U.S. Supreme Court

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

No. 112

Argued January 17,1963

Decided March 18,1963

372U.S. 368

APPEAL FROM THE UNITED STATESDISTRICT COURT

FOR THE NORTHERN DISTRICT OFGEORGIA

Syllabus

Appellee, a qualified voter in primary and general elections inFulton county, Georgia, sued in a Federal District Court torestrain appellants, the Secretary of State and officials of theState Democratic Executive Committee, from using Georgia's countyunit system as a basis for counting votes in a Democratic primaryelection for the nomination of a United States Senator andstatewide officers -- which was practically equivalent to election.Such primary elections are governed by a Georgia statute, which wasamended in 1962 so as to allocate unit votes to counties asfollows: counties with populations not exceeding 15,000, two units;an additional unit for the next 5,000 persons; an additional unitfor the next 10,000; an additional unit for each of the next twobrackets of 15,000; and, thereafter, two more units for eachincrease of 30,000. All candidates for statewide office wererequired to receive a majority of the county unit votes to beentitled to nomination in the first primary. The practical effectof this system is that the vote of each citizen counts for less andless as the population of his county increases, and a combinationof the units from the counties having the smallest population givescounties having one-third of the total population of the State aclear majority of county votes.

Held:

1. Since the constitutionality of a state statute was involvedand the question was a substantial one, a three-judge court wasproperly convened to hear this case, as required under 28 U.S.C. §2281. P.372 U. S.370.

2. State regulation of these primary elections makes theelection process state action within the meaning of the FourteenthAmendment. Pp.372 U. S.374-375.

3. Appellee, like any person whose right to vote is impaired,had standing to sue. P.372 U. S.375.

Page 372 U. S. 369

4. The case is not moot by reason of the fact that theDemocratic Committee voted to hold the 1962 primary election on apopular vote basis, since the 1962 Act remains in force, and itwould govern future elections if the complaint were dismissed. Pp.372 U. S.375-376.

5. The use of this election system in a statewide electionviolates the Equal Protection Clause of the Fourteenth Amendment.Pp.372 U. S.376-381.

(a) The District Court correctly held that the county unitsystem, as applied in a statewide election, violates the EqualProtection Clause of the Fourteenth Amendment, but it erred inframing its injunction so that a county unit system might be usedin weighting the votes in a statewide election, if the systemshowed no greater disparity against a county than exists againstany State in the conduct of national elections. Pp.372 U. S.373-374,372 U. S.376-379.

(b) The Equal Protection Clause requires that, once ageographical unit for which a representative is to be chosen isdesignated, all who participate in the election must have an equalvote -- whatever their race; whatever their sex; whatever theiroccupation; whatever their income, and wherever their home may bein that geographical unit. Pp.372 U. S.379-380.

(c) The only weighting of votes sanctioned by the Constitutionconcerns matters of representation, such as an allocation ofSenators irrespective of population and the use of the electoralcollege in the choice of a President. Pp.372 U. S.380-381.

(d) The conception of political equality from the Declaration ofIndependence, to Lincoln's Gettysburg Address, to the Fifteenth,Seventeenth, and Nineteenth Amendments can mean only one thing --one person, one vote. P.372 U. S.381.

203 F.Supp. 158, judgment vacated and case remanded.

Page 372 U. S. 370

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

IThis suit was instituted by appellee, who is qualified to votein primary and general elections in Fulton County, Georgia, torestrain appellants from using Georgia's county unit system as abasis for counting votes in a Democratic primary for the nominationof a United States Senator and statewide officers, and fordeclaratory relief. Appellants are the Chairman and Secretary ofthe Georgia State Democratic Executive Committee, and the Secretaryof State of Georgia. Appellee alleges that the use of the countyunit system in counting, tabulating, consolidating, and certifyingvotes cast in primary elections for statewide offices violates theEqual Protection Clause and the Due Process Clause of theFourteenth Amendment and the Seventeenth Amendment. As theconstitutionality of a state statute was involved and the questionwas a substantial one, a three-judge court was properly convened.See 28 U.S.C. § 2281;United States v. Georgia PublicService Comm.,371 U. S. 285.

Appellants moved to dismiss; and they also filed an answerdenying that the county unit system was unconstitutional andalleging that it was designed "to achieve a reasonable balance asbetween urban and rural electoral power."

