Fortson v. Dorsey
Argued December 10, 1964
Decided January 18, 1965
379 U.S. 433
Under Georgia s 1962 Senatorial Reapportionment Act the State is split into senatorial districts which might be conceded to be notably identical in populace. Except for the seven maximum populous counties, from one to eight counties comprise a district and the voters therein, on a district-extensive basis, go with the senator for that district. The seven most populous counties are divided into from two to seven districts every, and the electorate in each such county, rather than electing simplest one senator from the district wherein they are living, pick, on a county-wide basis, that number of senators that the county has districts. Appellees, registered voters in multidistrict counties of Georgia, brought this motion inside the Federal District Court in opposition to the Secretary of State and local election officials, in search of a decree that the county-huge balloting requirement in the seven multi-district counties violates the Equal Protection Clause of the Fourteenth Amendment. A 3-choose District Court granted appellees motion for summary judgment, maintaining that the distinction among electing senators in districts comprising a county or group of counties and inside the multi-district counties constitutes invidious discrimination.
Held: equal protection does no longer necessarily require formation of all unmarried-member districts in a State s legislative apportionment scheme. Reynolds v. Sims, 377 U. S. 533, followed. Pp. 379 U. S. 436-439.
228 F. Supp. 259 reversed.
Page 379 U. S. 434
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
Under Georgia s 1962 Senatorial Reapportionment Act the State is split into senatorial districts which are conceded to be appreciably equal in populace. Except for the seven maximum populous counties, from one to eight counties comprise a district and the citizens therein, on a district-huge foundation, elect the senator for that district. The seven maximum populous counties are divided into from two to seven districts every, and the voters in each such county, instead of electing only one senator from the district in which they live, decide on, on a county-wide foundation, that range of senators that the county has districts. Appellees, registered electorate in multidistrict counties of Georgia, introduced this action inside the Federal District Court against the Secretary of State and local election officials, in search of a decree that the county-extensive vote casting requirement in the seven multi-district counties violates the Equal Protection Clause of the Fourteenth Amendment. A three-decide District Court granted appellees motion for summary judgment, holding that the difference among electing senators in districts comprising a county or organization of counties and inside the multi-district counties constitutes invidious discrimination.
Held: equal safety does now not always require formation of all unmarried-member districts in a State s legislative apportionment scheme. Reynolds v. Sims, 377 U. S. 533, followed. Pp. 379 U. S. 436-439.
MR. JUSTICE BRENNAN added the opinion of the Court.
Georgia s 1962 Senatorial Reapportionment Act [Footnote 1] apportions the fifty four seats of the Georgia Senate many of the State s
Page 379 U. S. 435
159 counties. The fifty four senatorial districts created by the Act are drawn, to this point as possible, along existing county traces. Thirty-three of the senatorial districts are made of from one to 8 counties each, [Footnote 2] and voters in those districts go with their senators by using a district-extensive vote. The last 21 senatorial districts are allotted in agencies of from to seven a number of the seven most populous counties, but voters in these districts do now not go with a senator by means of a district-extensive vote; instead, they be a part of with the voters of the alternative districts of the county in electing all the county s senators by using a county-huge vote.
The appellees, registered electorate of Georgia, brought this movement in the District Court for the Northern District of Georgia against the Secretary of State of Georgia and local election officers searching for a decree that the requirement of county-huge voting in the seven multi-district counties violates the Equal Protection Clause of the Fourteenth Amendment. A three-decide courtroom granted appellees movement for precis judgment, mentioning that
"The statute reasons a clear difference inside the treatment accorded electorate in every of the two classes of senatorial districts. It is the identical regulation implemented in another way to different
Page 379 U. S. 436
men and women. The voters pick their own senator in a single magnificence of districts. In the other, they do not. They should be part of with others in selecting a group of senators, and their very own choice of a senator can be nullified through what electorate in different districts of the institution preference. This distinction is a discrimination as between voters within the two classes. . . . The statute right here is not anything greater than a class of citizens in senatorial districts on the basis of homesite, to the end that a few are allowed to select their representatives whilst others aren't. It is an invidious discrimination examined via any trendy."
