Amicus Curiae Brief — Gordon v. Lance

NL A RA Ne A eae

Pees or Brace 8. Anaass Punernsa, Dec, W. aoc

Ee,

INDEX

Page

Interest of American Association of School Adminis-

trators and the Council of Chief State School

SEN ua hwOGUSSGS Kee unSeecdsnsecceseboncoes 1

Introduction and Summary of Argument ............ 3

Argument ........seeee cece eee e eee eee eeeneeneese 6

L The Dilution of ‘‘Yes’’ Votes Effected by the

Extraordinary Majority Provisions in This Case

Is Not Supported by Any Compelling Govern-

mental Interest, and Indeed Lacks Even a Rea-

i cos kneekhdctsessassceseces 6

A. The Compelling Interest Test Is the Applicable

Standard of Review in Judging the Constitu-

tionality of Extraordinary Majority Provisions 6

B. No Reasonable Basis, Let Alone a Compelling

Governmental Interest, Can Be Found To Jus-

tify the Requirement of an Extraordinary Ma-

jority With Respect to the Issues Involved in

MU GIED vance ccencnneseseccbccsecccsseees 11

1. Extraordinary Majority Provisions Bear No

Reasonable Relationship to the Wisdom of

the Electoral Decision .................... 11

2. The Questions Required To Be Decided by

Extraordinary Majority Provisions in This

Case Are No More Important Than a Host

of Other Governmental Decisions ........ 13

II. The Principles Enunciated in Recent Cases Pro-

tecting the Right To Vote From Impairment or

Dilution Extend to the Case at Bar ............. 18

A. The Voting Cases Apply Despite the Fact That

the Case at Bar Involves the ‘‘Election’’ of an

Issue Rather Than a Man To Hold Office ..... 19

| li Index Continued

Page

B. The Voting Cases Rejected the Contention That

Weighted Voting May Be Sustained if the

Weighting Reflects a Recsenahie Representa-

Se Pee 20

C. The Voting Cases Cannot Be Distinguished on

the Ground That a Fairly Representative Goy-

ernment Has Decided That Extraordinary

Majorities Will Be Required .............., 22

D. Extraordinary Majority Provisions Cannot Be

Sustained by Analogy to Similar Provisions

With Respect to Action by Federal and State

eS PP eT TTT Ty Tre %6

E. The Cases on Which Petitioners Rely Are In-

PPT ere 27

Ce ack kins cus caxvncs660senede ceneNscecuen 31

TABLE OF AUTHORITIES

CasEs:

Avery v. Midland County, 390 U.S. 474 (1968) . .18, 22, 23, .

Baker v. Carr, 369 U.S. 186 (1962) ..............008,

Baldwin v. Seelig, 294 U.S. 511 (1934) .............. ?

Bates v. Little Rock, 361 U.S. 516 (1960) ............ 7

Carrington v. Rash, 380 U.S. 89 (1965) ........ 10, 12, 17, 18

Cipriano v. City of Houma, 393 U.S. 701 (1969)

3, 9, 18, 20, 25

Dandridge v. Williams, 397 U.S. 471 (1970) .......... 13

Davis v. Mann, 377 U.S. 678 (1964) .............04. 18, 21

Dusch v. Davis, 387 U.S. 112 (1967) ................ 28, 29

Fortson v. Morris, 385 U.S. 231 (1966) .............. 27, 8

Gray v. Sanders, 376 U.S. 1 (1963) ..... say 20, 21, 24, 2,2

Gulf, C. & F.S.R. Co. v. Ellis, 165 U.S. 1 50 (1897) . 7

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

18, 24, 30

Hall v. Beals, 396 U.S. 45 (1967) ...........2.eceeees 8

—— v. Virginia State Board of Elections, 383 US.

Ue CIUOD: cco nccncccessnncscncavascunscs 8, 17, 18, 25

Hunter v. Erickson, 393 U.S. 385 (1969) ............ 24, 5

Katzenbach v. Morgan, 384 U.S. 641 (1966) .......... 18

Kirkpatrick v. Preisler, 394 U.S. 526 (1969) ........ 18, 3

Index Continued

Korematsu v. United States, 323 U.S. 214 (1944)

Kramer v. Union Free School District, 395 U.S. 621

(1969) 8, 9, 17, 18, 20

Lucas v. Forty-Fourth General Assembly of State of

Colorado, 377 U.S. 713 (1964) 18, 23, 25

Maryland Committee v. Tawes, 377 U.S. 656 (1964) ... 18

McDonald v. Board of Election Commissioners, 394

U.S. 802 (1969) 7,8

McLaughlin v. Florida, 379 U.S. 184 (1964)

Metropolitan Casualty Insurance Co. v. Brownell, 294

U.S. 580 (1934) 6

Mullane v. Central Hanover Trust Co., 339 U.S. 306

(1950)

NAACP v. Button, 371 U.S. 415 (1963)

Nixon v. Condon, 286 U.S. 73 (1932)

Nixon v. Herndon, 273 U.S. 536 (1927)

Phoenix v. K olodziejski, 399 U.S. 204 (1970) . .3, 9, 18, 20, 25

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

Rimarcik v. Johansen, 310 F. Supp. 61 (D. Minn. 1970) 19

Roman v. Sincock, 377 U.S. 695 (1964)

Sailors v. Board of Education, 387 U.S. 104 (1967)

Schneider v. New Jersey, 308 U.S. 147 (1939)

Shapiro v. Thompson, 394 U.S. 618 (1969)

Shelton v. Tucker, 364 U.S. 479 (1960)

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

Smith v. Allwright, 321 U.S. 649 (1944)

Terry v. Adams, 345 U.S. 461 (1953)

Turner v. Fouche, 396 U.S. 346 (1970)

United States v. Classic, 313 U.S. 299 (1940)

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

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

Westbrook v. Mihaley, — Cal. 2d — (1970)

Williams v. Rhodes, 393 U.S. 23 (1968)

WMCA v. Lomenzo, 377 U.S. 633 (1964)

Yick Wo v. Hopkins, 118 U.S. 356 (1886)

iv Index Continued

ConSsTITUTION : Page

Unirep States Constitution, FourTEENTH AmeEnp.

MENT, Equal Protection Clause ....... 3, 6, 7, 10, 13, 15,

18, 20, 24, 25, 26, 30

OrHeR AUTHORITIES:

Investment Bankers Association of America, Funda-

mentals of Municipal Bonds (4th ed. 1965) ....... 15

Note, ‘‘Judicial Activism and Municipal Bonds,’ 56

ee RE rr rer eee 16

Marini, Local Bond Elections in California: The Two-

Thirds Majority Requirement (Univ. of Calif., In-

stitute of Governmental Studies, Berkley, Calif.,

RE eh ma ein SMAs 4 200000 0009 0ncKa ke 9

Model Municipal General Obligation Bond Law, Na-

tional Municipal League (1970) ................. 16

‘‘Results and Trends in California School District

Bond Elections: 1954-1959’’ (California State De-

partment of Education, Bureau of Educational Re-

search, Sacramento, California, 1960) ........... 2

Seott and Hamilton, ‘‘Extraordinary Majority Voting

Requirements v. Equal Representation: A Con-

stitutional Challenge,’’ 10 Public Affairs Report

No. 4 (Univ. of Calif., Institute of Governmental

, PAINE TOUR) occ cesses cc cnecnsencccs 2, 15

Starner, General Obligation Bond Financing by Local

Governments: A Survey of State Controls (Univ.

of Calif., Bureau of Public Administration, Berke-

CR MED nes canssscecncnccccesseses 2, 16

Tussman and tenBroek, ‘‘The Equal Protection of the

Laws,’’ 37 Cal. L. Rev. 341 (1949) .............. 13

IN THE

Supreme Court of the United States

OcToBER TERM, 1970

No. 96

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

v.

