GRAY v. SANDERS

Transcript: 

Argument of B. D. Murphy

Chief Justice Warren: Number 112, James H. Gray as Chairman of the Georgia State Democratic Executive Committee, et al appellants versus James O’Hare Sanders.

Mr. Murphy?

Mr. 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, a Georgia statute describing a county unit system of nominating party candidates for State offices and other offices, and enjoining the party 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 below; it’s also stated to some extent in the briefs of counsel.

It maybe 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 settled areas along the Atlantic Coast.

I have forgotten how many counties we had at that time, but I think it was six or seven.

The State Officers were elected by the legislature.

The constitution assigned certain number of representatives to each county.

I think the Liberty County had 14, some of the other counties had 2, some had 4.

The town and port of Savannah had 2 to represent that tree, town and port of Sunbury had 2 to represent that tree; that was a 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 or 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 belonged to the Democratic Party would get together and nominate their candidate for Governor.

In the same manner, the members of Whig Party in a 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 the legislature by the opposite party.

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

Our conventional system of nomination grew out of it.

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 is then known as the Populist party.

The final election of the officers of the State have been -- have always since election by the people was inaugurated in about 1823 by a majority vote of all the voters.

The legislature meets and canvases the vote and declares the person who had the majority of all the votes to be the Governor or the Secretary of the State as the case may be, and if nobody is elected, they have a legislature procedure to elect a Governor from either the two or three highest.

They 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 radiant candidates and the Supreme Court held they couldn’t do that and that the old Governor continued to hold office. And If he had resigned, the Lieutenant Governor elect was to be the Governor until there could be an election.

That of course had 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; at first they 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 Federal Supplement 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 1917.

Prior to that time, delegates were although committed to the man who -- the candidate who carried their counties who did not always vote and it confirmed without a memo, and frequently there were convention fights.

The one which produced the Neill Primary Act so-called was in 1940 when there were three candidates for the United States Senate and neither of them had a majority of the county unit votes and now as a convention contest which lasted a number of dates and which finally resulted in the nomination of Senator Thomas W. Hardwick who was not the leading candidate of the people.

The legislature passed the Neill Primary Act in 1960.

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

But 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 1917 and 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 political party has a primary, the person, the candidate for any office who carries and gets the most votes in the county, gets the plurality of votes and is 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 a majority of all of the county unit votes is entitled to the nomination and that can be ascertained and declared without a form of convention vote.

Incidentally in some years when there is not -- this is not, the year the elected Governor don’t even had a convention in Georgia, Democratic Party does.

Always, in the convention, the Democratic Party, the democratic conventions -- as 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 counties.

It had 137 in 1877 when the constitution of 1877 was adopted.

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 two and the rest have one.

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 county is entitled.

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

Justice Stewart: General Murphy, this case doesn’t involve at all, at least it certainly doesn’t involve directly that the system under which your 3:2:1 system, your 3:2:1 system for election of the House of Representative.

Mr. Murphy: It’s not involved in this case at all except that that was until an amendment of 1962 the method whereby unit votes were allocated to the various counties --

Justice Stewart: Well it was derivative, it was derived from that, wasn't it?

Mr. Murphy: From the county -- from the representation of Lower House of the General Assembly and that had always been their rule.

Justice Stewart: I just want to be sure and I can understand the argument as we go on that we acknowledge that there is not involved here legislative apportionment as such at all, the state legislature.

Mr. Murphy: There is not involved as the apportionment as such.

I say in 1877 we had 137 counties in Georgia.

We may have too many.

They all are created by the constitution.

And that constitution revised that there should be no more.

In 1903 or 1904 they amended the constitution, the legislation amended it and proposed it to the people and people ratified to add, bring the number of counties up to 145 and enough addition of counties were created to bring the number of counties up to 145.

It has not always been the eighth highest with the three representatives, but that’s the way it is now and at one time it was 6 and 26 and one.

Since that time, a number of counties have been created which brought the total at one time up to 161.

Each one of those counties was created by a 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 had been created many years before were merged with Fulton County.

It was Campbell and Milton, I believe.

So now we have 159 counties.

The Neill Primary Act, as I said a moment ago, didn’t change 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 respect to the right of the candidate who got the most votes in a particular county to the vote of that county on the unit bases, and provided that if nobody had a majority of the county unit votes for Governor or United State Senate, then should be run over primary between the two highest candidates, for those two offices alone, and all the other state offices the candidate with the most county unit votes throughout the county unit votes was to be the nominee.

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

It leads to the determination of the congressional committee or to the executive committee of the party in the district, whether or not it will have the 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 entitled would be the same as all fixed in the Neill Primary Act, that is two for each representative in the Lower House of the General Assembly.

In 1946, the first suit challenging the validity of a Georgia county unit system was filed in a Three-Judge Court in Northern District of Georgia.

That was filed by 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 happened that in 1946 the Governor, the Democratic candidate for Governor who received the highest number of units, but the majority of unit votes, did not receive the highest number of popular votes.

There were two candidates and the man who got the highest number of majority unit votes was the second in popular vote and that brought about the case of Turman against Duckworth.

That was heard before Three-Judge Court and the Three-Judge Court decided against the plaintiff’s there, and it was appealed to this Court.

The appeal here was dismissed.

I don’t want to go into whether or not this Court dismissed the appeal because it was moot or 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 1950 there was another suit brought in the United States District Court for the Northern District of Georgia by Mr. South and his associate whose name I have forgotten.

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

That was tried before a Three-Judge Court, composed of Judge Sibley and Judge Andrews and Judge Hook, I would say Judge Hook for Judge Sibley because he was the senior judge I think of the Fifth Circuit Court of Appeals, and we think in Georgia were able judges.

Judge Sibley wrote a very strong opinion upholding the county unit system and it’s set forth in that case in 89th Federal Supplemental 672, I don’t want to read it, but it goes into the history of the county unit system again as they 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.

Unknown Speaker: (Inaudible)

Mr. 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.

Unknown Speaker: It was, but I am (Inaudible).

Mr. Murphy: Well it may have been.

If so, it maybe that the last case of Baker versus Carr answers those questions.

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

That was a case of Cox versus Peters.

That case was dismissed on the merits 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 by going over substantial federal questioning.

The next attack on the counting 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 impanel a Three-Judge Court and this Court did not allow an appeal from that decision.

Some of justices thought a rule 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 Stewart: These cases maybe have told us and we don’t need to know in detail, but do these cases all involved the same issue that’s involved here, that is the election of state wide executive and judicial officers or were some of them attack on the legislative apportionment of the system?

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

Justice Stewart: They were all of a piece of the kind of litigation we had before us now?

Mr. 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 election for the nomination of the United States Senate.

This case was filed immediately after Baker against Carr, I don’t think it’s improper to say that was a cause to great deal of conversation among Georgians and Georgia politicians about the effect of that decision and there were numerous conferences on this edict 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 bail on which the judgment in this case was or the hearing was concluded, I am not sure whether the judgment was handed down that day or the next day, the Governor approved of a statute which amended the Neill Primary Act in 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, why is the number of votes of the county, the number of unit votes to which the county was in entitled, based twice the number of representatives in the Lower House of the General Assembly.

The act provides and the Your Honors will have it that all counties with the population of less than 15,000 shall have 2 unit votes.

The counties with the population between 15 and 20, or 25 I am not sure which will have 3 and so on, finally it gets up to a bracket where they allocated additional votes at the rate of two for each 15,000 additional population.

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

Alright but no county has less than 2 however small the population maybe.

The Three-Judge Court, held that this view that the Neill Primary Act as amended by the Act of 1962 was unconstitutional because it was invidiously discriminatory against people who lived against the plaintiff and other similarly situated, the thing is being read in Fulton County.

However, overlooks saying that the new act provides that in order to be nominated in the first primary, the candidate must receive not only a majority in 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 candidate receives the majority of the county unit votes and the majority of the popular votes, there is 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 who received the greatest number of county unit votes also received the greatest number of popular votes but not a majority of either or both.

Then the run overs between the candidate with the highest number of county unit votes and candidate with the highest number of popular votes, but in that run over primary, the candidate who receives the majority of the most county unit vote without the majority, because we are dealing with two, is declared the nominee.

