GRAY v. SANDERS

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Argument of B. D. Murphy

Chief Justice Earl Warren: Number 112, James H. Gray as Chairman of the Georgia State Democratic Executive Committee et al., Appellants, versus James O'Hear Sanders.

Mr. Murphy.

Mr. B. D. Murphy: Yes, Your Honor, may it please the Court.

This is an appeal from a decision by a three-judge District Court which held unconstitutional Georgia's statute describing the county unit system of nominating a party of candidates for state offices and enjoining the party of authorities against holding the primary of 1962 or any primary under a county unit system.

The history of the county unit system of Georgia is set forth to some extent in the opinion of the Court.

The law is also stated to some extent in the briefs of counsel.

It may be worthwhile for me to state it here as briefly as I may.

Georgia, of course, is one of the original 13 states.

When it became a state, it consisted mainly in a few certain areas along the Atlantic coast.

I've forgotten how many counties we had at that time.

Well, I think it was six or seven.

The state officers were elected by the legislature.

The Constitution assigned certain num -- a certain number of representatives to each county.

I think Liberty County had 14.

Some of the other counties had two, some had four.

The town in Port of Savannah had two that represent that trade.

The town in Port of Sunbury had two to represent that trade.

That was the legislative body.

As I say, the legislative body elected the county -- the state officers.

We had no election of governor by the people until 1823.

Early in the history of the state -- the political history of the state, the county's unit system of nominations developed.

It started by caucuses in the legislature, members of the legislature who belong to the Democratic Party would get together and nominate their candidate for governor.

In the same manner, the members of the Whig Party and the legislature would get together and nominate the Whig candidate for governor.

Gradually, they began to invite to those caucuses members of the party from counties that were represented in legislature by the opposite party.

The Whig members would invite democrats from -- or invite Whigs from counties who didn't have Whig representatives and the democrats would do the same thing.

Our convention system of nomination grew out of that.

We never had any direct primaries in Georgia until about 1890 and I think the direct primaries in Georgia grew out of the probably the strength of what was then known as the Populist Party.

The final election of the officers for the state had been -- have always, since election by the people was inaugurated about 1823 by a majority vote of all the voters.

The legislature meets and canvasses the vote and declares the person having the majority of all the votes to be the governor or the state -- Secretary of the State as the case may be.

And, if nobody is elected, they have a -- the legislature proceeds to elect a governor from the -- either the two or three highest.

We had a situation of that sort in 1946 when the governor-elect died before the time came to inaugurate and the legislature elected from some write-in candidates, and the Supreme Court held they couldn't do that and if the old governor continued to hold office and he hadn't resigned, the lieutenant governor-elect was to be the governor until there could be an election.

That, of course, has nothing to do with this particular question.

But I say, the county unit system developed in that way.

Finally, they began to have direct primaries for the election.

They first began to have primaries for the election of delegates to the conventions.

Then, they began to have -- some of the delegates were elected by mass meetings.

Your Honors will find a complete history of the county unit system in the report of the case of Turman against Duckworth in the 68 F.Supp. 744 which was the first county unit lawsuit we had.

The practice was entirely a party practice.

There was never any law on the subject and the convention was the final nominating authority until the adoption of the Neill Primary Act of 1917.

Prior to that time, delegates were, although committed to the man who -- candidate who carried their county, did not always vote in a conformity without amendment and frequently there were convention fights.

The one which produced the Neill Primary Act, so-called, was in 1914 when there were three candidates for the United States Senate and neither of them had a majority of the county unit votes.

And, that was a convention contest which lasted a number of days and was finally resulted in a nomination of Senator Thomas W. Hardwick who was not the leading candidate in the vote of the people.

The legislature passed the Neill Primary Act in 1916.

Incidentally, it's named for Cecil Neill who was the Speaker of the House of Representative of Georgia at that time and who came from one of the city counties, Muscogee.

Well, it was vetoed by Governor Harris, who was then governor of Georgia and who also came from one of the city counties, Bibb.

It was reenacted in 1916 and near 1917, and it was then approved by the new governor.

The Neill Primary Act made no substantial change in the nominating process.

It does not require primaries.

It never has required primaries.

It does not abolish conventions, but it provides that whenever a dem -- a political party has a primary, the person -- the candidate for any office who carries -- gets the most votes in the county, it's in plurality of votes and it's still a plurality not a majority, is entitled to the unit votes of that county on the county unit basis and that the candidate who gets the majority of all of the county unit votes is entitled to the nomination, and that can be ascertained and declared without a formal convention vote.

Incidentally, in some years when there's another -- it's not the year the elected governor don't even have a convention in Georgia.

The Democratic Party does.

Always in the convention, the Democratic Party and the Democratic Conventions -- so far as I know, the Republican parties never had one in Georgia.

Always in the Democratic Conventions, each county is entitled to two votes for each member in the Lower House of the General Assembly.

Georgia has, now, 159 candidates.

It had a 137 in 1877 when the Constitution of 1877 was adopted.

The -- it has what is called a 3-2-1 ratio of legislative representation in the House of Representatives.

The eight largest counties have three representatives.

The next 30 have 2 and the rest have 1.

As I say always, in the convention and in computing the nominating units on the county unit system, the counties have had two votes -- each county has two votes for each member of the House of Representatives to which the county is entitled.

That is -- that was the party practice before the Neill Primary Act was enacted and it has been the party practice and the provision of the Neill Primary Act since that time.

Justice Potter Stewart: General Murphy, this case doesn't involve at all, at least certainly doesn't involve directly, that the system under which your 3-2-1 – your 3-2-1 system for election of the State House Representative?

Mr. B. D. Murphy: It's not involved in this case at all, except that that was, until an amendment of 1962, the method whereby Union votes were allocated to the various counties.

Justice Potter Stewart: Well, it was derivative.

It was derived from that.

Mr. B. D. Murphy: This is from the county --

Justice Potter Stewart: But this --

Mr. B. D. Murphy: -- from the representation of the Lower Houses of the General Assembly and that had always been the rule.

Justice Potter Stewart: I just want to be sure in my -- so I can understand the argument as we go on that we're not -- that there's not involved here legislative apportionment as such at all for your state legislature.

Mr. B. D. Murphy: The apportionment as such.

Now, I say, in 1877, we had 137 counties in Georgia.

We may have too many but they all created by the Constitution.

And, that Constitution provided there should be no more.

In 1903 or 1904, they amended the constitution.

The legislature amended it and proposed it to the people.

The people ratified it to add -- bring the number of counties up to 145, and enough additional counties were created to bring the number of counties up to 145.

It has not always been the eight highest with the three representatives but that's the way it is now and was cite one time, it was 6, and 26 in one.

And, the -- since that time, a number of counties had been three which brought the total, at one time, up to 161.

Each one of those counties was created by separate constitutional amendment proposed by the General Assembly and ratified by the people at the general election.

Sometime ago -- some years ago, two of the counties have been created many years before were merged with Fulton County.

Those were Camilla and Milton, I believe.

So, now, we have 159 counties.

The Neill Primary Act, that I said a moment ago, didn't changed the county unit system as it had been followed by the party up until that time.

It did provide that the convention couldn't change the result of the primary as respects to right of a candidate who got the most votes in a particular county to the vote of that county on the unit basis and provided that nobody was part of the majority of the county unit votes for governor or United States Senate, that should be a run-over primary between the two highest candidates for those two officers alone.

And all the other state officers, the candidate with the most county unit votes, the plurality county votes was to be the nominee.

The can -- the Neill Primary Act does not apply to the congressional district primaries.

It leaves to the determination of the congressional committee or to the executive committee of the party in the district, whether or not it will have a primary on a popular vote basis or on a county unit basis.

But, if it is held on a county unit basis, then the unit votes to which the county -- which each county would be the entitled would be the same as fixed in the Neill Primary Act, that is two for each representative in the Lower House in the General Assembly.

In 1946, the first suit challenging the validity of the Georgia county unit system was filed in a three-judge court in the Northern District of Georgia.

That was filed by Mr. -- Mrs. Turman against the Chairman of the State Democratic Executive Committee.

There was a companion case filed by Cook, a man named Cook, against the Secretary of State which related to the Fifth Congressional District of Georgia.

It so happen that in 1946, the governor of the c -- the democratic candidate for governor who received the highest number of unit -- the majority of unit votes did not receive the highest number of popular votes.

He didn't -- there were two candidates and the man who got the highest number of unit -- majority of unit votes was the second in popular vote.

And, that brought about the case of Turman against Duckworth.

That was heard before a three-judge court and the three-judge court have decided against the plaintiffs there and it was appealed to this Court.

The appeal here was dismissed.

I don't want to take to go into whether or not this Court dismissed the appeal because they were moot or for any other reason.

The record shows what happened.

That was shortly after the decision of this Court in the case of Colegrove versus Green from Illinois.

In 1915, there was another suit brought in the United States District Court for the Northern District of Georgia by a Mr. South and his associate whose name I've forgotten.

That was the case of South versus Peters, Mr. Peters being then challenged in the State Democratic Executive Committee.

That was tried before a three-judge court composed of Judge Sibley, Judge Andrews, and Judge Hope.

And, I say Judge Hope or Judge Sibley because he was then the senior judge, I think, of the Fifth Circuit Court of Appeals and, we think in Georgia, a very able judge.

Judge Sibley wrote a very strong opinion upholding the county unit system and it's set forth in the case -- in that case in the 89 F.Supp., at 672.

I will not undertake to read it, but he goes into the history of the county unit system again, as he had done earlier in Turman versus Duckworth.

That case was also appealed to this Court and it was, here, as I read the decision of this Court, affirmed.

In the meantime, MacDougall versus Green had been decided by this Court.

Justice Arthur J. Goldberg: (Inaudible)

Mr. B. D. Murphy: Your Honor, I thought that the -- I'll be glad to look at it and refresh my recollection, but I thought that the judgment of the three-judge court was affirmed by this Court.

Justice Arthur J. Goldberg: It was, but (Inaudible)

Mr. B. D. Murphy: Well, it may have been.

If so, it may be that the late -- the last case, Baker versus Carr, answers those questions.

Now, the next case that we had was in the Supreme Court of Georgia.

That was the case of Cox versus Peters.

That case was dismissed on demurrer by the trial judge in the Superior Court of Meriwether County, and that dismissal was affirmed by the Supreme Court of Georgia and that appeal was dismissed in this Court for warrant of a substantial federal question.

The next attack on the county unit system was a suit brought in the United States Court for the Northern District of Georgia by Mayor Hartsfield of Atlanta against the Chairman of the Democratic Executive Committee and others which the trial judge dismissed and refused him to empanel a three-judge court.

And this Court did not allow an appeal from that decision.

So, the Justice thought that a rule to show cause should be issued, but it was not issued and that appeal was not granted.

Now, that ended the litigation about the Georgia county unit system until the decision of this Court in Baker versus Carr.

We had a new suit in the Northern District of Georgia which was heard by a three-judge court and that's the case we have here.

Justice Potter Stewart: Do these cases, maybe you've told us and I don't need -- we don't need to know in detail, but do these cases all involve the same issue that's involved here, that is the election of statewide executive and judicial officers or --

Mr. B. D. Murphy: Yes.

Justice Potter Stewart: -- or were some of them de -- were some of them an attack on the legislative apportionment system?

Mr. B. D. Murphy: None of them was an attack on the legislative apportionment.

Justice Potter Stewart: They were all --

Mr. B. D. Murphy: They --

Justice Potter Stewart: They were all of a piece of the kind of litigation we have before us now.

Mr. B. D. Murphy: That's correct.

As a matter of fact, I think, the petition in this case was copied almost verbatim from South versus Peters.

It was filed on the same day of the decision in Baker versus Carr.

I will say that in South versus Peters, the election involved there -- the election in 1950, I think it was 1950, also involved the election for the nomination of the United States Senate.

Now, this case was filed and immediately after Baker against Carr.

I don't think it's improper to say.

That was, of course, a great deal of conversation among Georgians, Georgia politicians about the effect of that decision and there were numerous conferences on the subject, and the legislature was called into extraordinary session.

It was actually an extraordinary session at the time of the hearing in the court below in this case.

As a matter of fact, it passed and the governor approved on -- the judgment in this case was -- or the hearing was concluded.

I'm not sure whether judgment was entered on that day or the next day.

The governor approved a statute which amended the Neill Primary Act and these respects, I said a little while ago we have 159 counties in Georgia, and the new Act allocated unit votes to the various counties in accordance with the bracket system that's set forth in the Act and is in the, I think, in the briefs and is also in the opinion of the Court.

No longer was the number of votes of the county -- number of unit votes to which the county was entitled based twice than the number of the representatives in the lower House to give us in.

The Act provides, new armies will have it, that all counties with the population of less than 15,000 shall have 2 unit votes.

Counties with a population between 15 and 20 or 25, I'm not sure which, will have 3 and so on.

Finally, it gets up to a bracket where they allocate additional votes at the rate of 2 for each 15,000 additional population.

Under the county unit system, as it was enacted by that statute, Fulton County which had 6 unit votes under the old system and now has 40.

No county has less than two, however small the population may be.

The Court of -- the three-judge court held that this new -- that the Neill Primary Act, as amended by the Act of 1962, was unconstitutional because it was invidiously discriminatory against people who lived in -- against the plaintiff and others similarly situated, if they have been a resident of Fulton County.

I overlook, saying that the new Act provides that, in order to be nominated in the first primary, the candidate must receive not only a majority of the county unit votes but a majority of the popular votes.

And, if he does not receive a majority of the county unit votes and no county receives a majority of the county unit votes and a majority of the popular votes, there's a run-over primary between the candidate receiving the greatest number of county unit votes and the candidate receiving the greatest number of popular votes.

Unless, it so happens that the candidate will receive the greatest number of county unit votes, also received the greatest number of popular votes, but not a majority of either or both.

Then, it run-off is between the candidate with the highest number of county unit votes and the candidate with the highest number of popular votes but, in that run-off primary, the candidate who receives the majority of the most county unit votes, without being a majority because there'd be only two, is declared the nominee.

There was this additional change in the nominating process that, as respects, officers -- candidates for officers, other than governor and United States Senate, the same rule applies of requiring the majority, both the county unit vote and the popular vote.

And, if there is no majority of both, then the two highest candidates would have to run again.

Now the --

Justice Potter Stewart: That happens with the one who got the highest unit votes when --

Mr. B. D. Murphy: The one who gets the highest unit --

Justice Potter Stewart: -- unit votes?

Mr. B. D. Murphy: Of course he has to have a majority because there's going to be two.

Justice Potter Stewart: A majority of the units?

Mr. B. D. Murphy: Majority of the units.

He's entitled to nomination.

I say it makes that change in the nominating process, as embodied in the Neill Primary Act.

The Neill Primary Act requires only plurality of county unit votes of candidates other than the governor and United States Senate.

Whereas, this Act, as I read it, requires the same sort of majority for all the candidates than it does for governor and United States Senate.

Now, the Court in this case said that this Act was invidiously discriminatory and it set forth its definition of invidious discrimination in the opinion and enjoined the Secretary of State, who was the state official who handles elections and putting in the voter's name on the ballot with the general election who is nominated under the Act or by virtue of the county unit system.

Now, enjoined the party authorities from holding any primary in 1962 or any other time.

Under any county unit system, unless it was such a county unit system as it would not be invidiously discriminatory under the opinion that was filed by the Court in this case.

As I read that opinion, it provides that the county unit system will not be invidiously discriminatory if it allocates unit votes to counties on a basis of population or if it allocates unit votes on the basis of – on the law of equal proportion that relates to the assignment of the representatives in Congress and will not be discriminatory if -- but it provides that no discrimination will be deemed invidious if there's no greater discrimination against any county than there is against the laws -- against any state in the assignment of electoral votes at the last election for president and vice-president of the United States.

