Fortson v. Morris

PETITIONER:Fortson
RESPONDENT:Morris
LOCATION:U.S. District Court for the Southern District of California, Central Division

DOCKET NO.: 800
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 385 US 231 (1966)
ARGUED: Dec 05, 1966
DECIDED: Dec 12, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – December 05, 1966 in Fortson v. Morris

Earl Warren:

Ben W. Fortson, Jr., Individually, and as Secretary of State of Georgia versus John Morris et al.

But I should announce before counsel begin that the orders of the Court had been certified by the Chief Justice filed with the clerk and will not be announced in order.

Mr. Hill.

Harold N. Hill, Jr.:

May it please the Court.

This case comes here from Georgia and is an appeal from a decision of a three-judge court of the Northern District of Georgia.

I’m sure I speak for counsel for all of the parties in the case expressing our appreciation for the Court’s rearranging its calendar and permitting us to be here today.

The Democratic primary was held in Georgia on September 14th of 1966.

There were five candidates in that primary.

Former Governor Ellis Arnall run first, Lester G.Maddox was second.

The — a runoff was held on December the — or September the 28th between Lester Maddox and Ellis Arnall.

Mr. Maddox received 54% of the vote in that runoff and Mr. Arnall 46%.

Howard Callaway became the nominee of the Republican Party by getting a nomination petition signed by 5% of the registered voters which would be about 90,000 signatures.

The general election was held on November 8th, the news election service on official returns show that Mr. Maddox received in that election, 448,044 votes.

Mr. Callaway, 449,894 votes with a difference between them of 1,850 votes.

Mr. Arnall and a write-in campaign which was sponsored for him but not by him received some 57,000 votes or 6%, so that neither candidate of the top two candidates had a majority.

The Georgia Constitution provides that when neither candidate in the Governor’s race receives a majority of the vote the Georgia General Assembly shall meet in joint session and elect from the two candidates having received the highest number of votes a Governor.

On Wednesday November 9th, the day after the general election, the Morris suit was filed.

It originally sought to enjoin the election of the Governor until the General Assembly could be reapportioned which was to take place not later than 1969.

Hugo L. Black:

— circumstances by majority?

And they elect between the two candidates by a majority vote or (Voice Overlap) —

Harold N. Hill, Jr.:

They do.

Hugo L. Black:

— or some other format?

Harold N. Hill, Jr.:

They elect by a majority vote.

In order for that to be a joint session, there would be necessary that there be a like a forum from each House President and then a majority of the votes of the members present would be necessary to elect the Governor.

I wouldn’t — would not anticipate that there would be many people absent on the date.

Byron R. White:

Mr. Hill, is you’re suggestion that at least one of the briefs I made the Democratic legislator would be oath bound to vote for the Democratic candidate?

Harold N. Hill, Jr.:

There is that suggestion in the briefs.

The oath only go so far as to say that they would support the nominee of the Democratic Party at the November 8th general election.

That election is for —

Byron R. White:

You’re saying that if that’s not so that no Democratic legislator would be oath bound to support the Democratic —

Harold N. Hill, Jr.:

That is correct.

Byron R. White:

He is perfectly free to vote for the Republican.

Harold N. Hill, Jr.:

The Constitution of Georgia says in this particular provision that he shall — can vote from the top two whichever they maybe.

If the oath models the Court, I would recommend that the oath to be stricken rather than the constitutional provision or if there’s any question about.

Earl Warren:

How do we strike the oath if we’re going to let them invoke on it?

If they have taken the oath and the — now, how can we strike from their minds to the oath that they’ve taken?

Harold N. Hill, Jr.:

Your Honor could not strike from their minds the fact that they are either Democrats or Republicans but that is a political matter, I believe, which this Court has never gone into.

In the reapportionment cases, no consideration was given to how many Democrats or Republicans the reapportionment formula might put into a legislature.

Or this is an area of the so-called thicket I believe which the Court has not yet reached or as to — the British System isn’t very much the same way — acknowledgely so that the majority party elects the Prime Minister.

Byron R. White:

But we’ve said they’re not bound by it in the situation in the effect.

Harold N. Hill, Jr.:

That’s correct, Your Honor.

The —

Byron R. White:

But that was the question of the oath ways below — Mr. Hill in the sense that it’s argued in this brief?

Harold N. Hill, Jr.:

I do not recall.

I do not believe — yes, yes, it was.

In the justice case, it was mentioned.

Byron R. White:

It’s not referred doing — you’ve got so much stuff here, I haven’t been — unable to go through all of them but the — is that the third one in the opinion of the three-judged court, is it?

Harold N. Hill, Jr.:

No, it’s not referred to in the opinions.

The plaintiffs in the Morris case now want not a reapportioned legislature to elect the Governor but they seek a special election open to any candidate.

The second day after the —

Hugo L. Black:

I assume you would say that no voter swore to vote for the — one of the high men.

If the legislature elected rather the people elected, so he would say that they took an oath to support the nominee of the party not to vote directly but that it did not apply to the election, special election that was to be held if they did not get a majority vote.

Harold N. Hill, Jr.:

That is absolutely correct.

Certainly no legislature would be bound by any oath to support the Governor after he is elected.

It would be a violation of the separation of powers principle and I believe that by the same token he is not bound by any oath to elect either particular candidate or to the Governor.

William O. Douglas:

Is this oath in the record somewhere?

Harold N. Hill, Jr.:

Yes, it is Your Honor.

Where would it be found?

Could you refer us to it?

Harold N. Hill, Jr.:

The record has not all been printed.

Harold N. Hill, Jr.:

The two particular provisions of the oath which is the declaration of candidacy appear as a part of the plaintiff’s request for admissions following page 139 of the transcript of the record.

The particular part of the oath which might be applicable says that, “I’m a Democrat and I pledge myself to abide by the rules and regulations of the State Democratic Executive Committee and to abide by the results of said primary election on September 14, 1966”, which was the primary.