GRANVILLE H. LANCE, ET AL., Respondents.

On Writ of Certiorari to the Supreme Court of Appeals of the

State of West Virginia

Brief for the American Association of School

Administrators and The Council of Chief

State School Officers, Amici Curiae,

Urging Affirmance

INTEREST OF THE AMERICAN ASSOCIATION OF

SCHOOL ADMINISTRATORS AND THE COUNCIL

OF CHIEF STATE SCHOOL OFFICERS

The American Association of School Administrators

(AASA) is a voluntary, nation-wide organization of

school administrators. Founded in 1865, AASA, has

grown steadily until today its membership includes

over 18,000 school administrators throughout the coun-

try. It is fair to say that a substantial majority of

American children attend schools administered by

AASA members.

The Council of Chief State School Officers (CCSSO)

is an independent organization, founded in 1928, whose

members comprise the chief state school officers in each

2

of the 50 states and the heads of education agencies jn

six territories.

AASA and CCOSSO are dedicated to improving

the quality, as well as the administration of our ng.

tion’s elementary and secondary schools. The sine qua

non to an improvement of our public schools is ade-

. quate funding. Among the more serious obstacles to

the provision of adequate funding are the extraordinary

majority provisions under attack in this case. Thege

provisions require the affirmative vote of 60 percent or

2% or sometimes even higher percentages of voters to

pass a school bond issue. The result is the annual

loss of literally hundreds of millions of dollars which

are badly needed by our public schools.’

1 Scott and Hamilton report that, ‘‘The evidence is conclusive

on this point: the [extraordinary majority] requirement has a

powerful negative effect on the outcome of local bond elections.”

Scott and Hamiiton ‘‘ Extraordinary Majority Voting Requirements

v. Equal Representation: A Constitutional Challenge’’, 10 Public

Affairs Report, No. 4 (Univ. of Calif., Institute of Governmental

Studies, Berkeley, California, August 1969) p. 3. Scott and

Hamilton continue:

‘‘We may draw several conclusions from the survey of

bond election experience in California. First, the very high

rates of simple majority approval suggest that the local coun-

cils and boards submitting the proposals have been remarkably

in tune with their electorates. Second, it is the two-thirds

requirement that is responsible for almost all of the defeats—

and for the appearance of discord.’’ [td. at 4. (emphasis in

original ) }

See also ‘‘Results and Trends in California School District Bond

Elections: 1954-59’’ (California State Department of Education,

Bureau of Educational Research, Sacramento, California, 1960),

pp. 1-3; Starner, General Obligation Bond Financing By Local

Governments: A Survey Of State Controls (Univ. of Calif., Bureau

of Public Administration, Berkeley, California, 1961), pp. 76-83,

111-117; Marini, Local Bond Elections in California: The Two-

Thirds Majority Requirement (Univ. of Calif., Institute of Govern-

mental Studies, Berkeley, California, 1963), pp. 9, 30.

Since this Court’s decisions striking down those pro-

visions of state law which excluded non-freeholders

from the franchise in bond elections,’ it has become

even more difficult to pass school bond issues. The

previously excluded voters are, as a group, more likely

to be apartment-dwellers and less likely to have chil-

dren in the school system. For these reasons they are

more likely to be ‘‘no”’ voters in a school bond election.

While we recognize the sound principles on which these

decisions are based, it would nevertheless be most un-

fortunate if this Court were to strike down provisions

excluding a group which tends to be ‘‘no’’ voters, but

at the same time permit the use of extraordinary ma-

jority provisions whose inevitable effect is to dilute

“yes”? votes.

Because we seek to preserve our public school system,

because we believe that our public schools cannot be

maintained unless they are improved and cannot be im-

proved unless they are adequately funded, we urge this

Court to rule, for the reasons presented below, that

extraordinary majority provisions violate the Equal

Protection Clause of the Fourteenth Amendment to

the United States Constitution.

INTRODUCTION AND SUMMARY OF ARGUMENT

Two streams of constitutional development provide

the analytical framework for determining whether so-

called extraordinary majority provisions violate the

Equal Protection Clause. The first of these streams in-

volves the development of equal protection theory gen-

erally and the evolution of the ‘‘compelling-interest”’

test as a standard of review for equal protection claims.

2 Cipriano v. City of Howma, 393 U.S. 701 (1969) ; Phoenix v.

Kolodzie ‘ski, 399 U.S. 204 (1970).

This approach to the problem of extraordinary ma.

jority provisions requires the Court to ask whether the

applicable standard of review is the compelling-interest

test or the reasonable-basis test, and whether there jg

adequate legislative justification to meet the applicable

test. The second stream of constitutional development

against which extraordinary majority provisions may

be measured involves more narrowly the voting rights

eases, which include the reapportionment cases, the

‘‘fenced-out’’ cases, and others. Our brief analyzes the

constitutionality of extraordinary majority provisions

from both points of view.

In our first argument, we urge that the compelling-

interest test is applicable, but that if the reasonable-

basis test is applicable, the extraordinary majority pro-

visions involved here do not meet even that test.

Extraordinary majority provisions violate even the

reasonable-kasis test, we argue, because the extraordi-

nary majority requirement has no relationship what-

ever to the wisdom of the electoral decision. It is im-

possible to say in the abstract that it is wiser to decide

‘‘no’’ rather than ‘‘yes.’’ Accordingly, there is no

rational basis for weighing the outcome toward a ‘‘no”

result. Even assuming that extraordinary majorities

are required only with respect to issues of unusual im-

portance, in any particular case a ‘‘no’’ decision may

be the height of folly. Instead of insuring a wiser

electoral decision, an extraordinary majority provi-

sion simply incorporates a principle of minority rule

which is wholly antithetic to the democratic electoral

process.

Moreover, the issues with respect to which extraordi-

nary majorities are required in this case—the issuance

ee 8 ee

5

of local bonds and the increasing of local tax rates—

are no more important than a host of other govern-

mental decisions—including decisions not to issue bonds

and not to raise tax rates.

Finally, the fact that a majority of the states find it

unnecessary to require extraordinary majorities with

respect to these issues strongly suggests that such pro-

visions, where they exist, are certainly not required by

a compelling state interest. Indeed, legal and market

controls over the issuance of municipal bonds are read-

ily available to insure a wise local determination as to

their issuance vel non. These controls provide a far

less restrictive alternative than tampering with the

basie eoncept of majority rule in an election. When

less drastic means are available, the constitution re-

quires that they be chosen.