I'm not sure that I know where that theory would lead Georgia with reference to the assignment of county unit votes.

Justice Potter Stewart: The position of the government of that part of the Court's opinion and decree should be excised.

Would you agree that it was perhaps unnecessary to the decision of this case no matter how it was decided, whether it was decided --

Mr. B. D. Murphy: Well, if you -- if this Court holds that the Neill Primary Act is unconstitutional for --

Justice Potter Stewart: That's really all that's before us, isn't it?

Mr. B. D. Murphy: No, sir.

It's not all that's before here.

There's also before you the question of whether or not the Democratic Party in Georgia, without any state law.

Justice Potter Stewart: Well, that yes, that's before us.

Mr. B. D. Murphy: They can hold a primary on a county unit basis.

Justice Potter Stewart: But, it -- but, there is not before us any other alternative system, is there?

Mr. B. D. Murphy: No, sir.

There's been -- none has been adopted.

As a matter of fact, when this case was handed down, the State Democratic Executive Committee met and revised its rule so as to provide for a popular vote and the primary then was held in September 1962.

Justice Potter Stewart: No stay was requested in this Court, was there?

Mr. B. D. Murphy: No stay was requested in this Court.

Justice Potter Stewart: There was a stay requested in --

Mr. B. D. Murphy: But there was denied in the court below, and I don't -- now, as I say, if the Court holds that the Neill Primary Act, as amended, is unconstitutional, as did the trial court, then the next question is what can the Democratic Party in Georgia do about it?

Under this decree, it can hold a democratic primary on a county unit basis, to hold it only on a popular vote basis, although it may if the Court permits this formula that was set forth by – for the court below to stand.

It may hold the primary on the county unit basis, provided it meets the requirements of the Court's idea about what will not be invidious discrimination.

Now, it's the position of the appellants here as stated in our brief and is -- I think we stand upon that the county unit system, as it existed in Georgia at the time of the amendment of the Act of 19 -- the Mandatory Act of 1962 and, as it now exists, is that and represents a proper exercise of legislative power by the state.

Of course --

Justice John M. Harlan: It did not strike -- the Court did not strike down the money as such, did it?

Mr. B. D. Murphy: No, sir.

It struck down the Act we had.

Justice John M. Harlan: Yes.

Mr. B. D. Murphy: And said you could have one if you -- the party could hold -- of course the party -- the Act, being unconstitutional, is left to the party but the party did not know and take the word out.

The -- a system that would be in conformity with the Court's opinion, the party simply reverted to the majority vote and the last election was held on majority vote basis.

Now, we needed to have a reapportionment here.

So, that's not on its way up here because we had -- as a matter of fact, the Court never have granted appeal to judgment and express this --

Justice Byron R. White: Mr. Murphy, you don't -- do you contend that the -- that, without there being a state Act which had been set aside, you say the party did something or you -- is there any part of your argument that the state action would -- would --

Mr. B. D. Murphy: I don't think so, Your Honor.

Justice Byron R. White: Or do you think that the record --

Mr. B. D. Murphy: I think that Baker versus Carr answers that question that this Court can deal with what I'm trying to say here that, where the Act --

Justice Byron R. White: That's the primary.

Mr. B. D. Murphy: Sir?

Justice Byron R. White: That's the primary.

Mr. B. D. Murphy: This is a primary, yes.

Justice Byron R. White: This is a primary and it's a party primary.

Mr. B. D. Murphy: It's a party primary, yes.

Justice Byron R. White: No -- you raise no question about it being a state action?

Mr. B. D. Murphy: No, sir.

We raise no question about it being state action.

I think we have passed all that questions.

I think this Court is --

Justice Byron R. White: Or any question about the case being moot?

Mr. B. D. Murphy: It would be moot if it related only to the 1962 election, but the judgment of injunction is broad and sweeping.

It's enjoined this forever against holding a primary under county unit basis under the county unit system unless we do it according to what the Court says would not be invidiously discriminatory.

Justice Byron R. White: Well, would you tell me how the -- why this is state action?

Mr. B. D. Murphy: Why it is a state action?

Justice Byron R. White: Yes.

Let's assume there was no statute whatsoever stated in your argument relating county unit, but there's the party rule only.

Mr. B. D. Murphy: Well, I think it is -- we would contend --

Justice Byron R. White: After all, the party was the one who decided to hold a popular --

Mr. B. D. Murphy: That's correct.

That's correct.

I think, under the decision of this Court, this Court will hold this at state action, and I don't mean to say by that but I agree with it but I say my point --

Justice Byron R. White: Now, what --

Mr. B. D. Murphy: -- in trying to flog the dead horse on that question.

Justice Byron R. White: What decisions are those?

Mr. B. D. Murphy: Terry against Adams and these other cases, the classic case.

I wouldn't say that -- the law of Georgia doesn't require primary.

It doesn't require primary for any purpose and the Neill Primary Act, as it existed before the Court struck it down as unconstitutional, unless we can get to this Court to reverse it, doesn't require a primary.

Justice Byron R. White: I suppose then if the primary is state action, so is the convention.

Mr. B. D. Murphy: That's the contention on the other side and I think that's what this Court decided and I don't think --

Justice Tom C. Clark: Well, it's the only where the state is predominantly what party, where the Pentagon has an election.

Mr. B. D. Murphy: Well, that exact question was that where Judge Sibley in -- the only time is have been considered, I think authoritatively, was by Judge Sibley in South against Peters and he said it was not equivalent to election.

Justice Hugo L. Black: He said what?

Mr. B. D. Murphy: That it was not equivalent to election, the democratic nomination.

Justice Tom C. Clark: We have several times it was -- I think, have used the word “tantamount to election.”

Mr. B. D. Murphy: Yes.

Justice Tom C. Clark: In the Jayberg --

Mr. B. D. Murphy: Well, in the Jayberg, I don't know whether the Court might review that situation again in view of the fact that there is an elected republican senator in Georgia and we've got a republican senator in the state senate who was elected in November.

Justice William J. Brennan: Mr. Murphy, now that you've tried the popular primary, are you suggesting that the party would like to return, nevertheless, to the --

Mr. B. D. Murphy: To the county unit system?

Justice William J. Brennan: County unit system.

Mr. B. D. Murphy: Well, we think that the county -- the Democratic Party of Georgia would have a right to adopt any method of nominating its candidates if it sees prompt.

Justice William J. Brennan: Without suggesting that it intended to return.

Mr. B. D. Murphy: How is that?

Justice William J. Brennan: Without suggesting that it intended to return.

Mr. B. D. Murphy: Yes sir.

I have no idea as I'm not a member of the State Democratic Executive Committee and I don't know how or what the next committee will do.

I will say this, the only time that the dominant political factor in Georgia heretofore has changed from the county unit system was 1908, I believe, when Governor Hoke Smith who, by which of being a governor was well dominating the Executive Committee, reverted to the popular vote plan and abandoned the county unit system and he was very silently defeated for that reason, and since then, they've been back on the county unit basis.

Now --

Justice Byron R. White: But, would you say that if the party decided to nominate by a convention, that -- and that the convention was organized on the same basis as the -- on the county unit basis, that we have a state action in this case?

Mr. B. D. Murphy: Well, I don't think you would and I think if the Democratic Party want to have a state convention to nominate its candidates, it ought to be allowed to do so and I think it could do so, most of the other states could.

Justice Potter Stewart: Now, wouldn't it -- would it or would it not be allowed to do so under the outstanding injunction?

Mr. B. D. Murphy: I think, probably, it would, Your Honor.

Justice Potter Stewart: That's what I think, too.

Mr. B. D. Murphy: The outstanding injunction enjoining them against holding any primary.

Justice Potter Stewart: It just relates to primary, is it not?

Mr. B. D. Murphy: It just relates to primary.

Justice Potter Stewart: I suppose, under that injunction, a Democratic Party, if it wanted to, could have a dozen party leaders meet in the smoke-filled room and nominate all your statewide officials.

Mr. B. D. Murphy: Well, that's what the republicans do in Georgia.

Justice Potter Stewart: Well, that's all the republicans in Georgia, I suppose.

Mr. B. D. Murphy: I think -- I didn't mean to be facetious, Your Honor.

Justice Potter Stewart: I know you weren't and I wasn't -- well, we both were a little bit.

Justice Hugo L. Black: Well what's the -- what's the republican run-off?

Mr. B. D. Murphy: Well, Your Honor, they nominate the candidate for governor.

I mean, it's in this record.

I suppose the only man who knew about it was Judge Tuttle who happens to be a republican, and he set out in this record in outlining the history of the Georgia politics and the Georgia county unit system how it is that -- in the opinion of the Court, how it is that they nominate candidates, the republicans nominate candidates.

And, they have a county unit system.

It's sort of like ours.

But, he says that the Republican Party of Georgia, although judiciary it is probably not action normally anyone from the statewide office during this century, uses a convention system for nominating for state office and presidential election here.

The convention also selects a State Central Committee which has the power to nominate candidates between quadrants of conventions which are held during presidential election here and its elect meets the county at mass meetings to the state and the primary toll in Georgia.

Justice Potter Stewart: Well, I -- General Murphy, going back to Justice White's and my inquiry, in your opinion, it would not be a violation of this injunction if the democratic party in Georgia decided to have a few party leaders and nominate the state officials, would it?

Mr. B. D. Murphy: I don't think so.

I don't know how well it had to find election is to do it that way --

Justice Potter Stewart: Well, it's been a q --

Mr. B. D. Murphy: But I don't think it would be a violation of this injunction.

I started to say that the republican quite operates that way in Georgia and did nominate a candidate for governor in 1962 and he qualified by getting a requisite number of signatures on his nominative petition.

Justice Arthur J. Goldberg: (Inaudible)

Mr. B. D. Murphy: Well, I don't know of any case in Georgia where a republican or any other party has not elected a candidate for state office since I have been old enough to vote.

I, again, remember back to reconstruction but the only reason that the Democratic Party elects the state officer -- of course, that's the way the people vote in the final election in November and he has to get a majority of all the votes cast.

Ordinarily, he doesn't have any opposition.

I agree that that's true, but the only reason why that is so is because that's the way the people vote and, this year, there would've been a republican candidate who would've polled a very substantial vote.

The Republican Party got about 35 -- between 35% and 40% of the votes in 1960 for in the presidential election.

And, Mr. -- the candidate, unfortunately, was killed in an automobile accident and didn't get to make the race, but they did nominate a very fine --

Justice Hugo L. Black: I can understand that you have raised any -- asked us to overrule or reconsider Smith and Allwright?

Mr. B. D. Murphy: No, sir.

Justice Hugo L. Black: -- or Terry versus Adams.

Mr. B. D. Murphy: No, sir, we have not.

We have not.

Justice Hugo L. Black: And then your vote said that this was state action, did it not?

Mr. B. D. Murphy: Yes, sir, and we are not undertaking to reargue those questions, that is this difference, I think, in classic case and in the Allwright case that, in those cases, the primary was required by the law in the County in Georgia.

Chief Justice Earl Warren: We'll recess now.

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Argument of E. Freeman Leverett

Chief Justice Earl Warren: Mr. Leverett.

Mr. E. Freeman Leverett: Chief Justice and may it please the Court.

I would like to make one or two full remarks with regard to one or two questions or rather one of two matters that Mr. Murphy touched on.

That has referenced to the evolution of the county unit method of nominations insofar as in 1917, it was enacted into law.

I think Mr. Murphy made it clear that the -- the basis for that enactment into law was the fact that at that time, under the party rule, there was no provision for a run over primary in the event that one candidate for Governor or Senate failed to receive a majority of the unit vote.

And it was this convention juggling and convention nomination that led to the incorporation of the county unit method into law.

It was not as an unfounded statement, we say in the appellee's brief would have that it was tied in with any scheme to disfranchise Negroes.

It was instilled and stirred or inspired solely as we see it from the desire of the people to prevent convention nomination.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: That --

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: That is -- that is a consequence of it both before and after it was put into laws.

I will come to that momentarily --

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: That is correct sir.

At the outset, I would like to state this that we think, do not contend otherwise that Baker versus Carr has settled all questions of justiciability, standing to sue in jurisdiction.

We make no issue of that.

At the same time, we do say this, that there is still remains an area, under the Fourteenth Amendment in which the State is accorded a wide latitude of discretion and with respect to which no court should undertake to substitute its judgment.

To that extent, there are still areas that are non-justiciable once you get past the initial question.

Before getting into the merits of what we think are the applicable Fourteenth Amendment standards in this case, I would like to discuss briefly one question which the appellee raises, which if he is correct of course would dispose of this case and that is that there is -- that it's unconstitutional to have any weighting at all in an electoral system.

The appellee says that representation is a shared right and consequently some weighting, some inequality is necessary due to interim shifts in population and that sort of thing.

On other hand, he says that voting is not a shared right, and therefore, there can be no weighting.

We think that this cannot withstand analysis.

The Governor and other executive department officers represent the citizen in the execution of the laws, just as represented -- represent the people in the making of the laws.

And, neither the legislative apportionment case or in the case of the judiciary and we elect our judges in Georgia or in the case of the executive, the voter votes individually.

No one else participates or shares in the casting of that vote and that's true in the legislative case.

Now, what happens after his vote is cast and after it has been tabulated, the influence of the effect that is given to that vote is necessarily weighted because he obviously cannot exist in a vacuum.

There are other people to be considered whose votes also have some influence in a way.

Justice Byron R. White: Mr. Leverett, you are suggesting then that -- that if the -- if the legislative question were here along with the county unit question, the apportionment of the State legislature and the measure was the same in each case that you should get the same answer here in this Court?

Mr. E. Freeman Leverett: Indirectly, I think so.

If this juncture primarily --

Justice Byron R. White: That must be the -- that must be the result of your argument?

Mr. E. Freeman Leverett: At this juncture, I am primarily refuting an argument that is advanced in the brief of the appellee to the affect that --

Justice Byron R. White: And also making the contrary argument?

Mr. E. Freeman Leverett: That is correct sir.

That's correct.

Justice Byron R. White: And the --

Mr. E. Freeman Leverett: Now, as to a legislative representative, the total legislative power is shared by the allocation of one or more members of a multi-unit body or collegiate body by the allocating of one of more of those numbers to particular areas.

And under the electoral arrangement involving the executive of the judiciary, you don't have a number of people to be shared by allocating one out to each.

You only have one individual, the Governor or the particular judge or the other State House office and the sharing necessarily has to take effect in a different manner.

So, in that case, as in the case of the election of the President, under the electoral college which the sharing is done by the allocation of units rather than by the allocation of individual representatives.

Justice Potter Stewart: The difficulty with your argument so far as I'm concerned and as I understand it tentatively is this -- let's take the case of the United States Senator.

The Constitution of the United States itself provides what -- what district, what territory, what sovereignty is going to elect a United States Senator and that is the sovereign state of the United States, so you -- that -- that is predetermined.

We don't have here, in the case of an election of the United States Senator any problem or any choice of the State to divide up the district?

Mr. E. Freeman Leverett: We aren't contesting its argument that it can.

We are arguing that it is --

Justice Potter Stewart: It's not a matter of districting --

Mr. E. Freeman Leverett: No.

Justice Potter Stewart: -- when it comes to it because this is -- this has all been decided in the Constitution of United States, it's the State that's the unit.

Mr. E. Freeman Leverett: The State is the unit, that's correct sir, (Voice Overlap).

Justice Potter Stewart: And the State elects the United States Senator?

Mr. E. Freeman Leverett: Well, that is -- that's true in Georgia.

