South v. Peters

• Decision Date: 15 March 1950
• Docket Number: Civ. A. No. 3791.
• Citation: 89 F. Supp. 672
• Parties: SOUTH et al. v. PETERS et al.
• Court: U.S. District Court — Northern District of Georgia

89 F. Supp. 672

SOUTH et al. v. PETERS et al.

Civ. A. No. 3791.

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

March 15, 1950.

Hamilton Douglas, Jr., Atlanta, Ga., Morris B. Abram, Atlanta, Ga., for plaintiffs.

Eugene Cook, Atty. Gen., State of Georgia, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., defendants.

Before SIBLEY, Circuit Judge, and DAVIS and ANDREWS, District Judges.

PER CURIAM.

This case, in which a principal relief sought is a permanent injunction to restrain the operation of a Statute of Georgia by restraining the action of the Secretary of State of Georgia, on the ground of the unconstitutionality of the Statute, came on, after due notice, for a final trial before a court of three judges, designated by the Chief Judge of this Circuit, on February 24, 1950. Oral and documentary evidence was presented, and it was agreed that the Court should consider the political history of the State and such other matters as are proper to be noticed judicially. Argument was had and time was taken by the Court to consider and for filing of briefs. The following findings of fact and conclusions of law are now announced, and decree entered.

The Issues

The Georgia Statute attacked is the Act of August 14, 1917, now codified in Georgia Code of 1933 as Sections 34-3212 through 34-3218, relating to primary elections, and commonly known as the Neill Primary Act. The petitioners assert that they are citizens of the United States, resident in Georgia, and in Fulton County, registered voters, entitled to vote in popular elections, and members of the State Democratic Party. They allege that the Party will hold a primary election in 1950 to nominate its candidates for the offices of United States Senator from Georgia, Governor of the State, and other State offices; that the petitioners intend and are entitled to vote in the primary under the party rules and will be bound to support the nominees in the final election to be held in November, 1950; but that since they reside in Fulton County, by far the most populous county in the State, in consolidating the result of the primary and in certifying it to the Secretary of State who will place the names of the nominees on the official ballot for the final elections, under the rule of consolidation prescribed by the Neill Primary Act, to wit by "county units" instead of by a majority or plurality of the entire votes cast in the primary, the Executive Committee and its Chairman and the Secretary of State will deny to petitioners and their fellow voters in Fulton County the equal protection of law as against the voters in the less populous counties in violation of the Fourteenth Amendment and will fail to afford an election "by the people" of a United States Senator in violation of the Seventeenth Amendment of the Constitution.

The Provisions of the exhibited Act here specially pertinent are: "Whenever any political party shall hold primary elections for nomination of candidates for United States Senator, Governor, Statehouse officers, Justices of the Supreme Court and Judges of the Court of Appeals, such party or its authorities shall cause all candidates for nominations for said offices to be voted for on one and the same day throughout the State * * *. Candidates for nominations to the above-named offices who receive, respectively, the highest number of popular votes in any given county shall be considered to have carried such county, shall be entitled to the full vote of such county on the county unit basis, that is to say, two votes for each representative to which such county is entitled in the lower house of the General Assembly. If in any county any two or more candidates shall tie for the highest number of popular votes received, the county unit vote of such county shall be equally divided between the candidates so tying. All such county unit votes shall within 10 days after such primary be accurately consolidated by the chairman and secretary of the State committee of the political party holding such primary, and published in a newspaper published at the Capital, within three days after the completion of the consolidation, certified under the hands and seals of said chairman and secretary; and the candidates for said offices, respectively, who shall receive a majority of all the county unit votes, throughout the entire state, upon the basis above set forth, shall be declared by the State convention of the party holding such primary, or the permanent chairman, or other party authority, without the necessity of a formal ballot, to be the nominees of such party for the above-named offices, respectively". The Statute makes it the duty of the party authorities to see that the nominees shall be placed upon the ballots at the general election, which under other statutes is done by a certificate to the Secretary of State whose duty it is to prepare and distribute the form of the official ballots. The Neill Act further provides that if there should be a tie in consolidating the county unit votes, the candidate who received a majority of the popular vote shall be declared the nominee. Another provision is that in case there are more than two candidates for an office and no one receives a majority of the county unit votes, there shall be a prompt second primary between the two candidates who received the highest number of unit votes, with elaborate provisions as to its result.

The petition further alleges that since 1872 the nominees of the Democratic Party for United States Senator and Governor have won in the final election so that the primary is practically equivalent to election; and that the laws touching primaries have been held to be part of the State's election machinery in Chapman et al. v. King, 154 F.2d 460, by the Court of Appeals for this Circuit. By an amendment the petition alleges that "the County Unit System has its origin in the antagonisms and hostilities of the rural political elements in Georgia against the urban centers and cities of Georgia" and "has the additional present effect and purpose of preventing the Negro and organized labor and liberal elements of urban communities, including Fulton County, from having their votes effectively counted in primary elections." The prayers are for a declaratory judgment that the Neill Act is unconstitutional, and for a permanent injunction against the defendants restraining them from carrying it out.

Answers are filed by Peters and Mrs. Blitch, as the Chairman and Acting Secretary of the Georgia State Democratic Party, and by the Secretary of State; which set up as grounds to dismiss that there is no substantial federal question or federal jurisdiction because the rights asserted arise only under the laws of Georgia; that the matter is political and not within equitable cognizance; that relief asked is not of private right, but must be sought in the legislative and political departments of government; that there is no present actual controversy for declaratory judgment; that no injury to complainants is apparent because their candidates may win; that Turman v. Duckworth, D.C., 68 F.Supp. 744; Id., 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596, is conclusive of the present case; that the suit against the Secretary of State is in effect one against the State without its consent; and that the State is an indispensable party. The answers admit many fact allegations of the petition but deny some. They assert that the State Democratic Party is not an entity that can be sued or enjoined; and that the Chairman and Secretary of the Executive Committee do not represent its other members; and that no primary has yet been called by the Committee. The figures as to population of Fulton and other counties are not admitted. They deny that the "County Unit System" of voting is discriminatory or intended to be, and say it began with the organization of the State, and that it persists in many ways under successive State Constitutions. As to party nominations, it is alleged that they have from the earliest times been made in State Conventions in which the voting was by county units, and since primary elections came into use the same idea has merely been preserved; and in all instances but one under the Neill Act the county unit result has agreed with the general popular vote, both being certified to the Secretary of State and being thus of public record; and in most instances the candidate who carried Fulton County also got the majority of the county unit votes, so that it has not in fact operated to discriminate against the voters of Fulton County. The prayers are for dismissal of the petition and the refusal of relief.

Findings of Fact.

The plaintiffs are citizens and registered voters of Fulton County, Georgia, associated with the State Democratic Party and entitled to vote in its primaries. There is nothing personal or peculiar to them which distinguishes them from other Democratic voters in Fulton County. The personal defendants have the offices alleged and represent respectively the functions alleged. The Secretary of State does not represent the State otherwise, nor appear for it. The Chairman and Acting Secretary of the Executive Committee represent the Democratic Party in the functions of their offices but do not appear to have been authorized by the other members of the party or the Executive Committee to represent them as litigants. The Party is a voluntary association whose membership is constantly changing and uncertain.

Fulton County is by far the most populous of the 159 Counties of the State. By the federal census of 1940 the population of Fulton County was 392,886 and that of the State was 3,123,723. The population of many of the counties was under 10,000. Exact figures at present have not been established by the evidence but it tends to show and we judicially know that since 1940 there has been no great change in the population of the State, but that a number of the smaller counties have...