That was this additional change in the nominating process that as respects offices, candidates for offices other than government and the United States senate, the same rule applies of requiring the majority of both the county unit votes and the popular votes, and if there is no majority of both then the two highest candidates have to run again.

Now they --

Justice Stewart: If that happens the one who gets the highest unit votes win, unit vote?

Mr. Murphy: One who gets the highest unit votes -- of course, he has to have a majority, because it only be two.

Justice Stewart: Majority of the units?

Mr. Murphy: Majority of the units, he is entitled to the nomination.

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

The Neill Primary Act required only plurality of county unit votes for the candidates other than Governor and United States Senate.

Whereas this act, as I read it, requires the same sort of majority of all candidates, that it does for the 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 and they think and enjoin the Secretary of State who is the state official who handles the elections from putting anybody’s name on the ballot of the general election who is nominated under the Act or by virtue of the county unit system and enjoin the party authorities from holding any primaries.

In 1962 in the other (Inaudible), under any county unit system, unless it was such a county unit system as would not be invidiously discriminatory, under the opinion was filed by the Court in this case.

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

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

Justice Stewart: The position of the government that that part of the Court’s opinion and decree should be exiled.

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

Mr. Murphy: Whether if this Court holds that the Neill Primary Act is unconstitutional for --

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

Mr. Murphy: No sir, it’s not all that’s before here.

There is also before you the question of whether or not the Democratic Party in Georgia, without any state law --

Justice Stewart: Well, that yes -- that’s before us.

Mr. Murphy: Now it can hold a primary on the county unit basis.

Justice Stewart: But there is not before us any other alternative system?

Mr. Murphy: No sir, 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 primarily that was held in September of 1962.

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

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

Justice Stewart: There was stay requested in the --

Mr. Murphy: The stay was denied in the court below and I don’t -- now as I say, as the Court holds that the Neill Primary Act as amended is unconstitutional as did the Trail Court.

However, then the next question is that what can the Democratic Party enjoys to do about it?

Under this decree, it can’t hold a democratic primary on a county unit basis; it can hold it only on a popular vote basis.

Although it may, if the Court permits this formula that was set forth by 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 that’s stated in our brief, and is I think we stand upon that the county unit system as is existed in Georgia at the time of the amendment of the Act -- of the amendment to the Act of 1962 and as it now exists is that and represents a proper exercise of legislative power by the state.

Of course --

Unknown Speaker: The court did not strike -- the court did not strike out any of such --

Mr. Murphy: No sir.

It struck down the Act we had and said you could have one if you -- if the party could hold the course of verdict, the Act being unconstitutional is left to the party, but the party did not without a system that would be in conformity with the court’s opinion partisantly reverted to the majority vote, and the last election was held on majority vote basis.

Now we did have a reapportionment here; that’s not on its way up here because we hadn’t -- as a matter of fact the Court never has rendered the appeal for the judgment and its --

Justice White: But Mr. Murphy you don’t -- do you contend that without there being a State Act which has been set aside, you say the party didn’t complain.

You -- is there any part of your argument that this is the state act as (Inaudible).

Mr. Murphy: I don’t think so, Your Honor.

Justice White: But do you speak that?

Mr. Murphy: I think that Baker versus Carr answers that question that this Court can deal with it.

What I am trying to say is that where there is --

Justice White: This is a primary?

Mr. Murphy: Sir?

Justice White: This is a primary?

Mr. Murphy: This is a primary, yes.

Justice White: Yes, this is a primary and it’s a party primary.

Mr. Murphy: It’s a party primary.

Justice White: Yes, that says there is no question about it being state action.

Mr. Murphy: No sir.

We don’t have question about it being a state action.

I think we have passed over that question I think this Court is --

Justice White: Or any question about this case being moot?

Mr. Murphy: It would be moot.

It is related only to the 1962 election where the judgment of the injunction is broad is sweeping, it’s enjoined us forever against holding a primary on the county unit basis, under the county unit system unless we do it according to what the Court said, would not be invidiously discriminatory.

Justice White: Well, would you tell they have employed any state action?

Mr. Murphy: Employ a case state action?

Justice White: Yes.

Let’s assume there was no statute whatsoever that enjoyed the invidiousness and then the party rule over.

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

Justice White: After all the party wasn’t decided to hold a popular election?

Mr. Murphy: That’s correct; that’s correct.

I think under the decision of this Court, this Court will hold this as state action.

And I don’t mean to say by that -- and I agree with it, but I see no requirement as primary (Inaudible) hold my question.

Justice White: What decisions are those?

Mr. Murphy: They are Terry against Adams and these other cases, the Classic case.

Justice White: Allwright and Smith or so on.

Mr. Murphy: I will say that the law of Georgia doesn’t require a primary.

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

It doesn’t require a primary.

Justice White: I suppose that if the primary is state action so is the convention?

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

Unknown Speaker: Well, it’s only where the state is predominantly going to parties or we pen it down to election.

Mr. Murphy: That exact question was dealt with by Judge Sibley and the only time it’s ever have been considered, I think decided candidly, was by Judge Sibley in South against Peters, and he said it was not equivalent to election, the democratic nomination.

Unknown Speaker: We have several towns where I think that they used the word tantamount, tantamount to election, I guess in Jaybird.

Mr. Murphy: Yes.

Well in the Jaybird, but I don’t know whether the Court might review that situation again in view of the fact that there is an elected republican senator here in Georgia [Attempt to Laugh], and we have got a republican senator in the state senate who was elected in November.

Unknown Speaker: Mr. Murphy now that you tried the popular primary, are you suggesting that the party would like to return nevertheless to the --

Mr. Murphy: To the county unit system?

Unknown Speaker: to the county unit system?

Mr. Murphy: Well, we think that the county -- that the Democratic Party of Georgia would have right to adopt any method of nominating its candidates with the --

Unknown Speaker: Without suggesting that it intends to return?

Mr. Murphy: Pardon Sir?

Unknown Speaker: Without suggesting that it intends to return?

Mr. Murphy: Yes sir.

I have no idea, as to I am not a member to State Democratic Executive Committee and I have no idea what the next committee will do.

I want to say this the only time that the dominant political factor enjoyed, yet before it has changed from the county unit system in 1908, I believe when Governor Hoke Smith by virtue of being Governor for a while dominating the Executive Committee, reverted to the popular vote plan and abandoned the county unit system and he reversed the opinion for that reason and he sends to him that it went back on a county unit basis.

Justice White: But would you say that the party decided to nominate by a convention 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. Murphy: Well, I don’t think you would and I think that 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, mostly the other states do.

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

Mr. Murphy: I think probably it would Your Honor --

Justice Stewart: That’s what I think too.

Mr. Murphy: -- that an outstanding injunction enjoined them against holding any primary.

Justice Stewart: It just relates to primary?

Mr. Murphy: It just relates to primary.

Justice Stewart: I suppose under that injunction the Democratic Party, if it wanted to, could have a dozen party leaders meet in the smoke filled room and nominate all the state wide officials?

Mr. Murphy: Well, that’s what the Republicans do You Honor. [Laughter]

Justice Stewart: Well, that’s all the Republicans in Georgia I suppose. [Laughter]

Mr. Murphy: I didn’t mean it; I didn’t mean it.

To be precise Your Honor --

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

Unknown Speaker: (Inaudible)

Mr. Murphy: Well, Your Honor they nominate the candidate for the Governor 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 if they nominate candidates, the Republicans nominate candidates, and they have county unit system that’s sort of like ours.

What he says that Republican Party of Georgia, although under this year it would probably not actually nominate anyone for statewide office during this century.

It uses a convention system for nominating the state office and presidential election year.

The convention also selects a state central committee which has the power to nominate candidates between quadrennial conventions which are held during presidential election year, that is the elector meets the county at mass meetings to the state that don’t have the primary to enjoin.

Justice Stewart: Well, General Murphy going back to Justice White’s and my inquiry, in your onion it would not be a violation of this injunction if the Democratic Party in Georgia decided to have a few party leaders nominate the state officials.

