than a 50 Percent

Voter Approval on School Issues

The National School Boards Association believes

that state referendum provisions requiring state

school financing issues to be approved with the

concurrence of an excess of a majority of the

electorate, rather than majority vote, are unfair

and inconsistent with the principle of democracy.

Accordingly, the National School Boards Asso-

ciation advocates that state and local agencies take

steps to bring about change in these laws—in-

cluding court action, if that is necessary.

The Resolution takes specific issue with laws re-

quiring a majority vote of the electorate in order to

exemplify—not to limit—NSBA’s total opposition to

any type of legislation which, in effect, requires school

issues to be approved by more than a majority of the

actual voters.

At the time of this suit, NSBA is painfully aware

that many of the school boards which it represents

are suffering financial crises, to the detriment of pub-

lie education, because of discriminatory laws which

are similar to the one here at issue.

... In the last five years voters of Senora, Cali-

fornia have passed school bond issues by over

sixty percent majority on three different occa-

sions. The issues failed because of California’s

two-thirds voter approval requirement. As a re-

sult, children have had to attend school on a

double session basis for three years.

... In Danvers, Massachusetts in the spring of

1970, a $13.6 million school bond referendum re-

ceived a majority vote but failed to achieve the

necessary two-thirds vote. As a result of over-

4

crowding, all special services for this fall school

year have been cancelled. This includes all ty.

torial programs, remedial reading for the disad-

vantaged and many elementary school hot lunch

programs.

Time and space does not permit a review of all

school districts on which the extraordinary majority

requirements are having a similar adverse effect. In

this connection, reference should be made to a special

finance study’ completed this year which lists 14 states

which have laws similar to the one here in question,

Of the hundreds of school districts therein, we are

aware that many others have faced financial crises jy

the past because of extraordinary majority laws and

many others will in the future.

.sccordingly, pursuant to the constitutional purpose

of NSBA, the mandate of the NSBA Delegate As.

sembly, and the effect which extraordinary majority

requirements have on the school districts which NSBA

represents, we respectfully submit this brief Amicus

Curiae.

SUMMARY OF ARGUMENT

As applied to a routine popular voting situation, on

questions such as bond issues, with none of the special

concerns which may surround approval of constitu-

tional amendments, an extraordinary majority re-

quirement is unconstitutional both under the equal

protection of the laws clause and the due process of

law clause of the Fourteenth Amendment.

Under the equal protection clause this Court has

developed a ‘tone man-one vote’’ doctrine, protecting

Barr, Financing Public Elementary and Secondary School

Facilities in the United States 123-24 (June 1970).

5

voter participation in the political process, under which

county unit systems of vote weighting, population in-

equality in legislative districts, and restrictions on

the franchise in certain special purpose elections, have

been declared unconstitutional. The extraordinary

majority requirement likewise affects voter partici-

pation in the political process. Its operative effect

is to block bond issues even if supported by a majority

of those voters expressing a preference, unless the

“yes”? votes reach the specified percentage above a

simple majority. Something in the nature of a minor-

ity veto power is thus created. Hence, extraordinary

majority requirements are analogous in their opera-

tion and effect to the vote weighting which occurs in

the voting systems recently invalidated in the ‘one

man-one vote’’ cases, and are equally unconstitutional

because in effect similar voters are accorded dissimilar

political power.

However, Respondents recognize the reluctance of

some courts and commentators to extend the equal pro-

tection theory of ‘‘one man-one vote’’ to extraordinary

majority requirements,’ in part because voter turnout

in issue voting is typically very low, thus creating

special popular consensus problems, and in part be-

cause of fears that the equal protection approach would

get out of hand and invalidate every possible use of

*It is true that the equal protection clause approach does invite

a simple one-to-one comparison of status and influence, and when

the so-called stringent test of Kramer v. Union Free School District,

395 U.S. 621 (1969), and similar cases is added, a near insurmount-

able burden of proof passes to the state to justify any classification

or distinction whatsoever. Under the test of Kramer and similar

cases, once the right at issue is initially determined to be “‘funda-

mental,’’ then any classification whieh limits that right violates

equal protection unless the state can show a ““compelling state

interest.’’