In our second argument, we consider the voting cases

and whether the principles they contain require the

Court to hold extraordinary majority provisions un-

constitutional. In urging that they do, we give primary

attention to the ways in which the defenders of extraor-

dinary majority provisions seek to distinguish these

cases. Among the principal attempts at distinction

are: the argument that extraordinary majority provi-

sions relate to the ‘‘election’’ of an issue rather than of

a man to hold an office; the argument that such provi-

sions provide for a reasonable representation of inter-

ests; the argument that a fairly chosen representative

government has decreed that this is the way particular |

issues are to be decided; and the argument that ex- |

traordinary majority provisions regarding bond issues

and tax rate elections are sanctioned, if only by anal-

ogy, by similar provisions required with respect to a

variety of questions decided by federal and state legis-

6

latures. Each of these arguments, we believe, is re.

pudiated by principles contained in the voting cases

which we examine.

Finally, we also explore the special reasons why ex-

traordinary majority provisions offend the electoral

process by incorporating into governmental decision.

making a principle of inaction, of preservation of the

status quo, of resistance to change—and, in the fina]

analysis, minority rule in the electoral process. For all

of these reasons, we urge that the extraordinary ma.

jority provisions involved in this case should be in.

validated.

ARGUMENT

L

THE DILUTION OF “YES” VOTES EFFECTED BY THE

EXTRAORDINARY MAJORITY PROVISIONS IN THIS

CASE IS NOT SUPPORTED BY ANY COMPELLING

GOVERNMENTAL INTEREST, AND INDEED LACKS

EVEN A REASONABLE JUSTIFICATION.

A. The Compelling Interest Test Is the Applicable Standard

of Review in Judging the Constitutionality of Extraordinary

Majority Provisions.

In April, 1969, this Court elaborated the compelling

interest test by which certain alleged violations of the

Equal Protection Clause are reviewed. Shapiro v.

Thompson, 394 U.S. 618 (1969). In certain kinds of

eases, Shapiro held, the validity of a law would no

tonger be decided by reference to the more traditional

standard of whether the law bore a reasonable relation

to a legitimate governmental purpose.’ Rather the

8 The reasonable basis test has been described in a large number

of cases. For example, in Metropolitan Casualty Insurance Co. v.

Brownell, 294 U.S. 580, 584 (1934), the Court stated, ‘‘A statutory

discrimination will not be set aside as the denial of equal protection

—

7

challenged law would ‘‘he judged by the stricter

standard of whether it promotes a compelling state

interest.” *

In McDonald v. Board of Election Commissioners,

394 U.S. 809 (1969), decided a week after Shapiro, the

Court described the kinds of cases to which the com-

pelling interest is applicable. Specifically included

were cases involving the right to vote, such as the re-

of the laws if any state of facts reasonably may be conceived to

justify it.’’ See also Gulf, C. & F.S.R. Co. v. Ellis, 165 U.S. 150,

155 (1897) (‘ [Classification] must always rest upon some differ-

ence which bears a reasonable and just relation to the action in re-

spect to which the classification is proposed and can never be made

arbitrarily and without any such basis’’) ; McLaughlin v. Florida,

979 U.S. 184, 191 (1964) (‘‘Normally [the state’s] judgment is

given the benefit of every conceivable circymstance which might

suffice to characterize the classification as reasonable rather than

arbitrary and invidious’). In McDonald v. Board of Election

Commissioners, 394 U.S. 802, 808, 809 (1969), the Court referred

to ‘the more traditional standards’’ for evaluating ‘‘equal pro-

tection claims” as requiring the court to determine whether ‘‘a

challenged statute’’ bears ‘‘some rational relationship to legitimate

state end.’’ Under this traditional test a statute ‘*will be set aside

if based on reasons totally unrelated to the pursuit of that goal.’’

‘Shapiro v. Thompson, supra, 394 U.S. at 634 (emphasis in

original). Earlier cases had adumbrated this higher standard of

review. As early as 1944, the Court had ruled that certain legis-

lative classifications such as race were ‘“‘suspect’’ and therefore

subject to a higher standard of justification when reviewed under

the Equal Protection Clause. Korematsu v. United States, 323

U.S. 214, 216 (1944). See also Skinner v. Oklahoma, 316 U.S.

535, 541 (1942); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

Since that time other cases have indicated that in certain circum-

stances a higher standard of justification is likewise required.

See Bates v. Little Rock, 361 U.S. 516, 524, (1960) ; NAACP v.

Button, 371 U.S. 415 (1963). Finally, in Williams v. Rhodes, 393

U.S. 23, 31 (1968), the Court held that Ohio’s impediments to third

political parties would be constitutional only if justified by a

‘“compelling’’ state interest.

ey

apportionment cases." As Mr. Justice Marshall has

written :

8

If it was not clear in 1965 [after the reappor.

tionment cases], it is clear now that once a State

has determined that a decision is to be made by

opular vote, it may exclude persons from the

ranchise only upon a showing of a compeliing

interest.*°

It is clear that the dilution of a vote is tantamount

to a partial denial of the right to vote,’ and that the

same high standard of review is therefore applicable,

Indeed, this Court has stated that statutes which “may

dilute the effectiveness of some citizens’ votes receive

close scrutiny from this Court.’’* In such cases, “the

general presumption of constitutionality afforded state

statutes and the traditional approval given state clagsi-

fications if the Court can conceive of a ‘rational basis’

5 394 U.S. at 809, citing Reynolds v. Sims, 377 U.S. 533 (1964)

and Harper v. Virginia State Board of Elections, 383 U.S. 663

(1966). The Court concluded that it was not necessary to apply

the compelling interest test in the McDonald case because ‘‘there

is nothing in the record to indicate that the Illinois statutory

scheme has an impact on appellants ability to exercise the funda-

mental right to vote.’’ (394 U.S. at 807).

* Hall v. Beals, 396 U.S. 45, 52 (1967) (dissenting opinion) (em-

phasis supplied). The majority opinion, based on grounds of

mootness, did not disagree with Mr. Justice Marshall’s assessment

in the quoted passage.

™*«The right of suffrage can be denied by a debasement or dilu-

tion of the weight of a citizen’s vote just as effectively as by wholly

prohibiting the exercise of the franchise.’’ Reynolds v. Sims, 377

U.S. 533, 555 (1964).

8 Kramer v. Union Free School District, 395 U.S. 621, 626 (1969)

(emphasis in original), citing Reynolds v. Sims, 377 U.S. 538

(1964).

for the distinctions made are not applicable.’’® In a

word therefore, the compelling interest test is appli-

eable to dilution cases. Accordingly, there can be no

doubt that the compelling interest test is applicable to

distinctions made between ‘‘yes’’ voters and ‘‘no”’

voters in this case.”