Mr. Murphy: I don’t think so.

I don’t know how well that fair in the final elections if they did that way that I don’t think it would be a violation of this injunction.

I start to see that the Republican Party say we enjoyed it and did nominate a candidate for Governor in 1962 and he qualified by getting a requisite number of signatories on his nomination petition.

Unknown Speaker: (Inaudible)

Mr. Murphy: Well, I don’t know of any case in Georgia where a Republican or any other party has not -- has elected a candidate for a state office since I had been old enough to vote.

I can’t remember back to reconstruction, but the only reason that the Democratic Party elects the state office because 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 that people vote, and this year there would have been a Republican candidate who would have polled a very substantial vote.

The Republican Party got about 35, between 35 and 40% of the votes in 1960 in the presidential election and Mr. candidate unfortunately was killed in automobile accident and didn’t make the race, but they did nominate a very fine --

Unknown Speaker: I didn’t understand that you have a race in a -- but asked us to overrule or reconsider Smith and Allwright or Terry versus Adams.

Mr. Murphy: No sir, we have not.

Unknown Speaker: And they both said that this was a state action?

Mr. Murphy: Yes sir and we are not undertaken to reargue those questions.

There is this difference I think in the Classic case, and in Allwright case that in both cases the primary was required by the law.

It’s not in Georgia.

Argument of E. Freeman Leverett

Chief Justice Warren: We’ll recess now.

Mr. Leverett?

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

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

It has reference to the evolution of the county unit method of nominations insofar as a 1917 it was enacted into law.

I think Mr. Murphy made it clear that the basis for that enactment into law was the fact 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 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.

Unknown Speaker: (Inaudible)

Mr. Leverett: That is a consequence of before and after it was put into laws.

I will come to that momentarily, yes.

Unknown Speaker: (Inaudible)

Mr. Leverett: That is correct.

At the outset I would like to state this that we think and do not contend otherwise that Baker versus Carr has settled all questions of justiciability, expanding 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 to its judgment.

To that extent there are still areas that are not justiciable once you get past the initial question.

Before getting into the merits of what we think are the applicable Fourteenth Amendments 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 the other executive department officers represent the citizens in the execution of the laws, just as represented -- represent the people in the making of the laws.

Now nether 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 affect that is given to that vote is necessarily weighted.

Beacuse he obviously cannot exist in a vacuum.

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

Justice White: Mr. Leverett, you are suggesting then that 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. Leverett: Indirectly, I think so.

At this juncture I am primarily --

Justice White: That’s must be the result of the your argument?

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

Justice White: And also making the contrary argument?

Mr. Leverett: That is correct.

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 the legit 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 of 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 affect in a different amount.

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

Justice Stewart: The difficulty with your arguments so far as I am concerned and as I understand it tentatively is this.

Now let’s take the case of United States Senator.

The constitution of United States itself provides 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 that is predetermined.

We don’t have here, in the case of an election of United States senator any problem or any choice of the state to divide up the district?

Mr. Leverett: We aren’t contesting.

It’s our argument that it can.

We are arguing that is --

Justice Stewart: Not a matter of districting when it comes to because this has all been decided in the constitution of United States that the state that’s the unit.

Mr. Leverett: The state is a unit, that’s correct sir.

Justice Stewart: And the state elects the United States senator?

Mr. Leverett: Well, that is – that’s true in Georgia.

We don’t district the state for purposes of electing the senators.

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

Justice Stewart: I am just suggesting that to me unlike my brother White’s suggestion I got it from his question that this a quite a different case from a legislative apportionment case?

Mr. Leverett: There are differences, that is correct sir, but we say this that here 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 a reference to a statewide office as a Governor or the judge, it’s rendered, it has to be accomplished upon wisdom, but the basic underlying proposition is that if there can be waiting as to one lot, what is there to say that you cannot have waiting as to the other, the Fourteenth Amendment draws no such distinction.

Justice Stewart: But I am just suggesting that the problem is different?

Mr. Leverett: I think that would follow.

Unknown Speaker: (Inaudible)

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

Unknown Speaker: The question of weighting the votes?

Mr. Leverett: Our position will be that --

Unknown Speaker: You say that’s a --

Mr. Leverett: That is a complication.

Unknown Speaker: -- the Court must stay out of it?

Do you think it is not justiciable question?

Mr. Leverett: I think that it’s not constitutionally impermissible.

Now I think you have -- 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 I have an answer to your question, please stop me if I go ahead of myself on this point.

Unknown Speaker: (Inaudible)

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

They said this.

In 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 votes.

Now 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 upon (Inaudible) involving the 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, forgot that unit is simply a substitution for this collegiate body that too 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.

Unknown Speaker: General in your argument, you rely to the instance that you have before the jury?

Mr. Leverett: Yes sir.

Unknown Speaker: In other words you are clearly mentioning something that the state government wants to include in the legislature, as to constitutional requirement.

Mr. 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 second the overall substantive standard 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. 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 before the Court, but the Appellee argues and I am not certain whether it is here, I am not -- frankly I am not familiar with the rules or procedure of this Court Georgia law.

If a judgment is right for any reason, it should be sustained on appeal regardless of the reason given in court below.

I presume that is rule here.

I have never actually read a case on it.

This question might be restated thus lately, 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 appellee though says no.

He relays 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 or 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 sufficiently distinguished by the fact that it was a criminal case where there had 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 and refuse to count 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 units is constitutional.

That it give 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 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, Judge Stiply (ph) said this.

“The history of the state and of the political parities within it shows at 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 the treating them as a unit.

In several, the recent reapportionment cases, the Tawes case from Maryland, the Simon (ph) case from New York, Baker versus Carr itself on remand, Scholle case in Florida.

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

They have it within that power to levy taxes or not levy taxes, to vote certain vital services or not to vote.

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 commissions, ordinances, county managers.

The Georgia constitution expressly exempts county government from the uniform it’s 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 problems that it will impose upon its educational system and in this context, the unit aspects of this case of course apply equally to all counties, regardless of the population.

It brings me to 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 divergences in that opinion with respect to the procedural questions of jurisdictions, justiciability standards and so forth.

In the majority onion, it was stated in full, 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 a discrimination reflects no policy, but simply arbitrary and capricious action.

One of the special concurring opinion is statement of facts.

Universal quality is not the test.

There is room for weighting.

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

In an 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 chaptered to give assurances that state legislatures need not be so structured as to reflect with approximately quality, the voice of every voter.

Nor does the constitution prevents the state acting not irrational from choosing any electoral, legislative structure it thinks best suited to the interest and to the custom and its people.

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

Unknown Speaker: (Inaudible

Mr. Leverett: Yes sir, I think that it is as far as the constitution is concerned.

Now I am got arguing political science and I would hope the Court will not argue political science.

Unknown Speaker: (Inaudible)

Mr. Leverett: Simple because it has never been the law before that equal population representation is the only legitimate basis of electoral apportionment and also because there are other factors that enter into it.

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

Unknown Speaker: (Inaudible)

Mr. Leverett: We think that several propositions necessarily follows correlates to this or from what has been said in these cases and the various opinions.

First that the Fourteenth Amendment does not limit a state’s charge 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 the dissent arose as to the candidates who would participate in that.

And another candidate who is following 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 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 fractions.

One, the French school of thought which inspired by the writings of Russo (ph) revert to as the egalitarian Democrats, the egalitarians, one man one vote.

On the other hand, and arrayed against them was the British school of thought which saw the necessity for imposing limitations upon majority will that is 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 is been John II I think, that while Thomas Jefferson has generally quoted as being on the side of the egalitarian democracy.

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

But we do not have to go to the records of the constitutional conventions to determine what the nature of this government is that was founded.

We think that 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, the requirement that each state had at least one representative regardless of the number of people.

Justice Stewart: What we have before us here is an amendment to that constitution which was adopted about almost quite 100 years afterwards, that is what is before us here --

Mr. Leverett: That’s right.

Justice Stewart: There is no constitutionally --

Mr. Leverett: And you have the Fifth amendment which was adopted after that constitution which contains a due process equality.

Justice Stewart: No Equal Protection Clause?