6

extraordinary majority requirements, even in the con-

stitutional amendment area.* There also are numerous

provisions for extraordinary majorities in the opera-

tions of Congress and state legislatures.*

Respondents second ground for the unconstitution-

ality of extraordinary majority requirements is the

due process clause of the Fourteenth Amendment, a

ground of decision which would not be subject to the

overreach fears which have been expressed by some

concerning the equal protection argument. Under the

due process clause governmental actions are uncon-

stitutional if directed to an illegitimate end, and also

are unconstitutional if the means used have no rea-

sonable or rational relation to a legitimate end. Ex-

traordinary majority requirements violate due process,

because, even if a provision for effective voter review

of policy proposals be permissible, and a concern for

a broad consensus be legitimate, the extraordinary ma-

jority requirement creates an overcorrection against

low voter turnout. In other words, if only a small

fraction of voters vote on the issue, the extraordinary

3 Some states have required not only an extraordinary majority

in the legislature to propose a state constitutional amendme:. , but

also an extraordinary majority in the popular ratification process.

For example, iri New Mexico an extraordinary majority continues,

although the added requirement that it exist also in each county

has been invalidated. State ex rel. Witt v. State Canvassing Board,

78 N.M. 682, 437 P.2d 143 (1968).

4 United States Constitution: Art. I, § 3 (conviction on impeach-

ment); Art. I, §5 (expulsion from Congress); Art. I, §7 (over-

riding executive veto) ; Art. II, §2 (ratification of treaties) ; and

Art. V_ (constitutional amendment); California Constitution

(partial): Art. IV, §8 (d) (passage emergency legislation) ; Art.

IV, §§ 10 (a) & (b) (overriding executive veto); Art. XI, §2

(removal of county seat); Michigan Constitution: Art. 7, §25

(purchases by state) ; Nebraska Constitution: Art. 5, § 2 (legislative

acts to be declared unconstitutional by state Supreme Court).

—

7

majority may have some ‘‘consensus’’ creating effect ;

but if substantially all of the eligible voters vote on

the issue, the requirement constitutes overcorrection

and creates minority control of the political process.

ARGUMENT

|. REQUIRING AN EXTRAORDINARY MAJORITY FOR APPROVAL

OF BONDS AND EXCESS TAX LEVIES VIOLATES THE

EQUAL PROTECTION CLAUSE OF THE UNITED STATES

CONSTITUTION BY DEBASING AND DILUTING THE VOTE

OF THE VOTER FAVORING THE PROPOSITION ON THE

BALLOT.

The extraordinary majority requirements, which

Respondents claim, and the Court below found to be

repugnant to and therefore prohibited by the Equal

Protection Clause of the Fourteenth Amendment to

the United States Constitution, are in Article X, §§1

and 8 of the West Virginia Constitution. These

provisions, and the enabling legislation in support

thereof, directed that tax levies and bond issues to

be effective had to obtain che approval of at least

sixty percent of the qualified voters in the first in-

stance and three-fifths of all votes cast in the second.

At a special election held in April, 1968, the Board

of Education of Roane County, West Virginia, sub-

mitted propositions to the electorate to authorize the

issuance of school improvement bonds and to levy

taxes in excess of the maximum theretofore authorized.

These propositions were defeated, in that the requi-

site three-fifths majority approval was not obtained

even though a simple favorable majority of 51.55

percent and 51.51 percent respectively was obtained.

This challenge to the constitutionality of the extraor-

dinary majority requirements ensued.

This Court has consistently upheld the right of suf-

frage as ‘‘a fundamental matter in a free and demo-

8

cratic society. . . . [and] since the right to exercise

the franchise in a free and unimpaired manner js

preservative of other basic civil and political rights,

any alleged infringement of the right of citizens to

vote must be carefully and meticulously scrutinized,”

Reynolds v. Sims, 377 U.S. 533, 561-62 (1964). The

franchise need not be granted by a state to the elec.

torate on particular issues or matters of governmental

policy, but once conferred ‘‘lines may not be drawn

which are inconsistent with the Equal Protection

Clause of the Fourteenth Amendment”’, Harper y,

Virginia State Board of Elections, 383 U.S. 663, 665

(1966), nor may classifications then be constructed

which discriminate on the basis of race, wealth, geog-

raphy, property ownership or military service. Some

rational classifications, consistent with constitutional

protections and a compelling state interest, may be

delineated, but ‘‘once the class of voters is chosen

and their qualifications specified, [this Court can] see

no constitutional way by which equality of voting

power may be evaded.’’ Gray v. Sanders, 372 US.

368, 381 (1963).