Under Georgia law, each county is given a specified number ofrepresentatives in the lower House of the General

Page 372 U. S. 371

Assembly. [Footnote 1] Thiscounty unit system at the time this suit was filed was employed asfollows in statewide primaries: [Footnote 2] (1) Candidates for nominations who receivedthe highest number of popular votes in a county were considered tohave carried the county and to be entitled to two votes for eachrepresentative to which the county is entitled in the lower Houseof the General Assembly; (2) the majority of the county unit votenominated a United States Senator and Governor; the plurality ofthe county unit vote nominated the others.

Appellee asserted that the total population of Georgia in 1960was 3,943,116; that the population of Fulton County, where heresides, was 556,326; that the residents of Fulton County comprised14.11% of Georgia's total population; but that, under the countyunit system, the six unit votes of Fulton County constituted 1.46%of the total of 410 unit votes, or one-tenth of Fulton County'spercentage of statewide population. The complaint further allegedthat Echols County, the least populous county in Georgia, had apopulation in 1960 of 1,876, or .05% of the State's population, butthe unit vote of Echols County was .48% of the total unit vote ofall counties in Georgia, or 10 times Echols County's statewidepercentage of population. One unit vote in Echols Countyrepresented 938 residents, whereas one unit vote in Fulton Countyrepresented 92,721 residents. Thus, one resident in Echols Countyhad an influence in the nomination of candidates equivalent to 99residents of Fulton County.

Page 372 U. S. 372

On the same day as the hearing in the District Court, Georgiaamended the statutes challenged in the complaint. This amendment[Footnote 3] modified thecounty unit system by allocating units to counties in accordancewith a "bracket system" instead of doubling the number ofrepresentatives of each county in the lower House of the GeorgiaAssembly. Counties with from 0 to 15,000 people were allotted twounits; an additional one unit was allotted for the next 5,000persons; an additional unit for the next 10,000 persons; anotherunit 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 (notmerely for Senator and Governor as under the earlier Act) arerequired to receive a majority of the county unit votes to beentitled to nomination in the first primary. In addition, in orderto be nominated in the first primary, a candidate has to receive amajority of the popular votes unless there are only two candidatesfor the nomination and each receives an equal number of unit votes,in which event the candidate with the popular majority wins. If nocandidate receives both a majority of the unit votes and a majorityof the popular votes, a second run-off primary is required betweenthe candidate receiving the highest number of unit votes and thecandidate receiving the highest number of popular votes. In thesecond primary, the candidate receiving the highest number of unitvotes 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 challengethe amended Act. The District Court held that the amended Act hadsome of the vices of the prior Act. It stated that, under theAmended Act, "the vote of

Page 372 U. S. 373

each citizen counts for less and less as the population of thecounty 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, and22 counties totalling 66 unit votes, altogether 260 unit votes,within 14 of a majority; but no county in the above has as much as20,000 population. The remaining 40 counties range in populationfrom 20,481 to 556,326, but they control altogether only 287 countyunit votes. Combination of the units from the counties having thesmallest population gives counties having population of one-thirdof the total in the state a clear majority of county units."

Ibid.

The District Court held that, as a result ofBaker v.Carr,369 U. S. 186, ithad jurisdiction, that a justiciable case was stated, that appelleehad standing, and that the Democratic primary in Georgia is "state"action within the meaning of the Fourteenth Amendment. It held thatthe county unit system as applied violates the Equal ProtectionClause, and it issued an injunction, [Footnote 4] not against conducting any party primaryelection under the county unit system, but against conducting suchan election under a county unit system that does not meet therequirements specified by the court. [Footnote 5] 203 F.Supp.

Page 372 U. S. 374

158. In other words, the District Court did not proceed on thebasis that in a statewide election every qualified person wasentitled to one vote and that all weighted voting was outlawed.Rather, it allowed a county unit system to be used in weighting thevotes if the system showed no greater disparity against a countythan exists against any State in the conduct of national elections.[Footnote 6] Thereafter, theDemocratic Committee voted to hold the 1962 primary election forthe statewide offices mentioned on a popular vote basis. We notedprobable jurisdiction. 370 U.S. 921.

IIWe agree with the District Court that the action of this partyin the conduct of its primary constitutes state action within themeaning of the Fourteenth Amendment. Judge Sibley, writing for thecourt inChapman v. King, 154 F.2d 460, showed withmeticulous detail the manner in which Georgia regulates the conductof party primaries (id., pp. 463-464) and heconcluded:

"We think these provisions show that the State, through themanagers it requires, collaborates in the conduct of the primary,and puts its power behind the rules of the party. It adopts theprimary as a part of the public election machinery. The exclusionsof voters made by the party by the primary rules become exclusionsenforced by the State."