Mr. Leverett: No but this Court said in Beadle versus Sch -- versus Scholle that it would be unthinkable that the Equal Protection Clause of the Fourteenth would impose a half standard upon the states and 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 is disproportions in between the states in the casting roles of electoral votes.

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

That is voted on by the states in which each state has one vote regardless of the number of people.

When Congress elects the President in those situations when it is permissible to Congress to do so, each state votes as a unit, each state has one vote.

Unknown Speaker: (Inaudible)

Mr. Leverett: Is the --

Unknown Speaker: (Inaudible)

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

Unknown Speaker: (Inaudible)

Mr. 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 is no Equal Protection Clause applicable to it, is the only thing that says it.

Justice Stewart: All that as -- that’s because Goldberg says, the specific provisions of the United States constitution save it.

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

The history here is quite a different history.

Georgia was not created by several counties getting together and voluntarily giving us some of their sovereignties to create the state of Georgia.

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

This argument about sovereignty is circular.

What do you mean when you say one was sovereign one was not?

It 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 it is called intervene.

I cannot 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 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 is ever been voted in by anybody, but yet gave you the power.

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

There is 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 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 in soluble question that you have is what method of mathematical evaluation are you going to use, aside from that actual fixing of the limits and the formula itself?

Would it be that theoretical minimum of persons unable to or capable of electing a majority of both houses or one house and what about a unit accountable legislature and I think you have a case in Nebraska, I do not know whether it is coming here or not?

How would you apply to the Georgia situation?

Would the -- assume that theoretical minimum is the test, a 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 and could cast a majority of the electoral votes for the President.

Now, the three-judge court in the Georgia legislative proportion 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, has any court undertook 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 is another method that you could use and evaluate.

That is the mathematical ratio that compares 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 a court below held the comparison should be from the particular county to the average county, their ratio would be approximately 1.93 to 1.

In Baker versus Carr, the courts validated an apportionment which gave ratios to largest and smallest and 7 to one for the senate, 23 to 1 for the House.

There was 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 is for population and a 131 is to eligible votes.

Now there is a third statistical approach and that is suggested by 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 15% for congressional districts.

Representative Selah (ph) has recommended 20% in some legislations he has proposed and Senator Clark he 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 or prelude of things to come.

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

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

I would certainly take 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 did not tell us that at approximately what point it becomes permissible or unconstitutional.

Unknown Speaker: (Inaudible)

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

Unknown Speaker: (Inaudible)

Mr. Leverett: I do not think you can say that.

It is really the people, the legislature is supporting the represent -- well, the people it provided otherwise.

Justice Stewart: Well that is a argument.

That never has legislature -- I feel there is some others representing the people of the state.

Mr. Leverett: The argument I think or the question that you ask presupposes, does it not, that equality of representation is the only basis of representation.

Justice Stewart: I was only pointing out that the -- hardly we presume that the legislature of Georgia as presently apportioned, at least House of representative, can be presume to be the will of the majority of the people of Georgia, whether it is constitutional or not, is a different question?

Unknown Speaker: I thought that is within the same except --

Mr. Leverett: It would have, except it would not have been a runoff as I recall in the race for Lieutenant Governor.

He would have been elected on the first ballot.

Unknown Speaker: All the other officers (Inaudible)?

Mr. Leverett: That’s right.

So that would have been a difference in the one of the congressional district, of course, that is not imposed by the state law.

It wouldn’t it -- well, I say this.

It would, under the old system, it would have been -- there would have been a difference under the new system.

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

Unknown Speaker: But your argument here posed that (Inaudible).

Mr. Leverett: That’s correct sir.

Unknown Speaker: (Inaudible)

Mr. Leverett: Which old system?

Unknown Speaker: (Inaudible)

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

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

Justice White: I understand you to say that there is enough reason for the legislature to simply to want to prefer the less popular county and that is the end of the question.

Did you simply wanted -- legislature simply wants to weight the less popular county’s votes.

In primary they should be perfectly free to do so.

Mr. Leverett: That’s correct sir.

Justice White: And you -- and that is enough rationality?

Mr. Leverett: That is right sir.

Justice White: And you would get the same answer then I suppose if they did it in another way and said each person in a rural area of a certain county gets three votes, it has cast three ballots.

Do you get exactly the same result, don’t you?

Mr. Leverett: Casting of -- I would -- I would have to analyze it mathematically.

I am not sure that it would give you the same result.

Justice White: Well, I mean whatever the figures would be there --

Mr. Leverett: Right.

Justice Stewart: You cast that many more votes that have -- you should come out (Inaudible) in the legislature for you to get people on equal voting power.

That is essentially your argument.

Mr. Leverett: That is essentially, yes sir it is.

I would not say that I could -- I am not enough of mathematician to --

Justice Stewart: Well I do not care for the figure.

I do not care about the figure.

But would you get the same answer also if the legislature changes mind next year and that we will get people in the city four votes and people in the country one vote.

Mr. Leverett: Not just will that language because it doesn’t wotk that way.

Justice Stewart: Well I know, but let us assume that you had, the history first scales and made the county unit system preferential to urban.(Inaudible)

Mr. Leverett: We have to do that.

We have to do that.

Justice White: So that history hasn’t anything to do with it?

Mr. Leverett: I think history has because this Court is held time to time again that history and the traditions of the people have some influence, does not controls.

Justice White: But the 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. Leverett: It was to some extent when the people first started moving out of the tag water 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 White: Well do have you a suggestion as to why, you say it’s irrelevant, I know that, but assume someone did not agree with you.

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

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

Justice White: Well, it doesn’t mean inequality, does it?

Mr. Leverett: How is that?

Justice White: I mean diffusion does not mean inequality.

You had absolute diffusion when you had your live primary.

Mr. Leverett: Diffusion?

Justice White: Yes, diffusion of --

Mr. Leverett: It is not the diffusion we usually think of in terms of MacDougall versus Green.

Justice White: And you would I suppose get the same result then if the legislature decided to weight the both in favor of functional groups.

Mr. Leverett: I am touching on that, the 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 refer to as unofficial apportions where these extra legal forces that rise up and utilize the old -- the Geo portion such as lobbies, pressure groups, and reapportioning of the state senate.

We came across one aspect of that as originally drawn out of six 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 is no other adjustments made to alleviate the inequality that resulted.

We have more community of interest with this particular group of counties over here and 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 as a 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 super imposed the population bracket on top of to give it some aspect of equality, but political unit apportionment is one of the oldest.

Another is of course the functional division apportionment where even mere college elected its own representatives at the English universities.

Another type of functional division apportionment has been suggested recently by one commentator who says that we are developing cleavages which is in 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.

Justice White: Well, it was done in Italy once?

Mr. Leverett: How is that sir?

Justice White: I think it was done in Italy once?

Mr. Leverett: Yes sir, many European counties I think have followed that, particularly in Austria and in Mid Europe.

Another method of representation was suggested by John Stuart Mill who advocated the co-ship (ph) of apportionment, a pre-population allowance, that’s in vogue in Europe.

We say that courts are not equipped to make the policy choices between these conflicting bases.

I don’t see how you can adjudicate when 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 --

Unknown Speaker: Your personal argument goes against the Baker versus Carr?

Mr. Leverett: No sir, I don’t think it goes against it.

I recall the distinction made, but what I am saying is this that --

Unknown Speaker: There isn’t a real distinction?

Mr. Leverett: I don’t see how you an 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 cannot see any difference in standard that would be compatible with equal protection and yet not at the same time represent a Republican form of Governor or Vice President.

There may be, but I fail to see it.

Justice Stewart: I don’t -- I am making a mistake in my pleading, but as far as I am concerned, your argument now does not go to the problem before the Court in this case.

We are here talking about, not about legislative apportionment at all.

We are talking about the election of the United State -- of the nomination by one party state of a United States senator and of statewide officials, executives and judicial as I understand it.

We do not 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 voter one vote, counted equally.

You do not have all this history that you have in legislative apportion.

You do not have all the problems of representative government in a state legislature.

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

Mr. Leverett: I think may be I can --

Justice Stewart: I consider that I have asked that question, I shall not ask it again.