We don't district the State for purposes of electing Senators.

We have devised the unit system for the purpose of dispersing electoral power, but we do not draw any district alliance from the standpoint of -- of people we (Voice Overlap) --

Justice Potter Stewart: I -- I'm just suggesting that to me unlike my Brother White's suggestion as I got it from his question that this a quite a different case from a legislative apportionment case?

Mr. E. Freeman Leverett: There are differences, that is correct sir, but we say this that if it's constitutionally permissible to have any weighting of votes with regard to legislative representation beyond the de minimis weighting that inevitably flows due to population shifts, that it necessarily should follow, that you can have the same thing with reference to a statewide office as a Governor or a judge, it's -- it's granted, it has to be accomplished, the -- the form as the --

But the basic underlying proposition is that if there can be weighting as to one like what is there to say that you cannot have weighting as to the other.

The Fourteenth Amendment draws no such distinction.

Justice Potter Stewart: But I'm just suggesting that the problem is different?

Mr. E. Freeman Leverett: I think that would follow.

Chief Justice Earl Warren: It's your position (Inaudible)

Mr. E. Freeman Leverett: That what -- what feature of it, please?

Chief Justice Earl Warren: The question of weighting the votes.

Mr. E. Freeman Leverett: Our -- our position will be that --

Chief Justice Earl Warren: You say that's a -- that's a --

Mr. E. Freeman Leverett: That it's Constitution --

Chief Justice Earl Warren: -- situation the Court must stay out of it, isn't -- do you think it is not a justiciable question?

Mr. E. Freeman Leverett: I think that it's not constitutionally impermissible.

Now, I think you -- it's justiciable to the extent that you get into the area and you go to a certain point, I will come to that momentarily and if I haven't answered your question --

Chief Justice Earl Warren: Well --

Mr. E. Freeman Leverett: -- please stop me but it would --

Chief Justice Earl Warren: Right, (Voice Overlap) --

Mr. E. Freeman Leverett: A little ahead of myself on this point.

Chief Justice Earl Warren: Go right ahead.

Mr. E. Freeman Leverett: Now, in the court below, as did the two courts in the South and the Turman case did not accept this attempted distinction.

They said this, it relied upon MacDougall versus Green, they said, “We do not strike the county unit system as such.

We do strike it in its present form and cited references to the permissibility of weighting the votes.”

In the Justice Department, I don't think either accepts this attempted distinction.

They referred to it and say that there probably are some differences, but they end up saying that we don't have to decide that here and then they go all up on (Inaudible) involving burden of proof and end up postulating two standards that they say should apply in these cases.

I will come to those also momentarily.

However, the Government does concede that if you had a situation where there was not a direct election of a statewide official such as you had years ago with regard to governors in many states that you probably could have weighting there.

We say that that is exactly what this is because the county unit system, as devised, with regard to units, its simply a substitution for this collegiate body that, theretofore had done the electing and that is the convention, to nominate not to elect.

Now, that brings me to what we think are these proper standards in this case and I think it would also follow in a legislative apportionment case.

Justice Arthur J. Goldberg: Mr. General, when you're arguing (Inaudible)

Mr. E. Freeman Leverett: Yes sir.

Justice Arthur J. Goldberg: In other words, you clearly mentioned something that the state government (Inaudible) constitutional requirement.

Mr. E. Freeman Leverett: That is my position, yes sir.

This has to be approached I think from a two-fold standpoint.

First, the validity of a unit system per se, and then the secondly, the overall substantive standards that would apply under the Fourteenth Amendment, governing the weighting of votes.

First, with respect to the validity of the unit system per se, you might --

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: You did not pass on it.

Now, the appellee, I believe, argues that.

I do not wish to occupy the time of the Court if you think that it's not before the Court, but the appellee argues it and I'm not certain whether --

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: It is here.

I'm not -- frankly, I'm not familiar with the rules and procedure of this Court.

Under Georgia law, if a judgment is right for any reason, it should be sustained on appeal regardless of the reason given to in below.

And I presume that is the rule here.

I have never actually read a case on it.

The -- this question might be restated thusly, would a unit system be valid even assuming equality of population within each of the participating units?

The court below as well as the court in the Turman case and the South case have said or resolved this question in the affirmative.

The appellees though says no.

He (Inaudible) -- or relies upon the Mosley case, United States versus Mosley in which the Court held that there was a federal right to have one's vote counted.

The appellee says that since in a unit system, the candidate or rather the votes of the unit are cast as a unit that the votes of the people within the unit who voted for the minority candidate are not counted, and therefore, it brings it within the pale of Mosley versus United States.

As far as the Mosley case is concerned, we think it's sufficient to distinguish by the fact that it was a criminal case where there has been fraudulent and covert acts that were contrary not only to federal law but to state law, that some votes have just not -- it's been simply -- people tabulating them had refused to count them.

And that being a criminal case, we think has no relevancy to this situation where this is legal under State law and there was nothing covert about what is done here.

And we say that the idea of casting votes by unit is Constitution that it gives recognition to the organization of the State on a county basis and that has been true as illustrated by the history in this case of the county unit system from the very earliest.

Georgia has accorded a high degree of autonomy to its counties.

They voted as a unit in electing the Governor in the -- at the outset.

As the Court in the case here said below, counties were governmental units in Georgia before the union and had their voice in the councils of government on the State level through representation.

In the South case, a judge simply said this, the history of the State and of the political parties within it shows that political power has from the beginning been exerted to a large extent through counties as voting units on similar unit lines.

Similar recognition has been given to the identity of interest in a county that brings about the rationality of treating them as a unit.

In several, the recent reapportionment cases, the Tawes case from Maryland, the Simon case from New York, Baker versus Carr itself upon remand, and the Scholle case in Florida.

Under Georgia law, our counties have always enjoyed a high degree of autonomy.

They have it within their power to levy taxes or not levy taxes, to afford certain vital services or not to afford.

They elect their own officer.

They have their own system of courts and public records.

County government is managed by a wide variety of boards of county commissioners, ordinances and county managers.

The Georgia Constitution expressed the exempts of county government from -- to uniform its provisions.

Lastly, each county has its own school system, determines amount of taxes that it will levy within the certain limits and the extent of enrichment programs that it will impose upon its educational system.

And is -- in this context, the unit aspects of this case of course apply equally to all counties, regardless of the population.

That brings me to the Fourteenth Amendment standards that we think are applicable to cases of this nature and similar to cases involving apportionment.

We think that these standards are inferable from a composite of the majority concurring and dissenting opinion in Baker versus Carr, regardless of the divergences in that opinion with respect to the procedural questions of jurisdictions, justiciability, standards and so forth.

In the majority of opinion, it was stated, “Judicial standards under the Equal Protection Clause are well developed and familiar and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must that a discrimination reflects no policy, but simply arbitrary and capricious action.”

In one of the special concurring opinions, this statement was found.

Universal equality is not the test.

There's room for weighting.

The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.

And another concurrence where emphasis was placed upon the fact of horizontal as well as vertical discrimination, the blending of those two which brought about a situation, where it was impossible to determine if there was a basis.

Another concurrence was careful to give assurances that State legislatures need not be “so structured” as to reflect with approximate equality, the voice of every voter.

Nor does the Constitution prevent the states acting not irrationally from choosing any electoral, legislative structure it thinks best suited to the interest, temper and customs of its people.

Mr. Justice Frankfurter's dissenting opinion, he very strongly says in a language that I could hardly improve that the idea of equality of voting power is not implicit in the history of American institutions.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: Yes sir, I think that it is as far -- as far as the Constitution is concerned.

And I''m not arguing political science and I would hope the Court will not argue political science.

Justice Arthur J. Goldberg: Let's talk about the Constitution.

(Inaudible)

Mr. E. Freeman Leverett: Simply because it has never been the law before that equal population representation is the only legitimate basis of electoral apportionment.

Also because there are other factors that enter into it.

I -- I will -- I'm coming to that and if I have -- do not answer your question, please call my attention to it and I will go back, I will try to, I may not, but I will certainly will.

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: That's correct sir.

We think that several propositions necessarily follow is corollary to this or from what has been said in these cases, in the various opinions.

First, that the Fourteenth Amendment does not limit a state's choice and allocate its electoral power to a single basis, equal population representation, either in the case of legislative representation or in the case of the allocation of electoral strength as the statewide offices.

And particularly is that so, in this situation where this is simply the primary and you do have a general election where people are capable of expressing themselves with numerical equality and that has been done.

We had a run-off election in Georgia for Lieutenant Governor and a dissent arose as to the candidates who would participate in that.

And another candidate who is following them was limited mostly to one of the big cities came within 2000 or 3000 votes of getting enough signatures to get on the nominating petition in a little less than two weeks.

We have traced in our brief the history of legislative assemblies and demonstrated that when the founding fathers came to draft the Constitution, they were divided into two factions.

One, the French school of thought which inspired by the writings of Rousseau were referred to as the egalitarian democrats, the egalitarians, one man, one vote.

On the other hand, in a raid against them was the British school of thought which saw the necessity for imposing limitations upon majority will at its very source, a proposition that had been suggested as early as Aristotle's political, the history of the convention records that the resulting product was more English than French.

In fact, the -- one of the affidavits of the appellee that is in the record concedes this fact that the English school of thought predominated in the nominating or rather in the constitutional conventions.

It's been shown too I think that while Thomas Jefferson has generally recorded as being on the side of equalitarian democracy.

He was basically an agrarian democrat and it just happened that equalitarianism fit in quite fine with his conception of a grand -- agrarian democracy as the people started moving out of the tidewater areas out into the western portions of the country and tilling the land.

But we don't have to go to the records of the constitutional convention to determine what the nature of this government is that was founded.

We think the plain words of the Constitution itself are highly ambiguous.

To begin with, a national legislature was provided for, in one House of which each State has equality of representation regardless of the number of people.

And even in the other branch which as George Mason said was to be the grand depository of the democratic principle.

Equality is not achieved there either because of the fact that -- of the requirement that each State had at least one representative regardless of the number of people.

Justice Potter Stewart: Suppose what we have before us here is an amendment of that Constitution which was adopted about almost to not quite 100 years afterwards, that's what's before us here.

Mr. E. Freeman Leverett: That's right.

Justice Potter Stewart: There is no constitution in the (Inaudible)

Mr. E. Freeman Leverett: And you have the Fifth Amendment which was adopted after that Constitution --

Justice Potter Stewart: That contains (Voice Overlap) --

Mr. E. Freeman Leverett: -- which contains a Due Process Clause of this --

Justice Potter Stewart: No Equal Protection Clause?

Mr. E. Freeman Leverett: No, but as this Court said in Beadle versus Scholle -- versus Scholle that it would be unthinkable that the Equal Protection Clause of the Fourteenth would impose a high standard upon the States than the Fifth does against Federal Government.

The second illustration I think of the Constitution in this regard is with regard to the President who is elected not by the people, but by electoral votes.

And there's disproportions in between the States in the casting of those electoral votes.

The third illustration is the provision for changing the fundamental law itself.

That's voted on by the States in which each State has one vote regardless of the number of people.

When Congress elects a President in those situations when it's permissible for Congress to do so, each State votes as a unit, each State has one vote.

Justice Arthur J. Goldberg: Suppose they're all (Inaudible)

Mr. E. Freeman Leverett: Is the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: That is correct sir, but could you -- could you say that the Federal Constitution does not construct a republican form of government?

Justice Arthur J. Goldberg: No, but that's not the question.

The question is -- you're arguing the question as to whether a constitutional right (Inaudible)

Mr. E. Freeman Leverett: I will answer that this way, it seems to me that if you say otherwise, you have to say that the Federal Constitution imposes a system that is arbitrary, that is unreasonable, that denies equal protection to the voters and merely because of the fact that there's no Equal Protection Clause applicable to it, is the only thing that saves it.

Justice Potter Stewart: No, that -- as Mr. Justice Goldberg says, the specific provisions of the United States Constitution save it.

Some people might think this is arbitrary and discriminatory, but it is certainly -- there's no question about its constitutionality because these are provided and we all know without going into it, the history behind all that.

The history here is quite a different history.

Georgia wasn't created by several counties getting together and voluntarily giving up some of their sovereignties to create the State of Georgia.

Mr. E. Freeman Leverett: Those differences I think were pretty well disposed off at least to my thinking in the Tawes case.

If this argument about sovereignty is circular, what do you mean when you say one was sovereign, one was not?

It's simply this, that there is here an identifiable unit, a group of people who have particular interest that those interests should be given some recognition.

Now, I do not think that it is unreasonable for Georgia to take that analogy and apply it in its own internal structure as it has and as it would continue to do so unless this Court intervenes.

I -- I can't conceive of the -- under the Equal Protection Clause which is itself a product of history and in determining what is rational, history and tradition and the federal system itself would seem to offer some test at least.

Now, the Court may disagree, but that is a way that it -- as I see it.

That is the way I would answer the question.

The last point I think that we might say that disputes the fact of complete equality and expression of majority will is the example of this Court itself.

The founding fathers created this Court composed of nine men, no one of which has ever been voted on by anybody, but yet gave you the power.

As Madison pointed out in the federalists, to set aside the Solomon Act, it's enacted by 535 of the people's chosen representatives and the President who was also elected.

This opinion in Baker versus Carr, Mr. Justice Frankfurter reviewed the apportionments existing in legislatures and common law and the English procedure and the colonies and the States at the time of adoption, the States at the time of the adoption of the Fourteenth Amendment and today, and concluded that, as he stated, “These figures show more than individual variations from a generally accepted standard of electoral equality.”

They show that there is not as there has never been a standard by which the place of equality as effect an apportionment can be measured.

We think that that brings up another of subordinate propositions up to the general proposition that equal protect -- equal population is not the only basis of electoral apportionment.

And that is that courts should not become involved in drawing mathematical formulas.

That is not the type of thing that is generally thought to be a judicial function.

To begin with, first, judicially insoluble question that you have is what method of mathematical evaluation are you going to use, aside from the actual fixing of the limits and the formula itself?

Would it be the theoretical minimum of persons unable to -- capable of electing a majority of both Houses or one House and what about a unicameral legislature and I think you have a case in Nebraska, I do not know whether it is coming up here or not.

How would you apply to the Georgia situation?

Would the -- assume that theoretical minimum is the test.

The more difficult problem then remains of fixing the limits.

Should it be 16.5%, the theoretical minimum of persons who are capable of electing a majority in the United States Senate, or should it be 43.3%, the number of persons residing in 39 States who could cast a majority of the electoral votes for President.

Now, the three-judge court in the Georgia legislative apportionment case held that a theoretical minimum of 22% for both Houses was invidiously discriminatory and that one house at least had to be proportionate to population.

Upon remand in the Baker case, the District Court invalidated minimums of 26.9 for the Senate and 28.7 for the House.

In New York on the other hand, theoretical minimums of 36.9% for the Senate and 38.2% for the House were up held.

The Idaho Court in Caesar versus Williams upheld a minimum of 32.7 which by the way is substantially the theoretical minimum under the 1962 revised county unit law.

Colorado minimums of 29.8 for the House and 32.1 for the Senate were held invalid.

But in none of these cases, as any court undertake it to say just where this line can be drawn and the reading of the opinions leaves you completely helpless in trying to discern from there any ascertainable standard or formula.

Or, there's another method that you could use and evaluate.

That's the mathematical ratio, the comparison of one political entity to another that can be compared to either the most disproportionate or the least populous unit or it can be compared to an average unit.

And applied to the Georgia County unit system, it results that the ratio of Fulton County, the State's largest county, the Echols County, the smallest county is 14.8 to 1.

