Gray v. Sanders

No. 112

Argued January 17, 1963

Decided March 18, 1963

372 U.S. 368

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

Syllabus



Appellee, a qualified voter in primary and general elections in Fulton

county, Georgia, sued in a Federal District Court to restrain

appellants, the Secretary of State and officials of the State Democratic

Executive Committee, from using Georgia's county unit system as a basis

for counting votes in a Democratic primary election for the nomination

of a United States Senator and statewide officers -- which was

practically equivalent to election.  Such primary elections are governed

by a Georgia statute, which was amended in 1962 so as to allocate unit

votes to counties as follows:  counties with populations not exceeding

15,000, two units; an additional unit for the next 5,000 persons; an

additional unit for the next 10,000; an additional unit for each of the

next two brackets of 15,000; and, thereafter, two more units for each

increase of 30,000.  All candidates for statewide office were required

to receive a majority of the county unit votes to be entitled to

nomination in the first primary.  The practical effect of this system is

that the vote of each citizen counts for less and less as the population

of his county increases, and a combination of the units from the

counties having the smallest population gives counties having one-third

of the total population of the State a clear majority of county votes.



Held:



1. Since the constitutionality of a state statute was involved and the

question was a substantial one, a three-judge court was properly

convened to hear this case, as required under 28 U.S.C.  2281.



2. State regulation of these primary elections makes the election

process state action within the meaning of the Fourteenth Amendment.



3. Appellee, like any person whose right to vote is impaired, had

standing to sue.   [372 U.S. 369]



4. The case is not moot by reason of the fact that the Democratic

Committee voted to hold the 1962 primary election on a popular vote

basis, since the 1962 Act remains in force, and it would govern future

elections if the complaint were dismissed.



5. The use of this election system in a statewide election violates the

Equal Protection Clause of the Fourteenth Amendment.



(a) The District Court correctly held that the county unit system, as

applied in a statewide election, violates the Equal Protection Clause of

the Fourteenth Amendment, but it erred in framing its injunction so that

a county unit system might be used in weighting the votes in a statewide

election, if the system showed no greater disparity against a county

than exists against any State in the conduct of national elections.  Pp.



(b) The Equal Protection Clause requires that, once a geographical unit

for which a representative is to be chosen is designated, all who

participate in the election must have an equal vote -- whatever their

race; whatever their sex; whatever their occupation; whatever their

income, and wherever their home may be in that geographical unit.



(c) The only weighting of votes sanctioned by the Constitution concerns

matters of representation, such as an allocation of Senators

irrespective of population and the use of the electoral college in the

choice of a President.



(d) The conception of political equality from the Declaration of

Independence, to Lincoln's Gettysburg Address, to the Fifteenth,

Seventeenth, and Nineteenth Amendments can mean only one thing -- one

person, one vote.



203 F. Supp. 158, judgment vacated and case remanded. [372 U.S. 370]

DOUGLAS, J., lead opinion



MR. JUSTICE DOUGLAS delivered the opinion of the Court. I



This suit was instituted by appellee, who is qualified to vote in

primary and general elections in Fulton County, Georgia, to restrain

appellants from using Georgia's county unit system as a basis for

counting votes in a Democratic primary for the nomination of a United

States Senator and statewide officers, and for declaratory relief. 

Appellants are the Chairman and Secretary of the Georgia State

Democratic Executive Committee, and the Secretary of State of Georgia. 

Appellee alleges that the use of the county unit system in counting,

tabulating, consolidating, and certifying votes cast in primary

elections for statewide offices violates the Equal Protection Clause and

the Due Process Clause of the Fourteenth Amendment and the Seventeenth

Amendment.  As the constitutionality of a state statute was involved and

the question was a substantial one, a three-judge court was properly

convened.  See 28 U.S.C.   2281; United States v. Georgia Public Service

Comm., 371 U.S. 285.



Appellants moved to dismiss; and they also filed an answer denying that

the county unit system was unconstitutional and alleging that it was

designed "to achieve a reasonable balance as between urban and rural

electoral power."



Under Georgia law, each county is given a specified number of

representatives in the lower House of the General [372 U.S. 371]

Assembly.  This county unit system at the time this suit was filed was

employed as follows in statewide primaries:  (1) Candidates for

nominations who received the highest number of popular votes in a county

were considered to have carried the county and to be entitled to two

votes for each representative to which the county is entitled in the

lower House of the General Assembly; (2) the majority of the county unit

vote nominated a United States Senator and Governor; the plurality of

the county unit vote nominated the others.