It has been argued, that no classification of voters

in fact exists in the instant case; see Brief of Hayes

Smith, Amicus Curiae, in support of Petitioners, 15,

and Comment, Extraordinary Majority Voting Re-

quirements, 58 Geo. L.J. 411, 419 (1969); that these

individual voters do not neatly fall into classes such

as may be differentiated by residence location, prop-

erty ownership or military service, all of which then

would be protected by recent decisions of the Court.

Baker v. Carr, 369 U.S. 186 (1962); Cipriano

v. Houma, 395 U.S. 701 (1969); Carrington v. Rash,

380 U.S. 89 (1965). However, such a view ignores

—

9

the basic and invidious classifications based on the

very thought processes of the individual voter on a

icular issue. If it can be said that classifications

to exclude the franchise based on mere physical dif-

ferences such as race or wealth are constitutionally

abhorrent to a free society, consider how much more

dangerous to the very fabric of our democratic prin-

ciples is a classification which debases the right of

franchise or seeks to control the outcome of an elec-

tion based on the ideas or opinions of the electorate,

absent the demonstration of a compelling state interest.

Once the lines of the issue before the electorate are

drawn, and the individuals who plan to cast their

ballots have made the necessary decisions pro and con,

the two classifications have begun to take on an iden-

tity not entirely dissimilar to racial or property-owner

classifications. But when at last the ballots have been

east the class composition finally is fixed, and each

active voter can then identify with and consider him-

self a part of one of two classes—those favored or

not favored by the weighting given his vote by the

extraordinary majority requirement of the state statute

or constitution. It is not sufficient to say that each

voter may rely on the assurances that all constitu-

tionally qualified electors may vote and that each in-

dividual’s ballot will be counted equally with every

other ballot—all being tallied as one each. The rea-

son is that for a ‘‘yes’’ voter to reach true equality

with the ‘‘no’’ voter, one out of every three ‘‘yes”’

ballots must be discarded a$ weightless when determin-

ing the extrac’dinary majority result. Equal protec-

tion to him becomes a meaningless pronouncement

from on high.

This Court’s rationale in Gray v. Sanders, supra, has

a unique precedential status insofar as the extraordi-

10

nary majority requirement is concerned. Though the

factua]l details of Gray do not identify precisely with

those of Lance, a sufficient family resemblance exists

to allow bed-sharing without a further introduction,

In Gray an office was at stake—in Lance an issue:

but both are single constituency cases. It has been

said that “‘Gray was very close to being a simple ‘right

to vote’ case and hence the true home of a ‘one per.

son, one vote’ slogan. In a contest for a single office

[or issue], why should not the front-runner in the

popular vote win?’’? Dixon, Democratic Representa-

tion 177 (1968). And, it may be asked, why should

not the front-runner win without the unequal handi-

cap of a three-fifths majority requirement to over.

come? This Court in Gray held that

The concept of ‘we the people’ under the Con-

stitution visualizes no preferred class of voters

but equality among those who meet the basic

qualifications. The idea that every voter is equal

to every other voter in his State, when he casts

his ballot in favor of one of several competing

candidates [or issues], underlies many of our de-

cisions .... The only weighting of votes sanc-

tioned by the Constitution concerns matters of

representation, such as the allocation of Senators

... and the use of the electoral college. ... 372

U.S. at 379-80.

It should be recognized that in a representative or

single member district election some dilution of a per-

son’s vote is to be expected and accepted since people

are not fungible Within any legislative district the

winner-take-all rule operates and the minority takes

nothing. But in a direct election for an office or an

issue such dilution is not only unnecessary but unac-

ceptable.

Dominant in Chief Justice Earl Warren’s

opinions in the 1964 Reapportionment Decisions _

-_ ~~

11

is the ideal that as nearly as possible all men

should count as one politically, however different

their other circumstances. Such an idea has been

one of the vital components of American political

development. The broadening of the franchise is

one basic level in an egalitarian political ideal.

A second level concerns voting rules regarding the

filling of elective office once the breadth of the

franchise has been settled. Practically, if not log-

ically, the ideal becomes associated here with a

simple plurality principle inside a given constitu-

ency, because of the impossibility of getting una-

nimity and the likelihood that control of the many

by the few could result from more complicated

choice systems. This is all that was involved in

_.. Gray v. Sanders. Dixon, supra, at 582-83.