On the other hand, it is the court below held that the comparison should be from the particular county to the average county of their ratio would be approximately 1.93 to 1.

Baker versus Carr, the courts validated an apportionment which gave ratios to largest to the smallest of 7 to 1 for the Senate, 23 to 1 for the House.

There were some variations in Alabama that got involved there on the problem of the fact that one House could not be completely proportionate to population.

Under the Electoral College, the ratio of New York to Alaska runs 8 to 1 as to eligible voters and 5 to 1 with regard to population.

The ratio of the average Congressional District to Alaska which is one Congressional District is approximately 2 to 1 not 5 to 1.

When compared with Senate representation, the ratio of Alaska to New York is 74 to 1 as to population and a 131 as to eligible voters.

Now, there's a third statistical approach and that is suggested by the American Society of Political -- the American Political Science Society and that is comparing the percentage departure from the median or from the average district or unit as involved in this case.

The Science Association recommends a maximum departure of 15% for Congressional districts.

Representative Celler has recommended 20% in some legislation he has proposed and Senator Clark who apparently was inspired by Mr. Anthony Lewis' article in the Harvard Law Review has proposed a 50% maximum deviation from the average district.

Now this is simply a preview, a prelude of things to come.

If this Court or any other court gets itself in the position or trying to evaluate, to set formulas, to draw lines that is not the solid stuff that is traditional to the judicial system.

They are no judiciable manageable standards by which you can evaluate such a situation.

I would certainly hate to think that this Court or any other court should get itself in the position that the Swiss Federal Tribunal did recently, when they undertook to draw lines and they struck down a coram limitation on its proportionate system of apportioning representation by holding that a 6.6% coram limitation was valid, whereas a 12.4% limitation was invalid.

They didn't tell us approximately what point it becomes permissible or unconstitutional.

Justice Arthur J. Goldberg: General, (Inaudible)

Mr. E. Freeman Leverett: Nothing except that the express desire of his law making power was frustrated.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: I don't -- I don't think you can say that it's the will of the people, the legislature, they're supposing they represent the will of the people, they provide it otherwise.

Justice Potter Stewart: Well, that's certain with respect to your argument.

I never heard that the legislature is terribly upheld here so far as representing the people of the State.

Mr. E. Freeman Leverett: The argument I think that -- of the question that you asked presupposes, does it not, that equality of representation is the only basis of representation.

Justice Potter Stewart: No, I was only pointing out that the -- it's hardly to be presumed that the law as provided -- legislature of Georgia as presently apportioned, at least its House of Representative can be presumed to be the will of the majority of the people of Georgia, whether it's constitutional or not, it's a different question.

Justice Tom C. Clark: I thought the 1962 election has been the same (Inaudible)

Mr. E. Freeman Leverett: It would have, except it would not have been a run-off as I recall in the race for Lieutenant Governor.

He would have been elected on the first ballot.

Justice Tom C. Clark: But all the other officers did the same?

Mr. E. Freeman Leverett: That's right.

So there -- there would've been a difference in the -- one of the Congressional districts, of course that's not imposed by state law.

It -- I wouldn't -- well, I say this, it would -- under the old system, it would have been -- there would have been a difference under the new -- under the new system.

Of course, it was abandoned before but a successful candidate would have won anyway under the new system.

Justice Arthur J. Goldberg: But your argument basically is that's the only (Inaudible)

Mr. E. Freeman Leverett: That's correct sir.

Justice Arthur J. Goldberg: And the court was (Inaudible)

Mr. E. Freeman Leverett: Which old system?

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: If this Court had not decided Baker versus Carr, my guess would be that we would have probably applied it, but I have no -- there had been a move a foot to get it -- to bring it up to fall of what it was at the time it was originally not enacted in the law in 1970.

Now, in all candor, I think I should say that I do not think it would have taken place last year if it had not been for Baker versus Carr.

Justice Byron R. White: I understand you to say that there's enough reason for the legislature to simply to want to prefer beyond the less populous counties and that's the end of the question.

Did you simply want to -- the legislature simply wants to weight the less populous county's votes?

In the primary they should be perfectly free to do so.

Mr. E. Freeman Leverett: That's correct.

Justice Byron R. White: And you -- and that's enough ration -- that's enough rationality.

Mr. E. Freeman Leverett: That's right sir.

Justice Byron R. White: And to -- and you would get the same answer then I suppose if they did it another way and said each person in a rural area, you're in a certain county gets three votes, he casts three ballots.

You get exactly the same results, wouldn't you?

Mr. E. Freeman Leverett: Casting of -- I would -- I would have to analyze that mathematically, I'm not sure that it would give you the same result.

Justice Byron R. White: Well, I mean whatever the figures would be --

Mr. E. Freeman Leverett: It might.

Justice Byron R. White: You just said, he would cast out many more votes, he would've -- you should come out with a -- in the legislature spree to -- to give people an equal voting power.

That's -- that's essentially your argument.

Mr. E. Freeman Leverett: That's essentially, yes it is.

I will not say that I could -- I'm not enough a mathematician to (Voice Overlap) --

Justice Byron R. White: Well, I don't care about the figure -- I don't care about the figures.

I just -- but wouldn't you get the same answer also if the legislature changed its mind next year and said that we will give people in the city four votes and people in the country one vote?

Mr. E. Freeman Leverett: Not -- not just with that language because it doesn't work that way (Voice Overlap) --

Justice Byron R. White: Well, I know, but let's assume that you had -- that they've just reversed the scales and made the county unit system preferential to urban areas --

Mr. E. Freeman Leverett: That would be perfect for that.

Justice Byron R. White: -- rather than rural areas.

Mr. E. Freeman Leverett: Perfectly balanced.

Justice Byron R. White: So the history hasn't anything to do with this.

Mr. E. Freeman Leverett: I think history has because the -- this Court has held time in time again that history and the traditions of the people have some influence, it's not controlling but it has some --

Justice Byron R. White: So then you wouldn't -- you suggest you wouldn't get the same result that you weighted this system in favor of the cities because that isn't historical.

Mr. E. Freeman Leverett: It was to some extent when the people first started moving out of the tidewater areas out into the country.

We had that problem in Georgia, the coastal counties which were the -- you might say the urban areas were over represented at that time.

Justice Byron R. White: Well, do you have a suggestion as to why you say it's irrelevant, I know that, but assume someone didn't agree with you.

Do you have some suggestions as to why the rural area geographically should be preferred in the -- in the amount of voting power it has in the primary?

Mr. E. Freeman Leverett: I don't think I could express it any better than -- was expressed by the Court in MacDougall versus Green, that the desire to disperse, to diffuse political power, to prevent people in concentrated areas from -- you have a community of interest, you have opportunities who have all of the mass media of communication available to --

Justice Byron R. White: Well, diffusion doesn't mean inequality, does it?

Mr. E. Freeman Leverett: How is that sir?

Justice Byron R. White: I mean, diffusion doesn't mean inequality.

You had com -- (Voice Overlap) --

Mr. E. Freeman Leverett: That's what we're arguing, I think.

Justice Byron R. White: -- you had absolute diffusion when you had a -- when you had a -- your life primary.

Mr. E. Freeman Leverett: Diffusion is --

Justice Byron R. White: That was the -- that was diffusion of --

Mr. E. Freeman Leverett: It's not the diffusion we usually think of in terms of MacDougall versus Green.

Justice Byron R. White: Yes.

And you would I suppose get the same result then when the legislature decided to weight the votes in favor of functional groups.

Mr. E. Freeman Leverett: I'm coming -- I -- I'm going to touch on that with different methods of apportionment.

Even after you take into account the different methods of representation of mathematical computation, you then have a problem of what political scientists referred to as unofficial apportionments where these extra legal forces that rise up to neutralize -- the juror apportionments such as lobbies, and pressure groups, and reapportioning of the State Senate.

We came across one aspect of that as originally drawn out of scenic districts, achieved a remarkable degree of equality, they didn't vary more than 10%.

But when it got in the legislature, some people in one county said, we don't want to be with this group, we rather go in this other county, even though there's no other adjustments made to -- to alleviate the inequality that results.

We have more community of interest with this particular group of counties over here.

That -- that in our mind subordinates any considerations of abstract equality.

Now, the second proposition that follows from the idea that equal population representation is not the only basis is that this Court cannot pick and choose between conflicting bases of representation.

The oldest -- one of the oldest at least is political unit apportionment which is exactly what Georgia has employed here, apportionment according to political units.

We have superimposed the population bracket on top of it to give it some aspect of equality, but political unit apportionment is one of the oldest.

Another is of course the functional division apportionment, William and Mary College elected its own Representatives as did the English universities.

Another type of functional division apportionment has been suggested recently by one commentator who says that we are developing cleavages in the urban areas that transcend urban and rural lives, that the rise of labor unions on one hand and employers on the other might some day make it desirable to apportion Representatives along functional divisions of the population in order to --

Justice Hugo L. Black: I think that was done in Italy once, wasn't it?

Mr. E. Freeman Leverett: How is that sir?

Justice Hugo L. Black: I think that was done in Italy once, wasn't it?

Mr. E. Freeman Leverett: Yes, sir.

Justice Hugo L. Black: By Mussolini.

Mr. E. Freeman Leverett: Many European countries I think have followed that, particularly in Austria and in that area.

Another method of representation was suggested by John Stuart Mill who advocated the quotient system of apportionment, a pre-population allowance, that's in vogue in Europe.

We say that the Court is not equipped to make the policy choices between these conflicting bases.

I don't see how you can adjudicate that a particular basis is not permissible without at the same time adjudicating what is a republican form of government.

I recognize the distinctions made in the Baker versus Carr --

Justice William O. Douglas: But your -- your present argument, it goes against the Baker versus Carr?

Mr. E. Freeman Leverett: No, sir.

I don't think it goes against it.

I -- and I recall the distinction made, but what I'm saying is this that --

Justice William O. Douglas: That -- that it isn't a real distinction?

Mr. E. Freeman Leverett: I don't -- I don't see how you can avoid it.

It seems to me that you get down to this that you cannot determine whether a particular deviation or departure from equality is reasonable or unreasonable unless you first postulate what is the norm and when you have once postulated the norm, it seems to me that -- I can't see any difference in standard that would be compatible with equal protection and yet not at the same time represent a republican form of government or vice versa.

There may be, I -- but I fail to see it.

Justice Potter Stewart: I don't -- I -- perhaps I'm making a mistake in repeating it, but at least, as far as I'm concerned, your argument now doesn't go to the problem before the Court in this case.

We're here talking about -- not about legislative apportionment at all.

We're talking about the election of the United States or the -- of the nomination by -- in a one party state of a United States Senator and of statewide officials, executive and judicial as I understand it.

We don't have all this history.

The fact is that as I understand the briefs, 47 out of the 50 States at least have a system of election of statewide officials which is based on one man -- one voter one vote, counted equally.

You don't have all this history that you have in legislative apportionment.

You don't have all the problems of representative government in a State legislature.

Isn't this quite a different kind of a case we have?

Mr. E. Freeman Leverett: I think may be I can come to --

Justice Potter Stewart: That's the fifth time I've asked that question, I shan't ask it again.

Mr. E. Freeman Leverett: I think I can come to the heart of the forum, and I say this, we think that the true test is not the Court to pick and choose between conflicting basis of representation, either legislative, diffusion of electoral power and State House Offices or otherwise.

The true test is, it's the Court -- is to tell them whether there's any recognizable basis there.

If there's any basis at all, then I think that ends it and there are some of course that obviously are impermissible, race, sex, and that sort of thing.

But if a particular system reflects a recognizable, identifiable expression of policy, and it's a policy that is certainly had some recognition in governmental structure, I think the function of the courts should end there.

And they should not go into weighting, and as the Government would suggest, determine whether there's only a moderate departure from per capita equality and all of the drawing of lines that that would entail.

And we say that the Georgia system does have a recognizable basis and that is as far as the matter should go.

Chief Justice Earl Warren: Mr. Abram.

Argument of Morris B. Abram

Mr. Morris B. Abram: May it please the Court.

I want to interrupt the procedure of the argument which I will outline to the Court, so that the Court will know what I intend to argue here today to say that I think at the outset or the threshold of this case, it is very important from the argument we have just heard from the appellants to get firmly in mind the position which the appellee takes with regard to the differences between apportionment and voting.

Now, the problem arises through the necessity of giving a minority some voice.

To give a minority some voice in the field of representation, you have got to have some classifications, districting is classification.

If the drawing of a line in saying this man is in this district, this man is another.

That at least is classification.

The only other way you can give a minority of voice and representation is either to have a proportional system of representation or to ignore the minority's voice by elections at large.

Therefore, using our system which is not a proportional system, the American system hasn't developed that way, if you are going to give a minority a voice, a voice, not control, you must have some classification.

Now, in the field of voting, no classification is necessary because one man's vote is his fair voice and no classification is necessary and nor is any classification usual at least in American history and in any of the State practices with the possible exception of the three that have been described here today.

The truth is that in franchise exercise, the majority or the plurality control generally under our law, but through a unit system and the only purpose of it could be is to see that a minority prevails because one or the other must.

If you try the classification of voters, qualified voters, that to the State is to aside who is a qualified voter, in order to give one man a greater vote there is an opposite side of this coin.

You have had to give somebody else a lesser vote, so obvious the classification in the field of voting must in necessity involve discrimination.

Now, I should like to point out that --

Justice Potter Stewart: Of course, as you've indicated the -- as you've implicitly indicated that a State is not without power to discriminate in what might seem an arbitrary way among voters that -- isn't that correct that Georgia, as I understand you, if you're 18 years old, you can vote.

Mr. Morris B. Abram: Yes sir.

Justice Potter Stewart: But you can't vote if you're 17 years, 364 days old?

Mr. Morris B. Abram: That's a perfectly proper classification, I should think, the age classification.

Justice Potter Stewart: Now, somebody of that latter age might think it's pretty arbitrary?

Mr. Morris B. Abram: But he might very well do so, but I think that I could defend that sir and I would be prepared to do so if that were the issue, but --

Justice Potter Stewart: And I suppose a State could say to a person who's lived in a -- in a precinct or in a county only 29 days that you can't vote or somebody (Voice Overlap) --

Mr. Morris B. Abram: I think they're all (Voice Overlap) to this but I think that particular suggestion appeals to me as a reasonable one.

I might say this sir, under the law of Georgia in Talbert versus Long, our Supreme Court has said that the qualifications of voters are established in the Constitution, Article II Section 2 and that once that classification has been established in the Constitution, the power to further classify is exhausted and the legislature has no further power.

Justice Potter Stewart: That's as a matter of your State Constitution?

Mr. Morris B. Abram: A matter of State Constitution.

Now sirs, prior to 1962, it shall be my contention here, the county unit system had developed into the irrational, discriminatory practice.

And this had been permitted because it was favorable to those who control the political system of Georgia.

But the new Act of 1962, I shall try to demonstrate was a deliberately discriminatory device.

It didn't just grow.

It was created in a few days of the General Assembly session.

In answer to my Brother's argument that this is something that the people through their Representatives want, I would point out at the threshold of the argument that the Georgia legislature which passed this unit system which is presently under attack and was held void was a legislature whose Lower House represented 22% of the people.

The majority of the House represented 22% of the people and the majority of the Senate, it's now been reapportioned which passed this Act was elected sirs, by 5.5% of the people of Georgia due to the rotation system which I can't go into.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: Well sir, I -- I don't adopt that premise.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: Oh, yes sir, because we have not had sir, in dealing with history which I presumed is permissible, we have not had a Governor of Georgia elected in the last four decades from a major county.

This Governor qualified after the unit system was knocked out, he was not going to run for Governor.

He was induced to run.

It is generally recognized because the unit system was knocked out.