Appellee asserted that the total population of Georgia in 1960 was

3,943,116; that the population of Fulton County, where he resides, was

556,326; that the residents of Fulton County comprised 14.11% of

Georgia's total population; but that, under the county unit system, the

six unit votes of Fulton County constituted 1.46% of the total of 410

unit votes, or one-tenth of Fulton County's percentage of statewide

population.  The complaint further alleged that Echols County, the least

populous county in Georgia, had a population in 1960 of 1,876, or .05%

of the State's population, but the unit vote of Echols County was .48%

of the total unit vote of all counties in Georgia, or 10 times Echols

County's statewide percentage of population.  One unit vote in Echols

County represented 938 residents, whereas one unit vote in Fulton County

represented 92,721 residents.  Thus, one resident in Echols County had

an influence in the nomination of candidates equivalent to 99 residents

of Fulton County. [372 U.S. 372]



On the same day as the hearing in the District Court, Georgia amended

the statutes challenged in the complaint.  This amendment modified the

county unit system by allocating units to counties in accordance with a

"bracket system" instead of doubling the number of representatives of

each county in the lower House of the Georgia Assembly.  Counties with

from 0 to 15,000 people were allotted two units; an additional one unit

was allotted for the next 5,000 persons; an additional unit for the next

10,000 persons; another unit for each of the next two brackets of 15,000

persons; and, thereafter, two more units for each increase of 30,000

persons.  Under the amended Act, all candidates for statewide office

(not merely for Senator and Governor as under the earlier Act) are

required to receive a majority of the county unit votes to be entitled

to nomination in the first primary.  In addition, in order to be

nominated in the first primary, a candidate has to receive a majority of

the popular votes unless there are only two candidates for the

nomination and each receives an equal number of unit votes, in which

event the candidate with the popular majority wins.  If no candidate

receives both a majority of the unit votes and a majority of the popular

votes, a second run-off primary is required between the candidate

receiving the highest number of unit votes and the candidate receiving

the highest number of popular votes.  In the second primary, the

candidate receiving the highest number of unit votes is to prevail.  But

again, if there is a tie in unit votes, the candidate with the popular

majority wins.



Appellee was allowed to amend his complaint so as to challenge the

amended Act.  The District Court held that the amended Act had some of

the vices of the prior Act.  It stated that, under the Amended Act, "the

vote of [372 U.S. 373] each citizen counts for less and less as the

population of the county of his residence increases."  203 F.Supp. 158,

170, n. 10.  It went on to say: There are 97 two-unit counties,

totalling 194 unit votes, and 22 counties totalling 66 unit votes,

altogether 260 unit votes, within 14 of a majority; but no county in the

above has as much as 20,000 population.  The remaining 40 counties range

in population from 20,481 to 556,326, but they control altogether only

287 county unit votes.  Combination of the units from the counties

having the smallest population gives counties having population of

one-third of the total in the state a clear majority of county units.

Ibid.



The District Court held that, as a result of Baker v. Carr, 369 U.S.

186, it had jurisdiction, that a justiciable case was stated, that

appellee had standing, and that the Democratic primary in Georgia is

"state" action within the meaning of the Fourteenth Amendment.  It held

that the county unit system as applied violates the Equal Protection

Clause, and it issued an injunction, not against conducting any party

primary election under the county unit system, but against conducting

such an election under a county unit system that does not meet the

requirements specified by the court.  203 F.Supp. [372 U.S. 374] 158. 

In other words, the District Court did not proceed on the basis that in

a statewide election every qualified person was entitled to one vote and

that all weighted voting was outlawed.  Rather, it allowed a county unit

system to be used in weighting the votes if the system showed no greater

disparity against a county than exists against any State in the conduct

of national elections.  Thereafter, the Democratic Committee voted to

hold the 1962 primary election for the statewide offices mentioned on a

popular vote basis. We noted probable jurisdiction.  370 U.S. 921. II



We agree with the District Court that the action of this party in the

conduct of its primary constitutes state action within the meaning of

the Fourteenth Amendment.  Judge Sibley, writing for the court in

Chapman v. King, 154 F.2d 460, showed with meticulous detail the manner

in which Georgia regulates the conduct of party primaries (id., pp.

463-464) and he concluded:



We think these provisions show that the State, through the managers it

requires, collaborates in the conduct of the primary, and puts its power

behind the rules of the party.  It adopts the primary as a part of the

public election machinery.  The exclusions of voters made by the party

by the primary rules become exclusions enforced by the State. Id., p.

464.



We agree with that result, and conclude that state regulation of this

preliminary phase of the election process [372 U.S. 375] makes it state

action.  See United States v. Classic, 313 U.S. 299; Smith v. Allwright,

321 U.S. 649.



We also agree that appellee, like any person whose right to vote is

impaired (Smith v. Allwright, supra; Baker v. Carr, supra, pp. , has

standing to sue.