Control of the many by the few has been the over-

riding result in the school, county, and city bond elec-

tions where an extraordinary majority requirement

has been in effect across the nation. One recent study,

in 1966-67, found that only 40.4 percent of the pro-

posals were approved by the requisite two-thirds ma-

jority requirement, while 80.8 percent of them received

more than a simple majority of favorable votes. Also,

during a 10-13 year period, two studies of voting re-

sults in the Los Angeles and San Francisco urban areas

indicated that about one-half of all the bond proposals

were defeated, while at the same time virtually all

received more than a simple majority. This is not

equal protection!*® Public Affairs Report, Bulletin

of the Institute of Governmental Studies, Vol. 10, No.

4, August 1969, University of California, Berkeley.

5«<«Qne man-one vote’ is the symbol really of an aspiration for

fairness, for avoidance of complexity, for intelligibility in our

representational process in a mass democracy—indeed, for a sense

of meaningful membership in the polis.’? Dixon, supra, at 587.

a

12

Those who fear that the extension of the one-man,

one-vote concept may lead to intrusions on other ex-

traordinary majority requirements in the legislative

or judicial arenas if the Court below is upheld may

have erected a straw man. Authority in West Virginia

and elsewhere for impeachment of state Senators by

two-thirds vote of the elected members, amendment

of the state constitution by a two-thirds approving

vote of both houses of the legislature with a subsequent

statewide referendum, and expulsion of a legislator

by two-thirds vote of the entire membership of that

house, all point to a compelling state interest in those

requirements, as well as a lack of any personal in-

terest of the electorate to be protected through equality

of vote weighting.

The individual interests of the voters in having an

equal voice in the outcome of bond and tax elections

in West Virginia, no matter what the voter’s indi-

vidual persuasion, are fundamental rights; and, with-

out an overriding compelling state interest having

been shown, are within the protection guaranteed by

the Fourteenth Amendment to the Constitution of

the United States.

Il. THE EXTRAORDINARY MAJORITY REQUIREMENT FOR BOND

ISSUES AND TAX INCREASES IS IN ANY EVENT VIOLATIVE

OF THE DUE PROCESS OF LAW CLAUSE OF THE FOUR-

TEENTH AMENDMENT, EVEN IF DIFFICULTIES BE DEEMED

TO EXIST IN THE EQUAL PROTECTION ARGUMENT EX-

TENDING “ONE MAN-ONE VOTE” TO THIS AREA.

A. Alleged Infi:-mities in the Equal Protection Argument.

The issue posed by this appeal raises a broad, com-

plex public law question transcending the personal or

immediate interests of the parties. Respondents are

aware of the difficulties which some commentators have

seen in moving directly from the ‘‘one-man one-vote”

13

principle of the legislative reapportionment and re-

districting cases® to a rule that extraordinary majority

requirements for approval of bond issues, or certain

tax inereases, are per se unconstitutional. A similar

difficulty has been perceived in resting such a rule

on the authority of the recent franchise cases.‘ These

difficulties are discussed at length in the very recent

opinion of Federal District Judge Oliver in Brenner

y. School District of Kansas City, Missourt, —— F.

Supp. —— (1970), 39 U.S.L.W. 2122 (decided Aug.

14, 1970), explaining the decision of the three-judge

court in upholding the constitutionality of the extraor-

dinary majority requirement for bond issues in Mis-

souri.®

6 Kirkpatrick v. Preisler, 394 U. S. 526 (1969); Wells v. Rocke-

feller, 394 U. S. 542 (1969) ; Reynolds v. Sims, 377 U.S. 533 (1964).

7 Kramer v. Union Free School Dist. No. 15, 395 U. S. 621 (1969) ;

Cipriano v. City of Houma, 395 U.S. 701 (1969) ; City of Phoenix

v. Kolodziejski, 399 U. S. 204 (1970).

8The alleged difficulty in basing the unconstitutionality of

extraordinary majority requirements on the reapportionment and

redistricting cases is that these cases concern the issue of fairness

and effectiveness of representation in legislative bodies elected from

districts, and also involve candidate voting, not issue voting. In a

system of district voting a large amount of ‘‘vote weighting,’’ in

the loose use of the term, occurs because within each district a

winner-take-all rule operates. In Reynolds v. Sims and successor

eases this Court has ruled that it is unconstitutional to magnify

this inherent factor of vote weighting in district systems by adding

the factor of unequal population among the districts. It is a large

jump from Reynolds v. Sims to the present dispute whether, in issue

voting in contrast to candidate voting, an extraordinary majority

requirement may be supported by the considerations related to a

desire to insure broad popular consensus in the face of low voter

turnout, or other considerations.