Id., p. 464.

We agree with that result, and conclude that state regulation ofthis preliminary phase of the election process

Page 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 voteis impaired (Smith v. Allwright, supra; Baker v. Carr,supra, pp.369 U. S.204-208), has standing to sue. [Footnote 7]

Moreover, we think the case is not moot by reason of the factthat the Democratic Committee voted to hold

Page 372 U. S. 376

the 1962 primary on a popular vote basis. But for the injunctionissued below, the 1962 Act remains in force; and, if the complaintwere dismissed, it would govern future elections. In addition, thevoluntary abandonment of a practice does not relieve a court ofadjudicating its legality, particularly where the practice isdeeply rooted and longstanding. For if the case were dismissed asmoot, appellants would be "free to return to . . . [their] oldways."United States v. W. T. Grant Co.,345 U.S. 629,345 U. S.632.

IIIOn the merits, we take a different view of the nature of theproblem than did the District Court.

This case, unlikeBaker v. Carr, supra, does notinvolve a question of the degree to which the Equal ProtectionClause of the Fourteenth Amendment limits the authority of a StateLegislature in designing the geographical districts from whichrepresentatives are chosen either for the State Legislature or forthe Federal House of Representatives. Nor does it include therelated problems ofGomillion v. Lightfoot,364 U.S. 339, where "gerrymandering" was used to exclude aminority group from participation in municipal affairs. Nor does itpresent the question, inherent in the bicameral form of our FederalGovernment, whether a State may have one house chosen withoutregard to population. The District Court, however, analogizedGeorgia's use of the county unit system in determining the resultsof a statewide election to phases of our federal system. It pointedout that, under the electoral college, [Footnote 8] required by Art. II, § 1, of theConstitution

Page 372 U. S. 377

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

"is not in exact proportion to population. . . . Recognizingthat the electoral college was set up as a compromise to enable theformation of the Union among the several sovereign states, it stillcould hardly be said that such a system used in a state among itscounties, assuming rationality and absence of arbitrariness in endresult, could be termed invidious."

203 F. Supp. at 169.

Accordingly the District Court as already noted, [Footnote 9] held that use of the county unitsystem in counting the votes

Page 372 U. S. 378

in a statewide election was permissible "if the disparityagainst any county is not in excess of the disparity that existsagainst any state in the most recent electoral college allocation."203 F. Supp. at 170. Moreover, the District Court held that use ofthe county unit system in counting the votes in a statewideelection was permissible

"if the disparity against any county is not in excess of thedisparity that exists . . . under the equal proportions formula forrepresentation of the several states in the Congress."

Ibid. The assumption implicit in these conclusions isthat, since equality is not inherent in the electoral college, andsince precise equality among blocs of votes in one State or in theseveral States when it comes to the election of members of theHouse of Representatives is never possible, precise equality is notnecessary in statewide elections.

We think the analogies to the electoral college, to districtingand redistricting, and to other phases of the problems ofrepresentation in state or federal legislatures or conventions[Footnote 10] areinapposite. The inclusion of the electoral college in theConstitution, as the result of specific historical concerns,[Footnote 11] validated thecollegiate principle despite its inherent numerical inequality, butimplied nothing about the use of an analogous system by a State ina statewide election. No such specific accommodation of the latterwas ever undertaken, and therefore no validation of its numericalinequality ensued. Nor does the question here have anything to dowith the composition of the state or federal legislature. And weintimate no opinion on the constitutional phases of that problembeyond what we said inBaker v. Carr, supra. The presentcase is only a voting case.Cf.273 U. S.Herndon, 273

Page 372 U. S. 379

U.S. 536;Nixon v. Condon,286 U. S.73;Smith v. Allwright, supra. Georgia givesevery qualified voter one vote in a statewide election, but, incounting those votes, she employs the county unit system, which, inend result, weights the rural vote more heavily than the urbanvote, and weights some small rural counties heavier than otherlarger rural counties.

States can, within limits, specify the qualifications of votersin both state and federal elections; the Constitution, indeed,makes voters' qualifications rest on state law even in federalelections. Art. I, § 2. As we held inLassiter v. NorthamptonCounty Election Board,360 U. S. 45, aState may, if it chooses, require voters to pass literacy tests,provided of course that literacy is not used as a cloak todiscriminate against one class or group. But we need not determineall the limitations that are placed on this power of a State todetermine the qualifications of voters, for appellee is a qualifiedvoter.