Moreover, we think the case is not moot by reason of the fact that the

Democratic Committee voted to hold [372 U.S. 376] the 1962 primary on a

popular vote basis.  But for the injunction issued below, the 1962 Act

remains in force; and, if the complaint were dismissed, it would govern

future elections.  In addition, the voluntary abandonment of a practice

does not relieve a court of adjudicating its legality, particularly

where the practice is deeply rooted and longstanding.  For if the case

were dismissed as moot, appellants would be "free to return to . . .

[their] old ways."  United States v. W. T. Grant Co., 345 U.S. 629, 632.

III



On the merits, we take a different view of the nature of the problem

than did the District Court.



This case, unlike Baker v. Carr, supra, does not involve a question of

the degree to which the Equal Protection Clause of the Fourteenth

Amendment limits the authority of a State Legislature in designing the

geographical districts from which representatives are chosen either for

the State Legislature or for the Federal House of Representatives.  Nor

does it include the related problems of Gomillion v. Lightfoot, 364 U.S.

339, where "gerrymandering" was used to exclude a minority group from

participation in municipal affairs.  Nor does it present the question,

inherent in the bicameral form of our Federal Government, whether a

State may have one house chosen without regard to population.  The

District Court, however, analogized Georgia's use of the county unit

system in determining the results of a statewide election to phases of

our federal system.  It pointed out that, under the electoral college,

required by Art. II,  1, of the Constitution [372 U.S. 377] and the

Twelfth Amendment in the election of the President, voting strength is

not in exact proportion to population. . . .  Recognizing that the

electoral college was set up as a compromise to enable the formation of

the Union among the several sovereign states, it still could hardly be

said that such a system used in a state among its counties, assuming

rationality and absence of arbitrariness in end result, could be termed

invidious. 203 F.Supp. at 169.



Accordingly the District Court as already noted, held that use of the

county unit system in counting the votes [372 U.S. 378] in a statewide

election was permissible "if the disparity against any county is not in

excess of the disparity that exists against any state in the most recent

electoral college allocation."  203 F.Supp. at 170.  Moreover, the

District Court held that use of the county unit system in counting the

votes in a statewide election was permissible if the disparity against

any county is not in excess of the disparity that exists . . . under the

equal proportions formula for representation of the several states in

the Congress. Ibid.  The assumption implicit in these conclusions is

that, since equality is not inherent in the electoral college, and since

precise equality among blocs of votes in one State or in the several

States when it comes to the election of members of the House of

Representatives is never possible, precise equality is not necessary in

statewide elections.



We think the analogies to the electoral college, to districting and

redistricting, and to other phases of the problems of representation in

state or federal legislatures or conventions{10} are inapposite.  The

inclusion of the electoral college in the Constitution, as the result of

specific historical concerns,{11} validated the collegiate principle

despite its inherent numerical inequality, but implied nothing about the

use of an analogous system by a State in a statewide election.  No such

specific accommodation of the latter was ever undertaken, and therefore

no validation of its numerical inequality ensued.  Nor does the question

here have anything to do with the composition of the state or federal

legislature.  And we intimate no opinion on the constitutional phases of

that problem beyond what we said in Baker v. Carr, supra.  The present

case is only a voting case.  Cf. Nixon v. Herndon, 273 [372 U.S. 379]

U.S. 536; Nixon v. Condon, 286 U.S. 73; Smith v. Allwright, supra. 

Georgia gives every qualified voter one vote in a statewide election,

but, in counting those votes, she employs the county unit system, which,

in end result, weights the rural vote more heavily than the urban vote,

and weights some small rural counties heavier than other larger rural

counties.



States can, within limits, specify the qualifications of voters in both

state and federal elections; the Constitution, indeed, makes voters'

qualifications rest on state law even in federal elections.  Art. I,  2.

 As we held in Lassiter v. Northampton County Election Board, 360 U.S.

45, a State may, if it chooses, require voters to pass literacy tests,

provided of course that literacy is not used as a cloak to discriminate

against one class or group.  But we need not determine all the

limitations that are placed on this power of a State to determine the

qualifications of voters, for appellee is a qualified voter.



The Fifteenth Amendment prohibits a State from denying or abridging a

Negro's right to vote.  The Nineteenth Amendment does the same for

women.  If a State, in a statewide election, weighted the male vote more

heavily than the female vote or the white vote more heavily than the

Negro vote, none could successfully contend that that discrimination was

allowable.  See Terry v. Adams, 345 U.S. 461.  How then can one person

be given twice or 10 times the voting power of another person in a

statewide election merely because he lives in a rural area, or because

he lives in the smallest rural county?  Once the geographical unit for

which a representative is to be chosen is designated, all who

participate in the election are to have an equal vote -- whatever their

race, whatever their sex, whatever their occupation, whatever their

income, and wherever their home may be in that geographical unit.  This

is required by the Equal Protection Clause of the Fourteenth Amendment. 