It may be well at this point to dispose of petitioners

in limine argument that there has been no dilution

here, that indeed no distinction whatever has been

made between ‘‘yes’’ and ‘‘no’’ votes. In the words

of Judge Haymond’s dissent in the Court below:

Each voter in that election east one vote and each

vote so cast was counted as one vote for one voter

[App. 59a].

This same argument could have been made in all of the

reapportionment cases. It has been uniformly re-

jected. It is the effect that is determinative, not the

formalistic fact that each person is permitted to place

a single ballot in the ballot box. Where the effect is

weighted voting, the result is condemned. The inquiry

does not stop with whether, in a formal sense, one man

is entitled to cast one vote.

In an extraordinary majority election, there is an

obvious dilution of ‘‘yes’’ votes. In the case at bar,

involving a 60% requirement, the voters are divided

into classes of ‘‘yes’’ voters and ‘‘no”’ voters. A

‘tyes’ voter’s vote is worth precisely two-thirds of

9

* Id. at 627, 628.

That this same high standard of review is applicable even

though a bond election is involved is clear from Cipriano v. City

of Howma, 395 U.S. 701 (1969) and Phoenix v. Kolodziejski, 399

US. 204 (1970), both of which applied the compelling interest

test to bond elections, the first to revenue bonds and the second to

general obligation bonds.

—

what a ‘‘no’’ voter’s vote is worth. Petitioners’ argue

that there is no distinction or discrimination in this

instance because the members of the class are not known

ahead of time and a person who is in one class in this

election may not be in the same class in the next elec.

tion (Pet. Br. 9). This may or may not be a reason to

justify the extraordinary majority provision, but it

clearly does not alter the fact that a distinction exists

between ‘‘yes’’ voters and ‘‘no”’’ voters. They are in

fact treated differently. The ‘‘yes’’ vote is plainly

diluted. Ata later time we shall examine whether the

distinction is perniissible under the Equal Protection

Clause. Suffice it to say here, however, that the ques-

tion.cannot be avoided simply by saying that no dis.

tinction exists or that no dilution has occurred. More-

over, this Court has already held that, ‘‘ ‘fencing out’

from the franchise a section of the population because

of the way it may vote is constitutionally impermis-

sible.” If a citizen may not be excluded from voting

because of the way he may vote, surely his vote may not

be diluted because of the way he in fact votes. If the

Equal Protection Clause applies to the one, it must

apply to the other.” As the Supreme Court of Cali-

fornia has stated, ‘‘The Equal Protection Clause ex-

tends to the shared political interests of groups other-

wise random and diverse.’’ *

10

11 Carrington v. Rash, 380 U.S. 89, 94 (1965) (emphasis sup-

plied).

12 See Williams v. Rhodes, 393 U.S. 23 (1968), which, on the

basis of the Equal Protection Clause, struck down Ohio’s impedi-

ments to third political parties.

18 Westbrook v. Mihaley, — Cal. 2d — (decided June 30, 1970),

Slip Op. 23. Judge Sullivan’s opinion is clearly the finest state.

ment yet written on the constitutionality of extraordinary majority

provisions.

a

A distinction having been drawn by giving a different

effect to ‘‘yes’’ votes, than to ‘‘no”’ votes, we see no way

of avoiding the application of the compelling interest

test to determine whether the particular distinction is

constitutionally permissible.

B, No Reasonable Basis, Let Alone a Compelling Governmental

Interest, Can Be Found To Justify the Requirement of an

Extraordinary Majority With Respect to the Issues Involved

in This Case.

, ine Wate of the Roctace! Dechten. ‘

The principal reason advanced to justify the par-

ticular extraordinary majority provisions under review

here is that the questions decided pursuant thereto are

more important and more significant than other deci-

sions of government. Whether or not this is true—

and we contend and shall show below that it is not—,the

threshhold issue is whether it makes a difference for

equal protection purposes, even if such issues are more

important. In other words, even assuming that the

questions decided by extraordinary majorities here are

more important than many other questions, does this

alone justify requiring an extraordlinary majority for

passage? We think not.

Simply that a decision is important does not ipso

facto mean that it should be decided by an extraordi-

nary majority. The other side of the coin in any ex-

traordinary majority election is that the same impor-

tant question of public policy may be decided by an

electoral minority. Indeed, that is the crux of the ob-

jection to extraordinary majority provisions: not that

there is rule by an extraordinary majority, but that

there is rule by an electoral minority.

We have no doubt that whether municipal bonds are

issued or whether taxes are raised are important ques-

11

iy

tions. We do question that the decision to issue the

bonds or to raise the taxes should be determined by a

minority—for that is the inevitable effect of extraordi-

nary majority provisions. In a word, extraordi

majority provisions subvert majority rule in an elee.

tion. ‘‘The exercise of rights so vital to the mainte.

nance of democratic institutions’ “* ‘“‘cannot constity-

tionally be obliterated because of a fear of the politica]

views’’** held by a majority of the voters.

12

There is absolutely no relationship between the ex-

traordinary majority device and the wisdom of an elec-

toral decision, even assuming that the issue to be de-

cided by the election is very important. No one can

say in the abstract that it is wiser in a particular in-

stance not to authorize, rather than to authorize, the

issuance of bonds. Nor can one say in the abstract that

it is wiser not to raise tax rates rather than to raise

them. In any particular situation, it may be the height

of folly not to act rather than to act. Yet the ex-

traordinary majority provisions apply across the board,

and the requirement must be met even though the bond

issue in question represents the first and only long-

term debt of the local jurisdiction.

There are devices by which to insure a wiser decision

by the electorate—proper publicity, public hearings,

access to channels of communications—,but the ex-

traordinary majority provision is not one of them. In-

deed, it is wholly unrelated to whether the electoral de-

cision is wise. It would make as much sense to provide

that whether a new school is to be built will be decided

by the affirmative vote of only one-third or 10% of

those voting.

4 Schneider v. New Jersey, 308 U.S. 147, 161 (1939).

18 Carrington v. Rash, 380 U.S. 89, 94 (1965).

Other Governmental Decisions.

Turning now to the alleged reasons why the questions

decided by extraordinary majorities here are more im-

rtant than other governmental decisions, there are

two reasons urged with respect to the issuance of bonds.

The principal reason appears to be that the issuance of

bonds ‘will bind all the people for long future per-

iods.’”? * The defenders of extraordinary majority pro-

visions argue that “Unlike most legislative action, a

decision to incur long-term bonded indebtedness is ir-

reversible. Even if the bonds subsequently turn out to

have been ill conceived, they cannot be amended and

repeal ed. 99 17

Our answer to this argument is that it proves too

much: The same considerations are applicable not only

to the incurring of long-term debt, but also too much

other legislation. Decisions to lay down or not to lay

down highways, to zone or not to zone for highrise

apartments, to build or not to build schools—all mort-

gage the future in one direction or the other."* Like it

16 Brief of amicus curiae, California Taxpayers’ Association in

Support of Petitioners, p. 15.