The stated difficulty in basing the unconstitutionality of extraor-

dinary majority requirements on the recent franchise cases (con-

cerning limitations on the school electorate or on the municipal

—

14

Respondents submit that the argument presented

in Part I of this brief, with its strong reliance op

Gray v. Sanders, 372 U.S. 368 (1963), surmounts or

avoids these difficulties. It also may be noted that

the rather negative reception in the Law Reviews

of the West Virginia Supreme Court’s ruling in Lance

seems to be based not so much on a desire to preserve

every form of extraordinary majority requirement,

as on a fear of possible overreach in extending recent

equal protection theory in simplistic fashion without

analysis of the interests involved. It has been sug.

gested that various ‘‘policy justifications would seem

to support the proposition that a standard more flexible

than the mathematical exactitude of one man-one yote

should be utilized in the case of extraordinary majority

requirements.”’ ®

Whether or not these fears of overreach in equal

protection analysis are valid, they do invite considera-

bond electorate) is simply that no apparent franchise issue is posed

by the present extraordinary majority requirement in issue voting

by the total electorate. Rather, the quite different issue is raised

of what rules are to be used in determining the outcome of the

voting, bearing in mind that the expressed voter preference ‘‘yes”

or ‘‘no”’ on the issue may range from a tiny fraction of the total

eligible electorate to an absolute majority. In addition, the decision

of this Court in McDonald v. Board of Election Comm’rs, 394 U. §.

802 (1969) may be a not inconsiderable obstacle because it might

appear that the classification sustained there in regard to the

franchise, under which absentee ballots were denied to those un-

able to post bail, was a more invidious discrimination than the

adverse effect on the ‘‘yes’’ voters of a sixty percent majority re

quirement for approval of a bond issue.

See also, Westbrook v. Mihaly, 471 P. 2d 487 (Calif. 1970);

Bogert v. Kinzer, 465 P. 2d 639 (Idaho 1970).

® Comment, ‘‘ Extraordinary Majority Voting Requirements,”’ 58

Geo. L. J. 411, 425 (1970). See also 70 Col. L. Rev. 486, 502-03

(1970) ; 56 Va. L. Rev. 295, 328-30 (1970) ; 83 Harv. L. Rev. 1911,

1923 (1970).

_

tion of possible alternative grounds for holding un-

constitutional the extraordinary majority requirement

in the form it takes in the Lance case. The obvious

alternative is the due process clause of the Fourteenth

Amendment, which is well-adapted to case by case

scrutiny of state policy to ascertain whether it is ra-

tionally related to a legitimate state purpose.

15

B, The Extraordinary Majority Requirement at Issue in Lance

Violates the Due Process Clause of the Fourteenth Amend-

ment Because It Operates To Give a Minority the Power

To Block Effectuation of Needed Public Action, as Well as

To Safeguard Against Low Voter Turnout.

Older than equal protection concepts as an effective

instrument for curbing excesses in state policy, and

indeed overlapping equal protection arguments in many

eases in which equal protection has been used,” is the

due process concept that governmental ends must be

legitimate, and the means used must be reasonably

adapted to those ends. The due process inquiry is

whether the challenged law has ‘‘a reasonable relation

to a proper legislative purpose,’’ and is ‘‘neither arbi-

trary nor discriminatory.”’ Nebbia v. New York, 291

—- U.S. 502, 587 (1934). It is common knowledge that

use of the due process clause to invalidate state eco-

nomic legislation has virtually ceased, but this has not

repealed the due process clause as a check on arbitrary

state policy in non-economic fields. Griswold v. Con-

necticut, 381 U.S. 479 (1965).

