Toombs v. Fortson

• Decision Date: 25 May 1962
• Docket Number: Civ. A. No. 7883.
• Parties: Henry J. TOOMBS, Mrs. George Taylor Douglas, Gordon G. Johnson and John L. Glenn, Plaintiffs, v. Ben W. FORTSON, Jr., as Secretary of State of Georgia, Eugene Gunby, Ordinary of Fulton County, Georgia, Katherine E. Mann, Ordinary of DeKalb County, Georgia, James F. White, Ordinary of Fayette County, Georgia, A. B. Tollison, Ordinary of Forsyth County, Georgia, Robert F. Abercrombie, Ordinary of Douglas County, Georgia, Jim W. Dickerson, Ordinary of Cherokee County, Georgia, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

205 F. Supp. 248

Henry J. TOOMBS, Mrs. George Taylor Douglas, Gordon G. Johnson and John L. Glenn, Plaintiffs, v. Ben W. FORTSON, Jr., as Secretary of State of Georgia, Eugene Gunby, Ordinary of Fulton County, Georgia, Katherine E. Mann, Ordinary of DeKalb County, Georgia, James F. White, Ordinary of Fayette County, Georgia, A. B. Tollison, Ordinary of Forsyth County, Georgia, Robert F. Abercrombie, Ordinary of Douglas County, Georgia, Jim W. Dickerson, Ordinary of Cherokee County, Georgia, et al., Defendants.

Civ. A. No. 7883.

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

May 25, 1962.

Francis Schackelford, Hamilton Lokey, Atlanta, Ga., Joseph B. Cummings, Augusta, Ga., Edward S. White, Isreal Katz, Atlanta, Ga., William P. Gunter, A. R. Kenyon, Gainesville, Ga., Maurice N. Maloof, C. Baxter Jones, Jr., Atlanta, Ga., J. Quinton Davidson, Columbus, Ga., Albert P. Reichert, Macon, Ga., John E. Simpson, Savannah, Ga., Raymond M. Reed, Marietta, Ga., John W. Sognier, Savannah, Ga., for plaintiffs.

King & Spalding, Eugene Cook, Atty. Gen., State of Georgia, B. D. Murphy, Atlanta, Ga., E. Freeman Leverett, Elberton, Ga., Lamar W. Sizemore, Atlanta, Ga., George P. Dillard, Decatur, Ga., for defendants.

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

TUTTLE, Circuit Judge.

This is the second suit to be tried before a three-judge court sitting in and for the Northern District of Georgia, in which Georgia citizens seek relief from alleged unconstitutional inequalities existing under the present composition of the Georgia state governmental structure. The first suit, Sanders v. Gray, D.C., 203 F.Supp. 158, resulted in the court's holding that the county unit system by which political party primaries have been required to be held for the election of certain State House offices is invalid because of the wide disparity between the number of units allocated to the several counties in the State when compared with the population of the counties.¹

In this case the plaintiffs, residents of the two most populous counties in the state of Georgia, Fulton and DeKalb Counties, seek declaratory and injunctive relief to cause the reapportionment of the General Assembly of the state of Georgia, a bi-cameral legislative body consisting of a Senate and House of Representatives, to the end that the plaintiffs and the other citizens of the counties in which they reside will be represented in the Legislature by members chosen on the basis of population, rather than on the basis of geographical areas, such as counties or election districts.

Both of these suits were filed after the Supreme Court's recent decision was announced in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663.

The plaintiffs, suing on behalf of themselves "and others similarly situated," named as defendants Ben W. Fortson, Jr., Secretary of State of the State of Georgia, and six other defendants who are the duly elected Ordinaries of selected Georgia counties.² This is a proper case for determination by a bench composed of three judges as provided in 28 U.S.C.A. § 2281, inasmuch as it seeks interlocutory and permanent injunctions to restrain the enforcement, operation and execution of statutes and constitutional provisions of the state of Georgia on the ground that they conflict with the Constitution of the United States. The basis of the plaintiff's attack is that "the Georgia constitutional and statutory provisions herein attacked comprise a scheme of apportionment of elected representatives to the State Legislature whereby the representation accorded to plaintiffs and other voters in this area has been and is arbitrarily, substantially, and persistently less than that accorded to voters in other areas."