Then it goes on and says, “I further pledge myself to support at the general election of November the 8th, 1966 all candidates nominated by the Democratic Party of the State of Georgia.”

But the election of November the 8th is over and the —

William O. Douglas:

And it was inconclusive so I thought it was still going on.

Harold N. Hill, Jr.:

Well —

William O. Douglas:

That’s why this case is here, isn’t it?

Harold N. Hill, Jr.:

The election are held that date, we submit is over Your Honor.

And it’s our position that this election by the General Assembly is a separate method of election unrelated to the general election which arises because of the circumstances of that general election.

William J. Brennan, Jr.:

Well, as a matter of (Voice Overlap) —

Well —

Byron R. White:

They have had this election and elect to the new legislature convenes, can you?

That is correct, Your Honor.

Byron R. White:

So that — in other words, what — if this power may be exercised, it has to be exercised by the legislature which was elected the same day of the — of this contest?

Harold N. Hill, Jr.:

That is correct.

Hugo L. Black:

You say that they — they performed thereafter, responded to the obligations by voting in the general election, and that’s over?

Harold N. Hill, Jr.:

Yes, sir.

Byron R. White:

What would you think if there was a — had to be a runoff between the Republican and the Democratic candidates for a Lieutenant Governor?

I suppose the subject — Georgia statute requires the — which provides for a runoff in that respect there.

Harold N. Hill, Jr.:

No.

The Georgia Constitution, the provision here in issue —

Byron R. White:

I know but the (Voice Overlap) was that the Georgia statute which relating to runoff?

Harold N. Hill, Jr.:

Right.

The statute relating the runoffs under our construction of the Georgia Constitution could not apply to —

Byron R. White:

I understand that.

I want to know — what about a runoff to the candidates for Lieutenant Governor.

Let’s just assume that there was a runoff between Democratic and Republican candidates for Lieutenant Governor because of a writing, let’s assume that.

And then the demo — and then the — do you think the oath would reach that special election held to elect a Lieutenant Governor?

Harold N. Hill, Jr.:

I —

Byron R. White:

— you almost have to take a runoff?

Harold N. Hill, Jr.:

I — I’m unable to make the assumption because the Georgia Constitutions says that the election of the Lieutenant Governor shall be made by the General Assembly.

Byron R. White:

Oh, I see.

Harold N. Hill, Jr.:

It does not call for a runoff but before the statewide constitutional office.

Byron R. White:

What about the — to what does the statute for a runoff election?

Harold N. Hill, Jr.:

To those elections except Governor, Lieutenant Governor, Secretary of State, Attorney General, and one or two others.

Byron R. White:

Or give me an example, what does it apply to?

Harold N. Hill, Jr.:

It does not apply to —

Byron R. White:

But it does apply to what?

Harold N. Hill, Jr.:

Senators or it don’t — would apply to State Senators.

Byron R. White:

Right.

Harold N. Hill, Jr.:

State — to the state legislature.

Byron R. White:

But no statewide office?

Harold N. Hill, Jr.:

Yes, sir.

It could apply to some statewide offices just as the Supreme Court of Georgia.

It could be applied to.

Byron R. White:

And does the oath apply to them?

But does it — does the oath requires support for the Democratic candidates or Republican?

Harold N. Hill, Jr.:

In his language, no.

Perhaps in it’s — in its sense, yes.

But there people are voting as voters —

Byron R. White:

Yes.

Harold N. Hill, Jr.:

— not as legislators.

The people to have been elected would go to the post and vote as citizens but in an election by the General Assembly, they — legislators have a constitutional obligation to pick — to be free to pick whichever of the top two candidates they feel would make the best Governor.

And therefore, the oath here would not I believe be applicable.

But as I have said, if the oath is the problem, we would submit that the oath ought to be struck down rather than the constitutional provision.

Earl Warren:

Mr. Hill, you —

(Inaudible)

Earl Warren:

Pardon me.

Excuse me, go ahead.

Earl Warren:

You said that their obligation under the oath that terminated if — when the election was over and that this was a new proceeding, would you mind stating that again from my orientation please?

Harold N. Hill, Jr.:

The provision here in question came in if I may back up just a minute.

Earl Warren:

Oh, yes.

Oh, right.

Then go.

Harold N. Hill, Jr.:

The provision here in question came in are pattern after a part of the Twelfth Amendment adopted in 1804.

Not patterned after the electoral college system but patterned after the feature of the Twelfth Amendment that shifts the vote from the electoral college into the House.

It came into provision into effect of — in 1824 in Georgia are in effect said before that the people had elected the Governor the legislature had elected the Governor.

It in effect said that —

Hugo L. Black:

With that instance the beginning of the state’s history?

Harold N. Hill, Jr.:

Yes, I believe so.

In effect said that the people are going to make the choice when we are clear in our minds as to who it should be, but when — we’re not clear when it’s so close that no man has a majority.

We want the legislators and though the man bests the requirements of the office best to select.

Now, it is our position that this is in a sense a different method of electing a Governor much as it would be as if the legislature was still empowered to elect the Governor from — in the first instance without having a popular vote that Gray versus Sanders applies to.

When you have an election, you must count all the vote — votes equally.

But the Gray versus Sanders does not say that you must have a certain type of election and that you cannot change systems when there has been a failure to elect the Governor.

Earl Warren:

But may I ask you this, is there any — does any constitutional question arise to that, on the power of a state that have the legislature elects its Governor rather than the people?

Harold N. Hill, Jr.:

The court below indicated that they thought that a legislature could elect a Governor, in the first instance.

There are many states who elect many statewide officers by either the legislature or the Governor appointee of Maine —

Hugo L. Black:

Does Georgia do that to?

Harold N. Hill, Jr.:

Yes.

