South v. Peters
| Decision Date | 05 April 1950 |
| Docket Number | No. 724,724 |
| Citation | 339 U.S. 276,70 S.Ct. 641,94 L.Ed. 834 |
| Parties | SOUTH et al. v. PETERS, Chairman of the Georgia State Democratic Executive Committee, et al. On Jurisdictional Statement and Motion to Dismiss or Affirm |
| Court | U.S. Supreme Court |
See 339 U.S. 959, 70 S.Ct. 980.
Mr. Hamilton Douglas, Jr., Atlanta, Ga., for appellants.
Messrs. Eugene Cook, Atlanta, Ga., M. H. Blackshear, Dublin, Ga., M. F. Goldstein, B. D. Murphy, Atlanta, Ga., for appellees.
The Georgia statute which appellants attack as violative of the Fourteenth and Seventeenth Amendments provides that county unit votes shall determine the outcome of a primary election.1 Each county is allotted a number of unit votes, ranging from six for the eight most populous counties, to two for most of the counties. The candidate who receives the highest popular vote in the county is awarded the appropriate number of unit votes. Appellants, residents of the most populous county in the state, contend that their votes and those of all other voters in that county have on the average but one-tenth the weight of those in the other counties. Urging that this amounts to an unconstitutional discrimination against them, appellants brought this suit to restrain adherence to the statute in the forthcoming Democratic Party primary for United States Senator, Governor and other state offices.
The court below dismissed appellants' petition. We affirm. Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state's geographical distribution of electoral strength among its political subdivisions. See MacDougall v. Green, 1948, 335 U.S. 281, 69 S.Ct. 1; Colegrove v. Green, 1946, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432; Wood v. Broom, 1932, 287 U.S. 1, 8, 53 S.Ct. 1, 3, 77 L.Ed. 131; cf. Johnson v. Stevenson, 5 Cir., 1948, 170 F.2d 108.
Affirmed.
I suppose that if a State reduced the vote of Negroes, Catholics, or Jews so that each got only one-tenth of a vote, we would strike the law down. The right to vote in a primary was held in Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759, to be covered by the Equal Protection Clause of the Fourteenth Amendment. And where, as in Georgia, a party primary election is an integral part of the state election machinery, the right to vote in it is protected by the Fifteenth Amendment. Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110. And see United States v. Classic, 313 U.S 299, 61 S.Ct. 1031, 85 L.Ed. 1368. Under both Amendments discriminations based on race, creed or color fall beyond the pale.
Yet there is evidence in this case showing that Georgia's County Unit System of consolidating votes in primary elections makes an equally invidious discrimination. Under this primary law the nomination does not go to the candidate who gets the majority or plurality of votes. Votes are counted county by county. The winner in each county gets a designated number of votes—six in the most populous counties, four in the next most populous, two in each of the rest.
Plaintiffs are registered voters in Georgia's most populous county—Fulton County. They complain that their votes will be counted so as drastically to reduce their voting strength.
They show that a vote in one county will be worth over 120 times each of their votes. They show that in 45 counties a vote will be given twenty times the weight of each of theirs. They show that on a state-wide average each vote outside Fulton County will have over 11 times the weight of each vote of the plaintiffs.
Population figures show that there is a heavy Negro population in the large cities. There is testimony in the record that only in those areas have Negroes been able to vote in important numbers. Yet the County Unit System heavily disenfranchises that urban Negro population. The County Unit System has indeed been called the 'last loophole' around our decisions holding that there must be no discrimination because of race in primary as well as in general elections.
The racial angle of the case only emphasizes the bite of the decision which sustains the County Unit System of voting. The discrimination against citizens in the more populous counties of Georgia is plain. Because they are city folks their voting power is only an eleventh or a hundred and twentieth of the voting power of other citizens. I can see no way to save that classification under the Equal Protection Clause. The creation by law of favored groups of citizens and the grant to them of preferred political rights is the worst of all discriminations under a democratic system of government.
The County Unit System has other constitutional infirmities. Article I, § 2 of the Constitution provides that members of the House of Representatives shall be 'chosen' by the people. And the Seventeenth Amendment provides that Senators shall be 'elected by the people.' These constitutional rights extend to the primary where that election is an integral part of the procedure of choosing Representatives or Senators or where in fact the primary effectively controls the choice. United States v. Classic, supra. In Georgia's primary to be held on June 28, 1950, a United States Senator will be nominated. Certainly in a State like Georgia where the Democratic nomination is equivalent to election, it would be a travesty to say that the true election in the constitutional sense comes later.
There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have the ballot counted. United States v. Classic, supra; Ex parte Yarborough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274. It also includes the right to have the vote counted at full value without dilution or discount. United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341. That federally protected...
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