228 F. Supp. 259, 263. We mentioned possibly jurisdiction, 379 U.S. 810. We reverse.
Only final Term, in our opinion in Reynolds v. Sims, 377 U. S. 533, determined after the choice underneath, we rejected the perception that equal protection necessarily requires the formation of unmarried-member districts. In discussing the effect on bicameralism of the equal protection standards, we stated, "One body will be composed of single-member districts, even as the opposite may want to have at the least a few multimember districts." 377 U.S. at 377 U.S. 577. (Emphasis furnished.) Again, in conserving that a State may legitimately desire to preserve the integrity of diverse political subdivisions, consisting of counties, we stated:
"Single-member districts can be the rule of thumb in a single State, while some other State may choice to attain some flexibility by creating multimember or floterial districts. Whatever the approach of accomplishment, the overriding goal ought to be giant equality of populace most of the numerous districts, in order that the vote of any citizen is approximately equal in weight to that of every other citizen in the State."
377 U.S. at 377 U.S. 579. (Emphasis provided.)
It isn't contended that there is not "huge equality of populace" the various fifty four senatorial districts. The same safety argument is focused totally upon the query whether or not county-huge voting inside the seven multi-district
Page 379 U. S. 437
counties results in denying the citizens therein a vote "approximately same in weight to that of" voters resident in the unmarried-member constituencies. Contrary to the District Court, we cannot say that it does. There is absolutely no mathematical disparity. Fulton County, the State s largest constituency, has a populace nearly seven instances large than that of a unmarried-district constituency, and, for this reason, elects seven senators. Every Fulton County voter, therefore, may also vote for seven senators to symbolize his pastimes within the legislature. But the appellees assert that this scheme is faulty due to the fact county-huge vote casting in multi-district counties ought to, as a rely of arithmetic, bring about the nullification of the unanimous choice of the electorate of a district, thereby thrusting upon them a senator for whom nobody inside the district had voted. But that is handiest a quite hypothetical declaration [Footnote 3] that, in any occasion, ignores the realistic realities
Page 379 U. S. 438
of illustration in a multi-member constituency. It isn't always correct to treat a senator from a multi-district county because the representative of most effective that district within the county wherein he is living. The statute makes use of districts in multi-district counties merely as the premise of house for candidates, no longer for balloting or illustration. Each district s senator have to be a resident of that district, but, on account that has tenure depends upon the county-huge electorate, he should be vigilant to serve the pastimes of all of the people inside the county, and now not merely those of humans in his home district; as a result, in fact, he is the county s, and not merely the district s, senator. If the load of the vote of any voter in a Fulton County district, whilst he votes for seven senators to symbolize him inside the Georgia Senate, isn't always the exact equal of that of a resident of a single-member constituency, we can not say that his vote is not "approximately equal in weight to that of another citizen inside the State."
In reversing the District Court, we need to emphasize that the equal safety claim under turned into primarily based upon an alleged disease that attaches to the statute on its face. Agreeing with appellees competition that the multi-member constituency function of the Georgia scheme was in line with se terrible, the District Court entered the decree on summary judgment. We treat the question as presented in that
Page 379 U. S. 439
context, and our opinion is not to be understood to say that, in all instances or below all situations, this sort of gadget as Georgia has will comport with the dictates of the Equal Protection Clause. It might properly be that, designedly or in any other case, a multi-member constituency apportionment scheme, beneath the occasions of a specific case, might operate to minimize or cancel out the balloting strength of racial or political elements of the voting population. When that is demonstrated, it will be time enough to consider whether or not the machine nonetheless passes constitutional muster. This query, however, isn't provided by using the file earlier than us. It is authentic that appellees asserted in one short paragraph in their brief on this Court that the county-extensive election approach changed into resorted to with the aid of Georgia so that you can decrease the electricity of racial and political minorities inside the populous city counties. But appellees by no means seriously pressed this point beneath, and presented no proof to guide it, the District Court did now not do not forget or rule on its merits, and, in oral argument right here, suggest for appellees harassed that they do no longer rely upon this argument. The record therefore does no longer contain any substantiation of the bald announcement in appellees brief. Since, beneath these situations, this issue has
"not been formulated to carry it into consciousness, and the proof has now not been provided or appraised to determine it, our keeping has no relating that thoroughly separate query."
Wright v. Rockefeller, 376 U. S. fifty two, 376 U. S. 58.