The state order took — is elected by the Georgia General Assembly, in the first instance.Maine elects its Secretary of State, its Attorney General, and it’s State Treasurer by the General Assembly.

Many States elects various statewide officers either by appointment from the Governor or the election by the legislature.

Hugo L. Black:

Your position is that the Federal Constitution does not compel a state to elect its Governor by the people?

Harold N. Hill, Jr.:

That’s right.

Certainly, the Senator under Nineteenth Amendment must be elected by the people but that comparable provision does not apply to the Governor.

Tom C. Clark:

Suppose here the affirmative that the legislature does it if no candidate gets the majority, is that right?

Harold N. Hill, Jr.:

Yes, sir.

Tom C. Clark:

Would it be constitutional for a state to provide that the legislature shall do it if no candidate gets two-thirds?

Harold N. Hill, Jr.:

If it were reasonable for the state to require that for any of their candidates to become elected they must get two-thirds.If that first premise were reasonable then I believe that at that point if having not received the two-thirds, they could shift the method.

Although, we of course are faced with —

Tom C. Clark:

I understand.

Harold N. Hill, Jr.:

— attempting to maintain majority principle of election and not a greater burden on the candidate in order to get elected.

Tom C. Clark:

Well, yes.

But this formula in its implications may therefore be a very mischievous thing.

Because two-thirds it can be 80% or 80% to 90% —

Harold N. Hill, Jr.:

Well —

Tom C. Clark:

For the political controls, squeezing out minorities, squeezing out non-orthodox party people?

Harold N. Hill, Jr.:

It’d be very difficult I believe to — if to ever get a Governor particularly in Georgia if you had an 80% requirement —

Tom C. Clark:

We got it this way.

You could get it this way through the legislature.

Hugo L. Black:

But what’s wrong with the State of Georgia if it wants to providing that to elect the Governor they require two-thirds.

Does it — can a question to the constitution gives us a right because we think that’s mischievous to overturn it?

Harold N. Hill, Jr.:

I suppose that the state might set a higher requirement than a majority.

Certain, many states have set much less than that.

They have gone to the plurality system where it’s conceivable that something less than a third could elect the Governor by simple plurality.

William J. Brennan, Jr.:

Does any state required more than a majority?

Harold N. Hill, Jr.:

Not to my knowledge Your Honor.

There are two other states.

Our investigation reveals which requirements are.

The other states for one reason or another have gone to the plurality system.

But it’s our feeling that under the plurality system, there is a disfranchisement under Gray versus Sanders of all of those voters who vote against the plurality winner.

Abe Fortas:

Suppose a state provided in its constitution that the man who comes in second, I mean the Governor, the Governor’s race will be the Governor with the — do you think that that would be alright or is there something in the Federal Constitution that in the — make that appear to be kind of awkward?

Harold N. Hill, Jr.:

I don’t believe it would be alright.

No, Your Honor.

Abe Fortas:

So that what you really come down to here was clearly a — do you say that the State Constitution may provide that the results of the election are in fact washed out —

Harold N. Hill, Jr.:

Yes.

Abe Fortas:

— if neither candidate gets a majority and then the legislature really without reference to the results of the election except in — as if the election were a nominating convention, the legislature can then choose between them.

Harold N. Hill, Jr.:

Between the top two.

That ever been in — the first instance selected by the people.

Abe Fortas:

Yes, I say it.

Abe Fortas:

As if I that were a nominating convention and served up these two names to the legislature and then the legislature has complete freedom to select the man who came in first and then came in the second.

Harold N. Hill, Jr.:

Yes.

Abe Fortas:

Is that about the (Voice Overlap) —

Harold N. Hill, Jr.:

Yes sir.

And we would say further that even to this point is a part of the argument that the election by the General Assembly is not a continuation of the popular vote election.

Now, we would say further that even if election by the General Assembly were to be considered as a continuation of the popular vote election it would not be violative of the Federal Constitution.

Now, the second suit was filed on the second day after the election seeking to enjoin the Governor — election of the Governor by the General Assembly to require a runoff between Misters Callaway, and Maddox.

The three-judge court heard arguments and rendered its opinion.

The notice of appeal was filed the next day, application for stay the following Monday and that brings us here.

Under Georgia Codes — under the Georgia Constitution and the Georgia Code in Sections which are not here in issue, the official returns of the Governor’s race are to remain sealed until the day after the General Assembly organizes on January 9, 1967 under the Code Section 40-01, which unfortunately with is not cited in the briefs.

The General Assembly is the sole judge of the election and the qualifications of the Governor.

Under another provision of the Georgia Constitution that same — that part of this provision but the part that has not been declared invalid, the General Assembly opens and publishes the returns under another Code Section.

The General Assembly determines all questions relating to the returns of the election for Governor.

Thus, the official results of the election are not known and will not be known until the General Assembly exercises its rights and powers under the Georgia Constitution and Laws which are not — have not been challenged and have not been declared invalid.

Now, without in any way undertaking to any fringe upon the prerogative of the General Assembly to open and canvass those returns we have stipulated to this Court in the interest of expedition that the general assembly will find when they open the returns that no man

has received a majority of the votes cast.

William J. Brennan, Jr.:

Well, aren’t they — do we have a question here though in these circumstances whether we have a case of controversy declared?

Harold N. Hill, Jr.:

I would hope not Your Honor.

I would hope —

William J. Brennan, Jr.:

(Voice Overlap) hope not but — the reason the case is not — the reason we have not any jurisdiction.

Hugo L. Black:

Pretty hard fight going on, isn’t it?

Harold N. Hill, Jr.:

Excuse me sir.

Hugo L. Black:

It’s a pretty hard fight going on over, isn’t it?

Harold N. Hill, Jr.:

Yes.

That doesn’t make a case a controversy.

Well, lots of things or fights are going on about it.