The Fifteenth Amendment prohibits a State from denying orabridging a Negro's right to vote. The Nineteenth Amendment doesthe same for women. If a State, in a statewide election, weightedthe male vote more heavily than the female vote or the white votemore heavily than the Negro vote, none could successfully contendthat that discrimination was allowable.See Terry v.Adams,345 U. S. 461. Howthen can one person be given twice or 10 times the voting power ofanother person in a statewide election merely because he lives in arural area, or because he lives in the smallest rural county? Oncethe geographical unit for which a representative is to be chosen isdesignated, all who participate in the election are to have anequal vote -- whatever their race, whatever their sex, whatevertheir occupation, whatever their income, and wherever their homemay be in that geographical unit. This is required by the EqualProtection Clause of the Fourteenth Amendment. The concept of

Page 372 U. S. 380

"we the people" under the Constitution visualizes no preferredclass of voters, but equality among those who meet the basicqualifications. The idea that every voter is equal to every othervoter in his State when he casts his ballot in favor of one ofseveral competing candidates underlies many of our decisions.

The Court has consistently recognized that all qualified votershave a constitutionally protected right "to cast their ballots andhave them counted at Congressional elections."United States v.Classic,313 U. S. 299,313 U. S. 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 becorrectly counted and reported. As stated inUnited States v.Mosley,238 U. S. 383,238 U. S. 386,"the right to have one's vote counted" has the same dignity as "theright to put a ballot in a box." It can be protected from thediluting effect of illegal ballots.Ex parte Siebold,100 U. S. 371;United States v. Saylor,322 U. S. 385. Andthese rights must be recognized in any preliminary election that infact determines the true weight a vote will have.See UnitedStates v. Classic, supra; Smith v. Allwright, supra. Theconcept of political equality in the voting booth contained in theFifteenth Amendment extends to all phases of state elections,see Terry v. Adams, supra; and, as previously noted, thereis no indication in the Constitution that homesite or occupationaffords a permissible basis for distinguishing between qualifiedvoters within the State.

The only weighting of votes sanctioned by the Constitutionconcerns matters of representation, such as the allocation ofSenators irrespective of population and the use of the electoralcollege in the choice of a President. Yet when Senators are chosen,the Seventeenth Amendment states the choice must be made "by thepeople." Minors, felons, and other classes may be excluded.See

Page 372 U. S. 381

Lassiter v. Northampton County Election Board, supra,p.360 U. S. 51.But once the class of voters is chosen and their qualificationsspecified, we see no constitutional way by which equality of votingpower may be evaded. As we stated inGomillion v. Lightfoot,supra, p.364 U. S.347:

"When a State exercises power wholly within the domain of stateinterest, it is insulated from federal judicial review. But suchinsulation is not carried over when state power is used as aninstrument for circumventing a federally protected right."

The conception of political equality from the Declaration ofIndependence, to Lincoln's Gettysburg Address, to the Fifteenth,Seventeenth, and Nineteenth Amendments can mean only one thing-oneperson, one vote.

While we agree with the District Court on most phases of thecase and think it was right in enjoining the use of the county unitsystem [Footnote 12] intabulating the votes, we vacate its judgment and remand the case sothat a decree in conformity with our opinion may be entered.

It is so ordered.

[Footnote 1]

Ga.Const.1945, Art. III, § III, � I:

"The House of Representatives shall consist of representativesapportioned among the several counties of the State as follows: tothe eight counties having the largest population, threerepresentatives each; to the thirty counties having the nextlargest population, two representatives each; and to the remainingcounties, one representative each."

[Footnote 2]

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

[Footnote 3]

Ga.Laws 1962, Ex.Sess., No. 1, p. 1217; Ga.Code Ann., §§34-3212, 34-3213 (1962).

[Footnote 4]

The order, dated April 28, 1962, was not restricted to the partyprimary of September 12, 1962; nor was the relief asked sorestricted.

[Footnote 5]

The District Court in its order defined the type of county unitsystem which violated the Equal Protection Clause as follows:

"A county unit system for use in a party primary is invidiouslydiscriminatory if any unit has less than its share to the nearestwhole number proportionate to population, or to the whole of thevote in a recent party gubernatorial primary, or to the vote forelectors of the party in the most recent presidential election;provided, no discrimination is deemed to be invidious under suchsystem if the disparity against any county is not in excess of thedisparity that exists as against any state in the most recentelectoral college allocation, or under the equal proportionsformula for representation of the several states in the Congress ofthe United States, and, provided provision is made for allocationsto be adjusted to accord with changes in the basis at least onceeach ten years."