Mr. Leverett: I think I can come to the heart of the thought when I say this that we think that the true test is not the Court pick and choose between conflicting basis of representation, either legislative diffusion of electoral power and state house offices or otherwise.

The true test is that the Court is to determine whether there is any recognizable basis there.

If there is any basis at all, then I think that ends, and there are some of course that obviously are impermissible, race, sex, and that sort of things.

But, if a particular system reflects a recognizable, identifiable expression of policy, and it is a policy that certainly have some recognition in governmental structure, I think the function of the courts should end there, and they should not go into weighing, and as the government would suggest, determine whether there is only a moderate departure from per capita equality and all of the drawing of alliance that would entail.

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

Argument of Morris B. Abram

Chief Justice Warren: Mr. Abram?

Mr. 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 appellant to get firmly in mind the position which the appellee takes with regard to 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 classification, districting is classification.

It’s the drawing of a line and 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 a voice and representation, is either to have a proportionate system of representation or to ignore the minority’s voice by elections at large.

Therefore, using our system which is not a proportionate system, American system has not 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 controls under our general 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’s the State has to decide 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, a classification of a field of voting must in necessity involve discrimination. Now, I should like to point out that --

Justice Stewart: As you have indicated the -- as you have previously indicated that a State is not without power to discriminate and what might seem in arbitrary way and of course, isn’t it that correct, that Georgia, as I understand if you are 18 years old, you can vote.

But you can not vote if you are 17 years 364 days old.

Mr. Abram: That’s perfectly classification I should think, the age classification.

Justice Stewart: Now somebody of that later age might think it’s pretty arbitrary?

Mr. Abram: Well, 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 was the issue, but --

Justice Stewart: And I suppose the state could say to a person who has lived in a precinct or in a county only 29 days that you cannot vote (Voice Overlap)?

Mr. Abram: I think (Voice Overlap) to this, but I think that particular suggestion appeals to me as reasonable.

I might think 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 2, 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 Stewart: That doesn’t matter if you are a state constitution --

Mr. Abram: My state constitution.

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

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, a majority of the house represented 22% of the people and the majority of the senate has 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 shan’t go into.

Unknown Speaker: (Inaudible).

Mr. Abram: Well sir, I don’t adopt that premise, oh yes sir because we have not had sir, in dealing with history which I presume 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 not found, he was not going to run for Governor.

He was induced to run.

It is generally recognized because the unit system was not there.

The votes that were cast in the urban counties of Georgia were enormous, the registration just surged 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 or anything like that proportionate numbers there are to the population because the fact that vote didn’t count.

You can’t say the system has--

Unknown Speaker: (Inaudible).

Mr. Abram: Yes, yes, yes.

Unknown Speaker: (Inaudible)

Mr. Abram: (Inaudible) yes sir.

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

Second I am going to mention very briefly the point alluded to by Mr. Justice White that is the constitutional protection of this primary, but I am going to be of 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 am going to try to measure the County unit statue against the Fourteenth Amendment in practice, in principle and then I am 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, to cast three fifths of a ballet, 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 it’s effect and that is what it’s designed to achieve.

The system is further more compounded in it’s effect by the fact that a man does not have 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 a 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, but he only received 36% of the popular votes and 72% of the people had in fact voted for somebody else.

Unknown Speaker: (Inaudible)

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

Unknown Speaker: (Inaudible).

Mr. Abram: No sir.

We 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 votes then they get into a runoff under a unit vote and then you have got the man who won the popular vote tag, there is a popular vote candidate in a county unit election which of course would be politically disastrous.

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

Justice Stewart: And this would be a terrible political liability to be known as the fellow who has the majority of the people of the state report for government.

Mr. Abram: It would be that sir and Mayo Hartsfield’s affidavit in the record shows why.

There were campaigns after campaign of scorn and vilification 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 he took upon the cities in election after election by people who presumably were trying to represent.

Justice Stewart: I heard this about some people that no body is harmed, but the people but I didn’t realize that it was such a terrible --

Mr. Abram: Well, under the unit system it does help the people 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 an record an affidavit from a legislator who was present at the briefing sessions about this legislation and I would 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 10, 1962 was to preserve, protect the county unit system, maintaining as far as possible existing discrimination ratios and that do as little as possible to correct these and at the same time attempting to prevent further intervention by the Federal court.”

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

Unknown Speaker: Do you have the legislature debates?

Mr. Abram: Sir we don’t keep records of legislature debates.

We don’t have committee reports of general.

Now the system as it was devised is a bracket system.

From 0 to 15,000 population you get two units, then you get to another unit for additional 4999 people, then a unit for 9999, then a unit for 14999, then a unit for 14999 and then 2 units for 29999.

Now it’s rather curious, 30000 people at the bottom of the scale get four units, 30000 additional people at the top of the scale get 2 units. 29999 people at the bottom of the scale get four units, but 29998 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 am going to argue that no unit system is permissible because of course the decision of the below was standard, the court adapted that principle which I think is correct principle in this case.

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

The effect of the system as demonstrated in the Hartsfield affidavit has been politically profitable, but candidates for statewide offices to run races and was direct attacks made upon the center of 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 haven’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 Mayo Hartsfield has pointed out a tremendous lack of interest in election going out at the 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 end 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 and Negroes’ franchise.

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

Justice Stewart: It does not make – you are not relying on the Fifteenth Amendment?

Mr. Abram: No sir but the --

Justice Stewart: Well that’s not the point of your argument at all?

Mr. Abram: Well in Nixon versus Condon, 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 Stewart: Well that’s your argument here too?

Mr. Abram: Well, that will be my argument here too.

Well, I mentioned it only to show that the purpose of this, this deliberate discrimination and the reason for permitting this secular discrimination of a long period to develop was that it was giving a great deal of benefits to those who wished to press and to avoid the Negro franchise, but I think it’s fair to say that I don’t want to say anything more about it except the record shows that wherein a county unit power gave to the inbuilt political operators the greatest advantage there you had real Negro disfranchise and in certain counties with large Negro populations, with high unit values no vote at all from Negroes.

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

It ends up in a statement by Professor Blamer (ph) which is in the record.

These facts had a considerable bearing upon the determination of role of 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 state to en-graft a system upon the constitution and each election by popular vote of about 30000 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 1, Section 4 of the constitution the right of the Congress to control the time place and manner of election he said this.

“The inequality of representation in the legislature of particular a state would produce a light inequality in their representation in the national legislature as it was presumable that county is cutting power in the former would secure it to themselves in the later and secure it to themselves, as 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 in it’s 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 electorate or the ballot counted at the primary election includes the rights protected by Article 1, Section 2.

Justice Stewart: The state law does not require a primary.

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

Justice Stewart: Is there anything, forgetting now what the constitution might or might not require, is there anything in the injunction which would prevent Democratic Party leaders meeting and nominating the candidates for state offices?

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

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 reason why 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 Stewart: Apparently well that’s why all the Republican are in Georgia?

Mr. Abram: Well no sir, there are great many of them.[Laughter]

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 election.

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

If they were a convention, let’s say to which the delegates came in kind of a county unit way, I guess Connecticut has a convention of that kind, I understand, would that be state action?

Mr. Abram: I would suppose that if state law governed it in some way.

Justice Stewart: Let’s create a state law that was just provided for that if a party had gotten a certain percentage of the vote at the last election then they were a party, but they were entirely free to nominate their candidates anyway they wanted for the next election.

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

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

Unknown Speaker: Isn’t that what Classic says?

Mr. Abram: That’s what Classic says.

In fact, controls the procedure of choice.

Justice Stewart: So that doctrine is limited to one party states --

Mr. Abram: That’s right on one party states.

Now, in 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.

I think for 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 --

Justice Stewart: Well suppose you could conceive of a party -- of a party that -- it’s political objective was say white supremacy citizen’s councils party say, couldn’t it bar -- we have the right of free political expression and free speech?

Mr. Abram: I must say I don’t know what the Court would do with edification here but my feeling is that that is not before us because in Georgia, the case before us without any doubt the Democratic Party imposed the procedure of choice under the Classic.

Justice Stewart: I am getting a case, it’s not here.