But you can’t stipulate us into this?

Harold N. Hill, Jr.:

The court below put us into this one Your Honor.

That still doesn’t answer it for us.

William O. Douglas:

Are these returns sealed, is that —

Harold N. Hill, Jr.:

That is correct Your Honor, they are sealed.

Now in addition to that, we have entered into a stipulation with counsel for the appellee’s justice regarding a listing of telephone and telegraph reports from the ordinaries.

The ordinaries keep a copy of these sealed official returns.

Eleven counties have not responded.

A 123 counties show variances between what they said they sent to the state in sealed envelops and what the new service election report show.

There were actually only 25 where there was an agreement between what the ordinary said their vote was and what the news election said the vote was.

William O. Douglas:

Where did you get those figures if you quoted as, Callaway so much, Maddox so much?

Harold N. Hill, Jr.:

Newspaper results Your Honor.

William O. Douglas:

Newspaper?

Harold N. Hill, Jr.:

New — election news service from post of UPI, AP and the three TV and a radio network.

Byron R. White:

Did you just say Mr. Hill that there variances as to some counties between those figures and what have been reported by the election officials?

Harold N. Hill, Jr.:

That is correct Your Honor.

Byron R. White:

Well then I’ll ask you again, where do we get a case of controversy?

Harold N. Hill, Jr.:

This is an action for declaratory judgment as well as for injunction —

Byron R. White:

Still, the declaratory judgment are not, there still has to be a case of controversy, doesn’t it?

Harold N. Hill, Jr.:

It was my understanding that a declaratory judgment action if it was a properly declaratory judgment action represented a case of controversy within the requirements that there’d be such a case of controversy.

But let me say that there’s been no breakdown in the Government.

Byron R. White:

Or do you say there was a — let’s assume that the — we didn’t decide this case this time and that the case went on and that the returns were opened in the legislature, an election was held.

Do you suppose the election of the legislature could come in a way that would make these cases moot?

Harold N. Hill, Jr.:

I doubt it would make it moot for the — whoever the legislature didn’t elect.

Byron R. White:

I know but the — but both of these — you mean it became up — you mean, if the defendants in these suits — it wouldn’t be moot for the defendants in these suits that came out one way.

Harold N. Hill, Jr.:

It wouldn’t be moot for the candidates.

Hugo L. Black:

Or the people?

Harold N. Hill, Jr.:

And some people, yes, Your Honor.

Hugo L. Black:

Are these people have joined them?

Harold N. Hill, Jr.:

The Constitution of Georgia fortunately provides that the Governor elected in 1962, Carl Sanders shall hold office for four years and until his successor is chosen and qualifies so that we do have a Governor and he will, as indicated, he will continue to hold office.

If he should resign the newly elected Lieutenant Governor could take his place.

In it’s a 142-year history this will be the first election of a Governor by the Georgia General Assembly.

An attempt to exercise that power was made by — in 1947 but was held invalid by the Georgia Supreme Court.

There the Georgia Supreme Court held the provision was not applicable where one candidate had a clear majority but died after the election and before taking office.

Harold N. Hill, Jr.:

The Court held that it was proper for the incumbent Governor to hold on until the General Assembly published the returns of the Lieutenant Governor’s race and for the newly elected Lieutenant Governor thereupon became the acting Governor upon the resignation of the Former Governor Ellis Arnall at that time.

The Court in that case, Georgia Court held that the General Assembly could not elect from the two next highest candidates where the man who had have the majority had done.

Abe Fortas:

When Georgia became a member of a union, what was the provision for electing a Governor?

Harold N. Hill, Jr.:

I’m not sure Your Honor.

In order to be able to answer that question, the provision of — that the General Assembly elect a Governor was in the Constitution of 1798 and was changed in 1924.

What the provision may have been prior to 1798 –I apologized to the Court, I am unable to say.

But we are not really talking about a Constitution of 1824, Georgia has one of the most recent Constitutions in the country.

The Constitution of 1945, it was proposed by a constitutional commission composed of 23 appointed members.

Governor Ellis Arnall, three lawyers and the three laymen appointed by the Governor, the Speaker of the House who at that time was selected by the Governor and elected by the House, and five members of the House.

Governor Arnall was unanimously elected chairman of that constitutional commission.

He discussed and presided at the meeting at which Article V, Section 1, paragraph 4 of the Georgia Constitution was approved.

Hugo L. Black:

That was the same one that had been in the 24, was it?

Harold N. Hill, Jr.:

That is correct Your Honor.

And it was adopted in 1824 and appeared in the Constitution of 1861 —

Hugo L. Black:

By vote of the people?

Harold N. Hill, Jr.:

Yes, Your Honor.

Hugo L. Black:

Adopted by vote of the people?

Harold N. Hill, Jr.:

1861, 1865, 68, and 77 was readopted and again in the Constitution of 1945.

The Constitution of 45 was approved by the voters at a special constitution, an election held on August 7th of 1945.

Now, it’s been said that the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man because Georgia copied a part of that constitution.

We are here today.

If these were a copyright infringement case, Georgia would lose.But this is a constitutional question and we said that one reason that Georgia should win is because she copied a part of the Twelfth Amendment.

Appellees have said that this provides an ingenious way to frustrate the will of the people and that it’s the last vestige of the county unit system.

We say that there are things in the Federal Constitution which the states can copy without being unconstitutional and that this is one of them.

It could be said that the veto power of the Governor is an ingenious way of frustrating the willof the people.

But State Constitutions provide for veto powers in Governors and so does the Federal Constitution and just because the states happened to copy that feature of the Federal Constitution does not make it unconstitutional for the states to do.

The District Court’s order was based on what it called the rationale of this Court’s decision in Gray versus Sanders.

District Court’s decision was not base upon alleged malapportionment.

That is the Court below said that even if a perfectly — said that even a perfectly apportioned legislature could not elect the Governor.

