Sanders v. Gray

• Decision Date: 28 April 1962
• Docket Number: Civ. A. No. 7872.
• Citation: Sanders v. Gray, 203 F.Supp. 158 (N.D. Ga. 1962)
• Parties: James O'Hear SANDERS, Plaintiff, v. James H. GRAY, as Chairman of the Georgia State Democratic Executive Committee, George D. Stewart, as Secretary of the Georgia State Democratic Executive Committee, The Georgia State Democratic Executive Committee, The Georgia State Democratic Party, and Ben W. Fortson, Jr., as Secretary of State of the State of Georgia, Defendants.
• Court: U.S. District Court — Northern District of Georgia

203 F. Supp. 158

James O'Hear SANDERS, Plaintiff, v.James H. GRAY, as Chairman of the Georgia State Democratic Executive CommitteeGeorge D. Stewart, as Secretary of the Georgia State Democratic Executive CommitteeThe Georgia State Democratic ExecutiveCommitteeThe Georgia State Democratic Party, and Ben W. Fortson, Jr., as Secretary of State of the State of Georgia, Defendants.

Civ. A. No. 7872.

United States District Court N. D. Georgia.

April 28, 1962.

Heyman, Abram, Young, Hicks & Maloof, Atlanta, Ga., for plaintiff.

Eugene Cook, Atty. Gen. of Georgia, B. D. Murphy, E. Freeman Leverett, and Lamar W. Sizemore, Atlanta, Ga., for defendants.

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

GRIFFIN B. BELL, Circuit Judge.

Plaintiff seeks declaratory and injunctive relief alleging deprivation of federal constitutional rights.The prayer seeks to restrain the Georgia State Democratic Party and the Chairman and Secretary of the Georgia State Democratic Executive Committee in their representative capacities, and their successors in office, from conducting elections under the County Unit System; from tabulating and consolidating ballots cast in the democratic primary election to be held on September 12, 1962, and in any other primary election conducted by that party on the basis of the County Unit System; from selecting any nominee on the basis of ballots cast in any primary election held on the County Unit System; from publishing or certifying the nomination of any candidate for United States Senator, Governor, Lieutenant Governor, Justice of the Supreme Court, Judge of the Court of Appeals, Secretary of State, Attorney General, Comptroller General, Commissioner of Labor, and State Treasurer on the basis of the County Unit System; and from giving force and effect to the County Unit System as it is established under the Neill Primary Act, §§ 34-3212 through 34-3218(Ga.Code Annot.Supp.), Georgia Laws 1917, p. 183 et seq.,Ga.Laws 1950, p. 79 et seq.The prayer is also to restrain the Secretary of State of Georgia, and his successors in office, from certifying to the several ordinaries of the State of Georgia the names of any candidates for nomination to state-wide offices who shall have been nominated in any primary held by the Democratic Party under the County Unit System; and from furnishing to the several ordinaries official ballots and election supplies whereon nomination under the County Unit System is recognized.Lastly, plaintiff seeks judgment to the effect that the Neill Primary Act is void and unconstitutional insofar as it provides for the nomination by the defendantparty of any candidates for the named offices under the County Unit System.

Plaintiff is an elector within the meaning of Article II, § I, Paragraphs I through IV of the Constitution of the State of Georgia of 1945,Ga.Code §§ 2-701 through 2-704.He is qualified to vote in primary and general elections in Fulton County, is a member of the Democratic Party of Georgia, intends to vote in the democratic primary election to be held within the State of Georgia in 1962 and intends to support the nominees of such primary in the general election to be held on the Tuesday after the first Monday in November, 1962.

DefendantDemocratic Executive Committee, an unincorporated association, is the governing body of the defendant Democratic Party of Georgia, also an unincorporated association, and which is composed of many thousands of persons residing throughout the State of Georgia.Defendants Gray and Stewart are Chairman and Secretary, respectively, of the Executive Committee.Defendant Fortson is Secretary of State of the State of Georgia.¹

Defendant Committee, as the governing body of defendantparty, intends to supervise the holding of the primary election, to tabulate and consolidate the ballots cast therein and to certify to defendant Secretary of State the names of persons determined by that committee to have been nominated in the primary election, all as provided by the statutes of Georgia.The Secretary of State, pursuant to statute, will furnish to the several ordinaries of the State of Georgia official ballots and election supplies and will certify to the ordinaries the names of the candidates nominated in the primary.The ordinaries will in turn submit the names of the candidates to the electors of the State of Georgia for their choice in the general election in November.