In Baker v. Carr, 369 U.S. 186 (1962) itself, relief

was sought by the plaintiffs both under the due process

and equal protection of the law clauses of the Four-

teenth Amendment. Although the due process ap-

10 Skinner v. Oklahoma, 316 U. S. 535 (1942).

ec

proach dropped out in the ultimate disposition of

the case, it is apparent that due process is a con-

currently available rationale for many if not all of

the ‘‘one man-one vote’’ legislative apportionment

cases. In this field, minority process is not due proe-

ess. Without going so far as to extract a flat re-

quirement of majority rule in all instances, the propo-

sition reasonably can be stated that a legislative rep-

resentation election system is arbitrary and lacking

in due process if it can be shown—as Mr. Justice

Stewart phrased it in the Maryland reapportionment

case—to operate ‘‘systematically to prevent ultimate

effective majority rule.’ Maryland Committee for

Fair Representation v. Tawes, 377 U.S. 656, 677 (1964),

The proposition takes on added force in the light of

the existence in the Constitution, Article IV, Section

4, of the clause directing the federal government to

‘‘guarantee to every state in this Union a republican

form of government.’’ In Gray v. Sanders, 372 US,

368 (1963), invalidating Georgia’s county unit system

of popular vote weighting in statewide (single con-

stituency) elections, under which the second-runner

could possibly defeat the front-runner, the Court ap-

pealed to developing American history to support the

arbitrariness of such a system, even though the opinion

was not rested squarely on due process grounds.

16

Speaking in Gray of the non-majoritarian aspects

of our Constitutional beginnings, including the electoral

college system of electing a President, Justice Douglas

said:

Passage of the Fifteenth, Seventeenth, and

Nineteenth Amendments shows that this concep-

tion of political equality belongs to a bygone day,

and should not be considered in determining what

17

the Equal Protection Clause of the Fourteenth

Amendment requires in statewide elections.”

Turning now to the case before the Court, it can

be demonstrated that the extraordinary majority re-

quirement in Lance is so ill-adapted to achievement

of legitimate state ends that it is too arbitrary to pass

muster under the due process clause, even with the

burden of proof resting, conventionally, on the plaintiff.

At the same time, the constitutionality of alternative

devices to ensure deliberation and an adequate ex-

pression of popular feeling in issue elections, in con-

trast to candidate elections, can be shown not to be put

in question.

The practicalities of the matter are the essence in

this case. As pointed out in many of the Amicus

Briefs for Petitioners filed with this Court, and as

elaborated in various Law Review comments, supra,

extraordinary majority requirements have a long his-

tory in this country, are extremely numerous, and are

supported by a variety of asserted public policy con-

siderations. This material need not be repeated here.

Possibly relevant considerations which emerge are

(1) the nature and breadth of the ‘‘consensus argu-

ment,’”’ ie., that new undertakings in areas such as

schools need broad popular support if they are to be

carried through effectively, and that without an ex-

traordinary majority requirement small percentages

of the total electorate will irrevocably commit all to

a long-term debt; (2) the effect of the extraordinary

majority requirement on the operation of the legis-

lative process, i.e., the possibility of ‘‘buck-passing’’

because of the division of responsibility which the ref-

11 372 U.S. at 377 n. 8.

—

erendum creates; (3) the extent to which extraordi-

nary majority requirements do encourage or ensure

fiscal responsibility in the light of alternative borrow-

ing devices and financing arrangements which can be

invoked without use of a popular referendum (the

extraordinary majority requirement generally being

required only for general obligation bonds); (4) the

facts concerning voter turnout in bond referenda elec-

tions, i.e., over the years and on various kinds of

proposals what percent of the total eligible electorate

actually participate in such issue elections, is the par-

ticipation far lower than in candidate elections, is

the participation so low as to question whether there

has been any effective view expressed unless an ex-

traordinary majority is required, is it valid to assume

that those who do not take part have no interest to

be protected, do voter profiles indicate that there are

differences between issue voters and candidate voters,

ete.

There is not time, nor is the record adequate, to

explore all of these possibly relevant considerations

concerning the constitutional question now before the

Court. On many of these questions adequate empirical

data may not exist. Helpful and provocative in this

connection is the report entitied ‘‘The Extraordinary

Majority Requirement in California,’ Institute of

Governmental Affairs, University of California at

Davis, especially the papers therein by Donald G.

Hagman, Alvin D. Sokolow, and Alan K. Browne.

18

However, a more simple formulation of the issue

in due process terms is available, which demonstrates

that the extraordinary majority requirement in Lance,

and similar cases, is an arbitrary and unreasonable

_

19

restraint on the political process, not justified by the

ends allegedly served.

First, whatever may be the desired rule regarding

constitutional amendments, or laws which change the

basic structure or procedure of government, there is

no need for an extraordinary majority requirement

regarding ordinary policy determinations of govern-

ment relative to regulatory or service programs of one

sort or another. Indeed, such a requirement is incon-

sistent with the basic concepts of a republican form

of government, inhibits political democracy at its in-

ception, and disables government from serving society

and meeting new needs. If, for various reasons, cer-

tain kinds of policies are suspect, they should be flatly

prohibited, or handled through the recognized process

of constitutional provision and amendment.