1 Td. at 3.

18 Because a decision to incur bonded indebtedness or to raise

taxes is no different from a myriad of other decisions which may

be passed by a majority of the electorate or their representatives

in the legislature, it may well be that requiring an extraordinary

majority for these questions alone raises a serious independent

infirmity under the Equal Protection Clause because of under-

inclusion. ‘Such underinclusiveness manifests a ‘prima-facie vio-

lation of the equal protection requirement of reasonable classifica-

tion.’ ”? Dandridge v. Williams, 397 U.S. 471, 519 (1970) (Mr.

Justice Marshall, dissenting). See also Skinner v. Oklahoma, 315

US. 535 (1942), and Tussman and tenBroek, ‘‘The Equal Pro-

tection of the Laws,’’ 37 Cal. L. Rev. 341 (1949).

a

or not, the kind of society we and our children will be

living in twenty years hence will depend on the deci-

sions government and the electorate make in the mean-

time, not only with respect to bonded indebtedness, but

with respect to a myriad of other issues as well. Ger.

tainly in this total equation the issuance of bonded in-

debtedness is not a substantial factor. Indeed, the very

decision not to incur bonded indebtedness is doubtless

of greater significance for the future—in terms of such

matters as poorly educated children coming out of our

public schools, and polluted waterways left by inade-

quate sewer systems—than the burden on future tax-

payers were this indebtedness to be incurred. In short,

a decision to incur bonded indebtedness is of no greater

significance than an army of other decisions which goy-

ernment must make—including a decision not to issue

the bonds. There is no special reason which justifies,

let alone compels, treating a decision to incur bonded

indebtedness differently from other governmental deci-

sions.

14

The second reason advanced to justify extraordinary

majority provisions with respect to the issuance of

bonded indebtedness is that these provisions somehow

encourage ‘‘sound fiscal policy”’ or ‘‘sound fiscal con-

trol.’? If this means anything other than the fact that

the issuance of municipal bonds will bind future tax-

payers (an argument we have already disposed of), it

means that the improvident issuance of bonds can lead

to financial catastrophe and the fiscal collapse of the

issuing jurisdiction under the crushing burden of ex-

cessive debt. How an extraordinary majority provision

or what extraordinary majority—60 percent, 24, 75

percent—is likely to prevent such improvidence is not

clear.

—_—_

What is clear, however, is that modern procedures

for issuing municipal bonds—including the use of

sophisticated consulting firms, specialized legal counsel,

and careful issue-evaluation by respected national rat-

ing agencies—provide the real impediment to the prof-

ligate issuance of bonded indebtedness." Moreover, as

the Supreme Court of California has noted:

Bonds which might jeopardize a community’s

financial stability would be unlikely to find a pur-

chaser. Municipal bonds are valued by investors

not because of their speculative possibilities but be-

cause of their great security and the favorable fed-

eral tax treatment accorded them under 26 U.S.-

C.A. section 103. In addition, bond purchasers

are unusually sophisticated; in 1964 over 60 per-

cent of all bondholders were institutional investors

such as commercial banks and insurance compan-

ies. (Investment Bankers Association of America,

Fundamentals of Municipal Bonds (4th ed. 1965),

p. 21).”

This Court has stated that distinctions under attack

pursuant to the Equal Protection Clause may not be

justified by dangers which are only ‘‘theoretically

imaginable.”’* In truth, the danger of financial ruin

which is said to require an extraordinary majority for

the issuance of municipal bonds is, if not fanciful, only

“theoretically imaginable’’ at best. That these fears

and dangers are not matters of real substance is em-

| phasized by the fact that most states find it unnecessary

15

18 See Seott and Hamilton, ‘‘Extraordinary Majority Voting

Requirements v. Equal Representation: A Constitutional Chal-

lenge,’ 10 Public Affairs Report No. 4 (Univ. of Calif., Institute

of Governmental Studies, August 1969), p. 2.

19 Westbrook v. Mihaley, — Cal. 24 — (decided June 30, 1970)

Slip Op. 38, n. 44.

* Williams v. Rhodes, 393 U.S. 23, 33 (1968).

a a

16

to condition the issuance of municipal bonds on q

proval by an extraordinary majority. Although most

states do require some form of mandatory referendum

as a condition precedent to incurring local bonded debt,

the most common provision is for a simple majority”

Moreover, there is no evidence or suggestion that local

jurisdictions in these states are on the brink of financial

ruin.

Furthermore, any state that wishes to assure itself

that no local jurisdiction will profligately incur bonded

indebtedness may easily write into law requirements to

assure that such indebtedness is incurred only when

appropriate conditions are met. For example, state

law may permit the issuance of local bonds only up to

an amount computed pursuant to a properly balanced

formula and only when appropriate provisions for re-

payment are made.” These are requirements that

rationally relate to a wise decision. An extraordinary

majority provision has no such relationship. When a

less restrictive alternative is so readily available, it

must be chosen.” This principle has already been ap-

21 Note, ‘‘Judicial Activism and Municipal Bonds,’’ 56 Va. L.

Rev. 295, 296, 331-334 (1970). A survey of state laws may be

found in Starner, General Obligation Bond Financing By Local

Governments: A Survey of State Controls (Univ. of Calif., Bureau

of Public Administration, Berkeley, California, 1961), pp. 22-72,

and Appendix A, p. 87.

2 Starner, loc. cit., supra, n. 21, pp. 8-10; Model Municipal

General Obligation Bond Law §§ 401-404, (National Municipal

League, (1970).

23 See Shelton v. Tucker, 364 U.S. 479, 488 (1960), (‘‘Even

though the governmental purpose be legitimate and substantial,

that purpose cannot be pursued by means that broadly stifle funda-

mental personal liberties when the end can more narrowly be

achieved. The breadth of legislative abridgement must be viewed

in the light of less drastic means for achieving the same basic pur-

pose.’”)

—~""

| 17

lied in voter exclusion cases, Carrington v. Rash, 380

US. 89, 94-96 (1965) ; Kramer v. Union Free School

District, 395 U.S. 621, 632-633 (1969).** Whatever ob-

jectives West Virginia seeks to accomplish by extraor-

dinary majority provisions can be secured ‘‘by means

more finely tailored to achieved the desired goal,’’*

and this fact only emphasizes the unconstitutionality

of the approach West Virginia has chosen.

Finally, it should be noted that we have been con-

sidering justifications only for extraordinary majority

requirements with respect to bonded indebtedness.

Also involved in this case is an extraordinary majority

provision relating to inereases in the tax rate. We

have been unable to find any suggestion as to why this

issue is of such unusual importance as even colorably

to justify the requirement of an extraordinary major-

ity. There appears to be no reason why a minority of

the voters should be able to determine that the tax rate

for a local taxing unit shall be X% rather than Y%.

% See also Turner v. Fouche, 396 U.S. 346, 364 (1970) ; Harper

v. Virginia State Board of Elections, 383 U.S. 663, 670 (1966) ;

ef. Baldwin v. Seelig, 294 U.S. 511, 521-22 (1934) ; Mullane v. Cen-

tral Hanover Trust Company, 339 U.S. 306 (1950).

% Turner v. Fouche, 396 U.S. 346, 364 (1970).

18

Il.

THE PRINCIPLES ENUNCIATED IN RECENT CASES pRo.

