Fortson v. Dorsey
Opinion of the Court
delivered the opinion of the Court.
Georgia’s 1962 Senatorial Reapportionment Act
The appellees, registered voters of Georgia, brought this action in the District Court for the Northern District of Georgia against the Secretary of State of Georgia and local election officials seeking a decree that the requirement of county-wide voting in the seven multi-district counties violates the Equal Protection Clause of the Fourteenth Amendment. A three-judge court granted appellees’ motion for summary judgment, stating that “The statute causes a clear difference in the treatment accorded voters in each of the two classes of senatorial districts. It is the same law applied differently to dif
Only last Term, in our opinion in Reynolds v. Sims, 377 U. S. 533, decided after the decision below, we rejected the notion that equal protection necessarily requires the formation of single-member districts. In discussing the impact on bicameralism of the equal-protection standards, we said, “One body could be composed of single-member districts while the other could have at least some multi-member districts.” 377 U. S., at 577. (Emphasis supplied.) Again, in holding that a State might legitimately desire to maintain the integrity of various political subdivisions, such as counties, we said: “Single-member districts may be the rule in one State, while another State might desire to achieve some flexibility by creating multi-member or floterial districts. Whatever the means of accomplishment, the overriding objective must-be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” 377 U. S., at 579. (Emphasis supplied.)
It is not contended that there is not “substantial equality of population” among the 54 senatorial districts. The equal protection argument is focused solely upon the question whether county-wide voting in the seven multi-
In reversing the District Court we should emphasize that the equal-protection claim below was based upon an alleged infirmity that attaches to the statute on its face. Agreeing with appellees’ contention that the multi-mem-ber constituency feature of the Georgia scheme was per se bad, the District Court entered the decree on summary judgment. We treat the question as presented in that
Reversed.
Ga. Laws, Sept.-Oct. 1962, Extra. Sess., pp. 7-31; Ga. Code Ann. §47-102 (Cum. Supp. 1963). Section 9, the provision in question here, provides in pertinent part that:
“Each Senator must be a resident of his own Senatorial District and shall be elected by the voters of his own District, .except that the Senators from those Senatorial Districts consisting of less than one county shall be elected by all the voters of the county in which such Senatorial District is located.” (Emphasis supplied.)
Shortly after the enactment of this statute, and prior to the election of senators under it in.the 1962 general elections, an action was brought in a state court that challenged the validity of the above provision under the Georgia Constitution. The state court held that the exception in' the 1962 statute was unconstitutional as a matter of state law under the then-existing Georgia Constitution. Finch v. Gray, No. A 96441 (Fulton County Super. Ct., Oct. 30, 1962). The court entered a permanent injunction requiring that elections in Fulton and DeKalb Counties-be held on a district-wide basis only. Appeal was taken from this decision but was withdrawn. In its opinion the Georgia Court noted that the Georgia Legislature had authorized the submission of a constitutional amendment to the people ratifying the 1962 reapportionment statute with its multi-district-voting exception and all elections held under that statute. (The amendment was ratified. See Ga. Const. Art. III, § II, par. I; Ga. Code Ann. § 2-1401 (Cum. Supp. 1963).) The court stated concerning the proposed amendment:
“It. is to be observed that by Paragraph (b) of said proposed Amendment to the Constitution, the -General Assembly submitted to the people the question whether they would ratify the Reapportionment Act and elections thereunder. This proposed Amendment, of course, is prospective and will become a part of the Constitution only if ratified by the voters in the coming general election.
“The effect of ratification by the people of the Reapportionment Act containing the unconstitutional exception aforesaid is not now before the Court for determination. See, however, on this subject: Walker v. Wilcox Co., 95 Apps. 185; Hammond v. Clark, 136 Ga. 313; Bailey v. Housing Authority of City, of Bainbridge, 214 Ga.*435 790; Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613; 9 Mercer L. Rev. 194, 195; 11 Am. Juris., page 832, section 151. The importance here of the aforesaid proposed constitutional Amendment is simply for the light .it sheds upon the intention of the General Assembly in enacting the Reapportionment statute.”
