In the Federal v. State Thicket

Felix Frankfurter was not merely phrasemaking in 1946 when he warned the Supreme Court to shun the "political thicket" of state legislative apportionment. The court plunged in anyway--with last year's historic one-man, one-vote rule--and ever since, the political thicket has echoed with muffled blows, groans, and cries for divine guidance. Now lower courts are fighting not only state legislatures but one another. In New York last week, two of them battled bench to bench in a grinding collision between federal and state power.

New York's federal courts have long recoiled from meddling with the state's rural-weighted malapportionment that allows 35% of the population to elect a majority of state assemblymen, 42% a majority of state senators. Pressured by the Supreme Court, however, a three-judge federal court in Manhattan last July ordered the G.O.P. legislature to produce a new plan by April for a special election this November. The Republicans procrastinated--until last fall's Democratic landslide swept them out of power for the first time in 30 years. In December the lame-duck Republicans enacted four plans--all geared, cried Democrats, to restore G.O.P. power in the very next election.

Flat Rejection. The federal court soon approved "Plan A," which provides 165 assemblymen from almost equally populous voting districts. The state's top court, the New York Court of Appeals, voided all four plans, noting specifically that Plan A violates the state constitution, which limits the number of assemblymen to 150. That left the new Democratic legislature totally free to produce its own districting plan. Amid an unseemly squabble over leadership of their majority, the Democrats floundered for so long that they failed to meet the deadline.

In May the federal court ruled contrary to the state court by invoking the Constitution's "supremacy clause" (Article VI), which puts national law above state law. Although Plan A does indeed violate the state constitution, said the federal court, the state legislature as now apportioned violates the U.S. Constitution by discriminating against city and suburban voters. The court ordered a special 1965 election under Plan A.

The Democrats went straight to Supreme Court Justice John M. Harlan in his capacity as judicial overseer of the U.S. Second Circuit, which includes New York. They asked Harlan to stay the November election and accelerate an already pending appeal. Under Supreme Court rules, Harlan could either have granted the stay or consulted the full court. He chose the latter. What resulted was a terse, two-sentence order flatly rejecting the stay.

Predictable Decision. Two weeks ago, the New York pot once again boiled over--all because of a desperate appeal to the state court by State Senator Frank J. Glinski, a Buffalo Democrat who may lose his seat in the special election. The New York Court of Appeals again voided Plan A--and ordered the state to cancel the election. Chief Judge Charles S. Desmond did say that his state court would accede to a "final and binding" federal court order (something most people thought it already had).

To provide just such an order, the weary three-judge federal court again assembled in Manhattan last week to hear platoons of lawyers. In a completely predictable ruling, delivered by Judge Sterry R. Waterman of the U.S. Court of Appeals for the Second Circuit, the three-judge court "hereby forever restrained and enjoined" Plaintiff Glinski and every other living American from trying to stop the New York election. At week's end, despairing Democrats once again asked Justice Harlan for a stay. With his eight brethren already on record against such a stay, he refused to grant it. The Supreme Court's earlier refusal to review, said Harlan, "surely signified unwillingness to interfere with the District Court."

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