[Footnote 6]

Seenote 5supra.

[Footnote 7]

Chief Justice Holt stated over 250 years ago:

"A right that a man has to give his vote at the election of aperson to represent him in parliament, there to concur to themaking of laws, which are to bind his liberty and property, is amost transcendent thing, and of an high nature. . . . [I]t is agreat injury to deprive . . . [him] of it. . . ."

". . . It would look very strange, when the commons of Englandare so fond of their right of sending representatives to parliamentthat it should be in the power of a sheriff, or other officer, todeprive them of that right, and yet that they should have noremedy. . . . This right of voting is a right in the plaintiff bythe common law, and consequently he shall maintain an action forthe obstruction of it. . . ."

"* * * *"

"But, in the principal case, my brother says, we cannot judge ofthis matter, because it is a parliamentary thing. O! by all meansbe very tender of that. Besides, it is intricate, and there may becontrariety of opinions. . . . To allow this action will makepublick officers more careful to observe the constitution of citiesand boroughs, and not to be so partial as they commonly are in allelections, which is indeed a great and growing mischief, and tendsto the prejudice of the peace of the nation. But they say that thisis a matter out of our jurisdiction, and we ought not to inlargeit. I agree we ought not to incroach or inlarge our jurisdiction, .. . but sure we may determine on a charter granted by the king, oron a matter of custom or prescription, when it comes before uswithout incroaching on the parliament. And if it be a matter withinour jurisdiction, we are bound by our oaths to judge of it. This isa matter of property determinable before us. Was ever such apetition heard of in parliament, as that a man was hindered ofgiving his vote, and praying them to give him remedy? Theparliament undoubtedly would say, take your remedy at law. It isnot like the case of determining the right of election between thecandidates."

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

[Footnote 8]

The electoral college was designed by men who did not want theelection of the President to be left to the people.See S.Doc. No. 97, Survey of the Electoral College in the PoliticalSystem of the United States, 79th Cong., 1st Sess.

"George Washington was elected to the office of Chief Magistrateof the Nation, by 69 votes -- the total number cast by theelectors. At that time, three States did not vote. New York had notyet passed an electoral law, and North Carolina and Rhode Islandhad not yet ratified the Constitution. Therefore, of an estimatedpopulation of 4,000,000 people, a President was chosen by 69voters, who had not been selected by the people, but appointed byState legislatures, save in the instances of Maryland andVirginia."

Id., p. 4.

Hamilton expressed the philosophy behind the electoral collegein The Federalist No. 68.

"This process of election affords a moral certainty that theoffice of president will seldom fall to the lot of any man who isnot in an eminent degree endowed with the requisite qualifications.Talents for low intrigue and the little arts of popularity mayalone suffice to elevate a man to the first honors in a singlestate; but it will require other talents and a different kind ofmerit to establish him in the esteem and confidence of the wholeunion, or of so considerable a portion of it as would be necessaryto make him a successful candidate for the distinguished office ofpresident of the United States. It will not be too strong to saythat there will be a constant probability of seeing the stationfilled by characters preeminent for ability and virtue. And thiswill be thought no inconsiderable recommendation of theconstitution by those who are able to estimate the share which theexecutive in every government must necessarily have in its good orill administration."

Passage of the Fifteenth, Seventeenth, and Nineteenth Amendmentsshows that this conception of political equality belongs to abygone day, and should not be considered in determining what theEqual Protection Clause of the Fourteenth Amendment requires instatewide elections.

[Footnote 9]

Seenote 5supra.

[Footnote 10]

We do not reach here the questions that would be presented werethe convention system used for nominating candidates in lieu of theprimary system.

[Footnote 11]

Seenote 8supra.

[Footnote 12]

The county unit system, even in its amended form (seenote 3supra) wouldallow the candidate winning the popular vote in the county to havethe entire unit vote of that county. Hence, the weighting of voteswould continue even if unit votes were allocated strictly inproportion to population. Thus, if a candidate won 6,000 of 10,000votes in a particular county, he would get the entire unit vote,the 4,000 other votes for a different candidate being worth nothingand being counted only for the purpose of being discarded.