The votes that were cast in the urban counties of Georgia were enormous, the registration just surged forward and the people went to the polls this time.

Mayor Hartsfield's affidavit shows that it has not been customary for people in the urban counties to register or vote to anything like it, the proportionate numbers they are to the population because the fact your vote didn't count.

You can't say the system has it.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: Yes, yes, yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: That -- that's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: The Court is correct, yes.

Now sir, I should like to proceed on a more orderly basis and in order for the Court may know the course I'm going to take, I should like to say that first I'm going to try to examine the unit system.

Second, I'm going to mention very briefly the point alluded to by Mr. Justice White, that is the constitutional protection of this primary, but I'm going to deal at little length on the question of whether or not this primary effectively controls the election of the United State Senator because I think the Seventeenth Amendment question could be in this case.

And then I'm going to try to measure the county unit statute against the Fourteenth Amendment in practice and principle.

And then I'm going to briefly discuss the Seventeenth Amendment question.

Now to begin with, I think Mr. Justice White was correct when he asked the question or if there was an implication in the question, what would be the effect of Georgia saying that a man in Echols County shall have seven-and-a-half ballots, a man in Clayton, one ballot, DeKalb, three-fifths of a ballot, a man in Fulton half a ballot, a man just one county removed, three-and-a-half ballots, a man over a county line, one-and-a-fifth ballots.

For no matter how you look at the unit system this is precisely its effect and that's what it's designed to achieve.

The system is further more compounded in its effect by the fact that a man does not have to get the majority of the votes of the county in order to carry the full county units straight to the county.

In a five-man race, a man may get 30% of the votes of a county and carry the full unit vote of the county thus reversing the vote for those who voted against him who were in the majority.

It is for this reason that the system contrived to produce some rather absurd results.

For example in 1954, the Governor of Georgia was overwhelmingly elected by unit votes though he only received 36% of the popular votes and 72% of the people had in fact voted for somebody else.

Justice Arthur J. Goldberg: That is not possible under the amendment.

Mr. Morris B. Abram: Oh, yes sir, it is possible under the amendments.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: No, sir.

He must, but if Your Honor, if there -- one man has the majority of the popular vote and the other man has a majority of the unit vote then they get into a run-off under a unit vote.

And then you got the man who won the popular vote tagged, there's a popular vote candidate in a county unit election which of course would be politically disastrous.

Now, the system I said a moment ago, prior to 1962 --

Justice Potter Stewart: You mean this would be a -- this would be a terrible political liability to be known --

Mr. Morris B. Abram: It would --

Justice Potter Stewart: -- as the fellow who the majority of the people, the State report for Governor?

Mr. Morris B. Abram: It would be that sir and Mayor Hartsfield's affidavit in the record shows why there were campaign after campaign of scorn and vilifications directed against the most people of the State who lived in urban centers, day after day from the start.

The record shows this, the kind of language that was used against people from cities.

And the kind of a program hit upon the cities in election after election by people who presumably were trying to represent it.

Justice Potter Stewart: I've heard this that about some people that nobody has formed but the people, but I didn't realize that it was such a terrible (Voice Overlap) --

Mr. Morris B. Abram: Well, under the unit system, it doesn't help if the people have (Inaudible), if the units are against you.

The record is complete I think on that point sir.

Now, when the Governor called the legislature after this suit was filed, he called it and I quote his call, “To preserve, protect and defend the traditional democratic institutions existing in this State,” meaning the unit system.

There is on the record an affidavit from a legislator who was present at the briefing sessions about this legislation and I'd like to read to you what he said went on there.

“The general tenure of the briefings of the Governor and the Attorney General and the associated counsel present at said meeting of April the 10th, 1962 was to preserve, protect the county unit system, maintaining as far as possible existing discrimination ratios, and to do as little as possible to correct these and at the same time attempting to prevent further intervention by the federal courts.”

Now, I might say that there is not one scintilla of evidence in this record to contradict this purpose and intent which was -- which was flagrantly demonstrated in the trial of the case below.

Justice John M. Harlan: Is there any legislative debates on there?

Mr. Morris B. Abram: Sir, we don't keep records of legislature debates.

We don't have committee reports in general either sir.

Now the system as it was devised is a bracket system. From zero to 15,000 population, you get two units, then you get another unit for additional 4999 people, then a unit for 9999, then a unit for 14,999, then a unit for 14,999 and then two units for 29,999.

Now, it's rather curious, 30,000 people at the bottom of the scale get four units, 30,000 additional people at the top of the scale get two units.

29,999 people at the bottom of the scale get four units, but 29,998 people at the top of the scale get no units.

Now, it's mentioned that the history of the unit system supports this.

I might point out -- I'm going to argue that no unit system is permissible because the -- of course the decision below was standard, the Court adapted that principle which I think is the correct principle in this case.

But in 1970, 50.5% of the people had forty-four and eight-tenths percent of units.

The effect of the system as demonstrated in the Hartsfield affidavit has been -- it has been politically profitable for candidates for statewide officers to run races in which direct attacks are made upon the centers having the greatest population.

No man from Fulton County has served as Governor for four decades.

No Fulton man or United States Senator in the 20th Century.

There hasn't been a Fulton County Congressman serving a full term for 25 years until the unit system was voluntarily abandoned and Congressman James Davis who had been twice elected by a minority vote and twice defeated by a majority was sent home and a new man returned to Washington.

There was, as Mayor Hartsfield has pointed out, a tremendous lack of interest in elections growing out of this state of affairs.

I might point out further that there is not one sentence in this record which shows that any public permissible good or and was achieved by the unit system or prevented by it.

The record does show however, and I think by plenty of evidence that there is a connection between the county unit system, a Negro disfranchisement.

Now, I shan't go into this at great length but the basic premise of this argument --

Justice Potter Stewart: It does not make any – you're not relying on the Fifteenth Amendment?

Mr. Morris B. Abram: No, sir.

But the (Voice Overlap) --

Justice Potter Stewart: Well then what's the point of your argument at all?

Mr. Morris B. Abram: Well, in Nixon versus Herndon, it was said by the Court, Mr. Justice Holmes that the violation of the Fourteenth Amendment was so great he didn't have to rule under the Fifteenth Amendment.

Justice Potter Stewart: And that's your argument here too.

Mr. Morris B. Abram: And that will be my argument here too.

Justice Potter Stewart: So why do you --

Mr. Morris B. Abram: Well, I mentioned it only to show that the purpose of this, this deliberate discrimination and the reason for permitting this -- this secular discrimination over a long period to develop was that it was giving a great deal of benefit to those who wish to depress and to void the Negro franchise.

But I think it's only fair to say that I don't want to say anything more about it except the record shows that where the county unit power gave to the inbuilt political apparatus, the greatest advantage there, you had real Negro disfranchisement and in certain counties with large Negro populations, with high unit values, no votes at all from Negroes.

On the other hand, in the urban counties where the Negroes were voting and of reasonable proportion of their population, their votes didn't count.

It ends up in a statement by Professor Banner which is in the record.

These facts had a considerable bearing upon the determination of rural lawmakers to maintain the county unit system.

Now, maintain it, they have.

In 1952 and in 1950, a constitutional amendment was submitted by the legislature having them passed by two-thirds of both Houses to the people of the State to engraft the system upon the Constitution and each election by popular vote of about 30,000 majority, the attempt was defeated.

I don't think it would have been possible that there would have been any change in this had it not been for Baker versus Carr and the intervention of the federal court below.

And I might quote Mr. Madison on this principle who says in the debate on Article I, Section 4 of the Constitution, the right of the Congress to control the time, place and manner of elections, he said this.

“The inequality of representation in the legislature of a particular State would produce a like and equality in their representation in the national legislature as it was presumable that counties have power in the former would secure it to themselves in the latter and secure it to themselves they did in Georgia.”

I should like now to turn to the question whether this primary is protected and I want to read one statement, one sentence here from the Classic case which I think outlines it in its proper form.

Where the State law has made the primary an integral part of the procedure of choice or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary election includes the rights protected by Article I, Section 2.

Justice Potter Stewart: The State law does not require a primary.

Mr. Morris B. Abram: It does not, but it does say this, that if a primary be conducted, it shall be conducted by the unit system.

Justice Potter Stewart: Has to be done in this way.

Is there anything -- forgetting now what the Constitution might or might not require, is there anything in the injunction which would prevent a group of democratic party leaders meeting and nominating the candidates for State office?

Mr. Morris B. Abram: No sir, but there is a reason why it will not happen.

And that is when a man goes through a primary, he has got a badge of respectability attached to him which makes him a formidable candidate at the polls.

And that is one of the reasons, I suggest, why the Republican Party has not developed in Georgia, you can always make the argument they have nominated their man on a telephone.

Justice Potter Stewart: But probably -- well, that's about all the Republicans are in Georgia?

Mr. Morris B. Abram: Well, no sir, there are great many of them and many of them -- I must say that many of them are people of great substance and ability.

But the point is they are still not conducting a primary and I suspect one of the reasons they haven't is because they would have to do it by the unit system and they would be tarred with the same brush that they used in arguing against the Democratic candidates that they have a unit system of election.

Justice Potter Stewart: Just let me pursue my question once more in a different way.

If -- if there were -- if there were a convention, let's say to which the delegates came in kind of a county unit way, for instance in Connecticut, there's a convention of that kind, if I understand it, I don't know the detail, would that be a State action?

Mr. Morris B. Abram: I would suppose that if State law governed it in some way and --

Justice Potter Stewart: Let's say the State law was just (Voice Overlap) --

Mr. Morris B. Abram: Didn't govern it at all.

Justice Potter Stewart: -- this provided for -- that if a party had gotten a certain percentage of the vote at the last election then they were a party, but that they're -- but they were entirely free to nominate their candidates any way they wanted for the next election.

Mr. Morris B. Abram: Well, let me state two answers that I have to that sir.

The first answer in Georgia, the Democratic Party did held a convention of this party, it would be a State action by virtue of the fact that it would be tantamount to election.

Justice Potter Stewart: Isn't that what the Classic said?

Mr. Morris B. Abram: That's what Classic says.

In fact, controls the procedure of choice.

Justice Potter Stewart: So that doctrine --

Mr. Morris B. Abram: That doctrine --

Justice Potter Stewart: -- is limited to a one-party state, so to speak.

Mr. Morris B. Abram: That's right, on one-party states.

Now, on the two-party state I think the thing is less clear, but I should say that the two-party state still couldn't do certain things with respect to convention, they couldn't bar Negroes, I am sure the Fifteenth Amendment would control that.

And I suppose if there are limits to what you can do in a convention.

I don't want to try to argue about (Voice Overlap) --

Justice Potter Stewart: Well, suppose you could conceive of a party -- of a party that it was political objective was, say, white supremacy and citizen's counsel party to say, it -- couldn't it bar -- I mean, (Voice Overlap) --

Mr. Morris B. Abram: (Voice Overlap)

Justice Potter Stewart: -- under -- we have the right of free political expression and free speech?

Mr. Morris B. Abram: I must say I don't know what the Court would do with it if the case got here but my feeling is that that is not before us because in Georgia, the case before us without any doubt the Democratic Party controls the procedure of choice under the Classic doctrine.

Justice Potter Stewart: I'm giving a case --

Mr. Morris B. Abram: Yes, I understand.

Justice Potter Stewart: -- that's not here, I was just --

Mr. Morris B. Abram: But I would say this, Terry versus Adams goes very far, because in that case you held it was state action for this Jaybird Party to have a nomination process, excluding Negroes with respect to what, with respect to county and precinct offices in a pre-primary -- primary entirely unregulated by state law.

Now under the doctrine of Terry versus Adams it wouldn't take much of an extension to get the kind of a problem that the Court is speaking of.

Now, whether or not the Georgia Primary is tantamount to election, I think you have the precedent of the Georgia Supreme Court in Thompson versus Talmadge which said this.

Over a period of approximately half a century before the drafting of the 1945 Constitution, throughout that period, there has been only one and one dominant political party in the state.

And Professor Banner says in his affidavit that Georgia has been one-party state since removal of federal troops in 1871, none but democrats have held the State Office since the 1890 decade after which period this party has been completely in control of statewide elections.

You have before you in the record the kind of voting that takes place in the general election as compared to the primary and non-presidential years and except when some grave constitutional questions are being presented for ratification which further demonstrates that this primary is a procedure of choice.

May it please the Court, I would like now to turn to this equal protection problem in this case and I want to start by saying that the Due Process Clause was pleaded in the complaint.

We have not stressed it before this Court for the reason that in Beadle versus Scholle, the Chief Justice stated this.

“As this Court has recognized discrimination maybe so unjustifiable as -- to be a violation of due process.”

And consequently, I think it would be well to address ourselves and myself to the question of the Equal Protection Clause.

Now, I start from the premise that voting is a personal right and this Court decided this point in U.S. versus Bathgate, I have already mentioned the fact that I think you've got to have some classification to give a minority some voice in the representation process and need no classification in order to achieve that in the election process, the franchise itself.

Justice Potter Stewart: But (Inaudible) -- you must concede that a State can classify as to eligibility of voters.

Mr. Morris B. Abram: Oh, yes, I --

Justice Potter Stewart: I mean you've already asked the age and --

Mr. Morris B. Abram: I mean after you point (Voice Overlap) --

Justice Potter Stewart: Length of residency?

Mr. Morris B. Abram: But I should say to be accurate and to be careful about it, I should say this.

After the state has classified you as an eligible voter, no further classification is permissible.

Justice Potter Stewart: Without carrying that a little further, could a state classify an eligible voter in terms of whether or not he pays taxes, state taxes?

Mr. Morris B. Abram: Sir, I would say only this. I suppose that is possible, but I would say this that after having two people, both of whom have paid taxes and have entered the class, the State itself is established whether through it's Constitution or it's laws.

I do not think it is permissible then to draw distinctions between the people whom it is already classified.

Justice Potter Stewart: Could it classify on a basis of whether he has got at least an eighth grade education.

Mr. Morris B. Abram: I should think so.

I should think so.

Justice Potter Stewart: Certainly could as to whether or not he's literate?

Mr. Morris B. Abram: I should certainly think so.

Justice Potter Stewart: Could he do it on how much property he owns?

Mr. Morris B. Abram: I -- no.

I really would say that that's historically been permissible.

And whether or not at the present time it would be so regarded, I can't say, but I don't think that it's necessary to decide this case in order to determine how you set the original qualifications of the vote.

Justice Potter Stewart: No, I do not think you get very far calling one original and something -- something else could say -- give a man with a graduate degree, five votes, a man with a college -- with a BA degree, four votes and a man with an eighth grade education, three votes?

Mr. Morris B. Abram: I would say this.

It would have more rationality behind it than this statute as we're going to try to demonstrate in a moment, but I still think it would be in my judgment irrational.

Justice Potter Stewart: But that would be an original classification as --

Mr. Morris B. Abram: Yes.

Justice Potter Stewart: Because it is the same thing when you give somebody zero vote or one vote --

Mr. Morris B. Abram: I would concede that is true.

Justice Potter Stewart: -- it's whether you get one or two.

Mr. Morris B. Abram: I would concede that's true.

Justice Potter Stewart: So the -- and you do -- and you do as I think you must concede that a state does have power to classify certainly as to age and --

Mr. Morris B. Abram: Yes.

Justice Potter Stewart: -- the length of residence?

Mr. Morris B. Abram: I agree with that.

Justice Potter Stewart: And literacy?

Mr. Morris B. Abram: All I am saying is that once you have established too as a qualified voter, you may not then on grounds that have in them two elements that I am going to now discuss, begin further reclassification and distinctions.