I was just --

Mr. Abram: But I would say this, Terry et versus Adam 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 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 problem that the Court is speaking.

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 Blamer (ph) says in his affidavit that Georgia has been one-party state since removal of federal troops in 1871, none but democrats have held a state office since the 1890 decade after which period this party has been completely in control of statewide elections.

You have before you in 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 great constitutional questions have been presented for ratification which further demonstrates that this primary is a procedural choice.

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 house 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 US versus Back case, I have already mentioned the fact that I think you have 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 Stewart: But you must see that as State can classify as the eligibility of voters.

Mr. Abram: Oh yes.

Justice Stewart: I mean you have already asked the age.

Mr. Abram: I mean after (Voice Overlap) to be accurate and be careful about, I should say this, after the state has classified who is an eligible voter, no further classification is permissible.

Justice Stewart: Carrying that a little further kind of if the state classified an eligible voter in terms of whether or not he pays taxes?

Mr. 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 pay taxes and have entered the class, the State itself is established whether through it’s constitutional or laws, I do not think it is permissible then to draw the distinction between the people whom it is already classified.

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

Mr. Abram: I should think so.

Justice Stewart: Certainly it could as to whether or not he is literate?

Mr. Abram: I should certainly think so.

Justice Stewart: It could do it how much property you own?

Mr. Abram: Well, 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 is necessary to decide this case in order to determine how have you set the original qualifications of the vote.

Justice 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 MBA degree, four votes and a man with an eighth grade education, how many votes?

Mr. Abram: I would refer this, but It has more rationality behind it than this statute as we are going to rather demonstrate in a moment, but I still think it would be, in my judgment, a rest.

Justice Stewart: But, that would be an original classification because it is the same thing whether you give somebody two votes or one vote, whether you get one or two.

Mr. Abram: I would concede that is true.

Justice Stewart: So and you do, I think you must concede that a state does have power to classify certainly as to age and literacy.

Mr. Abram: I agree with that.

All I am saying is that once you have established to as a qualified voter, you may not then on grounds that having then two elements that I am going to now discuss again further re-classification and distinctions.

Unknown Speaker: I was reading Senator Tower’s new book here today and it seem to indicate that perhaps the best democratic duty was to let those who spend the least money have the least vote and those who spend the most money, have the most votes, would that be a rational classification?

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

Unknown Speaker: Would that be original?

Mr. Abram: I would say that it would be original.[Laughter]

I certainly would agree in two senses perhaps.

I think the general principles that govern this field are these. Classification, if it produces substantial discrimination, and is irrational in the sense of capriciousnes, that is without rhyme or reason I think as Mr. Justice Clark said in Baker v. 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. 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 can conceivably have any rational relationship to a permissible state end.

Now I do not think geography is a permissible state end and I do not think --

Unknown Speaker: (Inaudible)

Mr. Abram: I must say --

Unknown Speaker: (Inaudible)

Mr. Abram: I am going into that.

Unknown Speaker: (Inaudible)

Mr. 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.

Unknown Speaker: (Inaudible)

Mr. Abram: Yes, Your Honor, unless --

Unknown Speaker: (Inaudible)

Mr. Abram: Yes, Your Honor.

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

I do not really on my premise of this case, I do not really, I really should not be arguing the question of what kind of classifications based on geography or based on everything should be permitted.

My point is that none of this is permitted, but if the Court, if the Court believes as the lower court that some time the 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.

Unknown Speaker: Now you (Inaudible) submitted, speaking now of the primary elections?

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

Unknown Speaker: Alright.

Would you apply it necessarily (Inaudible) matter of legislative representation?

Mr. Abram: Sir, I don't think this case really involved a necessary representation and I have not 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 --

Unknown Speaker: That is why I thought for argument, whatever it might be in the area of legislative representation, in this area your position is that there ought to be no way (Inaudible)

Mr. Abram: That is correct, that is exactly my position.

Unknown Speaker: (Inaudible)

Mr. 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 has been a traditional thing, 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 do not have that in this case because we have the established who 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.

Unknown Speaker: (Inaudible)

Mr. Abram: It could conceivably be.

Justice Stewart: Georgia have a polled senate?

Mr. Abram: Georgia had (Inaudible) for many years.

Now in the Georgia system -- I am sorry, 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 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, Town 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, they are all plantation belt and you will find discrimination ratios as great amongst those counties sir as 1 to 1200 to 1 to 6500.

Then you can take the counties just on a random that border 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 2,900 and Bibb one for 11,000.

Echlos County adjoins our Lowndes in Eighth Congressional District, Echlos has 1 for 938 and the DeKlab has 1 for 12,850 and so it goes.

Now actually how much rationality is in the system?

In the lower court, 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 that large, rather than making it the same unit for 1,000?

What was the purpose behind it, 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 ins 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 they voted they have quoted Harren and Mills suggest that there may be two.

They quote Harren and they are saying not until the (Inaudible) 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 distribution of property or income or something like that, but if you will look at the Hammer affidavit on page 157 and 158 and 159 of the brief, you will find that those counties that have the least personal income have the most votes.

Those counties that have the 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 a phase is running against the counties that have the most votes.

Justice Stewart: That’s certainly arguably nothing irrational and having a reverse twist on economic --

Mr. Abram: It’s nothing historical basis though.

They were argued on historical basis, and they were arguing it on a historical basis.

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

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

Justice Stewart: I don’t rather have that argued in this case?

Mr. Abram: It has not, but they do argue the second point very affirmatively, they say that with regard to education, and this is the way they put that, Mill; however, frequently overlooked it’s Mills insistence that vote should be weighted according to competency, then they quite 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 does the record show?

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

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

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

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

That was the case leaving aside the racial elements, this case in which a state had deliberately given people on the basis not on their education, not on any basis that they are willing to stand up and tell us a half 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 am sorry in which a man may be 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 have demonstrated this, I think there was some burden on the state to put something in this record and they put not a word.

Unknown Speaker: You’re right Mr. Abram. On this record, I gather we don’t have to reach the question or the unit system per se violates the (Inaudible)

Mr. Abram: You mean what the unit systems --

Unknown Speaker: Per se.

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

Mr. Abram: I have never heard of any other states having any approximation to an extent, State of Maryland, State of Mississippi.

And State of Maryland of course is a two-party state, legitimately State of Mississippi I think for odd reason is a one-party state, except in presidential years.

Unknown Speaker: (Inaudible) who had stuck any of the system?

Mr. Abram: I am sorry?

Unknown Speaker: (Inaudible)

Mr. Abram: Now --

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

Mr. Abram: No sir, but --

Unknown Speaker: (Voice Overlap)

Mr. Abram: But there was another unit system which I am going to talk about in just a minute, you just kind of see and stricken by the Supreme Court 1937, I want to get into that just a minute.

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

Mr. Justice Bradley in Missouri versus Lewis at 101 US 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 the disfavored district.

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

This at least is such case.

I might point out that on the merits every Justice of this Court and every judge below who has ever considered a county in system on its merits and thought it to be a justiciable issued 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 Tennessee Supreme Court in Gates versus Long decided in 1937.

Now I would like to go into that case in just a minute.

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

No county should have more units than one-eighth or 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 in Georgia it would assign the 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 Protections Clause, the State Supreme Court of Tennessee declared that system unconstitutional.

There has been some allusions and I am sure that 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 or 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 Stewart: Those were nominating petitions, were they?

Mr. 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 sixty -- I am sorry sir.

Unknown Speaker: (Inaudible)

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

Unknown Speaker: Their vote is (Inaudible)

Mr. Abram: I am 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 the 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 have gone to, you would have been getting only eight-tenths or 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 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 Legislature.

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 their 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 the 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 country 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 Stewart: The Seventeenth Amendment says, senators should be elected by the people of the state?

Mr. Abram: It says, The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof.

Justice Stewart: It can’t mean literally what it says?

People --

Mr. Abram: Then it says the people shall be, then it says the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

Justice Stewart: (Voice Overlap), right.

Mr. Abram: But my point is that once the state has made that definition, it then grabs upon the people who are the finest qualified voters, a right then secured by the Seventeenth Amendment to vote for the senator of United States.