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

In joining the opinion and judgment of the Court, I emphasizewhat -- but for my Brother HARLAN's dissent -- I should havethought would be apparent to all who read the Court's opinion. Thiscase does not involve the

Page 372 U. S. 382

validity of a State's apportionment of geographic constituenciesfrom which representatives to the State's legislative assembly arechosen, nor any of the problems under the Equal Protection Clausewhich such litigation would present. We do not deal here with "thebasic ground rules implementingBaker v. Carr." This case,on the contrary, involves statewide elections of a United StatesSenator and of state executive and judicial officers responsible toa statewide constituency. Within a given constituency, there can beroom for but a single constitutional rule -- one voter, one vote.United States v. Classic,313 U.S. 299.

MR. JUSTICE HARLAN, dissenting.

WhenBaker v. Carr,369 U. S. 186, wasargued at the last Term, we were assured that if this Court wouldonly remove the roadblocks ofColegrove v. Green,328 U. S. 549, andits predecessors to judicial review in "electoral" cases, thisCourt in all likelihood would never have to get deeper into suchmatters. State legislatures, it was predicted, would be proddedinto taking satisfactory action by the mere prospect of legalproceedings.

These predictions have not proved true. As of November 1, 1962,the apportionment of seats in at least 30 state legislatures hadbeen challenged in state and federal courts, [Footnote 2/1] and, besides this one, 10 electoral casesof one kind or another are already on this Court's docket.[Footnote 2/2] The present case isthe first of these to reach plenary consideration.

Page 380 U. S. 383

Preliminarily, it is symptomatic of the swift pace of currentconstitutional adjudication that the majority opinion should havefailed to mention any of the four occasions on which Georgia'sCounty Unit System has previously been unsuccessfully challenged inthis Court.Cook v. Fortson, decided withTurman v.Duckworth,329 U. S. 675(1946);South v. Peters,339 U. S. 276(1950);Cox v. Peters, 342 U.S. 936 (1952); andHartsfield v. Sloan, 357 U.S. 916 (1958).

It is true that none of these cases reached the stage of fullplenary consideration but, in light of the judicial historyrecounted by Mr. Justice Frankfurter in his dissenting opinion inBaker v. Carr, supra, at372 U. S. 266,372 U. S. 278,only the guileless could fail to recognize that the prevailing viewthen was that the validity of this County Unit System was not opento serious constitutional doubt. [Footnote 2/3] This estimate of the earlier situation ishighlighted by the dissenting opinion of JUSTICES BLACK and DOUGLASinSouth v. Peters, supra, 339 U.S. at339 U. S. 277,in which they unsuccessfully espoused the very views which nowbecome the law. Presumably my two Brothers also reflected thesesame views in noting their dissents in theCox andHartsfield 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 bedeemed justified on the premise that their summary disposition canbe satisfactorily accounted for on grounds not involving themerits, I consider today's decision not supportable.

Page 380 U. S. 384

In the context of a nominating primary respecting candidates forstatewide office, the Court construes the Equal Protection Clauseof the Fourteenth Amendment as requiring that each person's vote begiven equal weight. The majority says:

"The conception of political equality from the Declaration ofIndependence, to Lincoln's Gettysburg Address, to the Fifteenth,Seventeenth, and Nineteenth Amendments can mean only one thing --one person, one vote."

Ante, p.372 U. S. 381.The Court then strikes down Georgia's County Unit System as such, aholding which the District Court declined to make. 203 F. Supp. at170.

The Court's holding surely flies in the face of history. For, asimpressively shown by the opinion of Frankfurter, J., inBakerv. Carr, 369 U.S. at369 U.S.301-324, "one person, one vote" has never been theuniversally accepted political philosophy in England, the AmericanColonies, or in the United States. The significance of thishistorical fact seems indeed to be recognized by the Court, for itimplies that its newfound formula might not obtain in a caseinvolving the apportionment of seats in the "State Legislature orfor the Federal House of Representatives."Ante, p.372 U. S.376.

But, independently of other reasons that will be discussed in amoment, any such distinction finds persuasive refutation in theFederal Electoral College whereby the President of the UnitedStates is chosen on principles wholly opposed to those now heldconstitutionally required in the electoral process for statewideoffice. One need not close his eyes to the circumstance that theElectoral College was born in compromise, nor take sides in thevarious attempts that have been made to change the system,[Footnote 2/4] in order to agreewith the court below that it

"could

Page 372 U. S. 385

hardly be said that such a system used in a state among itscounties, assuming rationality and absence of arbitrariness in endresult, could be termed invidious."

