Constitutional Challenge and Political Response: California Reapportionment, 1965

Published date01 December 1970
Date01 December 1970
Subject MatterArticles
LEROY C. HARDY, California State College

CHARLES P. SOHNER, El Camino College
the middle third of the twentieth century California abounded
~ ~ with classic examples of the &dquo;rotten borough.&dquo; Disparities in the popu-
lation of districts reached a ratio of 423 to 1. It had not always been that
way. When California entered the Union, the ideals of Jacksonian democracy
were at their height. Those delegates to the state’s first constitutional convention
who had aristocratic inclinations were doomed to a minority position. Representa-
tion in both houses of the legislature was based on a democratic premise -
lation, and so it remained until 1926. After a titanic reapportionment struggle in
1911 to adjust representation to population changes, the rural and northern legis-
lators were determined to maintain control of one house. Deadlocks in legislative
sessions following the 1920 census prompted an initiative measure for reapportion-
ment in both houses on the basis of population and a counter measure that called
for a &dquo;little federal plan.&dquo; The latter was approved, subsequently challenged, and
in turn reapproved. In 1931 the new system of representation went into effect.
The new plan provided for population representation in the lower house
and area representation in the upper house. No county could have more than one
state senator, and no more than three counties could be grouped into one senatorial
district. Two features are noteworthy about the resultant districts: first, the widen-
ing of the disparities over the decades; and, second, the enlargement of the dispari-
ties when the required ~3 budget vote is considered. In 1931 the ratio of disparity
was 279 to 1, in 1941, 280 to 1; in 1951, 301 to 1; and by 1961, 423 to 1. The
Y3 budget vote meant that theoretically one-third of all senators, acting in concert
and representing but 5 percent of the population, could frustrate legislation entirely
or at least obtain significant concessions for their acquiescence to it.
This arrangement did not go without challenge. In 1948 an initiative measure
sought a more representative system. Both in 1960 and 1962 Los Angeles County
Supervisor Frank Bonelli launched initiatives to modify disparities. In 1961 Gov-
ernor Edmund
G. Brown appointed a &dquo;blue-ribbon&dquo; committee to study the matter.
Study sessions, academic wailing, and appeals to the people failed to win cor-
rection. In 1948 only one county voted in favor of alterations. Ironically, Los
Angeles County, which stood to gain most by the initiative that year, voted 2 to 1
against the measure. Progressively more people favored senatorial reapportion-
ment but in insufficient numbers. Only in 1962 did the citizens in Los Angeles
County vote for rectification of three decades of gross underrepresentation.
Conservative legislators showed little inclination to change the operating system
in which they had gained power. After all, the people did not ask for change.
In fact, the electorate demonstrated little interest. Governors depending on a 2~
budget vote were not in a position to demand liquidation of senatorial minorities.