Unknown Speaker: Mr. Abram (Inaudible) at this point, would that be enough to dispose off this case, would that cut the state off?

Mr. Abram: No sir, because you would then have state elections for Governor, the Lieutenant Governor, for the judges of all of our higher courts, the commissioner of agriculture, the man who sets the fire insurance rates, the attorney general, all of these officers would then be elected by counties.

Unknown Speaker: Those are all statewide officers?

Mr. Abram: They are all statewide officers.

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 from down is elected under the unit system under the Act as amended.

The US senators are also elected.

Now the Congressmen, the statute does not provide that the Congressmen shall be elected by our county in system, but under --

Justice Brennan: (Inaudible) it’s the same statute that applies to the United States Senator and the others?

Mr. Abram: Yeah, that’s right sir.

Justice Brennan: Well, if we agreed with your argument that an United States senator, would that be sufficient to affirm this injunction without referring to others?

Mr. 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 is light there is hope for passing the statute that limited itself to the Governor, Lieutenant Governor and the other important officers --

Unknown Speaker: You mean, you are only back here again?

Mr. 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 in a 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, well, we don’t know whether we are 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 US 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 the one of the few cases that in which there was enough speed below to afford a relief and an opportunity to reach this idea.

Justice Clark: What do you say the practice in the congressional race was?

Mr. Abram: The practice there Mr. Justice Clark is this.

Under the rules of a party whether or not a 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 Stewart: Nominated, tag been nominated.

Mr. Abram: Yes sir nominated.

The word should be nominate, but I might add sir 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 now, 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 votes.

Unknown Speaker: 78%.

Mr. Abram: 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 a posit for the reason that it’s Mr. Justice Stewart pointed out, it’s something that came out of the Twelfth Amendment and this of course predated the Fourteenth Amendment.

Justice Stewart: The Seventeenth Amendment argument that necessarily depends upon this proposition that this is an election rather than a nomination?

Mr. Abram: Yes sir, it has to go on the principles in the Classic case that it’s tantamount to an election.

Justice Stewart: Well, It is more than tantamount, it is the election.

Mr. Abram: It is the election where the senate is elected in Georgia.

It is undoubtedly true that as a legal proposition, you could not --

Justice Stewart: You couldn’t take office after that actually.

Mr. Abram: Well, that’s where he has been elected.

Justice White: Well, Mr. Abram, I gather you didn’t cross petition here, did you?

Mr. Abram: Sorry.

Justice White: You didn’t cross petition?

Mr. Abram: No sir.

Justice White: So you are perfectly happy with the discriminations that are built into and allowed by the decree below?

Mr. Abram: I am not happy about them sir, but I 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 adapted 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 White: But there -- doesn’t the -- really the decree below to the extent that it does allow a discriminatory system, doesn’t it really violate some things you have been arguing here?

Mr. Abram: Exactly, I couldn’t agree with the Court more.

I think the decree below in awarding a 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 if there is 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 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. Abram: The government --

Justice White: -- part of the injunction?

Mr. Abram: The government says -- the government will speak through Attorney General --

Justice White: What do you think about that?

Mr. Abram: The government’s suggestion is that 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 than I understand that it is true, 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 am 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 do not say a system is per se a constitutional, until you can say that two-week was four or feel that 50 cents is the proper amount of change for a dollar or that you can give 8 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.

Argument of Kennedy

Chief Justice Warren: Mr. Attorney General.

Mr. Kennedy: Mr. Chief Justice and may it please the Court.

I would first like to state the interest of the United States in this case. Declaration of independence states a principle which is weighted through our American way of life, namely the governments derive their just powers with the consent of 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 -- in Franchise in whole or in part that, that right be restored to them.

That in this effort to also restore some confidence in representative government where these kind of practices exists.

In Baker versus Carr, this Court determined that they are weighing our dilution of votes through mal-apportionment 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 annunciated 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 fact are concern; 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 do not feel that it is necessary for the Court to go.

We do not think it is necessary for the Court to accept some hypothetical variant to this system which the Georgia legislature may pass in the future.

We do not think that the Court should limit its future actions in this field by accepting a 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 and deal 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 are 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 are bound to have some departure from exact equality.

Further, there are other theories of representation.

You might take into consideration geography, you might can take into consideration historical background, you might take into consideration economic interests and a number of other matters.

These kinds of departures perhaps they are harmless, perhaps they are necessary, perhaps they 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 do not have to get really involved in various theories of representation.

Here is one man, one vote.

You can’t have equality.

We feel that, however, if you depart at all from this equality that it should meet the most exact in cast, it should be subject to the most exact in cast 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 than a individual lives in one of the four larger counties in State of Georgia.

If you live in Savannah, Georgia, your vote is worth four times if -- 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 population 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 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.[Laughter]

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 kind of discrimination is as 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 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 have had a major result in the State of Georgia.

If you are 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 $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 and 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 $4,500,00in taxes.

A person living in Fulton County, the state there -- the county there paid$3.66 for every dollar they received back from the state, but if you live in Echols County, you received back from the state $3.40 for every dollar that you paid in.

The per capita tax in one of the -- 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 received back $22 per capita and ifyou lived in one of the largest counties you received back $69 per capita.

I am not contending here that the money that was used by the State of the Georgia in the smallest counties was not for good purposes.

I am 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 the large counties of the state of Georgia are going to pay the bills for the small counties certainly their vote would count as much. Certainly when you consider what is happening in Fulton county and Echols county, a vote in Echols County being worth 14 times amount of a 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 have got state’s responsibilities.

There are many things that need to be done in the major metropolitan areas of the United States are problems of the urban renewal, of purification of water, of transportation, of eduction 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 on the the Georgia county unit system where there is a 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.

Chief Justice Warren: Well, Mr. Attorney general, excuse me.

I am just going to ask General, do you believe that there is any place in the state system of voting for weighting the votes in the general elections or senator or governor or the general state offices?

Mr. 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 saida 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.

Unknown Speaker: Mr. Attorney General, what is the government’s view if we were to agree with the argument addressed in the Seventeenth Amendment as respects to the nominations for the United States senator and can sustain the injunction, and rest of the statute on that ground.

Does the government think we ought to reach all these other questions --

Mr. Kennedy: Yes because the order goes beyond the -- the order of the lower court goes beyond just the election of the United States senator Mr. Justice and what it’s involved here is a statewide election for all of these other offices and I --

Unknown Speaker: Well, is this is a suggestion in that indeed we can’t dispose of the case only on Seventeenth Amendment --

Mr. Kennedy: That’s correct.

Justice Stewart: You don’t express any position on the Seventeenth Amendment in your brief --

Mr. Kennedy: No, we do not.

We don’t think that it’s necessary to reach that question.

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 -- 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 that -- doesn’t bear up on to the fact.

I think that anybody that is in public life that has represented a rural area is found 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 from the last few years have shown that those in rural areas take a very active interest in politics.

For instance, in the 1960 elections the -- it was five states which were primary rule in the United States which met all the others as far as voter justification.

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, it was 77%.

Approximately 50% of the people in New York, New Jersey voted in the election, but outside the City of New York the percentage was far, far higher.

In Illinois the vote in the down state counties of Illinois, the rural counties was much high and by and large than the votes of Cook County Chicago, Illinois.

The contention is that they don’t vote as much as the 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 1960 elections in the United States which voted for more than 80 % for one candidate or another all the-- one of those 75 counties 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.

We put a great premium in United States on participation in elections, getting together and organized and 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 than housewives for instance or even members of labor organizations because they happened to be better organized than say some other group.

Unknown Speaker: (Inaudible).

Mr. Kennedy: I don’t think it would be constitutional and I don’t think that it would be void.

Unknown Speaker: General do you -- do you [Laughter] Do you -- the district court as I read its opinion did not strike down the county unit system as such like it was going to say that it was not doing so.

Do you -- Is the government’s position -- is it the government position that the system as such was unconstitutional?

Mr. Kennedy: No, the government’s position of subject, does not have to be reached by the Court, We 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 approve as I said some other system which may or may not be put into operation by the State of Georgia.