Justice Potter Stewart: I was reading Senator Tower's new book the other day and it seemed to indicate that the -- perhaps the best democratic theory was to let those who spend as little -- the least money, have the least vote -- the voters who spend the most money have the most vote, would that be a -- a rational classification?

Mr. Morris B. Abram: I should not think so Your Honor, but there maybe those who think so, but I don't think that is necessary for --

Justice Potter Stewart: Would that be original?

Mr. Morris B. Abram: I would say that it would be original.

I certainly would agree in two senses perhaps.

Your Honors, I think the general principles that govern this field are these: classification, if it produces substantial discrimination and is irrational in the sense of capriciousness.

That is without rhyme or reason I think as Mr. Justice Clark said in Baker versus Carr is an improper use of classification in this field if any classification beyond the classification of voter per se is permissible.

And I also might point out that irrational could also mean a system of discrimination to achieve what is an impermissible state policy, or one without some kind of reasonable objective in terms of what we generally regard as the end of state power.

Unknown Speaker: (Inaudible)

Mr. Morris B. Abram: Well, I am going to try to demonstrate in a moment when I analyze the unit system Your Honor that the Georgia County unit system does not classify with regard to voters on any basis that could conceivably have any rational relationship to a permissible state end.

Now, I do not think geography is a permissible state end and I don't think --

Unknown Speaker: (Inaudible)

Mr. Morris B. Abram: I must say.

Justice William J. Brennan: Well, you had (Inaudible)

Mr. Morris B. Abram: I'm going into that sir.

Justice William J. Brennan: (Inaudible)

Mr. Morris B. Abram: Exactly, I am going to try to demonstrate how the system even cuts into the voting power of those who are generally in the class that presumably favors and I think I can demonstrate it on this record.

Justice Byron R. White: (Inaudible)

Mr. Morris B. Abram: Yes, Your Honor, and that --

Justice Byron R. White: (Inaudible)

Mr. Morris B. Abram: Yes, Your Honor.

You see, I am in an area right now and perhaps I should say that.

I don't really -- on my premise of this case, I do not really -- I really shouldn't be arguing the question of what kind of classifications based on geography or based on other things should be permitted.

My point is that none of this is permitted.

But if the Court, if the Court believes as the lower court did that some kind of weighting can be given.

I am trying to define the standards at least from my viewpoint which would be more proper than others or less improper than others.

Justice William J. Brennan: Now, you say none should be submitted, speaking now only with primary elections?

Mr. Morris B. Abram: I am speaking of a primary election and I think it would apply to the general election too, Your Honor.

Justice William J. Brennan: Well, I understand.

Would you apply it necessarily?

You don't have to (Inaudible) as a matter of legislative representation?

Mr. Morris B. Abram: Sir, I don't think this case really involved a necessary representation and I haven't thought out what the standard should be in the field of legislative representation.

I don't want to enter that field, if I can avoid it because --

Justice William J. Brennan: That's why -- that's why --

Mr. Morris B. Abram: Yes.

Justice William J. Brennan: I thought your argument was that whatever it might be in the area of --

Mr. Morris B. Abram: Yes.

Justice William J. Brennan: -- legislative representation, in this area --

Mr. Morris B. Abram: That's right.

Justice William J. Brennan: Your position is that there ought to be no weighting of (Voice Overlap) --

Mr. Morris B. Abram: That's correct, that is exactly my position.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: I thought I said Your Honor, I thought I said, some may think it is permissible on the grounds of history, and certainly there is a -- there has been a traditional sense.

But I do not have any definitive views with respect to what property qualifications, how much property qualifications, what educational levels.

My point is that we don't have that in this case because we have established two qualified voters are and the sole question here is whether a man who happens to live at one particular place shall have seven votes and another man a half.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: It could conceivably be.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: It could conceivably be.

Justice Potter Stewart: Georgia had a poll tax from (Inaudible).

Mr. Morris B. Abram: Georgia had a poll tax for many years.

It abolished the poll tax.

Now, in the Georgia system -- I'm sorry -- I'm -- I didn't -- I weren't referring to the question which I left, any classification which produces substantial discrimination and is irrational in a sense of capriciousness, no rhyme or reason, I would say is a violation of the Equal Protection Clause.

Irrational may also mean that it may have a pattern, but seeks to achieve some kind of an impermissible state policy which is another way of saying that the discrimination is directed in hostility towards certain groups.

Now, the Georgia system has a discriminatory object and a capricious impact.

There is no pattern that you can discern in this system except that the larger the population, the less the vote of each voter shall be counted.

But, the system also can be viewed as discriminating as amongst counties in roughly the same population groupings, and in roughly the same geographical areas.

On page 22 of our brief, we point out some mountain counties.

Now, these counties are all small counties in the mountains.

Dawson, one vote for 1795 population, Towns one for 2269, Lumpkin, one for 3620, Rabun, one for 3728, Pickens, one for 4451, Franklin, one for 6637.

Then, you can go down in the Southwest section of the State, the old plantation belt and you will find discrimination ratios as great amongst those counties sirs as 1 to 1200 to 1 to 6500.

Then you can take the counties, this one is just on a random, that Board of the State on Florida and the discriminations ratios run from 1 unit assigned to 938 votes to 1 unit assigned for 8211 votes.

You can take it within Congressional districts and you will find counties adjoining each other in a Congressional district which has some maybe historical grouping.

You will find Crawford County adjoining Bibb and Crawford has one vote for 2900 and Bibb one for 11,000. Echols County adjoins Lowndes in Eighth Congressional District, Echols has 1 for 938 and DeKlab has 1 for 12,850 and so it goes.

Now actually, how much rationality is in the system?

In the lower court, a counsel was asked by one of the three judges.

Now, I am asking you, what was the purpose of making it all the way through, less units for thousand as the counties got large, rather than making it the same unit for a 1000?

What was the purpose behind that, the court asked.

Counsel replied, “Well, I don't know.”

The legislature passed this bill.

We have to take it whether or not it's valid and understandable by what it says.

The State does not suggest directly any permissible ends or state policy which could justify this classification.

And I am perhaps straining at an implication when I suggest that their brief and their argument here today, because it quoted Harrington Mills, suggest that there may be two.

They quote Harrington as saying not until the French romanticism was there any serious questioning of the principles of economic basis of politics.

Now, if this system has some economic base presumably, it's based upon the distributional of property or income or something like that, but if you will look at the Hammer affidavit on page 157 and 158 and nine of the brief, you will find that those counties that have the least personal income had the most votes.

Those counties have at least distribution of wages and farm products have the most votes and those counties that have the least property have the most votes.

And in each case, the growth, the progression of affairs is running against the counties that have the most votes.

Justice Potter Stewart: So, this -- certainly, arguably and nothing irrational and having a reverse twist on economic (Voice Overlap) --

Mr. Morris B. Abram: It's not the historical basis though.

Justice Potter Stewart: No, but they --

Mr. Morris B. Abram: That they were arguing it on a historical basis.

Justice Potter Stewart: If the state, I suppose, arguably could decide that we want the have-nots in the state to have more representation than they have because they are the ones who need the legislative help?

Mr. Morris B. Abram: They could argue it, but as far as I am concerned, I would feel the argument is not correct.

Justice Potter Stewart: I don't know that it has been argued in this case.

Mr. Morris B. Abram: It has not in this.

But they do argue the second point very affirmatively.

They say that with regard to education, and this is the way they put that, quoting Mill, “However, frequently overlooked as Mills' insistence that vote should be weighted according to competency.”

And then they quote Mills directly, “It is not useful but hurtful that the Constitution of a country should declare ignorance to be entitled to as much power as knowledge.”

Now they come out on one side of that question.

Now, what's the record show?

The record shows that in the counties that have the least voting power, you've got the highest median educational levels.

In the old six-unit counties, you've got 10.66 being the median educational level and in the two-vote counties, you've got two-and-a-half years less.

Truth is that the record only shows one basis, hostility against people, the more people, the less the vote and the more the discrimination.

Now, I think this is the kind of a case which was alluded to, though not directly by Mr. Justice Harlan and Mr. Justice Frankfurter in Baker where they said, of Baker, this is not a case in which a state has through a device, however, sophisticated and oblique, denied Negroes or Jews or red-headed persons a vote or given them only a third or sixth of a vote, that was Gomillion versus Lightfoot.

This is a case -- leaving aside the racial elements, this case in which as state had deliberately given people on a basis not on their education, not on any basis if they are willing to stand up and tell us a half a vote or seven-and-a-half votes and that feels discrimination.

I must admit that there is a presumptive validity to state legislative acts, but once you have demonstrated the kind of discrimination implicit in this case in which a majority -- I'm sorry, in which a man maybe or in which a -- 50% of the people have only 31% of the units and in which it is mathematically possible to find a Governor elected by 50.5% of the votes in a two-man race and 6.1% of the votes in a five-man race.

Once you've demonstrated this, I think there was some burden on the State to put something in this record and they put not a word.

Justice William J. Brennan: If you're right Mr. Abram, on this record, I gather we don't have to reach the question whether unit system per se violates the (Inaudible)

Mr. Morris B. Abram: You mean whether unit systems are which --

Justice William J. Brennan: Per se.

Mr. Morris B. Abram: Per se?

I think this about it.

I don't think you have to, but I will tell you why I have argued it.

I believe the Court is going to -- probably want to write an opinion on the case rather than just a per curiam order.

Now, if it writes an opinion, I assume that it would want to set guidelines on the basis of what the law actually is, and the way the Constitution should be interpreted and I think therefore it's important to argue the point of constitutionality per se.

Justice Potter Stewart: How wide of an impact would this case have if there -- am I right, in understanding from the briefs that there are only two other states in the union that have any approximation of this?

Mr. Morris B. Abram: I have never heard of any other states having any approximation to it except the State of Maryland and the State of Mississippi.

Justice Potter Stewart: Mississippi.

Mr. Morris B. Abram: And the State of Maryland of course is a two-party State.

Legitimately, the State of Mississippi I think you all agree is a one-party state, except in presidential years.

Justice Tom C. Clark: On your Classic argument (Inaudible)

Mr. Morris B. Abram: Sir?

Justice Tom C. Clark: On your Classic argument.

Mr. Morris B. Abram: Yes, yes.

Now --

Justice Potter Stewart: Is that -- does any state ever had the -- this kind of system in the general election as distinguished from the primary?

Mr. Morris B. Abram: No sir, but --

Justice Potter Stewart: Majority?

Mr. Morris B. Abram: But there was another unit system which I'm going to talk about in just a minute, Houston, Tennessee and stricken by their Supreme Court in 1937, I want to get into that in just a minute.

I want to refer the Court to the language of a case which I think has been frequently overlooked at least by me.

Mr. Justice Bradley in Missouri versus Lewis at 101 U.S. spoke these words.

“It is not impossible that a distinct territorial establishment and jurisdiction might be intended as, or might have the effect of a discrimination against a particular race or class, where such race or class should happen to be the principal occupants, just happen to be the principal occupants of a disfavored district.

Should such a case ever arise, it will be time enough then to consider it.”

This at least is such a case.

I might point out that on the merits, every Justice of this Court and every judge below who has ever considered the county unit system on its merits and thought it to be a justiciable issue has ruled it unconstitutional.

That was the opinion of Mr. Justice Andrews in South versus Peters.

It was the opinion of Mr. Justices Douglas and Black in South versus Peters.

It was the opinion of the three-judge court below in this case and it was also true with regard to Tennessee's Supreme Court in Gates versus Long decided in 1937.

Now, I'd like to go into that case in just a minute.

Tennessee erected a unit system by statute for a use in its primaries and under this system, every county had the same proportionate number of unit votes as its proportion was to the population as a whole with this exception.

No county should have more units than one-eighth of 1% of its population.

We have done an analysis of how the county in the system in Tennessee would have assigned units under the county unit system in Georgia?

How Georgia will assign units.

That appears in our brief.

Under the present unit law under attack in Georgia, Echols County has two units and Fulton has 40.

Under the Tennessee law, Fulton would have 695 and Echols would have three.

Yet applying the Equal Protection Clause, the State Supreme Court of Tennessee declared that system unconstitutional.

There has been some allusions and I am sure that the Court's thoughts will naturally turn to MacDougall versus Green and I think I should pay some attention to it.

The case did not say as I think my Brothers would agree that there is some room for geographic distribution of voting strength.

It stands only for a principle or permissible geographic distribution of voting initiative which is an entirely different thing.

Justice Potter Stewart: Those were nominating petitions, were they?

Mr. Morris B. Abram: Yes sir, nominating petitions.

Now in that case, they rose under the desire of the Progressive Party in 1948 Government ballot and the law in Illinois required that you get 25,000 signatures, but of those 25,000 names, at least 200 had to come from each of 15 counties in the State.

Now, there are 102 counties in Illinois at the time and the record demonstrates that you could get 61 -- I'm sorry sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: Well, sir, the first point about it is not a geographic test with regard to voting, but only with regard to political initiative.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Morris B. Abram: I'm not going to argue that the case was correctly decided, but I do say that under the principle of that case, there is a vast distinction between this case and the MacDougall case, the first distinction being political initiative rather than voting, and the second being the bite of the system.

For example, under the Illinois system, Cook County had 52% of the population by the 1940 census and you could get 61% of the signatures under that law from Cook County.

There were at that time at least 49 other counties with more than 25,000 population which meant that to get 200 signatures in each of these 49 counties leaving aside the 51 other counties that you could've gone to, you would've been getting only eight-tenths of 1% of the people to sign your nominating petition.

And this Court apparently thought it was a reasonable device.

Now, I would like to turn for a moment to the Seventeenth Amendment claim.

The language of the Seventeenth Amendment on this point is clear.

The Senate of the United States shall be composed of two Senators from each State elected by the people thereof and it doesn't stop there.

It was very careful to decide and to determine who those people shall be, it said this.

The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

It said, the State can determine who these electors shall be and Georgia has.

Georgia has said it in these words of its Constitution.

Every citizen of this state who is a citizen of United States, 18 years or upwards not laboring under any disabilities named in this article and possessing the qualifications provided by it shall be a qualified voter.

So Georgia has now decided who the elector shall be under the Seventeenth Amendment.

Now, having decided who the elector shall be, the state legislature has determined that these electors shall not elect the United States Senator from Georgia.

He is in fact and has been in fact since Reconstruction, elected by not living human beings or qualified electors, but by county units and a unit is not a person.

There is no way to change a unit into a person and if the legislative history of the Seventeenth Amendment demonstrates a desire to get rid of the indirect election of Senators, this system of course grabs an indirect election upon us.

I should like to conclude by saying --

Justice Potter Stewart: Seventeenth Amendment says Senators shall be elected by the people of the State?

Mr. Morris B. Abram: It says, “The Senate of the United States shall be composed of two Senators from each State elected by the people thereof.”

Justice Potter Stewart: Of course that can't mean literally what it said with people (Inaudible) --

Mr. Morris B. Abram: Then it says with the people shall be -- then it says the electors (Voice Overlap) --

Justice Potter Stewart: A 5-year-old boy can go up and say I'm --

Mr. Morris B. Abram: It says the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Justice Potter Stewart: Alright.

Mr. Morris B. Abram: But my point is that once a State has made that definition, it then grabs upon the people who are defined as qualified voters, a right then secured by the Seventeenth Amendment to vote for the Senator of United States.

Justice William J. Brennan: Mr. Abram, if we were to agree with you on this point, would that be enough to dispose of this case without touching the State office?

Mr. Morris B. Abram: No sir, because you would then have state elections for Governor, Lieutenant Governor, for the judges of all of our higher courts, the Commission of Agriculture, the man who sets the fire insurance rates, the Comptroller General, all of these offices would then be elected by county units.