The concept of [372 U.S. 380] "we the people" under the Constitution

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 underlies many of our decisions.



The Court has consistently recognized that all qualified voters have a

constitutionally protected right "to cast their ballots and have them

counted at Congressional elections."  United States v. Classic, 313 U.S.

299, 315; see Ex parte Yarbrough, 110 U.S. 651; Wiley v. Sinkler, 179

U.S. 58; Swafford v. Templeton, 185 U.S. 487.  Every voter's vote is

entitled to be counted once.  It must be correctly counted and reported.

 As stated in United States v. Mosley, 238 U.S. 383, 386, "the right to

have one's vote counted" has the same dignity as "the right to put a

ballot in a box."  It can be protected from the diluting effect of

illegal ballots.  Ex parte Siebold, 100 U.S. 371; United States v.

Saylor, 322 U.S. 385.  And these rights must be recognized in any

preliminary election that in fact determines the true weight a vote will

have.  See United States v. Classic, supra; Smith v. Allwright, supra. 

The concept of political equality in the voting booth contained in the

Fifteenth Amendment extends to all phases of state elections, see Terry

v. Adams, supra; and, as previously noted, there is no indication in the

Constitution that homesite or occupation affords a permissible basis for

distinguishing between qualified voters within the State.



The only weighting of votes sanctioned by the Constitution concerns

matters of representation, such as the allocation of Senators

irrespective of population and the use of the electoral college in the

choice of a President.  Yet when Senators are chosen, the Seventeenth

Amendment states the choice must be made "by the people."  Minors,

felons, and other classes may be excluded.  See [372 U.S. 381] Lassiter

v. Northampton County Election Board, supra,   But once the class of

voters is chosen and their qualifications specified, we see no

constitutional way by which equality of voting power may be evaded.  As

we stated in Gomillion v. Lightfoot, supra, p. 347:



When a State exercises power wholly within the domain of state interest,

it is insulated from federal judicial review.  But such insulation is

not carried over when state power is used as an instrument for

circumventing a federally protected right. The conception of political

equality from the Declaration of Independence, to Lincoln's Gettysburg

Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can

mean only one thing-one person, one vote.



While we agree with the District Court on most phases of the case and

think it was right in enjoining the use of the county unit system{12} in

tabulating the votes, we vacate its judgment and remand the case so that

a decree in conformity with our opinion may be entered.



It is so ordered. STEWART, J., concurring



MR. JUSTICE STEWART, whom MR. JUSTICE CLARK joins, concurring.



In joining the opinion and judgment of the Court, I emphasize what --

but for my Brother HARLAN's dissent -- I should have thought would be

apparent to all who read the Court's opinion.  This case does not

involve the [372 U.S. 382] validity of a State's apportionment of

geographic constituencies from which representatives to the State's

legislative assembly are chosen, nor any of the problems under the Equal

Protection Clause which such litigation would present.  We do not deal

here with "the basic ground rules implementing Baker v. Carr."  This

case, on the contrary, involves statewide elections of a United States

Senator and of state executive and judicial officers responsible to a

statewide constituency.  Within a given constituency, there can be room

for but a single constitutional rule -- one voter, one vote.  United

States v. Classic, 313 U.S. 299. HARLAN, J., dissenting



MR. JUSTICE HARLAN, dissenting.



When Baker v. Carr, 369 U.S. 186, was argued at the last Term, we were

assured that if this Court would only remove the roadblocks of Colegrove

v. Green, 328 U.S. 549, and its predecessors to judicial review in

"electoral" cases, this Court in all likelihood would never have to get

deeper into such matters.  State legislatures, it was predicted, would

be prodded into taking satisfactory action by the mere prospect of legal

proceedings.



These predictions have not proved true.  As of November 1, 1962, the

apportionment of seats in at least 30 state legislatures had been

challenged in state and federal courts, and, besides this one, 10

electoral cases of one kind or another are already on this Court's

docket.  The present case is the first of these to reach plenary

consideration. [380 U.S. 383]



Preliminarily, it is symptomatic of the swift pace of current

constitutional adjudication that the majority opinion should have failed

to mention any of the four occasions on which Georgia's County Unit

System has previously been unsuccessfully challenged in this Court. 