Ga.Laws, Sept.-Oct. 1962, Extra. Sess., pp. 7-31; Ga.Code Ann. § forty seven-102 (Cum.Supp.1963). Section 9, the availability in question right here, affords in pertinent component that:
"Each Senator have to be a resident of his own Senatorial District and shall be elected through the voters of his personal District, except that the Senators from the ones Senatorial Districts such as less than one county will be elected by means of all the electorate of the county in which such Senatorial District is positioned."
(Emphasis provided.) Shortly after the enactment of this statute, and prior to the election of senators below it inside the 1962 wellknown elections, an action turned into delivered in a country court docket that challenged the validity of the above provision below the Georgia Constitution. The nation courtroom held that the exception within the 1962 statute become unconstitutional as a depend of country law beneath the then-current Georgia Constitution. Finch v. Gray, No. A 96441 (Fulton County Super.Ct., Oct. 30, 1962). The court docket entered a permanent injunction requiring that elections in Fulton and DeKalb Counties be held on a district-wide basis handiest. Appeal turned into taken from this selection, but was withdrawn. In its opinion, the Georgia Court stated that the Georgia Legislature had authorized the submission of a constitutional change to the people ratifying the 1962 reapportionment statute with its multi-district vote casting exception and all elections held under that statute. (The change was ratified. See Ga.Const. Art. III, § II, element. I; Ga.Code Ann. § 2-1401 (Cum.Supp.1963).) The court stated concerning the proposed amendment:
"It is to be located that, by using Paragraph (b) of said proposed Amendment to the Constitution, the General Assembly submitted to the human beings the question whether they could ratify the Reapportionment Act and elections thereunder. This proposed Amendment, of course, is prospective, and becomes part of the Constitution best if ratified by way of the citizens in the coming popular election."
"The effect of ratification with the aid of the humans of the Reapportionment Act containing the unconstitutional exception aforesaid isn't always now earlier than the Court for determination. See, but, in this difficulty: Walker v. Wilcox Co., ninety five Apps. 185; Hammond v. Clark, 136 Ga. 313; Bailey v. Housing Authority of City of Bainbridge, 214 Ga. 790; Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613; nine Mercer L.Rev. 194, 195; eleven Am.Juris., web page 832, phase 151. The importance here of the aforesaid proposed constitutional Amendment is really for the mild it sheds upon the goal of the General Assembly in enacting the Reapportionment statute."
The query of Georgia regulation raised by the decisions mentioned via the court docket as to whether a statute declared unconstitutional below Georgia law may be revived via a subsequent constitutional change changed into not raised below and has no longer been advised right here. Of course, this query of Georgia regulation isn't for us; our choice issues simplest the federal constitutional query provided and argued.
These 33 senatorial districts include 152 of the State s 159 counties. Of the 33 districts, simplest encompass single counties; the remaining 31 districts are made out of from to eight counties every.
Appellees take as their instance Senatorial District 34, wherein there are 82,195 of Fulton County s general of 556,326 citizens. They say, as a matter of mathematics, that even supposing each voter in District 34 voted for the same candidate from that district, much less than 18% of the citizens inside the other six districts within the county (i.e., about 85,000 of the closing 474,131 voters in the county) ought to outvote the unanimous preference of District 34 electorate. First of all, there may be no demonstration that that is likely in mild of the political composition of District 34 vis-a-vis that of the relaxation of the county. (In truth, the 1962 elections in each Fulton and DeKalb Counties -- in which all appellees are living -- were conducted on a district-wide basis, in preference to a county-wide basis. See observe 1 supra.) But aside from this, appellees arithmetic and deceptive, for not only will the 18%, or eighty five,000, of the remaining Fulton County electorate vote for a senatorial candidate resident in District 34, but also the ultimate 389,131 electorate will possibly participate in his election. Assuming these additional citizens split their votes nearly evenly between two applicants going for walks from District 34 -- the most "favorable" assumption for appellees in that it's going to produce the smallest viable percent of citizens who can outvote the unanimous desire of the voters in District 34 -- there will be about 280,000 votes towards the selection of the citizens within the 34th District, or about 59% of the closing out-of-district vote. This is a miles cry from the 18% discern calculated by means of appellees. And, although, on some peculiar danger, most effective eighty five,000 citizens outdoor of District 34 take part inside the choice of a senator from that district, and all vote in opposition to the unanimous choice of District 34 electorate, the 18% determine is still misleading. For, on this eventuality, the relevant balloting constituency includes something underneath a hundred and seventy,000 citizens, and near 100% -- no longer 18% -- of the out-of-district vote has to be solid against the choice of the in-district vote a good way to outvote the latter. Our selection have to no longer be examine, but, as resting upon the deceptive elements of appellees calculations.