Plaintiff contends in his suit that the County Unit System is arbitrary and discriminatory to the extent that it is a denial to him of equal protection of the laws within the meaning of the Fourteenth Amendment to the Federal Constitution in that Fulton County where he resides, the largest county in Georgia, is allotted only six unit votes under the statute which in total allows six unit votes each for the eight largest counties by population in Georgia, four unit votes for each of the thirty next largest by population and two each for the remaining one hundred twenty one counties.According to the 1960 United States census Fulton County had a population of 556,326 while Georgia had a total population according to the same source of 3,943,116, Fulton County thus having 14.11 percent of the total population of Georgia but only 1.46 percent of the total of 410 county unit votes.On the other hand, the least populous county in Georgia, Echols, had a population according to the 1960 census of 1876 or .05 percent of the population in the state, and is accorded two units or .48 percent of the total units.Thus the discrimination runs against Fulton County on an approximate ten to one ratio based on population and in favor of Echols County on an approximate ten to one ratio.The discriminatory ratio under the County Unit System runs, based on the 1960 census, between these ranges but in every instance against Fulton County.The Unit System also accords to the candidate receiving the plurality of votes in a county the entire unit vote thus reversing the votes of those voting for another candidate just as is the case under the Federal Electoral College System.

Plaintiff asserts, in addition to his Fourteenth Amendment claim, that the System violates the Seventeenth Amendment which provides that the Senators from each state shall be elected by the people thereof.

He alleges that he is without adequate remedy at law in view of the holding of the Supreme Court of Georgia in the case of Cox v. Peters, 1951, 208 Ga. 498, 67 S.E.2d 579, appeal dismissed, 342 U.S. 936, 72 S.Ct. 559, 96 L.Ed. 697(1952), that an action at law for damages will not lie in favor of one aggrieved by reason of the application of the County Unit System.Jurisdiction and three-judge status is based on Title 28 U.S.C.A. §§ 1343,2201-2202,2281and42U.S.C.A. § 1983.

History of the County Unit System

The County Unit System throughout its long use in primary elections in Georgia, first by party rule and later by statute, has always been based on the formula obtaining for apportionment of the House of Representatives.²Thus we look first to the history of apportionment in the House of Representatives of Georgia.Eight counties were established under the first state constitution, 1777, from which representatives were to be elected annually by the voters; Liberty County electing fourteen representatives, Glynn and Camden one each, the other counties ten each, with the Port and Town of Savannah to have four to represent their trade and the Port and Town of Sunbury to have two to represent their trade.Glynn, Camden and all counties thereafter laid out were to have one representative provided there were ten electors in the county, then two representatives for thirty electors, three for forty, four for fifty, six for eighty, and ten for a hundred or more electors.After reaching a hundred electors a county would be entitled to two executive councilors among the number of representatives.These representatives were to meet and from their number select two from each county to constitute a Council and to elect a governor.The remaining representatives were to constitute the "house of assembly."Georgia Const. of 1777, Articles II-V; McElreath on the Constitution of Georgia(1911), pp. 230-231;South v. Peters, N.D.Ga., 1950, 89 F. Supp. 672.³It was under this constitution that Georgia ratified the Federal Constitution and entered the Union on January 2.1788.

The Constitution of 1789 was then adopted.It created a general assembly consisting of a senate and house of representatives.Each county was to have one member of the Senate with terms of three years.The Members of the House were elected annually from each of the then existing eleven counties with Camden, Glynn, Effingham, Washington, Greene, and Franklin having two each, Burke, Liberty, and Richmond having four each, and Chatham and Wilkes five each, making a total of thirty four.A governor was to be elected by the Senate each two years from three persons nominated by the House of Representatives.Georgia Constitution of 1789, Article I, §§ 1-6, Article II, § 2;McElreath, pp. 242, 243, 245;South v. Peters, supra.

Under the Constitution of 1798 the principle was declared that representation in the House should thereafter be according to population on an enumeration to be made each seven years, and on the basis that population of 3,000 would entitle a county to two members of the House, 7,000 to three members, and 12,000 or over to four members, with each county to have at least one and not more than four.Constitution of 1798, Article I, § 7;McElreath, p. 252.As was said in South v. Peters, this plan was an evident reflection of Article I, § 2, cl. 3 of the Federal Constitution fixing the apportionment of representatives in Congress among the states.

The governor was to be elected by the General Assembly on joint ballot, and there were popular elections only by counties.Article II, § 2;McElreath, p. 259.In 182...