The appellees have attempted in their briefs to reargue alleged malapportionment.

Harold N. Hill, Jr.:

The Georgia General Assembly is not perfectly apportioned.

It’s been ordered to apportion itself before May 1, 1967.

Byron R. White:

Well, I know but the legislature of it’s — to elect this Governor, your provision of doctarine — if the legislature that was elected or was it not under a claimant — if the Three-judge District Court approved and which this Court affirmed —

Harold N. Hill, Jr.:

Exactly.

Byron R. White:

— as a constitutionally elected legislature then its under a constitutional plan for the purpose, the election in this legislature.

Harold N. Hill, Jr.:

Exactly.

Byron R. White:

So that the legislature can — makes the choice if your constitutional (Inaudible) is certainly for that purpose a constitutionally apportioned legislature, isn’t it?

Harold N. Hill, Jr.:

Right.

It is for the purposes of conducting business constitutionally approved but I have the fear that the slight remaining degree of — in apportionment lurks in the minds of some people.

And I would say that if a provisionally apportioned legislature where it exist — where its existing apportionment has been approved by the District Court and its affirmed by this Court is not able to elect the Governor.

Then we would submit that this Court should affirm on that basis.

William O. Douglas:

I assume — you are saying there was a slight deviation from the correct apportionment and due to the fact I think this Court or the District Court held it to be invalid, isn’t it?

Harold N. Hill, Jr.:

Sufficiently they said that’d it be invalid.

The — both Houses have been reapportioned and the existing time table caused for further reapportionment.

William O. Douglas:

In order to be constitutionally —

Harold N. Hill, Jr.:

That’s correct.

William O. Douglas:

— 18 — 1969, I think, isn’t it?

Harold N. Hill, Jr.:

The apportionment plan is to be submitted before May 1 of this coming year.

William O. Douglas:

Yes.

Harold N. Hill, Jr.:

To allow time to litigate it so that it can be put into the elections of 1968 to take effect in 1969.

Right.

But I just want to be sure the plan that the — under which this legislature was elected at the last election of the plan that for the purposes of that election.

And they sit as the legislature till 1969 is approved by the Three-judge District Court and affirmed by this District Court, wasn’t it?

Harold N. Hill, Jr.:

Yes, it was Your Honor.

Hugo L. Black:

Were they right to perform their function within the legislature except as — in order to the contrary?

Harold N. Hill, Jr.:

Yes, Your Honor.

Now, so that we believe that malapportionment either — ought to be — beside the situation and we’ll deal with Gray versus Sanders which was of course the county unit in the system of nomination in the Democratic Party primary which was invalidated under one person, one vote principle.

The Court there enumerated many of the things it was not dealing with in Gray including the convention system of nominating for the candidates.

The county unit system was a method of waiting votes and the Court said the present case is only a voting case.

The Court did not, I do not believe invalidate the election of Georgia’s State Auditor by the legislature in the Gray decision in order that — I believe invalidate the election of the — by the Maine legislature of its Secretary of State and Attorney General for the election by other state legislatures.

Harold N. Hill, Jr.:

The Nineteenth Amendment says that Senators shall be elected by the people but it does not say that the Governor or state officials shall be elected by the people.

Gray, as I understand it said, that when you have an election of a state official by the people.

You must count each vote equally.

But Gray did not say that a state must always elect every state official by statewide election.

We do not believe that Gray invalidated any election methods or systems where there’s no waiting of the votes of the people.

In Fortson versus Dorsey involving the validity of multimember Senatorial Districts, this Court declined to apply Gray in an election system matter because there the question was whether it was to have multimember districts or subdivided districts being a method of election rather than a vote counting case.

The Court also in Reynolds versus Sims, a reapportionment case said that Gray was not dispositive in cases involving legislative systems.

In Gray, the Court said that once the class of voters is chosen, their qualification specified, we see no constitutional way by which equality of voting power maybe evaded.

The voters of Georgia before thisproblem arose chose to close as of the November 8th general election.

The class of voters entitled to vote for the office of Governor.

They chose to terminate their own qualifications to vote under the limits — the circumstances existing here.

As was said in Gray, states can within limits specify the qualifications of voters in both state and federal elections.

The Constitution indeed makes voter qualifications rest on state law even in federal elections.

The election of a Governor by the General Assembly of Georgia under the limited circumstances prescribed by the Georgia Constitution is not a continuation of the popular vote process but is a separate method of election when the voters have not given any candidate a majority.

The state has specified the qualifications of the persons eligible to vote.They are the legislators.

Even if this is a continuation of the popular vote process we submit that Gray versus Sanders does not prohibit it.

Earl Warren:

Well, if it is a continuation of that election or they both would apply, would it not?

Harold N. Hill, Jr.:

I believe not Your Honor, because it simply said, the November 8th general election and it would apply to a man as a candidate and nominee and not after he had taken the oath of office as a legislator.

Hugo L. Black:

Well, that first election is completely over, isn’t it?

Harold N. Hill, Jr.:

That’s correct Your Honor.

Hugo L. Black:

Well, what — (Inaudible) any room to talk about a continuation?

I thought it was over and this case wouldn’t be here.

Hugo L. Black:

Why wouldn’t it be here?

This is another election.

That’s a question if they decide —

Harold N. Hill, Jr.:

That is the — one of the issues certainly.

After an election and the counting of the votes, the losers’ votes count for nothing even under Gray.

Only the winners’ votes count.

It happened this year in Georgia that there was no winner.

The State Constitution provides a different method for selecting a Governor when there is no winner.

Harold N. Hill, Jr.:

The extension of Gray into matters of this type could lead to a requirement that legislation must be adopted by referendum.

If the voting equality principle of Gray is applied to a State legislature then the guarantee of a Republican form of Government is to a certain extent.