TECTING THE RIGHT TO VOTE FROM IMPAIR

OR DILUTION EXTEND TO THE CASE AT BAR.

In a long series of recent cases, this Court has shown

a special solicitude for that basic instrument of democ-

racy—the vote. In the reapportionment cases,” the go-

called fenced-out cases” and in a variety of other con-

texts,” this Court has steadfastly guarded the purity

of the electoral process.” In so doing, it has deepened

and enriched the quality of our democracy. ‘The con-

sistent theme of those decisions is that the right to vote

in au election is protected by the United States Consti-

tution against dilution or debasement.’’ ®

We must recognize at the outset that none of these

decisions is dispositive of or directly controlling in the

case at bar. The question for this Court is whether the

26 Baker v. Carr, 369 U.S. 186 (1962) ; Wesberry v. Sanders, 376

U.S. 1 (1964) ; Gray v. Sanders, 376 U.S. 1 (1963); Reynolds y.

Sims, 377 U.S. 533 (1964); WMCA v. Lomenzo, 377 US. 633

(1964) ; Maryland Committee v. Tawes, 377 U.S. 656 (1964);

Davis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S,

695 (1964) ; Lucas v. Forty-Fourth General Assembly of State of

Colorado, 377 U.S. 713 (1964); Avery v. Midland County, 390

U.S. 474 (1968); Kirkpatrick v. Preisler, 394 U.S. 526 (1969);

Wells v. Rockefeller, 394 U.S. 542 (1969) ; Hadley v. Junior College

District, 397 U.S. 50 (1970).

27 Carrington v. Rash, 380 U.S. 89 (1965) ; Kramer v. Union Free

School District, 393 U.S. 621 (1969) ; Cipriano v. City of Houma,

393 U.S. 701 (1969); Hadley v. Junior College District, 397 US.

50 (1970) ; Phoenix v. Kolodziejski, 399 U.S. 204 (1970).

28 Harper v. Virginia State Board of Elections, 383 U.S. 663

(1966) ; Katzenbach v. Morgan, 384 U.S. 641 (1966) ; Williams v.

Rhodes, 393 U.S. 23 (1968).

29‘“We deal here with matters close to the core of our constitu-

tional system [,] ‘the right . . . to choose,’ United States v. Classic,

313 U.S. 299 (1940), that this Court has been so zealous to protect.’’

Carrington v. Rash, 380 U.S. 89, 96 (1965).

80 Hadley v. Junior College District, 397 U.S. 50, 54 (1970).

-

radiating principles which these cases contain extend

to this case.

Perhaps the most effective way to answer this ques-

tion is to dwell not on the positive principles enunciated

in these cases—one man, one vote ; the unconstitutional-

ity of vote dilution or impairment ; the heavy burden re-

quired to sustain voter exclusion; in short, the prohi-

pition against extraneous weights on the electoral

seales—but rather to focus on the distinctions between

these cases and the case at bar. By concentrating on

the distinctions, we can more easily direct our attention

to the critical question of whether these distinctions

should make a difference in the application to the case

at bar of the general principles enunciated in the voting

cases.

A. The Voting Cases Apply Despite the Fact That the Case at

Bar Involves the “Election” of an Issue Rather Than a Map

To Hold Office.

The obvious distinction between the case at bar and

most of the cases we have cited is that, while the case

at bar involves the ‘‘election’’ or passage of an issue,

most of the cited cases involve the election of a man to

hold office. The particular issues presented to the

electorate in this case were the issuance of local bonds

and an increase in the tax rate. However, the possi-

bilities of issues which may be presented to the elector-

ate are endless. For example, in another extraordinary

majority case, the issue was whether a liquor store

could be located in a particular area.” The first ques-

31 Rimarcik v. Johansen, 310 F. Supp. 61 (D. Minn. 1970). In

the Rimarcik case a three-judge federal court invalidated a Minne-

sota statute requiring a 55% favorable vote for an amendment of a

city charter affecting established ‘‘liquor patrol limits’’ (areas in

which the city has authority to grant on-sale and off-sale liquor

licenses) .

-

20

tion therefore is, does it make a difference in the appli-

cability of the precedent we have cited that the question

was whether a particular man was to be elected to office

rather than whether a particular issue is to be ap.

proved? We think not.

There is no obvious reason why the rules against di-

lution of the vote should be inapplicable where the

question is whether an issue should be passed, as op-

posed to whether a man should be elected to a particular

office. Surely Negroes or non-freeholders could not be

excluded from an election on issues.” Neither, we be-

lieve, could the rural vote be weighted more than the

urban vote. Gray v. Sanders, 372 U.S. 368 (1968).

Why then should this Court permit the dilution and

impairment of ‘‘yes’’ votes? Indeed, this Court has

already upheld the applicability of the Equal Protee-

tion Clause to municipal bond elections. Cipriano y,

City of Houma, 395 U.S. 701 (1969) ; Phoeniz vy. Kolo-

dziejski, 399 U.S. 204 (1970). In each of these cases,

the Court struck down state laws denying the franchise

to non-freeholders in bond elections.

B. The Voting Cases Rejected the Contention That Weighted

Voting May Be Sustained if the Weighting Reflects a Rea-

sonable Representation of Interests.

Next, we consider the argument that extraordinary

majority provisions provide a-reasonable representa-

tion of interests, and that this distinguishes the case at

bar from the reapportionment cases where the question

was the fair representation of people.

82 Cases relating to exclusion of Negroes: Nixon v. Herndon, 273

U.S. 536 (1927) ; Nixon v. Condon, 286 U.S. 73 (1932); Smith v.

Allwright, 321 U.S. 649 (1944); Terry v. Adams, 345 U.S. 461

(1953). Cases relating to exclusion of non-freeholders: Kramer

v. Union Free School District, 393 U.S. 621 (1969); Cipriano v.

City of Howma, 393 U.S. 701 (1969) ; Phoenix v. Kolodziejski, 399

U.S. 204 (1970).

— |

21

In our view, the reapportionment cases and Gray V.

Sanders, 372 U.S. 368 (1963), reject the principle that

representation of varying interests may justify

weighted voting. At bottom, whoever is elected matters

only because of the positions he will take on issues;

the critical interest of the electorate in an officeholder

lies in how he will vote on issues. The reappor-

tionment cases, and Gray V. Sanders, 372 U.S. 368

(1963), reject the notion that an election may be fair

and constitutional simply because interests are reason-

ably represented. Instead, this Court ruled that each

man’s vote was to count equally with every other vote,

despite the fact that other schemes, such as Georgia’s

county unit system which was struck down in Gray v. |

Sanders, could produce a reasonable representation of

interests. As the Cowrt stated in Reynolds v. Sims, 377

U.S. 533, 579-580 (1964), ‘‘Neither history alone, nor

economic or other sorts of group interests, are permis-

sible factors in attempting to justify’’ vote dilution

(emphasis supplied) ‘See also Davis v. Mann, 377 US.

678, 692 (1964) ; Kirkpatrick v. Preisler, 394 U.S. 526,

533 (1969).