Justice Tom C. Clark: Those are all statewide offices?

Mr. Morris B. Abram: They're all statewide offices.

You see sirs, every statewide officer in Georgia who sits in the Capital and administers our law and runs our government from the Chief Executive going down is elected under the unit system under the Act as amended.

The U.S. Senators are also elected.

Now, the Congressmen, the statute does not provide that the Congressman shall be elected by a county unit system, but under practice --

Justice William J. Brennan: You're quite right Mr. Abram that it's the same statute that applies to the United States Senator and the others.

Mr. Morris B. Abram: Yes, that's right sir.

Justice William J. Brennan: Well, if we agreed with your argument regarding the United States Senator, wouldn't that be sufficient to affirm this injunction without referring to it.

Mr. Morris B. Abram: But I should suggest sir, if you put it on that ground, on that ground alone, while you would have upheld the judgment below, I would say there might be room and certainly as long as there's light and there's hope for passing the statute that limited itself to the Governor, Lieutenant Governor and the other important officers --

Justice William J. Brennan: You mean you don't -- would be back here again?

Mr. Morris B. Abram: No sir, for this reason sir.

There had been about five county unit cases that have attempted to reach this Court and every time we tried to reach this Court, we tether between mootness and prematurity.

If we file the petition in equity, pertaining to our election before the State Democratic Executive Committee has met to determine whether there shall be a primary, we are met at the threshold by the argument but we don't know whether we're going to have a primary or not and you are premature.

But if we wait until at the last minute, they decide to hold a primary which means the unit system then applies, then we are in a great race to get to this Court, because otherwise under the doctrine of U.S. versus Anchor Coal Company, we then -- be moot which is the way we read the disposition of the original county unit cases in this Court.

So consequently, we are constantly tethering between prematurity and mootness.

This is one of the few cases that in which there was enough speed below to afford a relief and an opportunity to reach this tribunal.

Justice Tom C. Clark: What do you say the practice in the congressional race it was?

Mr. Morris B. Abram: The practice there Mr. Justice Clark is this.

Under the rules of the party whether or not the unit system is employed in a congressional primary depends upon the decision of the democratic executive committee which governs that primary.

That committee by the way is always named by the incumbent Congressman provided he is a democrat, incidentally all are Democrats, is named by the incumbent Congressman.

So the Congressman does have under this system a way of determining under which system I want to run.

Whether I want to get elected by unit votes or whether I can best throw myself on the wishes of the people.

Justice Potter Stewart: Nominated technically (Voice Overlap) --

Mr. Morris B. Abram: Nominated, yes sir, nominated.

The word should be nominated, but I might add sirs that we have a case now pending in the Federal District Court of the Southern District of Georgia, it has been pending I might add for over two years there, a damage suit based upon a Congressman's having been elected with less than a majority of the popular vote and though he got a majority of the unit votes.

Justice Tom C. Clark: Some districts (Inaudible)

Justice Potter Stewart: Yes sir, and if one wants to argue the electoral college analogy, I am perfectly agreeable to going into it.

But I don't think it's apposite for the reason that it's -- as Mr. Justice Stewart pointed out, it's something that came out of the Twelfth Amendment and this of course predated the Fourteenth Amendment.

Justice Potter Stewart: The Seventeenth Amendment argument necessarily depends upon this proposition that -- this is an election rather than a nomination.

Mr. Morris B. Abram: Yes sir.

Justice Potter Stewart: Does it (Inaudible)

Mr. Morris B. Abram: It has to go on the principles in the Classic case that it's tantamount to an election.

Justice Potter Stewart: Well, it is not more than tantamount but it is.

Mr. Morris B. Abram: That is the election.

It is the election where the Senator is elected in Georgia.

It is undoubtedly true that as a legal proposition he could not -- and he could not --

Justice Potter Stewart: He couldn't take office after that -- after the --

Mr. Morris B. Abram: But that's where he has been elected.

Justice Byron R. White: Well, Mr. Abram, as I -- you didn't cross petition here, did you?

Mr. Morris B. Abram: Sir?

Justice Byron R. White: You didn't cross petition --

Mr. Morris B. Abram: No sir.

Justice Byron R. White: -- here and -- so, you're perfectly happy with the discriminations that are built into the -- and allowed by the decree below?

Mr. Morris B. Abram: I am not happy about them sir, but I'll want to be perfectly candid to the Court.

I knew and I still that no unit system that discriminates a little bit will ever be adopted by the Georgia Democratic Party because unless it discriminates a lot, there is no magic in it and there is no profit from it.

Justice Byron R. White: But doesn't be really the decree below to the extent that it does allow a discriminatory system?

Doesn't it really violate some of the things you have been arguing here?

Mr. Morris B. Abram: Exactly.

I couldn't agree with the Court more.

I think the decree below in avoiding the system as it was then in use was thoroughly right and correct and should be affirmed.

But if the Court goes into the question of whether or not if this advice as to how a unit system could be constructed is or is not proper, I would say that the system they have suggested is improper.

Justice Byron R. White: Well, the State as I understand in your brief suggest that the -- that -- and the Government suggests that some part of the decree be eliminated --

Mr. Morris B. Abram: The Government --

Justice Byron R. White: That part of the injunction.

Mr. Morris B. Abram: The Government says if I -- the Government will speak through the Attorney General --

Justice Byron R. White: Well, (Voice Overlap) -- what do you think about that?

Mr. Morris B. Abram: The Government's suggestion is that the Court should not do any more than affirm the invalidation of the Neill Primary Act as an amendment that the rest of the opinion is an advisory opinion and was improper to be put either in the opinion or the decree.

My judgment is, my view is, that -- and I am the one with the Government on this, the decision below was correct in invalidating the county unit system as amended.

But it was incorrect when it suggested that a county unit system could be devised and used in this franchise field.

But, my view is -- further -- goes further than I understand the Government's view --

Justice Byron R. White: I understand.

Mr. Morris B. Abram: I say that when the Court writes its opinion, it should say that no unit system, this or any other is constitutional under the Fourteenth and Seventeenth Amendment.

I should like to conclude Your Honors by saying this.

It's been foreshadowed by some conversation already.

The thing I'm going to say and that is that the worse that can happen, if this Court upholds the court below is that everybody in Georgia can have a vote who has been declared a valid qualified voter by the Constitution of the State.

And furthermore, I do not think there is any way that you can uphold this system even if you don't say a system is per se unconstitutional, until you can say that two equals four or feel that 50 cents is the proper amount of change for a dollar or that you can give eight ounces per pound.

I think a qualified voter is a qualified voter, is a qualified voter and a vote, is a vote, is a vote.

Chief Justice Earl Warren: Mr. Attorney General.

Argument of Robert F. Kennedy

Mr. Robert F. Kennedy: Mr. Chief Justice, may it please the Court.

I would first like to state the interest of the United States in this case.

Declaration of independent states a principle which is basic to our American way of life, namely that governments derive their just powers from the consent of the people.

In periodic elections here in the United States, we select our leaders.

If we become dissatisfied, we select new leaders.

So therefore, the free and unencumbered exercise with a franchise is basic to American system.

We believe that this free and unencumbered exercise with the franchise is under serious challenge in an arbitrary, capricious and discriminatory fashion in the State of Georgia.

But we believe that this evil is not confined to the State of Georgia as the Court heard in the Tennessee cases last term.

Districts have been so arranged in certain areas of the United States that an individual in one area has 10, 15, 50 or 100 times the vote strength of an individual in another area.

The United States Government has a responsibility to do all in its power to ensure that those who have been disfranchised in whole or in part that that right is restored to them.

That in this effort to also restore some confidence in representative government where this kind of practices exists.

In Baker versus Carr, this Court has determined that the weighing or dilution of votes through malapportionment was justiciable in the federal courts under the Fourteenth Amendment.

This is the first case in which the Court has been asked to pass upon the major substantive constitutional issue.

Therefore, the principles enunciated in this case will have an effect on millions of Americans who have been deprived in whole or in part of their franchise.

The issues involved in this case really are relatively simple.

First, as far as the facts are concerned, there has been a gross and arbitrary discrimination against the voters who live in the urban areas in favor of those who live in rural areas.

And number two that that gross discrimination is in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Beyond that, we don't feel that it is necessary for the Court to go.

We don't think it's necessary for the Court to accept some hypothetical variant to this system which the Georgia legislature may pass in the future.

We don't think that the Court should limit its future actions in this field by accepting a standards -- standard which may or may not be applicable to other states under other circumstances in other parts of the union.

In this case, Mr. Chief Justice, the discrimination is gross, but before I get into a discussion of that, I would like to discuss just briefly about what we feel the scope of this case is in view with some of the questions that has been raised.

First, we are not against a county unit system as such.

We are against the Georgia County Unit System because it discriminates against those who live in urban areas in favor of those who live in rural areas.

And number two, we're not saying or contending that under all circumstances in every situation, that every vote must be given equal weight.

If you have a unit system or if you have a representative form of government with Representatives that elected to the legislature other than statewide election, you're bound to have some departure from exact equality.

Further, there are other theories of representation.

You might take into consideration geography, you might take into consideration historical background and you might take into consideration economic interests and a number of other matters.

These kinds of departures -- perhaps they are harmless or perhaps they are necessary or perhaps are unavoidable.

The fact is in the Georgia County Unit System however that the departures are not harmless, are not unavoidable and are not necessary.

Further, I think that we should remember that we are considering here a statewide election for statewide offices.

We're not -- we don't have to get really involved in various theories of representation.

Here is one man, one vote.

You can have equality.

We feel that, however, if you depart at all from this equality that it should meet the most exacting test, it should be subject to the most exacting test and that we feel at a minimum that test should be -- that the departure should be minimal.

And number two that it should be -- to further some part of the elective process.

We feel that what has happened in the State of Georgia under the Georgia County Unit System is not a departure that is minimal, is not harmless.

Let me just give you some examples.

If you live in one of the eleven smallest counties in the State of Georgia, your vote is worth seven-and-a-half times an individual who lives in one of the four larger counties in the State of Georgia.

If you live in Savannah, Georgia, your vote is worth four times if -- if the -- you have to get four votes in Savannah, Georgia to offset one vote in Glascock County, Georgia.

If you live in Fulton County, Georgia with Atlanta, you have to get 14 votes to offset one vote in Echols County.

A third of the populations living in the smallest county in the State of Georgia have a majority of the unit votes.

We used to have, and I repeat used to have, a saying in my City of Boston which was vote early, and vote often.

If -- if you live in one of the small counties in the State of Georgia, all you have to do is vote early and you accomplish the same result.

Conversely, a majority of the population living in the larger counties in the city -- in the State of Georgia have only a third of the unit votes.

If you live in one of the large counties in the State of Georgia, you've got one unit vote for every 12,889 people.

If you live in one of the smaller counties, one of the eleven smaller counties in the State of Georgia, you have one unit vote for every 17,115 people.

If you live in one of the 116 of the smallest counties in the State of Georgia, you have 251 unit votes.

But the same population in the four largest counties in the State of Georgia, approximately the same population has only 90 votes, a discrimination of almost three to one.

Now, this is -- this kind of discrimination is unfair as giving everybody who lives in the Eastern part of the state 10 votes for every person who lives in the Western part of the state or people who have red hair five times their vote value of those who have blond hair or those who have white skins, 10 times the vote of those who have dark skin.

And this voting disparity has had a major result in the State of Georgia.

If you're living in Fulton County, you pay -- in 1960 you paid about $80 million in taxes to the State of Georgia.

That from the State of Georgia to Fulton County came approximately $22 million.

The other $59 million was used elsewhere in the State of Georgia mostly for the smaller counties.

If you live in one of the seven largest counties in the State of Georgia, you paid in 1960 a $160 million worth of taxes, $60 million of that was used elsewhere in the State, $60 million, excuse me, was used in those eleven counties.

The rest of it, the $100 million was used elsewhere in the State.

Now, what happens in Echols County?

Echols County paid $82,000 in taxes in 1960, but they received back from the State $280,000.

If you live in one of the eleven smallest counties in the State of Georgia, in 1960, you paid $2 million in taxes to the State of Georgia, back from the State however, you received $4,500,000 in taxes.

A person living in Fulton County, the State there -- the county there pays $3.66 for every dollar they received back from the State.

But if you live in Echols County, you receive back from the State $3.40 for every dollar that you paid in.

The per capita tax in one of the largest -- in the largest counties in the State of Georgia in 1960 was $77 per capita.

In the smallest counties in the State of Georgia, it was $19 per capita.

And yet what you received back from the State of Georgia, if you lived in one of the largest counties in the State of Georgia, you at least received back $22 per capita and if you lived in one of the largest counties, you received back $69 per capita.

Well, I'm not contending here that this money that was used by the State of the Georgia in these smallest counties was not for good purposes.

I'm not contending that there should not have been perhaps some discrimination between the taxes that were being paid by the larger counties and the smaller counties because the larger counties are better off financially.

But I do say that if you're -- if the large counties of the State of Georgia are going to pay the bills for the small counties, certainly their vote should count as much.

Certainly when you consider what has happened in Fulton County and Echols County, a vote in Echols County being worth 14 times the amount of the vote in Fulton County.

We hear and we talk a great deal about state's rights, but to turn the coin of state's rights over and you get state's responsibilities.

There are many things that need to be done in the major metropolitan areas of the United States or problems of the urban renewal, of the purification of water, of transportation, of education, of juvenile delinquency and many of these problems are being ignored.

And while you have a system as you have in the State of Georgia or on the Georgia County Unit System where there is the great advantage for those who live in the rural areas in favor of those who live in the urban area.

The people in the urban areas are always going to figure and figure correctly that they are second class citizens and those in the rural areas are the ones that are going to reign supreme.

Justice Byron R. White: Well --

Chief Justice Earl Warren: General --

Justice Byron R. White: -- Mr. Attorney General -- excuse me.

Chief Justice Earl Warren: I'm just going to ask General, do you believe that there is any place in a state system of voting for weighting the votes in the general elections for Senator or Governor or the general state offices?

Mr. Robert F. Kennedy: Mr. Chief Justice, I don't think it's necessary for us to reach that point.

I do say that although I have given it a great deal of thought, I have difficulty coming up with any system that makes any sense which is a unit voting in connection with a statewide election.

As I say, I don't think it's necessary to reach that point and as I said a little bit earlier, what we are contending here is about the Georgia County Unit System.

But I do have a difficult time coming up with any meaningful unit vote as far as the statewide elections go.

Justice William J. Brennan: Well, Mr. Attorney General, is the -- what was -- what is the Government's view if we were to agree with the argument addressed in the Seventeenth Amendment as -- respects to nominations for the United States Senate and can sustain the injunction addressed to the statute on that ground.

Would the Government think we ought to reach all these other questions (Voice Overlap)?

Mr. Robert F. Kennedy: Yes, yes.

Because the order goes beyond -- the order of the lower court goes beyond just the election of the United States Senator, Mr. Justice.

And what is involved here is a statewide election for all of these other offices and I --

Justice William J. Brennan: Well, is this a suggestion then that indeed we can't dispose of the case only on the Seventeenth Amendment?

Mr. Robert F. Kennedy: That's correct.

Justice Potter Stewart: You don't express any position on the Seventeenth Amendment in your brief, do you?

Mr. Robert F. Kennedy: No, we do not.

We don't think that it's necessary to reach that.

Justice Potter Stewart: I understand.

Mr. Robert F. Kennedy: Now, the justification that has been offered for this discriminatory system is that those in the rural areas are not as able -- well-able to organize themselves that they don't -- they are not as articulate as far as politics is concerned and they don't take as active interest in politics.

I think that that contention does not bear upon to the facts.