Certainly, we can — Gray versus Sanders was based on the Equal Protection Clause and there is we submit no unequal protection in the subject provision of Georgia’s Constitution.

It applies equally to all.

Earl Warren:

Mr. Morgan.

Charles Morgan, Jr.:

Mr. Chief Justice, may it please the Court.

We are here discussing I think what the Attorney General would properly term a political thicket and I shall think of that would be the position of the State of Georgia.

In general, I think that estranged as this may sound now that its much less of a thicket here than there is a formal garden.

But we intent to show the Court I think if — that it’s conclusion is inevitable under Gray versus Sanders.

And that the only path that may be followed under that rule, the rule of that case, is to move forward to the electorate.

Now, we do have a distinction with the Court appellee’s justice.

Their contention will be to take one path to the electorate.

Ours will be to take another.

On the statement regarding the —

Potter Stewart:

Yes.

Charles Morgan, Jr.:

— case, we did enter Court on three counts on a complaint.

The first count did allege malapportionment.

The second count alleged Gray v. Sanders grounds stating that malapportionment was a part of the county unit system rule.

And the third ground was straight out county unit question or geographical unit.

I think we turned it there.

Our case and appellee’s justice case agreed on that point and that if the point upon which the Court below decide of this matter.

Now, we contend that the malapportionment of the General Assembly of the State of Georgia, matters in the sense that it almost locks in this instance the will of a minority, the right of a minority to elect the Governor of the State of Georgia.

We don’t contend that that’s the principle thrust of course the Gray v. Sanders case but we think that’s a part of it.

Now, the court below asked this —

William J. Brennan, Jr.:

I don’t understand what the word is?

Charles Morgan, Jr.:

Yes.

William J. Brennan, Jr.:

Are you suggesting in light of our affirmance with the three-judge order that this legislature taking office in January, is it constitutionally malapportionment?

Charles Morgan, Jr.:

Yes.

The question was asked by the court below this way Mr. Justice Brennan.

The court below forwarded to us the following question in the following word.

Charles Morgan, Jr.:

They said, “Assuming the allegations in the claim that all — are all taken us true.”

Does the complaint alleged facts which entitle the complaint as to relief in the light of the prior decision of the Court in Toombs versus Fortson affirmed by this Court.

And whether this case should not be dismissed on the pleadings or for failure to state a claim upon which relief can be granted.

We discussed with the Court there the question of the affirmance and the effect of the order of affirmance by this Court.

And we came to the conclusion that under the earlier case where the three-judge court in the Toombs v. Fortson matter had enjoined the State Constitutional provision or rather the state — the new State Constitution proposed in 1964 and it enjoined the electorate — rather that from being submitted to the elect —

William J. Brennan, Jr.:

Because that had been fashioned by the — a malapportioned legislature?

Charles Morgan, Jr.:

By a malapportioned legislature.

William J. Brennan, Jr.:

Yes.

Charles Morgan, Jr.:

And the Court’s reasoning in that case was that it would take a two-thirds vote by a properly apportioned legislature to amend that — to propose an amendment to that new Constitution.

Now that case was the appealed here of course, as it came to this Court and then it was sent back to that Court for reconsideration in light of further developments as to whether this should be the ongoing injunction.

Now in this case, the power of the Governor is of course much different from ordinary legislative matters just as the State Constitutional provisions were there and the Governor for instance in this instance would be selected to serve until 1971.

Now in the lower court, we got the position of — here we — he would have a malapportioned Governor whatever that means but we have a Governor elected by a malapportioned legislature who served two years beyond the new legislature that’s probably apportioned would take office.

William J. Brennan, Jr.:

Well, I just have trouble, you concede — extricating how you can characterize this new legislature as malapportioned when for the purposes of this election at least in this constitute as a legislative body.

We affirmed as constitutionally permissible the plan under which it was elected.

Charles Morgan, Jr.:

Oh, I think then you get to the general, the position that Mr. Justice Harlan took which was that it — once the legislature was empowered, you know to continue to operate that it had the right to do anything in the former case, the Fortson v. Toombs.

Earl Warren:

Well, do you urge that the — with this legislature can perform no functions —

Charles Morgan, Jr.:

No, sir.

Earl Warren:

— because it’s malapportioned, (Voice Overlap) —

Charles Morgan, Jr.:

No, sir we —

Earl Warren:

What distinction do you make?

What functions, character form or what (Voice Overlap) —

Charles Morgan, Jr.:

Well, I’d say under the same reason —

William O. Douglas:

Why don’t you go the larger question counsel because I — as I read your brief that you’re merely emphasizing a malapportionment only aggravates —

Charles Morgan, Jr.:

Aggravates —

William O. Douglas:

— what you deemed to be the unconstitutional features anyway.

Charles Morgan, Jr.:

Yes, sir.

William O. Douglas:

It’s not an independent ground.

Charles Morgan, Jr.:

Yes, sir.

In response to this then moving on the — we merely say that with respect to State Constitution under the reasoning of the District Court in Toombs v. Fortson and in this Court Fortson v. Toombs but that’s a special kind of thing, that two-two thirds operation.

That two-thirds vote that would be required to amend the State Constitution that here we’d have a Governor elected by a malapportioned legislature from 1969 to 1971.

Charles Morgan, Jr.:

With the power of veto over it then properly apportioned legislature and that’s not the kind of matter that this legislature could consider.

Byron R. White:

But you would be making the argument Mr. Justice Douglas indicates whether or not this legislature was not apportioned and you would also make the same argument if there was a tie —

Charles Morgan, Jr.:

Correct.

Byron R. White:

— within the popular vote and you would say that any provision over a — or the legislature breaking a tie wherever, whatever the state — whatever the apportionment would be unconstitutional in your —

Charles Morgan, Jr.:

I would — I pretty won’t have to take that position.