Let us suppose a hypothetical case in which a board

of commissioners is spqcially elected to decide whether

honds should be issued or tax rates raised within its

jurisdiction. Suppose \eurther that knowing that the

sparsely populated rur4l areas of the jurisdiction are

more conservative in these matters, the legislature de-

cided to give reasonable representation to this rural

interest by granting two votes to each rural voter in

the election of the commissioners. Surely this scheme

is unconstitutional. A scheme in which the dilution of

a man’s vote is direct and depends on which way he

votes on a particular issue, can be no less unconstitu-

tional than a scheme which indirectly dilutes his vote

—

by giving it less weight when it is cast for a man who in

turn votes on the same issue.

22

C. The Voting Cases Cannot Be Distinguished on the

That a Fairly Representative Government Has Decided That

Extraordinary Majorities Will Be Required.

It is also argued that extraordinary majority prevyi-

sions should be upheld because they are simply a reg-

sonable way in which a representative government

(namely a properly apportioned state legislature) has

decided by what procedure the local jurisdiction wil]

determine whether it will take certain action, ie. by

an extraordinary majority vote of the people. The

method of deciding these .;xestions, it is argued, can

always be changed by the fairly elected representatives

of the people or, in the case of a state constitutional

provision, by amendment thereto.

This argument is answered by the cases which have

held that the one man, one vote principle is applicable

to malapportioned local government units, notwith-

standing the fact that the local malapportionment had

been decreed by a properly apportioned legislature

with power to change the local malapportionment any

time it wished. There, too, it was argued that since a

fairly representative legislature had adopted a plan

for the election of local officials which provided for

the reasonable representation of varying interests, and

since the people or the legislature were free to change

this method of election, the plan was constitutionally

valid. This argument was resoundingly rejected in

Avery Vv. Midland County, 390 U.S. 474, 480-1 (1967).

When the state delegates lawmaking power to

local government and provides for the election of

local officials from districts specified by statute,

ordinance, or local charter, it must insure that

_—_ ~~

23

those qualified to vote have the right to an equally

effective voice in the election process ... That

the state legislature may itself be properly appor-

tioned does not exempt subdivisions from the Four-

teenth Amendment.

Also in Avery (at 390 U.S. 474, 481) this Court

characterized its decision in Lucas v. Colorado Gen-

eral Assembly, 377 U.S. 713 (1964) as follows:

Inequitable apportionment of local governing

bodies offends the Constitution even if adopted by

a properly apportioned legislature representing

the majority of the State’s citizens. The majority

of a State—by constitutional provision, by refer-

endum, or through accurately apportioned repre-

sentatives—can no more place a minority in over-

size districts without depriving that minority of

equal protection of the laws than they can deprive

the minority of the ballot altogether, or impose

upon them a tax rate in excess of that to be _—

by equally situated members of the majority. Gov-

ernment—National, State, and local—must grant

to each citizen the equal protection of its laws,

which includes an equal opportunity to influence

the election of lawmakers, no matter how large

the majority wishing to deprive other citizens of

equal treatment or how small the minority who

object to their mistreatment. Lucas v. Colorado

General Assembly, 377 U.S. 713 (1964), stands as

a square adjudication by this Court of these

principles.

It is said that since the legislature can decide whether

a bond issue is to be authorized, it can decide to reach

that decision in any way it chooses, including the use

of an extraordinary majority election. But it cannot

be true that the legislature is wholly and completely

free to determine how that decision will be reached.

For example, the legislature cannot decide to reach

ee

—

that decision by an election which excludes Negroes

or non-freeholders ;“* nor ean it do so by an unfairly

weighted electoral process.“ Moreover, the Court has

held that the one man, one vote principle of the re.

apportionment cases apply to elections of college

trustees whose offices could have been filled by appoint-

ment rather than by election, even though the Court

had previously ‘‘held that where a State chooses to

select members of an official body by appointment

rather than election, and that choice does not itself

offend the Constitution, the fact that each official does

not ‘represent’ the same number of people does not

deny those people equal protection of the laws.”’™

Thus, ‘‘whenever a state or local government decides

to select persons by popular election to perform goy-

ernmental functions, the Equal Protection Clause of

the Fourteenth Amendment requires that each quali-

fied voter must be given an equal opportunity to par-

ticipate in that election ...”*

This Court has specifically ruled that legislatures

may not distribute their legislative power free of the

constraints of the Fourteenth Amendment. Even the

power of the people themselves is limited by these

constitutional restraints:

... [T]hat a State may distribute legislative

ower as it desires and that the people may retain

or themselves the power over certain subjects may

generally be true, but these principles furnish no

justification for a legislative structure which other-

24

83 See cases cited in footnote 32, supra.

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

35 Hadley v. Junior College District, 397 U.S. 50, 58 (1970), cit-

ing Sailors v. Board of Education, 387 U.S. 105 (1967).

36 Hadley v. Junior College District, 397 U.S. 50, 56 (1970). See

also Avery v. Midland County, 390 U.S. 474 (1968).

—

25

wise would violate the Fourteenth Amendment.

Nor does the implementation of this change

through popular referendum immunize it. Lucas

y. Colorado General Assembly, 377 U.S. 713, 736-

737 (1964). The sovereignty of the people is itself

subject to those constitutional limitations which

have been duly adopted and remain unrepealed.”

In short, once it is determined to decide a question

by an election, that election must comport with the

requirements of the Fourteenth Amendment and each

voter must be given an equal opportunity to influence

the decision. This requirement is not met if a voter’s

negative vote is weighted more heavily than another

voter’s affirmative vote. As this Court stated in Harper

v. Virginia State Board of Elections, 383 U.S. 663, 655

(1966), ‘Once the franchise is granted to the electorate,

lines may not be drawn which are inconsistent with the

Equal Protection Clause of the Feurteenth Amend-

ment.”’

In addition, there are special reasons why an extraor-

dinary majority provision offends the electoral proc-

ess. It incorporates a principle of inaction, of preser-

vation of the status quo, of resistance to change. The

requirement itself depletes the energies of those pro-

gressive elements who seek to meet the changing needs

of the future; the effort to produce change is not made

because success is so difficult; even a majority cannot

produce change.** Thus the legislature which enacts

an extraordinary majority requirement for a local

3? Hunter v. Erickson, 393 U.S. 385, 392 (1969).

It is interestiing to note that this Court’s decisions striking

down provisions of statutes excluding non-freeholders from voting

in bond elections (Cipriano v. City of Houme, 393 U.S. 701 (1969) ;

Phoenix y. Kolodziejski, 399 U.S. 204 (1970)) have made it more

difficult to pass bond issues. The previously excluded voters are,

—_—_

oy

government says to the people of that local govern.

mental unit that the majority no longer rule. In the

final analysis, an extraordinary majority provision ip.

corporates the provision of minority rule.

26

D. Extraordinary Majority Provisions Cannot Be Sustained by

Analogy to Similar Provisions With Respect to Action by

Federal and State Legislatures.

The final argument by which extraordinary majority

provisions are sought to be justified is that they are

sanctioned by analogy to extraordinary majority pro-

visions in state and federal legislatures.

