Wesberry v. Vandiver
| Decision Date | 20 June 1962 |
| Docket Number | Civ. A. No. 7889. |
| Citation | 206 F. Supp. 276 |
| Parties | James P. WESBERRY, Jr., and Candler Crim, Jr., Plaintiffs, v. S. Ernest VANDIVER, as Governor of the State of Georgia, and Ben W. Fortson, Jr., as Secretary of the State of Georgia, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Scott, Scroggins & Cash (Frank T. Cash) Atlanta, Ga., for plaintiffs.
Eugene Cook, Atty. Gen. of Georgia and Paul Rodgers, Asst. Atty. Gen. of Georgia, Atlanta, Ga., for defendants.
Before TUTTLE and BELL, Circuit Judges, and MORGAN, District Judge.
This is the third in a series of suits filed in this court immediately following the decision of the Supreme Court in Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. In Sanders v. Gray, N.D.Ga., 1962, 203 F.Supp. 158,1 we struck down the Georgia County Unit System of primary elections in the form in which it then existed because of resulting invidious discrimination to the plaintiffs who were residents of Fulton County. Then in Toombs v. Fortson, Civil Action No. 7883, N.D.Ga., 1962, 205 F.Supp. 248, again on the basis of resulting invidious discrimination, we found the General Assembly of Georgia to be malapportioned and required apportionment of at least one body of the Assembly according to population. In that case, and for the same reason, we struck down the statute requiring the election of senators on a rotation basis among the counties in each senatorial district. We withheld injunctive and other relief pending action on the part of the responsible state officials, executive and legislative, before the 1963 session of the General Assembly appropriate to ending the proscribed discrimination. Our action in each of these cases was premised on the denial to plaintiffs of equal protection of the laws under the Fourteenth Amendment to the Constitution.
Plaintiffs here are residents and qualified voters of Fulton County, Georgia, and as such are entitled to vote in the primary and general elections for members of the House of Representatives of the Congress of the United States from the Fifth Congressional District of Georgia. They likewise premise their cause on the Fourteenth Amendment, seeking the invalidation of the Georgia statute which sets up the districts for the election of the ten members of the House from Georgia and which provides the method of election. Georgia Code, Section 34-2301. They contend also that this statute is void as being contrary to Art. I, Section 2 of the Constitution of the United States which provides that members of the House of Representatives shall be elected by the people.2
Jurisdiction and three-judge status are based on Title 28 U.S.C.A. §§ 1343, 2201, 2202, 2281, 2284 and 42 U.S.C.A. §§ 1983 and 1988. Injunctive relief is sought against the defendants, the Governor and Secretary of State of Georgia, to the end that no elections may be held except on a state-at-large basis pending redistricting on "an equitable and representative" basis.
Georgia was awarded two members in the House of Representatives of the Congress under the Act of April 14, 1792 which apportioned representatives among the several states. 1 Stat. 253 (1792). The number of representatives allocated to Georgia increased gradually, based on population, from two to nine under the census of 1830. 2 Stat. 669 (1811); 3 Stat. 651 (1822); 4 Stat. 516 (1832). And elections in some states were on a district basis but in Georgia and in some of the other states they were on a state-at-large basis for nearly fifty years. Congress, in 1842, provided that representatives, where a state was entitled to more than one representative, should be elected from districts composed of contiguous territory, equal in number to the number of representatives to which a state might be entitled with no one district electing more than one representative. 5 Stat. 491 (1842). Georgia set up the district system in 1843 based on the 1840 census and has adhered to it at all times since then, including the election of members to the Congress of the Confederate States of America during the period of secession. Ga.Code, 1861, p. 12.
Districts were not required by the Apportionment Act of 1852, 9 Stat. 433 (1852), but were again required in 1862. 12 Stat. 572 (1862). In 1872 another element was added to the system. Not only must each district be of contiguous territory but also of an equal number of inhabitants as nearly as practicable. 17 Stat. 28 (1872). Under this Act Georgia was allocated nine representatives. Congress continued this system in 1882 and 1891 and the number of representatives from Georgia was increased to ten in 1882 and eleven under the 1891 Act. 22 Stat. 5 (1882); 26 Stat. 735 (1891). In 1901 Congress added the requirement that the districts be compact, 31 Stat. 733 (1901), and the 1911 Apportionment Act provided that:
"Representatives to the Sixty-third and each subsequent Congress shall be elected by districts composed of a contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants." 37 Stat. 13, 14 (1911)
There was no reapportionment after the census of 1920 and from 1910 to 1930 Georgia had twelve seats in the House. The Reapportionment Act of 1929, 46 Stat. 13, 26 (1929), provided that the House be reapportionment after each decennial census but failed to re-enact the requirements of compactness, contiguity, and equality of population in each district. 46 Stat. 13 (1929), Title 2 U.S. C.A. § 2.
