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DELEGATE MARION: And if Congress
were to enact a law establishing the maxi-
mum permissible deviation between the
largest and the smallest district, and as-
suming they were to set the figure at fif-
teen percent, would it be your impression
that that would take precedence over the
ten percent figure, or would the fact that
Maryland by its constitution required a
tighter standard take precedence to that
extent over the Federal law?
DELEGATE GALLAGHER: My under-
standing would be that Maryland's ten per-
cent would fall and that the Congressional
fifteen percent, the act of Congress, would
become the law for Maryland as it would
for the rest of the states of the union, even
though it was more restrictive.
THE CHAIRMAN: Delegate Marion.
DELEGATE MARION: Would there be
anything in this section, for example the
provision in the first line that the State
shall be divided by law, which would in your
judgment prevent a three-judge federal
court, as it did a year or so ago, from draw-
ing the districts, if they were not otherwise
drawn by law in Maryland?
DELEGATE GALLAGHER: No, I believe
that the General Assembly could fail to
exercise its responsibility in a constitutional
fashion, and that a set of circumstances
might arise where a federal District Court
would be forced, because of the exigencies
of time, to attempt the redistricting itself,
but I would hope that this would go a long
way towards thrusting the ultimate re-
sponsibility on the General Assembly.
THE CHAIRMAN: Delegate Marion.
DELEGATE GALLAGHER: I might say
that within two years after the Wcstbury
v. Sanders case, 27 states acted to redistrict
their Congressional areas virtually volun-
tarily. Maryland was only one of four
which found that its ultimate discharge
of responsibility had to be vested in the
courts rather than in the General Assembly.
THE CHAIRMAN: Delegate Marion.
DELEGATE MARION: But there is no
authority in this section for the Court of
Appeals of Maryland to assume the re-
sponsibility if the legislature fails to act.
Would that be correct?
DELEGATE GALLAGHER: That is cor-
rect. We toyed with the idea of having the
Court of Appeals do this, of conferring
original jurisdiction on it, but we decided
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there were so many problems that we did
not want to get into federal-state conflicts.
We did not feel that it would be wise to
attempt to do that. Consequently, I would
suspect that you could go either to the
state courts or to the federal courts for
relief. Probably the federal courts are the
best avenue of relief for congressional
districts. At least they are the most
traveled.
THE CHAIRMAN: Delegate Boyer.
DELEGATE BOYER: Delegate Gallagher,
the Ohio case to which you referred was
probably Lucas v. Rhodes, was it not, in
the Supreme Court?
DELEGATE GALLAGHER: Yes, sir.
DELEGATE BOYER: Which was decided,
I believe, December 13 — just recently.
DELEGATE GALLAGHER: That is
correct.
DELEGATE BOYER: Could you tell us,
please, what the reasoning of the court was
in striking down the unofficial estimate used
by the Ohio legislature in redistricting?
DELEGATE GALLAGHER: I will to the
best of my ability.
As I said, the six judges who voted to
strike down the decision of the special three-
judge court did not file an opinion with
their decision. There is a two-judge dis-
senting opinion which would indicate that
there were two things wrong — possibly
one of them being the 31 percent deviation
from the mean, and the second the use of
unofficial population estimates.
Reading from the decision of the majority
below, they said: "In the 1964 Special Ses-
sion of the Ohio Legislature which drafted
the redistricting plan here under scrutiny,
that body relied upon statistics supplied by
several agencies throughout the State of
Ohio in order to project population trends
likely to result in equal redistricting by the
time elections were held in 1966."
The problem there was they used Chamber
of Commerce Figures, the Columbus Area
Chamber of Commerce research staff for
Franklin County; they used figures from the
Ohio Department of Development, which
I am not sure is an official agency of the
State of Ohio; and they used figures from
the Citizens' League for Cayoga County;
so that the special three-judge court in
Ohio relied at least very significantly upon
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