This argument is easily met. The so-called federal

analogy has already been rejected in Gray v. Sanders,

370 U.S. 368, 378 (1963). Moreover, provisions for

extraordinary majorities in the case of legislative ac-

tion relate, so far as we are aware, primarily, if not

exclusively, to matters in which the legislature acts in

a judicial or quasi-judicial capacity (such as impeach-

ment proceedings), to matters in which the legislature

approves action taken by another branch of govern-

ment (such as the approval of a treaty), to matters

relating to the balance of power between different

branches of government (as in the extraordinary ma-

jority requirement to override an executive veto), or

to internal operations of a legislative body (such as a

two-thirds vote to dislodge bills from committee). That

these questions involve different considerations is ob-

as a group, more transient than freeholders and are therefore less

likely to be in favor of the increased taxes required to service bonded

indebtedness. We note this unhappy result despite the fact that

we applaud the doctrinal soundness of these decisions. On the

other hand, it would be unfortunate indeed if the Equal Protection

clause were interpreted to forbid the exclusion of a group who tend

to be ‘‘no’’ voters and yet permit the dilution of ‘‘yes’’ votes.

27

yious and quite apart from the fact that none of them

involves an election by the people as does the instant

case.

Moreover, it may be that certain issues crucial to

the stability of government and generally relating to

its organie structure “ may be subject to change only

upon the approval of more than 50 percent of the

voters. However, the Court need not decide that ques-

tion in this case, for certainly the question as to

whether bonds should be issued or tax rates should be

raised is not such an issue. As we have shown, there

is nothing unusual about these issues, nor anything

which differentiates them in any significant way from

a multitude of other issues decided by local govern-

ments. In the absence of a demonstration of a com-

pelling governmental interest in the extraordinary ma-

jority requirement, this requirement must fall.

E. The Cases on Which Petitioners Rely Are Inapposite.

It remains only to discuss the cases on which those

who defend the constitutionality of extraordinary ma-

jority provisions rely.

Perhaps the principal case on which reliance is

placed is Fortson v. Morris, 385 U.S. 231 (1966). In

that case the Court sustained, 5-3, a Georgia law which

provided that in the event no candidate for governor

received a majority of votes, the Georgia legislature

would choose the governor from the two candidates

who received the highest number. The holding of the

ease is simply that the Constitution permits a state to

select a governor by majority vote of the legislature

when no candidate in the popular election receives a

** For example, a change from a bicameral to a unicameral legis-

lature.

a

majority. Of course, in the election by the legislature

only a majority, not an extraordinary majority, js

needed to elect. Indeed, the Fortson ease is not even

a voting case. It is limited to the question of whether

a state may choose its governor other than by election

of the people. It is, we submit, impossible to find im.

bedded in this case a principle which ean be said to

apply to the case at bar. The best that can be argued

for this case in support of petitioners’ position jg

that if a plurality winner may be constitutionally re-

jected, an extraordinary majority may be constitution-

ally required. But this would be clearly misleading

reasoning. To reject a decision of a plurality, but less

than a majority, of the voters is one thing; to reject

the decision of a majority as is often done by extraor-

dinary majority provisions is quite another. Thus

even giving the Fortson case its broadest reading, it

does not extend to the ease at bar.

The second case which is cited in support of extraor-

dinary majority provisions is Dusch v. Davis, 387 U.S.

112 (1967), in which the Court sustained the consti-

tutionality of a Virginia law requiring 7 of 11 city

councilmen who were elected at large to nevertheless

be residents of 7 different boroughs in the city, so that

there would be at least one councilman from each

borough. There was no malapportionment question in

the case because all of the councilmen were elected by

the votes of the entire city. The only question arose

because the plan required the election of at least one

candidate from each of the boroughs. Rejecting the

constitutional attack on this statutory design, the Court

stated :

The present consolidation plan uses boroughs in

the city ‘‘merely as the basis of residence for can-

didates, not for vot’: zg or representation.”’ [Each

—_

29

cilman] is nonetheless the city’s, not the

borough's, ne .... Ifa borough’s resi-

dent on the council represented in fact only the

borough, residence being only a front, different

conclusion: might follow [387 U.S. at 116].

The Court found that since each councilman’s tenure

is dependent upon a city-wide electorate, he would be

vigilant to serve the interests of all the people in the

city, not merely those in his home district. Thus, he

would be in fact the city’s and not the borough’s coun-

cilman. Because of the differing characteristics of the

boroughs, the Court found that, at least for a transi-

tion period, there was a compelling need for one coun-

cilman on the council with knowledge of each of the

different borough’s problems. The limits of this case

are plain. It merely permits a state to provide for

representation of different interests in its legislature

by requiring a geographic dispersal of its legislators.

However, it is clear that it does not permit malappor-

tionment or weighted voting to be sustained on a ‘‘rea-

sonable representation of interests’’ theory. Gray v.

Sanders, 372 U.S. 368 (1963).

The final case on which those supporting extraordi-

nary majority provisions rely is Sailors v. Board of

Education, 387 U.S. 104 (1967). That case sustained

a Michigan law providing for the appointment of the

county school board by delegates from local school

boards. The Court stated :

We find no constitutional reason why state or

local officers of the nonlegislative character in-

volved here may not be chosen by the governor,

by the legislature, or by some other appointive

means rather than by an election...

—_—_—a

—

30

The Michigan system for selecting members of

the county school board is basically appointive

rather than elective...

Since the choice of members of the county school

board did not involve an election and since none

was required for these nonlegislative officers, the

principle of ‘‘one man, one vote’’ has no relevancy

[387 U.S. at 108, 109, 111].

Clearly, this case has ne application to the case at bar,

which does involve an election. The limits of the

Sailors decision were clearly delineated in discussion

in Hadley v: Junior College District, 397 U.S. 50

(1970). The Court recognized in Hadley as it had

held in Sailors that, a state may, if it wishes, appoint

rather than elect, but ‘‘whenever a state or local goy-

ernment decides to select persons by popular election

to perform governmental functions, the Equal Pro-

tection Clause of the Fourteenth Amendment requires

that each qualified voter must be given an equal op-

portunity to participate in that election’’ (397 U.S.

at 56).

By the same token, a legislature may itself decide

whether or not to issue local bonds, or it may delegate

that decision to a local electorate, but if it is decided

that that decision is to be made by the electorate in an

election, then that election must comport with the

Kqual Protection Clause. As applied to such an elee-

tion, we see no way of avoiding the conclusion that

electoral decision must be made by a majority, rather

than a minority, of those voting.

31

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the judgment below should be affirmed.

Respectfully submitted,

| Guassiz, PEWETT, BEEBE & SHANKS

"

Wi. B. BEEBE

| HeERSHEL SHANKS

ALLAN I. MENDELSOHN

Rosert M. PERCE, JR.

| Federal Bar Building West

| 1819 H Street, N. W.

Washington, D. C. 20006

Attorneys for American Association

of School Administrators and The

Council of Chief State School

Officers, Amici Curiae