Second, for purposes of this case, however, it may

be conceded that it is reasonable for a state to wish

to ensure that some kinds of programs such as local

bond issues receive special voter attention, and be un-

dertaken only with widespread voter support, provided

a minority veto power is not created. A popular

referendum is one way to achieve special voter atten-

tion, but must be used with some caution because of

the serious problem of low voter turnout, and voter

inattention to the issue questions on the ballot even

by the voter who does go to the polls. For example,

and this appears to be a common experience, in Mis-

souri a study showed that in 29 special bond elections

the vote cast averaged less than a third of those voting

for governor. Missouri Public Expenditure Survey

Staff Report, ‘‘Changing Requirement for Voting

Bonds: A Decision to be Approached With Caution,”’

25 (1965), cited in Brenner v. School District of

—

20

Kansas City, Missouri, —— F. Supp. —— (1970), 39

U.S.L.W. 2122 (decided Aug. 14, 1970). The question

is not voter review, but effective voter review.

Third, one way to provide for meaningful voter

participation on issues thought to require special at-

tention, without creating a minority veto power, is

to require a simple majority but to change the

‘‘quorum”’ or base, e.g., to require a majority of the

electors residing and entitled by law to vote within

the area to be affected. This is the exact provision

used in South Carolina regarding elections on the

issue of incorporating new municipalities. The pro-

vision recently was held constitutional by the Supreme

Court of South Carolina in the face of a ‘‘one man-one

vote’’ attack, and this Court denied review for want of

a substantial federal question. Clay v. Thornton, 169

S.E. 2d 617 (1969), appeal dismissed for want of a

substantial federal question, sub nom. Turner vy. Clay,

397 U.S. 39 (1970).

Fourth, a related way to provide for meaningful

voter review, without creating a minority veto power,

would be to require a ‘‘quorum’’, or voter base, less

onerous than all qualified voters, but higher than a

mere majority of those voting on the bond issue. Thus,

legislatures might be able to develop a reasonable

voting requirement that combines the majority vote

principle with the electoral turnout.

Fifth, the use of an extraordinary majority require-

ment as in Lance, is not a constitutional way to achieve

the purpose of effective voter review, without creating

minority veto power. At one extreme, if we assume

21

a low voter turnout, a sixty percent 1 majority require-

ment or even a two-thirds requirement" 4s in California,

might still permit a small fraction « of the total elec-

torate to control the issue, as Mis'S°Url experience

has shown. Survey Staff Report,” supra. At the

other extreme, if we assume a nigeh voter turnout

approaching the total electorate, tthe extraordinary

majority requirement goes too far, gand creates actual

minority control of the voting proces** In the former

instance the extraordinary majority requirement may

possibly be a helpful correction in! the direction of

ensuring a higher consensus, but in tithe latter instance

it automatically creates an overcorrection. This over-

correction is analogous to the “‘built-ir™”” inequity which

this Court perceived when it invalidd@ted the Missouri

system of apportionment of trustee€S On junior col-

lege district boards of trustees. pHadley v. Junior

College District, 397 U.S. 50 (1970),- In due process

terms, the across-the-board extraordinary majority

requirement in Lance violates due pPTocess because it

has no reasonable or rational relatioP®Ship to the pur-

pose of ensuring meaningful voter ' participation on

certain kinds of issues, even if it be | @28sumed that the

latter end is valid.

CONCLUSION

For the reasons hereinabove set forth this Court

should affirm the judgment of the SSupreme Court of

Appeals of West Virginia which hheld that the ex-

traordinary majority requirements 09f Article X, Sec-

tions 1 and 8 of the Constitution oof West Virginia,

and the statutory provisions in suppport thereof, were

in conflict with and violative of the _ Equal Protection

22

Clause of the Constitution of the United States ang

therefore unconstitutional and unenforceable.

Dated, Washington, D. C.

September 18, 1970

Respectfully submitted,

Avaust W. STEINHILBER

1120 Connecticut Avenue, N. W.

Washington, D. C. 20036

Attorney for Amicus Curiae

National School Boards

Association

Rosert G. Drxon, JR.

720 20th Street, N. W.

Washington, D. C. 20006

BERLINER & WARD

1100 Connecticut Avenue, N. W.

Washington, D. C. 20036

Of Counsel