Governor Earl Warren said in 1948: &dquo;Our state has made almost unbelievable
progress under our present system of legislative apportionment. I believe we should
keep it.&dquo;
Governor Brown gradually found working with the state Senate to be
more pleasant than his association with the lower house. Everybody seemed to
avoid the issue until the fateful decision of Baker vs. Carr in March of 1962.
Ironically, in that case Chief Justice Earl Warren supported the majority.
Judicial intervention into the apportionment arena did not, at first, seem to
jeopardize legislative representation in California. Baker vs. Carr had direct rele-
vance to only one chamber, and the California Assembly seemed to meet the equal
population standard. But when the Supreme Court in Reynolds vs. Sims ruled
that both houses had to be apportioned on a one-man, one-vote basis, no doubt
should have remained that the California Senate would require a reapportionment
of unprecedented proportions. The inevitable command came within six months,
on December 3, 1964. It was then that a Federal Court in Los Angeles instructed
the legislature to reapportion the upper house before July 1, 1965. The case of
Silver vs. Jordan2 2 was decided by a special three-judge panel headed by Judge
Stanley Barnes of the North Circuit Court of Appeals.3
It marked a significant
milestone in the apportionment controversy that had begun nearly forty years
earlier. In the opinion it was noted that
the Twenty-Eighth Senatorial District, Inyo, Mono and Alpine Counties, had a population
of 14,294 according to the 1960 Federal Census, contrasted with the 38th Senatorial District,
Los Angeles County, with a population of 6,380,771. The disparity here is almost 450 to 1.
It is invidious discrimination ... and is debasement of [the] right to vote and deprives [Los
Angeles County residents] of the Equal Protection of the laws as guaranteed by the Four-
teenth Amendment.4
Of course, aside from this extreme example, others could have been cited:
San Diego with 1,033,011 people had one senator, while Calaveras, Mariposa, and
Tuolumme counties had 29,757 people and one senator and so on. On June 1,
1965, nearly six months after the Silver decision and exactly one month before the
deadline imposed for Senate reapportionment, the United States Supreme Court
affirmed the lower court decree. Justice Harlan, the lone consistent foe of judicial
NOTE: The authors wish to acknowledge the impact of various experiences and personalities
in the preparation of this article. Hardy was employed as the chief assistant to Ivan
Hinderaker, the major consultant to the California legislature in the 1951 reapportion-
ment process and wrote his Ph.D. dissertation on that subject. He was the Staff Direc-
tor for the Assembly elections and reapportionment committtee in 1961 and a special
consultant to Governor Edmund G. Brown during the sequence of reapportionment
developments recorded here. Sohner studied the relationship of apportionment practices
to representation theory in conjunction with the writing of a Ph.D. dissertation at the
University of Southern California. He has been a legislative candidate and a member
of a State Central Committee.

Los Angeles Times, March 7, 1965, Section G, P. 6, quoting Warren when he was governor
of the state.
No. 62-953 MC Per Curiam Order. Reprinted in Assembly Interim Committee on Elections
and Reapportionment, Final Report (Sacramento: California State Printing Office,
1965), Vol. 3, No. 8, pp. 304-15) along with the full texts of Colegrove, Baker, Rey-
nolds and other major reapportionment cases.
Perhaps the only surprising feature of the decision was that it was reached with apparent
reluctance and decided by a split vote. Barnes and District Judge Myron D. Crocker
concurred in an opinion which labeled the Reynolds holding a "novel and revolutionary
legal theory." Ibid., p. 307. District Judge Charles H. Carr dissented.

Ibid., p. 309.

intervention in apportionment cases then on the Court, filed a concurring opinion,
in which Justices Clark and Stewart joined. &dquo;I reluctantly acquiesce,&dquo; Harlan
wrote, only because there is not &dquo;the slightest basis for optimism&dquo; that the high
court majority might modify the position enunciated in Reynolds and companion
On June 18, almost two weeks before the deadline set by court order, the
legislature adjourned, with Senate reapportionment the victim of intransigent inter-
house disagreement. Senate reapportionment leader Stephan P. Teale (D, West
Point) said of the matter: &dquo;She’s dead....&dquo; 6 Although he was a physician in
private life, he was unaware of the revivifying potential of a legal medicine soon to
be prescribed by the California Supreme Court.
Upon the failure of the legislature to conform to judicial decree, the three-
judge federal court panel set a hearing for August 16 to consider the appointment
of a special master to draft a Senate reapportionment plan. This hearing was sub-
sequently postponed when the State Supreme Court assumed jurisdiction over the
apportionment controversy in an unexpected and, as the following three months
proved, decisive fashion. On July 14, 1965, the highest tribunal of the state ordered
the Governor and the California Secretary of State to show cause why the 1966
elections should not be postponed pending reapportionment of both the Senate
and the Assembly.?
State Supreme Court intervention, especially with respect to the Assembly,
had a catalytic effect. On July 26 twelve members of the Assembly requested per-
mission to intervene in the Court’s deliberations and on the same day senators met
&dquo;in an unusual between session caucus&dquo; that resulted in a decision to ask the
Court to return the reapportionment obligation to the legislature. Senator Teale
explained that at the regular 1965 session the Senate &dquo;had a gun at its head. The
Assembly sat there big, fat, dumb and happy and didn’t have to worry about any-
thing except getting Senate seats for its members. This time there will be a bona-
fide trading situation.&dquo; 9
This time, also, Senator Teale’s diagnosis seemed correct. On September 1,
1965, the State Supreme Court gave the...

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