I don’t know that I want to reach the tie provisions of the (Inaudible) State Constitutions aren’t —

Hugo L. Black:

Because you have reached the (Inaudible)

Charles Morgan, Jr.:

Not — I hope not.

I —

Hugo L. Black:

I understood your complaint did raise it precisely as an alternative ground of the injunction?

Charles Morgan, Jr.:

The —

Hugo L. Black:

That this legislature was malapportioned (Voice Overlap) —

Charles Morgan, Jr.:

Yes, it have —

Hugo L. Black:

— but not as a mere — not an aggravation?

Charles Morgan, Jr.:

No, that’s right.

The complaint did bring —

Hugo L. Black:

Have you abandoned that part of your complaint?

Charles Morgan, Jr.:

Well, the Court — we have not filed a cross-appeal in the court below decided under count three which was straight Gray v. Sanders county unit —

Hugo L. Black:

Does that mean that you’ve abandon that part of your compliant?

One would not have to — we would not have to decide that —

Charles Morgan, Jr.:

Yes, sir.

Hugo L. Black:

— if we decided the other against it?

Charles Morgan, Jr.:

No, no, no sir, I think that that — if you decide the other against us, either this Court or the court below on remand would have to decide that question.

Hugo L. Black:

Oh, do you — you would say that that has to be decided.

That’s one of your argument, it’s an alternative ground you insisted that the election be enjoined?

Charles Morgan, Jr.:

I had —

Hugo L. Black:

That the legislature is malapportioned?

Charles Morgan, Jr.:

Yes, sir.

Now, not reaching that question but just you — that question becoming an aggravating point on the Gray versus Sanders, I think the rule of Gray versus Sanders clearly envelops this case here.

Gray involved the county units systems, the nominating procedure before we ever got to the final step of election before we got to the November 8 general election.

Charles Morgan, Jr.:

If there is a distinction and I think there is.

The general election is the final step and the most important step in the state electoral process.

Once the voter leaves the polling place and the curtains come down, it’s over as far as he’s concern.

He’s made his final choice and this — to consider in this circumstance in essence that a geographically apportioned body even if properly apportioned could select the Governor.

And then we’ve got the instinctive and immediate problems that arise of — that arose in the county unit system in Gray v. Sanders.

And what are those problems?

The first one is that if a legislature voted either way he would automatically deprive those constituents who did not agree with his vote of any right to have their ballots counted in the selection of Governor.

If that person in the General Assembly absent of himself, of course that’d be no representation for the voters from his district.

He could vote for a candidate who did not received the majority of votes in his district as well as the candidate who did not receive of majority of votes in the state.

He could elect the man who ran number two and completely, it deprives the voter of that direct voice in the selection of a statewide officer after the class of those selectee.

That officer has already been determined, that class of the voters of Georgia.

Hugo L. Black:

What you would say Georgia was compelled to do if it has two elections?

One or two election fails to get a majority to compel to keep on having elections —

Charles Morgan, Jr.:

Well, sir —

Hugo L. Black:

— for the Federal Constitution?

Charles Morgan, Jr.:

I do not know that it is compelled to continue to have elections after it had — we’re talking of a general election not of course the primary.

Hugo L. Black:

Exactly.

Charles Morgan, Jr.:

I should think that that — I should think first of all and if I may take this a little backwards.

We — where we disagree amongst appellee is as to the remedy to be followed of course and that’s they say a runoff provision under the (Voice Overlap) —

Hugo L. Black:

Well, I wanted to know is what do you say Georgia should do?

If it holds an election, goes to the extents of a statewide election failed to get a majority, do you say the Federal Constitution bars it from letting the legislature elect?

Charles Morgan, Jr.:

Well, yes, sir I am.

Hugo L. Black:

Well, what would it have to do?

Charles Morgan, Jr.:

Well, I think the State of Georgia would then have to have a special election.

There’re two ways that this could be arranged.

They would have to have a runoff from the first election if it result (Voice Overlap) —

Hugo L. Black:

That’s the holding in the Federal Constitution regarding Georgia to elect its Governor by the people.

Charles Morgan, Jr.:

No, I think Georgia is required by —

Hugo L. Black:

Did — do you find any sentence or words in Gray, in the Gray case indicating that its holding that Georgia is compelled to elect its Governors by the people?

Charles Morgan, Jr.:

No, sir, but I find this.

Charles Morgan, Jr.:

I find in the Gray case that once the Georgia has fixed those who will elect the Governor that they then can’t dilute or filter their votes.

Hugo L. Black:

Oh, certainly.

Charles Morgan, Jr.:

And —

Hugo L. Black:

But did they filter their vote in this election?

Charles Morgan, Jr.:

They will up against —

Hugo L. Black:

Get it filtered to get a majority?

Charles Morgan, Jr.:

It will be filtered if they get to the General Assembly.

Hugo L. Black:

You’re saying it’ll be filtered if they elect by the legislature.

Charles Morgan, Jr.:

That’s right.

Now, prior to that time then — in a legislative selection I do think that once they’ve fixed it and they say that you’re going to have it — a November general election that you could have a runoff election from there, from a general election.

And in that election I should think that you —

Hugo L. Black:

Runoff general election, of course they don’t get a majority here.

Charles Morgan, Jr.:

Well, then we’ve got a problem of course —

Hugo L. Black:

They’ll have another?

Charles Morgan, Jr.:

No.

No, now Georgia would say, a runoff election between the highest candidates.

Our contention would be that you can have a runoff election from a general election that’s conducted fairly.

That the voters can contemplate what the law is and then move forward and have that runoff election.

We contend you can’t do it in this sentence because —

Hugo L. Black:

Suppose you didn’t get a majority?

Charles Morgan, Jr.:

Well, I’ve — I should think that the —

Hugo L. Black:

Then, you’d have to have another, wouldn’t you?