Cook v. Fortson, decided with Turman v. Duckworth, 329 U.S. 675 (1946);

South v. Peters, 339 U.S. 276 (1950); Cox v. Peters, 342 U.S. 936

(1952); and Hartsfield v. Sloan, 357 U.S. 916 (1958).



It is true that none of these cases reached the stage of full plenary

consideration but, in light of the judicial history recounted by Mr.

Justice Frankfurter in his dissenting opinion in Baker v. Carr, supra,

at 266, 278, only the guileless could fail to recognize that the

prevailing view then was that the validity of this County Unit System

was not open to serious constitutional doubt.  This estimate of the

earlier situation is highlighted by the dissenting opinion of JUSTICES

BLACK and DOUGLAS in South v. Peters, supra, 339 U.S. at 277, in which

they unsuccessfully espoused the very views which now become the law. 

Presumably my two Brothers also reflected these same views in noting

their dissents in the Cox and Hartsfield cases.  See also Cook v.

Fortson, etc., supra, in which MR. JUSTICE BLACK also noted his dissent.



But even if the Court's present silence about these cases can be deemed

justified on the premise that their summary disposition can be

satisfactorily accounted for on grounds not involving the merits, I

consider today's decision not supportable. [380 U.S. 384]



In the context of a nominating primary respecting candidates for

statewide office, the Court construes the Equal Protection Clause of the

Fourteenth Amendment as requiring that each person's vote be given equal

weight.  The majority says: The conception of political equality from

the Declaration of Independence, to Lincoln's Gettysburg Address, to the

Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one

thing -- one person, one vote. Ante,   The Court then strikes down

Georgia's County Unit System as such, a holding which the District Court

declined to make.  203 F.Supp. at 170.



The Court's holding surely flies in the face of history.  For, as

impressively shown by the opinion of Frankfurter, J., in Baker v. Carr,

369 U.S. at  "one person, one vote" has never been the universally

accepted political philosophy in England, the American Colonies, or in

the United States.  The significance of this historical fact seems

indeed to be recognized by the Court, for it implies that its newfound

formula might not obtain in a case involving the apportionment of seats

in the "State Legislature or for the Federal House of Representatives." 

Ante,



But, independently of other reasons that will be discussed in a moment,

any such distinction finds persuasive refutation in the Federal

Electoral College whereby the President of the United States is chosen

on principles wholly opposed to those now held constitutionally required

in the electoral process for statewide office.  One need not close his

eyes to the circumstance that the Electoral College was born in

compromise, nor take sides in the various attempts that have been made

to change the system, in order to agree with the court below that it

could  [372 U.S. 385] hardly be said that such a system used in a state

among its counties, assuming rationality and absence of arbitrariness in

end result, could be termed invidious. 203 F.Supp. at 169.



Indeed, this Court itself, some 15 years ago, rejected, in a comparable

situation, the notion of political equality now pronounced.  In

MacDougall v. Green, 335 U.S. 281, challenge was made to an Illinois law

requiring that nominating petitions of a new political party be signed

by at least 25,000 voters, including a minimum of 200 voters from each

of at least 50 of the 102 counties in the State.  The claim was that the

"200 requirement" made it possible for "the voters of the less populous

counties . . . to block the nomination of candidates whose support is

confined to geographically limited areas."  Id. at 283.  In disallowing

this claim, the Court said (id. at 283-284): To assume that political

power is a function exclusively of numbers is to disregard the

practicalities of government.  Thus, the Constitution protects the

interests of the smaller against the greater by giving in the Senate

entirely unequal representation to populations.  It would be strange

indeed, and doctrinaire, for this Court, applying such broad

constitutional concepts as due process and equal protection of the laws,

to deny a State the power to assure a proper diffusion of political

initiative as between its thinly populated counties and those having

concentrated masses, in view of the fact that the latter have practical

opportunities for exerting their political weight at the polls not

available to the former.  The Constitution -- a practical instrument of

government -- makes no such demands on the States.



Certainly no support for this equal protection doctrine can be drawn

from the Fifteenth, Seventeenth, or [372 U.S. 386] Nineteenth Amendment.

 The Fifteenth Amendment simply assures that the right to vote shall not

be impaired "on account of race, color, or previous condition of

servitude."  The Seventeenth Amendment provides that Senators shall be

"elected by the people," with no indication that all people must be

accorded a vote of equal weight.  The Nineteenth Amendment merely gives

the vote to women.  And it is hard to take seriously the argument that

"dilution" of a vote in consequence of a legislatively sanctioned

electoral system can, without more, be analogized to an impairment of

the political franchise by ballot box stuffing or other criminal

activity, e.g., United States v. Mosley, 238 U.S. 383; United States v.