The question of Georgia law raised by the decisions cited by the court as to whether a statute declared unconstitutional under Georgia law may be revived by a subsequent constitutional amendment was not raised below and has not been urged here. Of course, this question of Georgia law is not for us; our decision concerns only the federal constitutional question presented and argued.
These 33 senatorial districts embrace 152 of the State’s 159 counties. Of the 33 districts, only two consist of single counties; the remaining 31 districts are comprised of from two to eight counties each.
Appellees take as their example Senatorial District 34, in which there are 82,195 of Fulton County’s total of 556, 326 voters. They say, as a matter of mathematics, that even if every voter in District 34 voted for the same candidate from that district, less than 18% of the voters in the other six districts within the county (i. e., approximately 85,000 of the remaining 474, 131 voters in the county) could outvote the unanimous choice of District 34 voters. First of. all, there is no demonstration that this is likely in- light of the political composition of District 34 vis-a-vis that of the rest of the county. (In fact, the 1962 elections .in both Fulton and DeKalb Counties— wherein all appellees reside — were conducted on a district-wide basis rather than a county-wide basis. See note 1, supra.) But apart from this, appellees’ mathematics are misleading, for not only will the 18%, or 85,000, of the remaining Fulton County voters vote for a senatorial candidate resident in District 34, but,, also the remaining 389,131 voters will presumably participate in his election. Assuming these additional vot.ers split their votes almost evenly between two candidates running from District 34 — the most “favorable” assumption-for appellees in that it will produce the smallest possible percentage of voters who can outvote the unanimous choice of the voters in District 34 — there will be approximately 280,000 votes against the
Concurring Opinion
concurring.
Under the compulsion of last Term’s reapportionment decisions I join the opinion and judgment of the Court, but with one reservation. There is language in today’s opinion, unnecessary to the Court’s resolution of this case, that might be taken to mean that the constitutionality of
As this Court embarks on the difficult business of putting flesh on the bones of Reynolds v. Sims, 377 U. S. 533, and its companion decisions of last June, I desire expressly to reserve for a case which squarely presents the issue, the question of whether the principles announced in those decisions require such a sterile approach to the concept of equal protection in the political field.
Dissenting Opinion
dissenting.
Georgia — whose political hierarchy was long constructed on the county-unit
“The Senate shall consist of 54 members. The General Assembly shall have authority’to create, rearrange and change senatorial districts and to provide for the election of Senators from each senatorial district, or from several districts embraced within one county, in such manner as the General Assembly may deem advisable.” (Italics added.) Art. III, § II, par. I.
, The “senatorial district” is thus made the unit in the election of senators. But the Senatorial Reapportionment Act provides in relevant part:
“Each Senator must be a resident of his own senatorial district and'shall be elected by the voters of his own district, except that the Senators from those senatorial districts, consisting of less than one county shall be elected by all the voters of the county in which such senatorial district is located.”
Thus “senatorial districts” are put into two classifications: first, those, comprising one or more counties; sec
There are seven senatorial districts within Fulton County:
District 34 containing 82,195 voters.
District 35 containing 82,888 voters.
District 36 containing 79,023 voters.
District 37 containing 78,540 voters.
District 38 containing 78,953 voters.
District 39 containing 79,713 voters.
District 40 containing 74,834 voters.
There are three senatorial districts in De.Kalb County:
District 41 containing 75,117 voters.
District 42 containing 95,032 voters.
District 43 containing 86,633 voters.
As appellees point out, even if a candidate for one of those districts obtained all of the votes in that district, he could still be defeated by the foreign vote, while he would of course be elected if he were running in á district in the first group. I have no idea how this weighted voting might produce prejudice race-wise, religion-wise, politics-wise. But to allow some candidates to be chosen by the electors in their districts and others to be defeated by the voters of foreign districts is in my view an “invidi
South v. Peters, 339 U. S. 276.
Reference
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- FORTSON, SECRETARY OF STATE OF GEORGIA v. DORSEY Et Al.
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