The facts are not in dispute. They are, essentially, as follows: The Georgia Legislature consists of two Houses — the Senate and the House of Representatives. The Georgia Senate has fifty-four members, each of whom is elected from a senatorial district. With two exceptions, these senatorial districts are groupings of three counties each, which are contiguous, the two exceptions being the First senatorial district consisting of Chatham County and Effingham County, and the Fifty-Second senatorial district consisting of Fulton County. At the time these exceptions were made, Fulton County was the largest county in the State in population, and Chatham County was the second largest. The remaining senatorial districts are so created as to bear no relation to the population — that is to say, there is no uniformity or approximate uniformity as between the remaining fifty-two senatorial districts.

The House of Representatives consists of 205 members representing the 159 counties of the State. The Constitution of the State of Georgia provides that the eight largest counties in population shall have three representatives each, the thirty next largest counties have two each, and the remaining 121 counties have one representative each. The population in the counties varies from a low of 1876 people in Echols County, to 556,326 in Fulton County, both according to the 1960 United States Census. In addition to the great disparity between the populations of the various senatorial districts, varying from 13,050, the smallest in population, to 556,326, the largest, Georgia laws provide that in all except the two senatorial districts above referred to, Senators shall not succeed themselves, or be succeeded by citizens of the same county. The law requires that the three counties constituting a senatorial district shall furnish the Senator of the district in rotation.³

Furthermore, there are other provisions of the Georgia statutes that provide that where a county's candidate for election to the Senate is chosen by a primary election, only those voters from the county which is to furnish the election under the rotation system may vote in the primary. Thus the residents of two out of the three counties may not even participate in the primary which selects candidates for the senatorial district in which they reside.

Additional facts of which the Court takes judicial notice, or which were proved on the trial having a bearing on the issues here to be decided include the following:

(a) Based upon the 1960 United States Census, Senators from the 28 least populous senatorial districts of Georgia comprising a constitutional majority of the 54 members of the Senate represent districts having 21.4% of the people of the State.

(b) Under the rotation system above described, the respective counties in the 28 least populous senatorial districts of the State, which counties would be entitled to have the Senator for such respective districts at the next session of the General Assembly, have approximately 6.13% of the State's population.

(c) Of the 54 senatorial districts, the twelve most populous districts contained 55.8% of the population of Georgia. Percentage-wise these twelve senators from these districts, constituting more than a majority of the population of the State, constitute 22.2% of the total number of members of the State Senate.

(d) The 19 least populous senatorial districts of the State possess only 13% of the population of Georgia, but the Senators from these 19 senatorial districts have one more than the one-third vote needed to prevent the required two-thirds vote of the Senate to permit the submission of any constitutional amendment to the people.

(e) Representatives from the 103 least populous counties of the State, comprising a constitutional majority of the 205 members of the House of Representatives, represent counties having approximately 22½% of the population of Georgia.

(f) The eight most populous counties, containing 41% of the population of the State, elect 24 of the 205 total Representatives in the House of Representatives, constituting 11.7% of the total number of Representatives in the lower House.

(g) The 69 least populous counties having 12.17% of the total population of the State are represented by one more member of the House of Representatives than the one-third needed to prevent a two-thirds vote of the House to permit the submission of a constitutional amendment to the people of the State.

(h) Taxpayers of Fulton County, Georgia, which county has a population equalling 14% of the total of the State, provide more than 14% of the State's total revenue. Fulton County is represented in the House of Representatives by 1.4% of the Representatives in the lower House. Fulton County's one Senator is 1.8% of the total number of Senators in the upper chamber.

(i) The five-county area of Fulton, DeKalb, Cobb, Clayton and Gwinnett, which comprise the metropolitan area of the city of Atlanta, has approximately 25% of the State's population, furnishes more than 25% of the total State revenue, and has 4.3% of the Representatives in the State House of Representatives. These counties are part of senatorial districts that combined have approximately 6% of the representation in the Senate.

(j) The eight most populous counties in the State have approximately 41% of the population, furnish more than 41% of the total State revenue and are represented in the House of Representatives by 11.7% of the total number of Representatives in the lower House. These counties are parts of senatorial districts that together have approximately 13% of the membership of the Senate.

Several efforts have recently been made by individual members of the Georgia General Assembly to obtain legislation modifying in some degree the basis of representation, either by simple legislation to modify the districts for senatorial representation, or by proposing legislative study committees to consider proposed constitutional amendments to modify the 3-2-1 formula of representation in the House of Representatives. These efforts have been of no avail other than the appointment by the House of Representatives, without the concurrence of the Senate, of...