203 F. Supp. at 169.

Indeed, this Court itself, some 15 years ago, rejected, in acomparable situation, the notion of political equality nowpronounced. InMacDougall v. Green,335 U.S. 281, challenge was made to an Illinois law requiringthat nominating petitions of a new political party be signed by atleast 25,000 voters, including a minimum of 200 voters from each ofat least 50 of the 102 counties in the State. The claim was thatthe "200 requirement" made it possible for "the voters of the lesspopulous counties . . . to block the nomination of candidates whosesupport is confined to geographically limited areas."Id.at335 U. S. 283.In disallowing this claim, the Court said (id. at335 U. S.283-284):

"To assume that political power is a function exclusively ofnumbers is to disregard the practicalities of government. Thus, theConstitution protects the interests of the smaller against thegreater by giving in the Senate entirely unequal representation topopulations. It would be strange indeed, and doctrinaire, for thisCourt, applying such broad constitutional concepts as due processand equal protection of the laws, to deny a State the power toassure a proper diffusion of political initiative as between itsthinly populated counties and those having concentrated masses, inview of the fact that the latter have practical opportunities forexerting their political weight at the polls not available to theformer. The Constitution -- a practical instrument of government --makes no such demands on the States."

Certainly no support for this equal protection doctrine can bedrawn from the Fifteenth, Seventeenth, or

Page 372 U. S. 386

Nineteenth Amendment. The Fifteenth Amendment simply assuresthat the right to vote shall not be impaired "on account of race,color, or previous condition of servitude." The SeventeenthAmendment provides that Senators shall be "elected by the people,"with no indication that all people must be accorded a vote of equalweight. The Nineteenth Amendment merely gives the vote to women.And it is hard to take seriously the argument that "dilution" of avote in consequence of a legislatively sanctioned electoral systemcan, without more, be analogized to an impairment of the politicalfranchise 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 voterson purely racial grounds,Gomillion v. Lightfoot,364 U. S. 339.

A violation of the Equal Protection Clause thus cannot be foundin the mere circumstance that the Georgia County Unit Systemresults in disproportionate vote weighting. It "is important forthis court to avoid extracting from the very general language ofthe 14th Amendment a system of delusive exactness. . . ."Louisville & Nashville R. Co. v. Barber Asphalt Co.,197 U. S. 430,197 U. S. 434(Holmes, J.). What then remains of the equal protection claim inthis case?

At the core of Georgia's diffusion of voting strength whichfavors the small as against the large counties is the urban-ruralproblem, so familiar in the American political scene. In my dissentinBaker v. Carr, 369 U.S. at369 U.S. 336, I expressed the view thata State might rationally conclude that its general welfare was bestserved by apportioning more seats in the legislature toagricultural communities than to urban centers, lest the legitimateinterests of the former be submerged in the stronger electoralvoice of the latter. In my opinion, recognition of the same factorcannot be deemed irrational in the present situation

Page 372 U. S. 387

even though all of the considerations supporting its use in alegislative apportionment case are not present here.

Given the undeniably powerful influence of a state governor onlaw and policymaking, [Footnote2/5] I do not see how it can be deemed irrational for a Stateto conclude that a candidate for such office should not be onewhose choice lies with the numerically superior electoral strengthof urban voters. By like token, I cannot consider it irrational forGeorgia to apply its County Unit System to the selection ofcandidates for other statewide offices [Footnote 2/6] in order to assure against a predominantly"city point of view" in the administration of the State'saffairs.

On the existing record, this leaves the question of"irrationality" in this case to be judged on the basis of purearithmetic. The Court, by its "one person, one vote" theory, ineffect avoids facing up to that problem, but the District Court didface it, holding that the disparities in voting strength betweenthe largest county (Fulton) and the four smallest counties(Webster, Glascock, Quitman, and Echols), running respectively 8 to1, 10 to 1, 11 to 1,

Page 372 U. S. 388

and 14 to 1 in favor of the latter, [Footnote 2/7] were invidiously discriminatory. But itdid not tell us why. I do not understand how, on the basis of thesemere numbers, unilluminated as they are by any of the complex andsubtle political factors involved, a court of law can say, exceptby judicial fiat, that these disparities are in themselvesconstitutionally invidious.