Classic, 313 U.S. 299; United States v. Saylor, 322 U.S. 385, or to the

disenfranchisement of qualified voters on purely racial grounds,

Gomillion v. Lightfoot, 364 U.S. 339.



A violation of the Equal Protection Clause thus cannot be found in the

mere circumstance that the Georgia County Unit System results in

disproportionate vote weighting.  It "is important for this court to

avoid extracting from the very general language of the 14th Amendment a

system of delusive exactness. . . ."  Louisville & Nashville R. Co. v.

Barber Asphalt Co., 197 U.S. 430, 434 (Holmes, J.).  What then remains

of the equal protection claim in this case?



At the core of Georgia's diffusion of voting strength which favors the

small as against the large counties is the urban-rural problem, so

familiar in the American political scene.  In my dissent in Baker v.

Carr, 369 U.S. at 336, I expressed the view that a State might

rationally conclude that its general welfare was best served by

apportioning more seats in the legislature to agricultural communities

than to urban centers, lest the legitimate interests of the former be

submerged in the stronger electoral voice of the latter. In my opinion,

recognition of the same factor cannot be deemed irrational in the

present situation [372 U.S. 387] even though all of the considerations

supporting its use in a legislative apportionment case are not present

here.



Given the undeniably powerful influence of a state governor on law and

policymaking, I do not see how it can be deemed irrational for a State

to conclude that a candidate for such office should not be one whose

choice lies with the numerically superior electoral strength of urban

voters.  By like token, I cannot consider it irrational for Georgia to

apply its County Unit System to the selection of candidates for other

statewide offices in order to assure against a predominantly "city point

of view" in the administration of the State's affairs.



On the existing record, this leaves the question of "irrationality" in

this case to be judged on the basis of pure arithmetic.  The Court, by

its "one person, one vote" theory, in effect avoids facing up to that

problem, but the District Court did face it, holding that the

disparities in voting strength between the largest county (Fulton) and

the four smallest counties (Webster, Glascock, Quitman, and Echols),

running respectively 8 to 1, 10 to 1, 11 to 1, [372 U.S. 388] and 14 to

1 in favor of the latter, were invidiously discriminatory.  But it did

not tell us why.  I do not understand how, on the basis of these mere

numbers, unilluminated as they are by any of the complex and subtle

political factors involved, a court of law can say, except by judicial

fiat, that these disparities are in themselves constitutionally

invidious.



The disproportions in the Georgia County Unit System are indeed not

greatly out of line with those existing under the Electoral College

count for the Presidency.  The disparity in population per Electoral

College vote between New York (the largest State in the 1960 census) and

Alaska (the smallest) was about 5 to 1.  There are only 15 Georgia

counties, out of a total of 159, which have a greater disparity per unit

vote, and of these 15 counties, 4 have disparity of less than 6 to 1. 

It is thus apparent that a slight modification of the Georgia plan could

bring it within the tolerance permitted in the federal scheme.



It was, of course, imponderables like these that lay at the root of the

Court's steadfast pre-Baker v. Carr refusal "to enter [the] political

thicket."  Colegrove v. Green, supra, at 556.  Having turned its back on

this wise chapter in its history, the Court, in my view, can no longer

escape the necessity of coming to grips with the thorny problems it so

studiously strove to avoid in Baker v. Carr [372 U.S. 389] (see

concurring opinion of STEWART, J., 369 U.S. at 265, and dissenting

opinion of HARLAN, J., id. at 339) and in two subsequent cases, Scholle

v. Hare, 369 U.S. 429, 430 (concurring opinion of CLARK, J., and

STEWART, J.), 430-435 (dissenting opinion of HARLAN, J.); W.M.C.A.,

Inc., v. Simon, 370 U.S. 190, 191-194 (dissenting opinion of HARLAN,

J.).  To regard this case as being outside the general stream of

electoral cases because only two other States, Maryland and Mississippi,

have county unit systems is to hide one's head in the sand.



What then should be the test of "rationality" in this judicially

unfamiliar field?  My Brother CLARK has perhaps given us a clue in the

legislative inactivity -- absence of any other remedy -- crazy quilt

approach contained in his concurring opinion in Baker v. Carr, supra, at

  But I think a formulation of the basic ground rules in this untrod

area of judicial competence should await a fully developed record.  This

case is here at an interlocutory stage.  The temporary injunction before

us issued upon a record consisting only of the pleading, answers to

interrogatories, affidavits, statistical material, and what the lower

court described as a "liberal use of our right to take judicial notice

of matters of common knowledge and public concern."  203 F.Supp. at 160,

n. 1.  No full-dress exploration of any of the many intricate questions

involved in establishing criteria for judging "rationality" took place,

the opinion and decree below issued the day following the hearing, and

the District Court observed that, while its standards of equal

protection (which this Court now puts aside) "may appear doctrinaire to

some extent," it was constrained to act as it did because of the then

(but no longer existing) urgency of the situation.  203 F.Supp. at 170.

