Dorsey v. Fortson

• Citation: 228 F. Supp. 259
• Decision Date: 27 March 1964
• Docket Number: Civ. A. No. 8756.
• Parties: James W. DORSEY, Dan I. MacIntyre, III and James Edward Manget, Plaintiffs, v. Ben W. FORTSON, Jr., as Secretary of State of Georgia, Eugene Gunby, Ordinary of Fulton County, and Katherine E. Mann, Ordinary of DeKalb County, Defendants.
• Court: U.S. District Court — Northern District of Georgia

228 F. Supp. 259

James W. DORSEY, Dan I. MacIntyre, III and James Edward Manget, Plaintiffs, v. Ben W. FORTSON, Jr., as Secretary of State of Georgia, Eugene Gunby, Ordinary of Fulton County, and Katherine E. Mann, Ordinary of DeKalb County, Defendants.

Civ. A. No. 8756.

United States District Court N. D. Georgia, Atlanta Division.

March 27, 1964.

COPYRIGHT MATERIAL OMITTED

William C. O'Kelley, chief counsel, Atlanta, Ga., Ed Barham, Valdosta, Ga., Charles A. Moye, Jr., and Edwin F. Hunt, Atlanta, Ga., for plaintiffs.

Eugene Cook, Atty. Gen., Paul Rodgers, Asst. Atty. Gen., Atlanta, Ga., for Ben W. Fortson, Jr.

Northcutt & Edwards, Atlanta, Ga., for Eugene Gunby.

George P. Dillard, Herbert O. Edwards and Robert E. Mozley, Decatur, Ga., for Katherine E. Mann.

Before BELL, Circuit Judge, and HOOPER and MORGAN, District Judges.

PER CURIAM.

Plaintiffs, respectively, a registered voter from the 40th Senatorial District of Georgia, located in Fulton County; the State Senator who is also a registered voter from the same district; and a registered voter from the 42th Senatorial District of Georgia, located in DeKalb County, seek relief, both declaratory and injunctive, from the force of the Georgia statute which requires countywide voting in the selection of state senators in counties having plural senatorial districts. Ga.Laws, Extraordinary Session, September-October, 1962, p. 7 et seq., § 9. The defendants are the election officials, respectively, for the State of Georgia, Fulton and DeKalb Counties.

The complaint is premised on a claim of violation of rights afforded under the equal protection clause of the Fourteenth Amendment. This rests on alleged discriminatory treatment of plaintiffs in the debasement of their right to vote for a senator from their own district in that they must join with voters from other districts in the selection process, while voters residing in counties forming, either in whole or part, single senatorial districts are accorded the right to select their senators on a district-wide basis. They assert, for themselves and those in the same class, that the statutory effect is to place the selection of the senator from any district in a plural district county in the hands of voters other than those residing in the district.

The constitutionality of a state statute being involved in the context of a substantial question, a Three-Judge District Court was convened pursuant to 28 U.S.C.A. § 2281. Gray v. Sanders, 1963, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed. 2d 821. At the outset we hold that the court has jurisdiction, plaintiffs have standing to sue, and that a justiciable issue is presented. 28 U.S.C.A. §§ 1343 (3), 2201, and 2202; Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Gray v. Sanders, supra; Wesberry v. Sanders, 84 S.Ct. 526, and Toombs v. Fortson, N.D.Ga., 1962, 205 F.Supp. 248.

Plaintiffs as well as defendant Fortson have filed motions for summary judgment and we proceed to a consideration of the merits of those motions. While no findings of fact are necessary in the determination of such motions, Hindes v. United States, 5 Cir., 1964, 326 F.2d 150, there is no dispute as to the facts, and they may be briefly stated as follows. We begin with the decision of this court in Toombs v. Fortson, supra, holding the General Assembly of Georgia to be malapportioned, and requiring that either the Senate or House of Representatives be apportioned on the basis of population so as to meet minimal constitutional standards of legislative apportionment.

The General Assembly thereafter convened and reapportioned the Senate on the basis of population. The then existing fifty four senatorial districts were reconstituted with the result that they ranged in population from 52,572 to 95,032. Some districts were located together with others in one county; others were made up of one whole county; while the remainder were comprised of two or more counties. For example, seven senatorial districts were located in Fulton County, three each in DeKalb and Chatham Counties, and two in each of the Counties of Bibb, Cobb, Muscogee and Richmond. The 12th Senatorial District is composed of Dougherty County alone, while the 52nd is composed only of Floyd County. The remainder may be described as plural county districts. The remaining districts are composed of from two to seven counties.

The apportionment of the House of Representatives was not changed. Its apportionment, as the court noted in Toombs v. Fortson, is based largely on geography, with representatives from the one hundred and three less populous counties of the state making a constitutional majority of the two hundred and five members of the House. At the same time, they represent only twenty two and one half percent of the population of the state. It was also noted that the eight most populous counties, although containing forty one percent of the population of the state, elect only twenty four of the two hundred and five representatives, or a little less than twelve percent of the total number. Each county has at least one representative while no county can have more than three.

The statute reapportioning the Senate, supra, in § 9 thereof, provides as follows:

"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 voters of the county in which such Senatorial District is located."

It was the intent of the General Assembly as expressed in § 12 of this statute that the Senate be apportioned on population and the House on geography. At the same extraordinary session an amendment to the Constitution was proposed to provide that the Senate should consist of fifty four members and that the General Assembly should 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. This proposal was adopted by the people of Georgia in the general election of 1962, and by the people of all counties having plural districts save Bibb.

It is that portion of the quoted provision relating to elections in districts consisting of less than one county that plaintiffs seek to have declared unconstitutional as conflicting with the equal protection clause of the Fourteenth Amendment.¹

They buttress their contention of invidious discrimination on the proposition that the essence of representative government is the selection of the representative by those whom he represents, citing Toombs v. Fortson, supra. They state that the representatives elected in the plural district counties are not elected by those whom they represent since voters so situated do not have the opportunity of choosing their own senator, but must join with others to choose a group of senators. They assert, without contradiction, on the basis of the population of the various districts in Fulton County that only eighteen percent of the voters in the other six districts of that county could nullify the unanimous choice of the voters in the 34th Senatorial District and thrust a representative upon voters of that district for whom no one at all within the district had voted. Of course, this is carried to an extreme but it cannot be disputed that the selection of a senator from these districts is not within the control and province of the voters of the separate districts. By way of contrast, this is not the case with voters residing in districts not situated in plural district counties.

The Secretary of State urges that countywide voting is a rational and permissive classification in the interest of county government.² He points to the fact that plaintiffs have a political remedy and have not availed themselves of it even though one of the plaintiffs is a member of the State Senate. It is argued that there has been no dilution or debasement of the votes of plaintiffs since the whole of the fractional parts, i. e., their being able to vote for more than one senator, is equal to the vote of one residing in a district where he...