The disproportions in the Georgia County Unit System are indeednot greatly out of line with those existing under the ElectoralCollege count for the Presidency. The disparity in population perElectoral College vote between New York (the largest State in the1960 census) and Alaska (the smallest) was about 5 to 1. [Footnote 2/8] There are only 15 Georgiacounties, out of a total of 159, which have a greater disparity perunit vote, and of these 15 counties, 4 have disparity of less than6 to 1. It is thus apparent that a slight modification of theGeorgia plan could bring it within the tolerance permitted in thefederal scheme.

It was, of course, imponderables like these that lay at the rootof the Court's steadfast pre-Baker v. Carr refusal "toenter [the] political thicket."Colegrove v. Green, supra,at328 U. S. 556.Having turned its back on this wise chapter in its history, theCourt, in my view, can no longer escape the necessity of coming togrips with the thorny problems it so studiously strove to avoid inBaker v. Carr

Page 372 U. S. 389

(see concurring opinion of STEWART, J., 369 U.S. at369 U.S. 265, anddissenting opinion of HARLAN, J.,id. at369 U.S. 339) and in two subsequentcases,Scholle v. Hare,369 U. S. 429,369 U. S. 430(concurring opinion of CLARK, J., and STEWART, J.),369 U. S.430-435 (dissenting opinion of HARLAN, J.);W.M.C.A., Inc., v. Simon,370 U.S. 190,370 U. S.191-194 (dissenting opinion of HARLAN, J.). To regardthis case as being outside the general stream of electoral casesbecause only two other States, Maryland and Mississippi, havecounty unit systems is to hide one's head in the sand.

What then should be the test of "rationality" in this judiciallyunfamiliar field? My Brother CLARK has perhaps given us a clue inthe legislative inactivity -- absence of any other remedy -- crazyquilt approach contained in his concurring opinion inBaker v.Carr, supra, at369 U.S.253-262. But I think a formulation of the basic ground rulesin this untrod area of judicial competence should await a fullydeveloped record. This case is here at an interlocutory stage. Thetemporary injunction before us issued upon a record consisting onlyof 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 ofcommon knowledge and public concern." 203 F. Supp. at 160, n. 1. Nofull-dress exploration of any of the many intricate questionsinvolved in establishing criteria for judging "rationality" tookplace, the opinion and decree below issued the day following thehearing, and the District Court observed that, while its standardsof equal protection (which this Court now puts aside) "may appeardoctrinaire to some extent," it was constrained to act as it didbecause of the then (but no longer existing) [Footnote 2/9] urgency of the situation. 203 F. Supp. at170.

Page 372 U. S. 390

Surely, if the Court's "one person, one vote" ideology isconstitutionally untenable, as I think it clearly is, the basicground rules implementingBaker v. Carr should await thetrial of this or some other case in which we have before us a fullydeveloped 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 thebarriers between federal judicial and state legislative authoritydemands nothing less.

I would vacate the judgment of the District Court and remand thecase for trial.

[Footnote 2/1]

Advisory Commission on Intergovernmental Relations, Report onApportionment of State Legislatures, December 1962, p. A-21. I havebeen informed by the Administrative Office of the United StatesCourts that, by December 31, 1962, over 25 suits had been filed inthe federal courts alone.

[Footnote 2/2]

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,Davisv. Mann.

[Footnote 2/3]

Although the Solicitor General, asamicus, suggeststhat the Court's action inSouth v. Peters rested simplyon a refusal to exercise federal equity power, it should be notedthat the first case cited in the Court's per curiam affirmance isMacDougall v. Green,335 U. S. 281.See infra, p.372 U. S.385.

[Footnote 2/4]

See Wechsler, Presidential Elections and theConstitution: A Comment on Proposed Amendment, 35 A.B.A.J. 181(1949).

[Footnote 2/5]

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 StateGeneral Assembly, issue writs of election to fill vacancies in theGeneral Assembly, veto or approve bills and resolutions, andrequire 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 warrantissued by the Governor, Ga.Code Ann., § 40-204, and in the event ofa public emergency the Governor is authorized to promulgate andenforce such rules and regulations as are necessary to prevent,control, or quell violence, threatened or actual, Ga.Code Ann., §40-213.

[Footnote 2/6]

Those involved in this case, besides Governor, are United StatesSenator, Lieutenant Governor, Secretary of State, Justice of theSupreme Court, Judge of the Court of Appeals, Attorney General,Comptroller General, Commissioner of Labor, and Treasurer. TheGovernor 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.

[Footnote 2/7]

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

[Footnote 2/8]

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

[Footnote 2/9]

^9. Following the District Court's injunction, a statewidedirect primary was held.