[372 U.S. 390]



Surely, if the Court's "one person, one vote" ideology is

constitutionally untenable, as I think it clearly is, the basic ground

rules implementing Baker v. Carr should await the trial of this or some

other case in which we have before us a fully developed record.  Only

then can we know what we are doing.  Cf. White Motor Co. v. United

States, 372 U.S. 253.  A matter which so profoundly touches the barriers

between federal judicial and state legislative authority demands nothing

less.



I would vacate the judgment of the District Court and remand the case

for trial. Footnotes DOUGLAS, J., lead opinion (Footnotes)



1. Ga.Const.1945, Art. III,  III,  I:



The House of Representatives shall consist of representatives

apportioned among the several counties of the State as follows:  to the

eight counties having the largest population, three representatives

each; to the thirty counties having the next largest population, two

representatives each; and to the remaining counties, one representative

each.



2. Ga.Code Ann.  34-3212, 34-3213 (1936).



3. Ga.Laws 1962, Ex.Sess., No. 1, p. 1217; Ga.Code Ann.,  34-3212,

34-3213 (1962).



4. The order, dated April 28, 1962, was not restricted to the party

primary of September 12, 1962; nor was the relief asked so restricted.



5. The District Court in its order defined the type of county unit

system which violated the Equal Protection Clause as follows:



A county unit system for use in a party primary is invidiously

discriminatory if any unit has less than its share to the nearest whole

number proportionate to population, or to the whole of the vote in a

recent party gubernatorial primary, or to the vote for electors of the

party in the most recent presidential election; provided, no

discrimination is deemed to be invidious under such system if the

disparity against any county is not in excess of the disparity that

exists as against any state in the most recent electoral college

allocation, or under the equal proportions formula for representation of

the several states in the Congress of the United States, and, provided

provision is made for allocations to be adjusted to accord with changes

in the basis at least once each ten years.



6. See note 5, supra.



7. Chief Justice Holt stated over 250 years ago:



A right that a man has to give his vote at the election of a person to

represent him in parliament, there to concur to the making of laws,

which are to bind his liberty and property, is a most transcendent

thing, and of an high nature. . . .  [I]t is a great injury to deprive .

. . [him] of it. . . .



. . .  It would look very strange, when the commons of England are so

fond of their right of sending representatives to parliament that it

should be in the power of a sheriff, or other officer, to deprive them

of that right, and yet that they should have no remedy. . . .  This

right of voting is a right in the plaintiff by the common law, and

consequently he shall maintain an action for the obstruction of it. . .

. *    *    *    *



But, in the principal case, my brother says, we cannot judge of this

matter, because it is a parliamentary thing.  O! by all means be very

tender of that.  Besides, it is intricate, and there may be contrariety

of opinions. . . .  To allow this action will make publick officers more

careful to observe the constitution of cities and boroughs, and not to

be so partial as they commonly are in all elections, which is indeed a

great and growing mischief, and tends to the prejudice of the peace of

the nation.  But they say that this is a matter out of our jurisdiction,

and we ought not to inlarge it.  I agree we ought not to incroach or

inlarge our jurisdiction, . . . but sure we may determine on a charter

granted by the king, or on a matter of custom or prescription, when it

comes before us without incroaching on the parliament.  And if it be a

matter within our jurisdiction, we are bound by our oaths to judge of

it.  This is a matter of property determinable before us.  Was ever such

a petition heard of in parliament, as that a man was hindered of giving

his vote, and praying them to give him remedy?  The parliament

undoubtedly would say, take your remedy at law.  It is not like the case

of determining the right of election between the candidates. Ashby v.

White, 2 Ld.Raym. 938, 953, 954, 956 (1702).



8. The electoral college was designed by men who did not want the

election of the President to be left to the people.  See S. Doc. No. 97,

Survey of the Electoral College in the Political System of the United

States, 79th Cong., 1st Sess. George Washington was elected to the

office of Chief Magistrate of the Nation, by 69 votes -- the total

number cast by the electors.  At that time, three States did not vote. 

New York had not yet passed an electoral law, and North Carolina and

Rhode Island had not yet ratified the Constitution.  Therefore, of an

estimated population of 4,000,000 people, a President was chosen by 69

voters, who had not been selected by the people, but appointed by State

legislatures, save in the instances of Maryland and Virginia. Id., p. 4.