MR. JUSTICE HARLAN, concurring.
Under the compulsion of closing Term s reapportionment decisions, I be a part of the opinion and judgment of the Court, but with one reservation. There is language in today s opinion, needless to the Court s resolution of this case, that is probably taken to intend that the constitutionality of
Page 379 U. S. 440
nation legislative apportionments need to, within the remaining analysis, constantly be judged in phrases of simple arithmetic.
As this Court embarks on the hard enterprise of placing flesh on the bones of Reynolds v. Sims, 377 U. S. 533, and its companion decisions of last June, I desire expressly to reserve for a case which squarely presents the problem, the query of whether the principles announced in those choices require this type of sterile approach to the concept of equal safety in the political subject.
MR. JUSTICE DOUGLAS, dissenting.
Georgia -- whose political hierarchy become lengthy built on the county unit * foundation -- has made an important alternate. The Georgia Constitution turned into amended to examine:
"The Senate shall include 54 members. The General Assembly shall have authority to create, rearrange and trade senatorial districts and to offer for the election of Senators from each senatorial district, or from numerous districts embraced within one county, in such way as the General Assembly may additionally deem advisable."
(Italics delivered.) Art. III, § II, element. I.
The "senatorial district" is for that reason made the unit inside the election of senators. But the Senatorial Reapportionment Act gives in relevant component:
"Each Senator must be a resident of his very own senatorial district and shall be elected through the electorate of his personal district, except that the Senators from the ones senatorial districts together with less than one county will be elected by all of the voters of the county in which such senatorial district is located."
Thus "senatorial districts" are positioned into two classifications: first, the ones comprising one or greater counties; 2d,
Page 379 U. S. 441
those including much less than one county. The "equal protection" hassle below the Fourteenth Amendment arises by means of reason of the fact that every one electors of the districts within the first institution choose their personal senators, at the same time as the electors of the districts inside the 2nd group need to share the choice of their senators with all the other electors in their county. I accept as true with the District Court:
". . . citizens in some senatorial districts cannot be handled in another way from electorate in other senatorial districts. The statute right here is nothing extra than a class of citizens in senatorial districts on the premise of homesite, to the end that some are allowed to select their representatives, whilst others are not."
228 F. Supp. 259, 263.
There are seven senatorial districts within Fulton County:
District 34 containing 82,195 electorate.
District 35 containing eighty two,888 voters.
District 36 containing seventy nine,023 electorate.
District 37 containing seventy eight,540 citizens.
District 38 containing 78,953 citizens.
District 39 containing 79,713 voters.
District forty containing seventy four,834 electorate.
There are three senatorial districts in De Kalb County:
District forty one containing 75,117 voters.
District forty two containing 95,032 voters.
District forty three containing 86,633 citizens.
As appellees factor out, even if a candidate for one of these districts acquired all of the votes in that district, he ought to still be defeated via the foreign vote, at the same time as he would, of direction, be elected if he were walking in a district inside the first group. I don't have any concept how this weighted balloting may produce prejudice race-smart, faith-clever, politics-sensible. But to allow some applicants to be selected by the electors of their districts and others to be defeated by way of the electorate of foreign districts is, for my part, an "invidious
Page 379 U. S. 442
discrimination" -- the check of unequal safety underneath the Fourteenth Amendment. Baker v. Carr, 369 U. S. 186, 369 U.S. 244. I had assumed we had settled this query in Gray v. Sanders, 372 U. S. 368, 372 U. S. 379, in which we said:
"Once the geographical unit for which a consultant is to be selected is distinct, all who participate inside the election are to have an same vote -- something their race, something their sex, anything their profession, something their income, and anywhere their home can be in that geographical unit. This is needed by using the Equal Protection Clause of the Fourteenth Amendment."
* South v. Peters, 339 U. S. 276.
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