Under that Act Georgia lost two seats in the House and the statute here under attack followed in 1931. Ga.Laws, 1931, p. 46; Code Section 34-2301 et seq. The General Assembly divided the state into ten congressional districts on the basis of allocating the several counties to the respective districts, and there have been no changes in the allocations to date.
The facts are not in dispute and are ample for final decision on the merits. The following table shows the population of each congressional district in 1930 as compared with 1960:
Population, Population
District 1930 1960
-------- ----------- ------------
First 328,214 379,933
Second 263,606 301,123
Third 339,870 422,198
Fourth 261,234 323,489
Fifth 396,112 823,680
Sixth 281,437 330,235
Seventh 271,680 450,470
Eighth 241,847 291,185
Ninth 218,496 272,154
Tenth 289,267 348,379
The burden of the complaint is the disproportionate population of the Fifth Congressional District as compared with the other districts. It is comprised of Fulton, DeKalb, and Rockdale Counties. The growth of Fulton and DeKalb Counties has been spectacular in recent years with the population of DeKalb increasing from 70,278 in 1930 to 256,782 in 1960, and that of Fulton from 318,587 to 556,326. It is to be noted that the population of each of the ten congressional districts has increased from a low of slightly under fifteen per cent in the Second District to just over one hundred eight per cent in the Fifth District.
It is the position of plaintiffs that the population of each district should be within a range of ten to fifteen per cent of the average district population based on a division of the number of districts into the total population of the state.3 The population of Georgia according to the 1960 census was 3,942,936. For our purposes,4 we will take 394,000 under the theory of plaintiffs as an average and examine the facts using the suggested variance of fifteen per cent. Under this theory no district should have a population of more than 453,000 nor less than 335,000. Applying the same theory to the districts as constituted in 1931 when the population of Georgia under the 1930 census was 2,908,506, an approximate average per district of 291,000, no district should have had a population of more than 335,000 nor less than 247,000.
The aforesaid table demonstrates that only the Fifth and Ninth Districts substantially varied from the fifteen per cent standard suggested by plaintiffs on the 1930 basis. The Second, Eighth, and Ninth Districts fell substantially more than fifteen per cent short of the average according to the 1960 census while the Fifth dramatically exceeded the variance.
We hasten to add that we neither expressly nor impliedly adopt any mathematical standard. We know of no basis for an exact standard. Cf. Sanders v. Gray, supra, where sufficient basis existed. We use plaintiffs' suggested standard here in amplification of their contentions.
It is clear by any standard however that the population of the Fifth District is grossly out of balance with that of the other nine congressional districts of Georgia and in fact, so much so that the removal of DeKalb and Rockdale Counties from the District, leaving only Fulton with a population of 556,326, would leave it exceeding the average by slightly more than forty per cent. It is apparent that giving effect to any reasonable population based standard will require the division of Fulton County into more than one district, something not heretofore done in Georgia. The population of Fulton County alone exceeds that of the nearest district in size — the seventh — by over twenty three per cent. A chain reaction affecting the make up of every congressional district in the state may be set off. We say this to demonstrate the legislative nature of the problem where a broad state-wide approach will be needed. We also point out that such a formula as suggested by plaintiffs, requiring as it would the division of Fulton County, may or may not be agreeable to the majority of the voters of Fulton County, assuming that they are entitled to a voice in the matter, and this again points up the desirability of solution if at all possible in the legislative forum. Of course, a division of Fulton...
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...were put to rest finally and completely by Baker v. Carr. To this extent, at least, we concur with the majority in Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276. By an intricate reconstruction of that 3-1-3 decision rendered by what Justice CLARK called a "bobbed tailed court," Baker......
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