I think that anybody that is in public life that has represented a rural area is found that his constituents are articulate, are vocal, are strong and well-able to take care of themselves.

I think that the statistics at least of the elections in the last few years have shown that those in rural areas take a very active interest in politics.

For instance, in the 1960 election, the -- it was five states which were primary rule in the United States which led all the others as far as vote participation.

Idaho with 80.8%, New Hampshire with 80.6%, Utah with 80% and the two North Dakota and South Dakota with approximately 79%.

The City of New York, 59% of the eligible voters voted in the election in 1960.

Outside the City of New York, however, was 77%.

Approximately 50% of the people in Newark, New Jersey voted in the election, but outside the City of Newark, the percentage was far, far higher.

In Illinois, the vote in the down state counties of Illinois, the rural county was much higher by and large than the wards of Cook County, Chicago, Illinois.

The contention is what they'd -- that they don't vote as much as a block.

They don't vote as much as a unit.

They don't get together as much.

I don't think that that is borne out either.

Of the 75 counties in the 1960 election in the United States which voted for more than 80% for one candidate or another, all but one of those 75 counties was a -- had a population of less than 50,000.

But even assuming -- even assuming that this contention was correct, Mr. Chief Justice, I still don't think that it bears up.

It's a -- we put a great premium in United States on participation in elections, getting together and organizing them.

And if we -- if the State of Georgia can penalize those who are well-organized, there is nothing to prohibit a State from penalizing the members of the American Medical Association for being better organized and housewives for instance.

Or even members of labor organizations because they happened to be better organized than say, some other group.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Kennedy: I don't think it would be constitutional and I don't think that would be wise.

Justice John M. Harlan: General, do you -- do you -- do you -- the District Court as I read its opinion did not strike down the county unit system as such like it was careful to say that it was not doing so.

Do you -- does the Government's position is if the -- is it the Government's position that the system as such is unconstitutional?

Mr. Robert F. Kennedy: No, the Government's position of that subject that does not have to be reached by the Court.

We can think that this county unit system should be struck down as it's been put into operation.

We don't think that the Court need approved, as I said, some other system which may or may not be put into operation by the State of Georgia.

Justice John M. Harlan: What -- what you're suggesting as I understand it is that the District Court's decree in its advisory apportion, as that term is used that it would be modified by striking those out -- those provisions out that the present county unit system as applied so to speak, as devised should be struck.

And without any indication as to what might meet the Court or that it might meet the constitutional standards if the legislature re-met and substituted four instead of three and five instead of six, (Voice Overlap)?

Mr. Robert F. Kennedy: Yes.

Justice John M. Harlan: Is that -- is that it?

Mr. Robert F. Kennedy: That's correct.

We think that if the -- it's -- be clear and starting really with the Tennessee reapportionment case and we hope in this case that what the ideal is, one man, one vote.

That number two, that if there is any variation of this that it has to be to further the elective process, that idea can be followed by states.

The reasonable men in our state legislatures and those who have the responsibilities in our state can follow that.

We don't think to try -- if -- or the Court to attempt to set up a standard which is going to be applicable in Massachusetts and California and the State of Washington and Florida or in Texas is impossible.

These people know their states.

They know what the history and the background of it is.

They can pass a law which would be discriminatory.

We feel that what has happened in the State of Georgia that this is discriminatory.

But I think as a men of good will that they will make an effort by and large throughout the State to pass a law which is their, an equitable law for the citizens now that the Supreme Court has passed on this matter.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Kennedy: No, because we have the courage of it Mr. Justice.

We just don't think it's necessary to say at the moment.

Justice John M. Harlan: You also (Voice Overlap) --

Mr. Robert F. Kennedy: And we state that this county unit system is invidious.

In answer to the Chief justice, I said that I couldn't -- I could not give you a description of one that does not raise all kinds of problems, but I -- there might be a state where the lawmakers for historical reasons, geography, for other factors that I'm not aware of at the moment who could come up with a unit system which would make some sense.

So, for -- I just think that it's not necessary to go beyond --

Unknown Speaker: You can't conceive it.

Mr. Robert F. Kennedy: I cannot conceive it.

Justice Byron R. White: Well now, why is it -- Mr. General, why is it so clear that the (Inaudible) -- this particular system is so bad?

Is it (Inaudible) -- the Government's position that there is no scheme at all in this system that isn't a crazy quilt without any reason or is it that it's so clear and so -- is there so much of a pattern of discrimination against urban areas?

Mr. Robert F. Kennedy: I think (Voice Overlap) --

Justice Byron R. White: (Inaudible)

Mr. Robert F. Kennedy: I don't think it's a crazy quilt.

Mr. Abram has pointed out that there were discriminations within groups, but I think that as a general proposition that this is a systematic discrimination and I think it's been the --

Justice William J. Brennan: So the more -- the more rural an area is, the more weighted votes gets.

That's the whole spectrum of discrimination.

Mr. Robert F. Kennedy: That's correct, in favor of those who live in rural areas and against those who --

Justice William J. Brennan: So essentially, it is a rural-urban discrimination in the Government?

Mr. Robert F. Kennedy: That's correct.

In favor of those who live in urban -- in rural areas against those who live on --

Justice Byron R. White: You say its -- do you say the Government's position is that beyond the power of the legislature of Georgia to prefer a rural voter to an urban voter?

Mr. Robert F. Kennedy: Yes.

Justice Potter Stewart: At least in an election of this kind of a statewide election of executive or judicial officers with statewide constituency.

Mr. Robert F. Kennedy: That's correct.

Justice Potter Stewart: You -- as I gather, you've implied there might be different considerations and other considerations in legislative apportionment within a state?

Mr. Robert F. Kennedy: That's correct.

Justice John M. Harlan: (Inaudible)

I thought you recognized that the urban country consideration was a factor that could be taken into account, didn't have to be scooted per se, but that it was over-weighted here or as applied here, it was enough reason for discrimination.

Mr. Robert F. Kennedy: Well, I think that it can certainly in -- if you were having a representative kind of election, Mr. Justice.

But none in statewide elections.

We don't think that this is in furtherance of the elective process.

Now, as I say that this discrimination here as put into effect is gross and number two, that it's not in favor, it's not -- does not further the elective process.

Those -- that's the test that we apply to any kind of -- where there is a differentiation in the weighing of voting.

Justice John M. Harlan: So that (Voice Overlap) --

Mr. Robert F. Kennedy: This is different.

As has been pointed out, this is different than when you have an election that involves a representation of members to the House, to the legislature up to the Upper House in the State.

Chief Justice Earl Warren: Well, in one situation, in the legislative situation, you have representations, but when you have a statewide election, you -- there's no necessity for weighting votes.

They -- you vote for one office to represent not the districts but minorities or majorities but to represent the entire State, is that the -- isn't that the --

Mr. Robert F. Kennedy: That's correct.

Chief Justice Earl Warren: -- the difference between the two, General?

Mr. Robert F. Kennedy: That's correct.

And the -- another justification that has been used for this kind of practice in the State of the Georgia is that one area or one county will still dominate the State that -- that would be -- the rest of these voters in the State will be overwhelmed.

That -- that's -- really doesn't bear up because the biggest county in the State of Georgia is Fulton County with only 14% of the vote.

Well then if they say that's the geographical area, well, the DeKalb County borders which is the next biggest county borders on Fulton County, but the rest of the large counties are spread around the State.

For instance, the third biggest, the Chatham County which contains Savannah which is on the East Coast and you have Muscogee County which is the fourth largest county, and that is on the west side of the State.

Bibb County is the fifth largest and that's in the central part of the State and the rest of them are all spread around.

So it's not any geographical group that could so dominate or control the State which would cause this danger.

And it's hardly a justification for penalizing those who live in these major metropolitan areas, penalizing their vote strength by 50% and rewarding those who happen to be, maybe who live just a few miles away in a small rural county who is only comparative virtue appears to be that they live in a area that has a small population.

Justice Byron R. White: (Inaudible) the real -- really meaningful figures is not to be the population of the counties, the numbers of Democrats or Republicans in the Primary.

They really got a weight.

(Inaudible) strength of the counties, you ought to do it over the number of people voting in that primary, shouldn't you, rather than the population.

Mr. Robert F. Kennedy: So, I think that that's (Voice Overlap) --

Justice Byron R. White: And isn't that -- isn't that a significant factor in some counties of Georgia or isn't it?

Mr. Robert F. Kennedy: Yes it is.

That gets -- when you consider that factor, it gets into many other problems which are not involved here.

There are some counties, that rural counties which vote a very high percentage of their population.

Frequently, they have a low Negro population.

Justice Byron R. White: And if they --

Mr. Robert F. Kennedy: The one that have --

Justice Byron R. White: Suppose the number of Republican voters in Georgia is not large enough to make this (Inaudible)

Mr. Robert F. Kennedy: It's not very large.

Justice Byron R. White: In any county?

Mr. Robert F. Kennedy: In any county.

Justice Byron R. White: There's apportionment (Inaudible)

Mr. Robert F. Kennedy: Not any -- it's not in (Inaudible)

Chief Justice Earl Warren: General, in Georgia, is there any power in the people to initiate a constitutional amendment or must it come from the legislation?

Mr. Robert F. Kennedy: There is not.

Chief Justice Earl Warren: It must come (Voice Overlap) --

Mr. Robert F. Kennedy: Must come from the legislature.

Chief Justice Earl Warren: From the legislature itself.

Mr. Robert F. Kennedy: Now, it's a -- didn't argued also that this is comparable to the electoral college, Mr. Chief Justice and that you have some variance in the electoral college and so that therefore you should also have it here or can have it here.

I don't think that really bears up.

I don't think the analogy is correct because there is a far difference, a great difference between the states who gave up their sovereignty and there were concessions made.

When they gave up their sovereignty to create the United States, one of the concessions that was made to them was the fact that they would have the equivalent vote in the electoral college, equivalent to the number of Senators had -- they had plus the numbers of Representatives they had.

Now this, I -- I'm in disagreement with the brief of the appellants and the argument of the appellants that this was all like problem between the English system and the French system and Thomas Jefferson and Adams and others were involved in determining whether they really believed in democracy or not.

There wasn't any question about believing in democracy but the struggle at that time was between the large states and the small states.

And there wasn't anybody that contended that there was greater democracy in one state over another state, but there was this problem between large states and the small states.

The idea that there was this English-French system, that really wasn't taken up, I don't think it's borne out by a study of the debate of the constitutional convention.

The English-French system and the merits of them were taken up after the constitutional convention rather the -- it might be that there's some confusion about Mr. Harrington, Mr. Harrington, who was a quoted, lived in the 18th Century.

And I believe that quotes come from Mr. Parrington's book who was a -- wrote about the American Scene in the 20th Century.

So, some of the confusion might arise out of that.

There is also contended that we don't really have enough cases for the Court to pass on.

That there is -- there hasn't been enough litigation in connection with this matter for the Court to make any decision.

I don't think that that bears up in -- when the Constitution was written, we didn't have decisions on due process or commerce between the states or freedom of speech, but we made important progress in all of these fields under the general umbrella of the Constitution and under the guidance of the Supreme Court.

When George Washington was President, you didn't have railroads, you didn't have automobiles let alone jet aircraft.

But the great miracle of the Constitution is that we've been able to deal with the problems of the 20th Century as well as the problems of the 18th Century.

These are the great problems that are facing the United States at the present time.

And this kind of invidious practice that exists now and has existed before and the Georgia County Unit System is a -- strikes at the very heart of the United States.

If we can give equal protection to those who feel that they've been deprived of their economic rights, certainly we can give equal protection to those who have been deprived of the most basic right of all which is the right to vote.

If we cannot protect them, then the whole fabric of American the system, then our way of life is irreparably damaged.

Thank you.

Rebuttal of E. Freeman Leverett

Mr. E. Freeman Leverett: I have got 3 minutes, I believe.

Chief Justice Earl Warren: Yes, you have, (Inaudible) -- go right ahead.

Mr. E. Freeman Leverett: Please the Court.

I think the Seventeenth Amendment in this case proves too much.

Because if it is true, if it is a correct position.

The result would necessarily follow that in any state where nomination was tantamount to election, you could not nominate by a convention.

Reference was made to some State Constitution provisions defining the right to vote.

The Georgia Supreme Court held in Cox versus Peters that they related only to the general election and not to the primary, that's binding on this Court as far as with reference to state law.

A statement was also made that the winning candidate for Governor was induced to run by virtue of the county unit system being stricken down.

That simply is not so.

I don't want to involve myself in personalities, but I think I know where of -- I speak in that regard.

So also to suggest --

Justice Byron R. White: Now what did -- what was that point, I didn't (Inaudible).

Mr. E. Freeman Leverett: Mr. Abram stated in his argument that the successful candidate for Governor in Georgia in -- of a 1962 General Election was encouraged to run because of invalidation of the county unit system in the court case below and I simply said that was not so.

Justice Potter Stewart: (Inaudible) not very important one way or the other?

Mr. E. Freeman Leverett: No sir.

I hope not.

Next, we have not suggested as has been stated by reference to Parrington and by the way I forgot the “H” instead of a “P” there, it should have been Harrington, that the county unit system is based on the economic basis of apportionment.

We say that it's based on political unit apportionment, not geographically, but its political unit apportionment.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: Position of the State is that in it -- that these things of those features which tend to give these concentrated areas of population in an inordinate amount of power by virtue of the fact of the concentrated numbers, that that -- the State can take those matters into account.

And I think that's always been the basis upon which this type of apportionment has been explained.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: You there are getting into valued judgments in which the Court is called upon to evaluate and apply its policy judgments no differently than the Court a few generations ago did in Lochner versus New York.

Justice Arthur J. Goldberg: (Inaudible)

Mr. E. Freeman Leverett: It's not just because you're in the labor union, but if you live in an area of concentrated population density where there are avenues for communication, where the mass media of communication can organize people along much more cohesive groupings than you have in the rural areas.

We think that those disparities in power are just as relevant when a state comes to apportion its electrical -- its electoral power, as are the disparities in bargaining when Congress passed a (Inaudible).

Justice Arthur J. Goldberg: You have said that that is a rational basis for the state to engage in between what?

Mr. E. Freeman Leverett: That is --

Justice Arthur J. Goldberg: Is that what you're arguing?

Mr. E. Freeman Leverett: That is correct sir.

Justice Potter Stewart: The basic -- the basic issue that we end up with I suppose is whether a state under the Constitution in the election process of statewide officials, statewide officials can absolutely disregard the -- what we think of is the traditional American system of majority rule?

Mr. E. Freeman Leverett: One -- one --

Justice Potter Stewart: Isn't that it?

Mr. E. Freeman Leverett: -- person, one vote.

That's correct sir.

Justice Potter Stewart: A majority rule is what we come down to --

Mr. E. Freeman Leverett: And as to the --

Justice Potter Stewart: -- in a statewide election?

Mr. E. Freeman Leverett: -- Chief Justice -- the question of the Chief Justice which I think relates to what you have posited now Mr. Justice Stewart, you do not have to go to districting to -- in your legislative area because you can get perfect equality of voting power in a legislative situation simply by doing the same thing that was done with respect to Congress in many states until 1842 when districting came, required by Act of Congress.

You could have a state at large election and have perfect equality.

But in order to get a diffusion, in order to give recognition to local interest, you district a state and then it's where your inequalities come into.

MacDougall, we say as our case, I think it states very eloquently the reasons, the basis that we say this county unit system should be upheld.

We put in our answer, our verified answers at page 72 to 73 of the record and it has just as much probative value as the opinionated affidavits that the other party put in.

If it please the Court, I think that's -- my time is up so, I appreciate the Court's indulgence.