Hamilton expressed the philosophy behind the electoral college in The

Federalist No. 68. This process of election affords a moral certainty

that the office of president will seldom fall to the lot of any man who

is not in an eminent degree endowed with the requisite qualifications. 

Talents for low intrigue and the little arts of popularity may alone

suffice to elevate a man to the first honors in a single state; but it

will require other talents and a different kind of merit to establish

him in the esteem and confidence of the whole union, or of so

considerable a portion of it as would be necessary to make him a

successful candidate for the distinguished office of president of the

United States.  It will not be too strong to say that there will be a

constant probability of seeing the station filled by characters

preeminent for ability and virtue.  And this will be thought no

inconsiderable recommendation of the constitution by those who are able

to estimate the share which the executive in every government must

necessarily have in its good or ill administration.



Passage of the Fifteenth, Seventeenth, and Nineteenth Amendments shows

that this conception of political equality belongs to a bygone day, and

should not be considered in determining what the Equal Protection Clause

of the Fourteenth Amendment requires in statewide elections.



9. See note 5, supra.



10. We do not reach here the questions that would be presented were the

convention system used for nominating candidates in lieu of the primary

system.



11. See note 8, supra.



12. The county unit system, even in its amended form (see note 3, supra)

would allow the candidate winning the popular vote in the county to have

the entire unit vote of that county.  Hence, the weighting of votes

would continue even if unit votes were allocated strictly in proportion

to population.  Thus, if a candidate won 6,000 of 10,000 votes in a

particular county, he would get the entire unit vote, the 4,000 other

votes for a different candidate being worth nothing and being counted

only for the purpose of being discarded. HARLAN, J., dissenting

(Footnotes)



1. Advisory Commission on Intergovernmental Relations, Report on

Apportionment of State Legislatures, December 1962, p. A-21.  I have

been informed by the Administrative Office of the United States Courts

that, by December 31, 1962, over 25 suits had been filed in the federal

courts alone.



2. No. 460, WMCA, Inc., v. Simon; No. 507, Wesberry v. Sanders; No. 508,

Reynolds v. Sims; No. 517, Beadle v. Scholle; No. 540, Vann v. Frink;

No. 554, Maryland Comm. for Fair Representation v. Tawes; No. 610,

McConnell v. Frink; No. 688, Price v. Moss; No. 689, Oklahoma Farm

Bureau v. Moss; No. 797, Davis v. Mann.



3. Although the Solicitor General, as amicus, suggests that the Court's

action in South v. Peters rested simply on a refusal to exercise federal

equity power, it should be noted that the first case cited in the

Court's per curiam affirmance is MacDougall v. Green, 335 U.S. 281.  See

infra,



4. See Wechsler, Presidential Elections and the Constitution:  A Comment

on Proposed Amendment, 35 A.B.A.J. 181 (1949).



5. The Georgia Constitution vests in the Governor the State's "executive

power," and authorizes him to recommend legislation, make reports to and

call extraordinary sessions of the State General Assembly, issue writs

of election to fill vacancies in the General Assembly, veto or approve

bills and resolutions, and require reports from the various departments

of the State.  Ga.Const. of 1945, Art. V,  2-3001 to 2-3017.  Also, by

statute, payments cannot be made from the state treasury without a

warrant issued by the Governor, Ga.Code Ann.,  40-204, and in the event

of a public emergency the Governor is authorized to promulgate and

enforce such rules and regulations as are necessary to prevent, control,

or quell violence, threatened or actual, Ga.Code Ann.,  40-213.



6. Those involved in this case, besides Governor, are United States

Senator, Lieutenant Governor, Secretary of State, Justice of the Supreme

Court, Judge of the Court of Appeals, Attorney General, Comptroller

General, Commissioner of Labor, and Treasurer.  The Governor has a

general power to fill vacancies in such offices, unless otherwise

provided by law.  Ga.Const. of 1945, Art. V,  1, par. 13,  2-3013.



7.



Population   Ratio to



per       Fulton



County             Population  Unit Vote  Unit Vote    County



Fulton. . . . . . . 556,326        40        13,908



DeKalb. . . . . . . 256,782        20        12,839



Chatham . . . . . . 188,299        16        11,760



Muscogee. . . . . . 158,623        14        11,330



Webster . . . . . .   3,247         2         1,623      8 to 1



Glascock. . . . . .   2,672         2         1,336     10 to 1



Quitman . . . . . .   2,432         2         1,216     11 to 1



Echols. . . . . . .   1,876         2           938     14 to 1



8. Statistical Abstract of the United States 10,366 (1962).



9. Following the District Court's injunction, a statewide direct primary

was held.

