Toombs v. Fortson

• Decision Date: 01 April 1965
• Docket Number: Civ. A. No. 7883.
• Citation: 241 F. Supp. 65
• Parties: Henry J. TOOMBS et al., Plaintiffs, v. Ben W. FORTSON, Jr., as Secretary of State of Georgia, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

241 F. Supp. 65

Henry J. TOOMBS et al., Plaintiffs, v. Ben W. FORTSON, Jr., as Secretary of State of Georgia, et al., Defendants.

Civ. A. No. 7883.

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

April 1, 1965.

Francis Shackelford, Atlanta, Ga., for plaintiffs.

Eugene Cook, Atty. Gen., State of Georgia, B. D. Murphy, Atlanta, Ga., E. Freeman Leverett, Asst. Atty. Gen., State of Georgia, Elberton, Ga., Geo. P. Dillard, Herbert O. Edwards and Robert E. Mozley, Decatur, Ga., King & Spalding, Scott, Scroggins, Cash & Crim, Harold Sheats and John Tye Ferguson, Atlanta, Ga., for defendants.

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

PER CURIAM:

This opinion and order will conclude the second chapter in this case arising out of Georgia legislative malapportionment. For the first chapter see Toombs v. Fortson, N.D.Ga., 1962, 205 F.Supp. 248, where we held that either the House of Representatives or the Senate must be apportioned on the basis of population. We retained jurisdiction pending action by the Georgia Assembly to that end, and also pending decisions of the Supreme Court of the United States in cases involving the contention that both houses of a state legislature must be apportioned according to population. The General Assembly of Georgia met thereafter and reapportioned the Senate on the basis of population. Ga. Laws, 1962, Extra session, pp. 7, 14. The theoretical minimum of population necessary to control a majority of the seats in the Senate was raised from 21.4 percent to 48.2 percent. The disparity from the standpoint of population as between districts and thus between residents of the districts was reduced from a ratio of 42.5 to 1 to a ratio of 1.81 to 1. The eight largest counties, with 41.26 percent of the state population, now have twenty-one senators, or 40.7 percent of the total. The twenty-two largest counties, with 57.11 percent of the population have 29.5468 senators, or 54.72 percent. The average district should contain 73,021 people based on the population of Georgia. Four out of fifty-four districts are below this average by more than 15 percent while two exceed it by more than 15 percent. Three districts depart from the average by more than 18 percent.

Other litigation in Georgia involving the political process, collateral to this suit time-wise, involved the county unit system of elections for governor and United States senators. See Sanders v. Gray, N.D.Ga., 1952, 203 F.Supp. 158, modified and affirmed, 1953, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, where the county unit system of elections was voided with the result that the present governor and one of the United States senators from Georgia have since been elected on the basis of popular vote. The Georgia political process as it related to the election of members of the national House of Representatives also came under attack during this period. See Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276, denying the relief sought, reversed on appeal sub. nom. Wesberry v. Sanders, 1964, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481. This case resulted in the redistricting of the ten Georgia congressional districts wherein the maximum population disparity as between them from the average now runs from a low of 16.4 percent below the average to 15.5 percent above the average. The General Assembly of Georgia accomplished this result. Ga. Laws, 1964, p. 478.

Shortly thereafter the Supreme Court rendered its decisions in Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lorrenzo, 1964, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 1964, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 1964, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sinock, 1964, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; and Lucas v. Colorado General Assembly, 1964, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, extending the one man-one vote principle established for the election process in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, supra, and followed in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 506, 11 L.Ed.2d 481, supra, to state legislative representation and apportionment. These decisions, on motion of plaintiffs, activated this phase of the instant litigation for the purpose of requiring reapportionment of the Georgia House of Representatives on the basis of population. The motion of plaintiffs in this regard was granted by an order dated June 30, 1964, and amended on November 3, 1964. The order voided the apportionment section of the Georgia Constitution, Art. III, § III, par. 1 (Code Section 2-1501), as conflicting with the Fourteenth Amendment. Georgia Code § 47-101, as amended, giving effect to this section of the Constitution was declared prospectively null and void after the general election to be held in November, 1964. The order also provided:

"The motion of the plaintiffs for further injunctive relief prior to the conduct of the party primaries or conventions and the General Election of November 3, 1964, is hereby denied at this time, provided, however, that, notwithstanding anything in Article III, Section IV, Paragraph I (Code Section 2-1601) of the Constitution of Georgia of 1945 to the contrary, the service of the members of the House of Representatives of the General Assembly of the State of Georgia to be elected at the General Election in November, 1964, shall be limited to a term of one year's duration and provided further that the plaintiffs shall have the right to reapply to this Court for further relief should the General Assembly, which convenes in January, 1965, fail to enact, during the regular 1965 45-day session, as provided in the Georgia Constitution, such legislation as may be necessary for the General Assembly to be reapportioned in accordance with Constitutional requirements and as may be necessary to permit the holding of elections to the newly constituted General Assembly during the calendar year 1965, which elections are to be held at such time as may be necessary to permit the members of such newly constituted General Assembly to take office no later than the second Monday in January, 1966. To the extent that state statutory and constitutional provisions might otherwise conflict with such legislative reapportionment, they are hereby declared to be void and of no effect."

The General Assembly has acted pursuant to this order with the result of setting the number of seats at 205 (H.B. 281). These seats are apportioned among House districts created in H.B. 367. Special elections to fill the vacancies created by H.B. 367 are set up under H.B. 580. All of this legislation has now become law on the approval of the Governor.

THE ISSUES

On March 10, 1965, defendant Ben W. Fortson, acting in his official capacity, moved for approval of the plan of reapportionment. Plaintiffs have responded that the plan fails to comport with the teaching of the Supreme Court in Reynolds v. Sims, supra, and related cases, and have asked the court, in substance, to reject the plan and to adopt a plan of its own in lieu thereof. We allowed the House of Representatives to intervene as a proponent of the plan, and to seek relief from our order with respect to their terms of office so as to allow the members of the House to serve out the remaining one year portion of their current two-year terms, or failing in this, to allow named classes of the membership, variously affected or unaffected by the reapportionment plan, to serve out the balance of their respective terms.

The intervention of the Executive Committee of the Republican Party of Georgia was permitted so that they might contest the special election procedure embraced in House Bill 580. Fulton County and one of its Senators intervened for the purpose of seeking to correct a clerical error and certain oversights having to do with the districting of Fulton County. In addition, various amicus curiae briefs have been allowed and considered.

THE ADEQUACY OF THE PLAN OF APPORTIONMENT

We come first to the adequacy of the plan in the light of the interpretation placed on the equal protection clause of the Fourteenth Amendment by the Supreme Court in Reynolds v. Sims, supra; and with respect to the objections to the mode of election, in the context of the order of this court that reapportionment be accomplished during 1965.

House Bill 367 and House Bill 281, although enacted separately, constitute the apportionment plan and together with House Bill 580, the response to this Court's order. House Bill 580, as stated, was enacted to effect the necessary special election under the plan. Prior to the order of this court and to the enactment of these statutes, House apportionment was governed by Article III, § III, Paragraph 1 of the Georgia Constitution of 1945 (§ 2-1501 of the Georgia Code). The membership was composed of three members from the eight counties with the largest population, two members from each of the thirty counties having the next largest population, and one member from each of the remaining one hundred and twenty-one counties or a total of 205 representatives from Georgia's 159 counties. The new statutes provide for the same number of seats but for a different apportionment. Plaintiffs assert that the number of seats is unnecessarily high, and that the apportionment bill reflects a clearly proscribed violation of the one man-one vote principle.

The determination of the size of the House is a matter within the discretion of the State. Reynolds v. Sims, supra, footnote 63, p. 581, 84 S.Ct. p. 1362, 12 L.Ed.2d 506. We therefore reject the attack on this portion of the plan.

It is next urged that the plan of apportionment, shown on the map attached hereto as Appendix A, is a mere hodge podge or crazy guilt and thus without rationality. The court heard the testimony of the Chairman and Vice Chairman of the House Rules Committee....