Unknown Speaker: But your suggestion as I understand it is that the district court’s decree, it’s advisory portion as that time term is used that 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?

Mr. Kennedy: Yes.

Unknown Speaker: Is that it?

Mr. Kennedy: That’s correct.

We think that if it’s clear and starting really with the Tennessee reapportionment cases and we hope in this case, that what the ideais 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.

If reasonable men in our state legislatures are those who have the responsibility in our state can follow that, we don’t think to -- for the Court to attempt to set up a standard which is going to be askable in Massachusetts and California and the State of Washington and Florida and Texas,is impossible.

These people know their states they 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 an large throughout the state to pass a law which is their and equitable law for the citizens.

Now that the Supreme Court has passed on this --

Unknown Speaker: (Inaudible).

Mr. Kennedy: No because we have the courage of it Mr. Justice.

We just don’t think it’s necessary to say at the moment.

We say that this county unit system is invidious.

In the answer to the Chief justice, I said that I could not give you a description of one that does not raise all kinds of problems, but there might be a state where the law makers for historical reasons, geography, for other factors that l am not aware of at the moment who could come up with a unit system which would make some sense.

So I just think that it’s not necessary to go beyond --

Unknown Speaker: You can’t conceive?

Mr. Kennedy: I cannot conceive.

Unknown Speaker: Well, now hwy is -- General why is it so clear that the (Inaudible) is so bad?

Is this the government’s position that there is -- no scheme at all in this system, that isn’t crazy quill for not any reason or is it that it’s so clear that so much of a pattern of discrimination against urban areas?

Mr. Kennedy: I don’t think it’s a crazy quill.

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 --

Justice White: The more of rural the area is the more weighted vote (Inaudible) there is a whole spectrum of discrimination.

Mr. Kennedy: That’s correct.

In favor of those who live in rural areas and against those who --

Unknown Speaker: So essentially it is a rural, urban discrimination of the government.

Mr. Kennedy: That’s correct.

Favor those who live in rural areas --

Justice White: You say the government’s position is that beyond the power of the legislation of Georgia to prefer a rural voters and --

Mr. Kennedy: Yes.

Justice Stewart: At least in an election of this kind of a statewide election of executive or judicial officers was statewide constituency.

Mr. Kennedy: That’s correct.

Justice Stewart: As I gather, you have implied there might be different considerations and other considerations in legislative apportionment within a state?

Mr. Kennedy: That’s correct.

Unknown Speaker: (Inaudible).

I thought you to recognize that the urban country consideration was a factor that could be taken into account, doesn’t have to be scooted per se, but it was overweighted here or as applied here, it was enough reason for discrimination?

Mr. Kennedy: Well, I think that it can certainly, if you were having a representative kind of election, Mr. Justice, but not in statewide elections.

We don’t think that this is in furtherance of the elective process.

Now, as I say, this discrimination here as put into effect is gross and number two that it’s not in favor, it does not further the elective process, though that’s the test that we apply to any kind of the -- where there is a differentiation in the weight of vote, this is different.

As has been pointed out, this is different than when you have an election that involves a representation to the House, to the legislature that the upper house in the state.

Unknown Speaker: Well, in one situation, in the legislative situation, you have representations, but when you have a statewide election, there is no necessity for weighting votes.

You vote for one office to represent not the district but minorities or majorities but to represent the entire state, is that -- isn’t that --?

Mr. Kennedy: That’s correct.

Unknown Speaker: -- the difference between the two General?

Mr. Kennedy: That’s correct.

Another justification that has been used for this kind of practice in the State of the Georgia is that, one area or one country will so dominate the state that rest of the voters in the state will be able to -- well, that 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 DeKlab County borders, which is the next biggest country 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 a state and the rest of them are all spread around.

So it’s not any geographical group that could so dominate and 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 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.

Unknown Speaker: (Inaudible) real meaningful figures that do not lead to population of the counties, the numbers of Democrats or Republicans and the Primary.

The really got a weight, it’s not a sign of strength for counties, you ought to do it on the number of people voting in that primary rather than population.

Mr. Kennedy: So I think that that’s --

Unknown Speaker: And isn’t that a significant factor in some counties of Georgia, isn’t it?

Mr. Kennedy: Yes it is.

When you consider that factor it gets into many other problems which are not involved here.

There are some counties, the rural counties which vote a very high percentage of their population.

Frequently, they have a low Negro population.

The ones that --

Unknown Speaker: The Republican voters in Georgia is not large enough to make this --

Mr. Kennedy: It’s not very large.

Unknown Speaker: In any county?

Mr. Kennedy: In any county.

Unknown Speaker: Apportionment per se?

Mr. Kennedy: Not in -- not --

Unknown Speaker: General, in Georgia is there any power in people to initiate a constitutional amendment or must it come from the legislation?

Mr. Kennedy: There is not.

Unknown Speaker: It must come.

Mr. Kennedy: It must come from the legislature.

Unknown Speaker: From the legislature itself.

Mr. Kennedy: Now it’s been 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’t have it here.

I don’t think that really bears up.

I don’t think the analogy is correct because there is a great difference between the states who gave up their sovereignty andthere were concessions made.

When they gave up their sovereignty to create the United States, one of the concession 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.

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, determining whether they really believed in democracy enough.

There wasn’t any question about believing in democracy.

The struggle at that time was between the large states and the small states and there wasn’t anybody that contented 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 and the English French system and the merits of them were taken up after the constitution mentioned that’s relevant.

It might be that there is some confusion about Mr. Harrington, who was a quited, lived in the 18th Century, I believe the quotes come from Mr. Parrington’s book who wrote about the American scene in the 20th Century.

So some of the confusion might arise out of that.

There is also contented that we don’t really have enough cases for the Court to pass on.

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.

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.

This kind of invidious practice that as exits now and has existed before and the Georgia County unit system is that it 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 system involve a way of life is irreproachably damaged.

Mr. Kennedy: I have got 3 minutes --

Chief Justice Warren: Yes you have --

Mr. Kennedy: May it please the Court.

I think the Seventeenth Amendment in this case proves too much.

It tells invidious truth, figures 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, they related only to the general election and not to the primary, that’s binding on this Court as far as the Court references 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 do not want to involve myself in personal matters, but I think I am aware of -- I speak in that regard.

It was also suggested --

Justice White: What was that point I didn’t --

Mr. Kennedy: Mr. Abram stated in his argument that the successful candidate for Governor in Georgia of 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.

Unknown Speaker: So you don’t raise that point (Inaudible)

Mr. Kennedy: No sir, [Attempt to Laugh] of course not.

Next, we have not suggested as been stated by reference to Parrington and by the way (Inaudible) issue of the Parrington 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 it’s political unit apportionment.

Unknown Speaker: (Inaudible)

Mr. Kennedy: Position of the state is that in these things, those features which tend to give these concentrated areas of population an inordinate amount of power by virtue of the fact of the concentrating numbers, that a state can take those matters into account.

I think that’s always been the basis upon which this type of apportionment has been explained.

Unknown Speaker: (Inaudible)

Mr. Kennedy: You there are getting into value judgments in which the Court is called upon to evaluate and apply its policy judgments no different than a Court a few generations ago did in Lochner versus New York.

Unknown Speaker: (Inaudible)

Mr. Kennedy: It’s not just because you are in a 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 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 electoral power, as are the disparities bargaining when Congress passed (Inaudible).

Unknown Speaker: Do you say that that is rational basis for the state to engage in this?

That is your --

Mr. Kennedy: That is correct.

Justice Stewart: That is the basic issue that we end up that I suppose is whether a state under the constitution in the election process of statewide officials, statewide officials can absolutely disregard what we think of is the traditional American system of majority rule?

Mr. Kennedy: One person, one vote.

That’s correct.

Justice Stewart: A majority rule is what we come down to a statewide election?

Mr. Kennedy: And as to the question of Mr. Chief Justice which I think relates to what you have posited now Mr. Justice Stewart, you do not have to go to districting 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 is where your inequalities come into.

MacDougall we say as our case, I think it states very eloquently the reason, 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 opinion made at affidavits that the other party put in.

May it please the Court I think that my time is up so I appreciate the Court’s indulgence.