Charles Morgan, Jr.:

Well, they’d get a majority between two men.

Not if there’s a (Inaudible)?

Charles Morgan, Jr.:

That’s right.

And then we get to the problem of majority’s right to rule versus the minority’s right to reject and that’s a very difficult position.

William O. Douglas:

But you — you’re representing the appellees who do not contend that there is — writing should be?

Charles Morgan, Jr.:

I’m representing — may I state the position I think of the parties here.

William O. Douglas:

See, the District Court didn’t reach the remedy?

Charles Morgan, Jr.:

Yes, sir.

Charles Morgan, Jr.:

We represent two voters who represent a class.

These two voters did cast write-in the ballots.

They don’t — if they want to cast them in the future or do not want to cast them in the future.

We do not represent the write-in Georgia group.

We request that they intervene in the case so that they could defend right to the ultimate, the right of a person to write in any election.

They did file an intervention petition which was not acted upon.

James O’Hear Sanders of the Sanders versus Gray case is the plaintiff in that intervention.

Co-appellees represent a bipartisan group of Georgia citizens who generally supported one of the candidates in the campaign.

Our position is that the — we’re trying to — as we — well, everybody in the case says that they represent the people of Georgia.

Of course, the Attorney General does and they do and we do and we do have a different standing on what that requires that’s what I gather —

William O. Douglas:

But you don’t claim here that there should — direct in terms of remedy any more than a runoff between the two?

Charles Morgan, Jr.:

Yes, I do.

I certainly do.

Yes, sir.

Most extraneously.

William O. Douglas:

Pardon?

Charles Morgan, Jr.:

Yes, sir, very much so.

William O. Douglas:

Well, the reason I asked you that there’s a specific Georgia statute that deals with an alternative method of doing this, do you support that statute or do you have still a different way?

Charles Morgan, Jr.:

We have a different statute.

We have 34-1514 as the runoff statute.

William O. Douglas:

That’s right.

Now, you stand by that one do you?

Charles Morgan, Jr.:

We stand by 34-1515 which is the special election statute.

William O. Douglas:

I see, yes.

Abe Fortas:

Will you make any difference in theory of this case as you view it if the Georgia Constitution had provided and in a situation where neither candidate gets a majority?

The legislature shall select the Governor but the legislature shall vote on the basis of one vote per county and you see, you’d have the county unit system transferred to the legislature?

William O. Douglas:

I don’t think you can do that.

Abe Fortas:

You don’t think you could do that?

William O. Douglas:

No, sir.

I don’t.

William O. Douglas:

Not once you’ve opened up the electoral process to the voters and come down to the final conclusion.

Abe Fortas:

You think that that same case that you’re now arguing don’t you?

Byron R. White:

What is your view Mr. Morgan on the — on whether or not if you win, if you win there is a special election where there will or will not be a write-in?

Charles Morgan, Jr.:

If there’s a special — I think the problem in Georgia — this is as a practical matter.

I think the problem in Georgia with the respect to the write-in movement in the — this is the first time this has happen just like this is the first time is going to state — General Assembly.

And the problem in Georgia as I understand it was the people felt like they were dealt with unfairly in the electoral process and they move forward from that position to have a write-in campaign.

In a special election in Georgia under the Georgia statutes, the nominees of the major parties would appear on the ballot without new primaries.

Others could qualify to run for Governor of Georgia from that you would have a runoff and I don’t think that there would be any questions as to the un — what some voters considered unfairness earlier in the electoral process.

William J. Brennan, Jr.:

Would you — you really don’t care then do you whether there’s a write-in or not?

Charles Morgan, Jr.:

I really don’t because I think it will be over with and it’s really a question that I’d — I want to avoid as much as I think the Court may (Voice Overlap) —

William J. Brennan, Jr.:

Because if there is a write-in then you have to have one election after another, the present Governor will be in office?

Charles Morgan, Jr.:

Yes, he — I should think he would.

William J. Brennan, Jr.:

And if there isn’t a write-in of — then somebody is going to win?

Charles Morgan, Jr.:

That’s right.

Hugo L. Black:

What would be your position, the Constitution of Georgia still contained the exact provisions 1798 — all it said was the Governor should be elected by the legislature?

Charles Morgan, Jr.:

Well sir, I don’t find a specific provision of the Constitution that would tell me that that would be unconstitutional unless it happens to be that as Mr. Justice Douglas stated in his opinion in Gray versus Sanders.

There has been a developing thing and the right to vote in this country.

And it’s a — the right to —

Hugo L. Black:

And you don’t think we could change their constitution because the developing idea that goes (Inaudible)?

Charles Morgan, Jr.:

Well, I — let me put it this way.

I think that this Court has had a more — has had an expanding view of the right of suffrage in America.

And I think that that expanding with this certainly shown up in recent years in the case of Baker versus Carr, in Reynolds versus Sims and beyond.

I think that the — but not merely this Court but other branches of —

Hugo L. Black:

But they didn’t have any expanding view as to the right of state to select its officials or agency by appointment rather than by election, is it?

Charles Morgan, Jr.:

No and I don’t say, I don’t find a specific reference to that.

But I should think it would have to rely upon whatever expanding view we could find.

We find that in Congress of course but you know the increase of (Inaudible) —

Hugo L. Black:

But what — our decisions under the First, Fourth, Fifth, Sixth, Seventh, and Eighth Amendments certainly represented expanding view?

Charles Morgan, Jr.:

They certainly do.

Byron R. White:

Well, let’s see Mr. Morgan, is this an argument that the — this expanding view has now given a narrower definition to what constitutes a Republican form of Government?

Charles Morgan, Jr.:

Well, it — it’s not an argument I intended to make —

Byron R. White:

Well, was that — what?

Charles Morgan, Jr.:

I think that’s —

Byron R. White:

You have to (Voice Overlap) —

Charles Morgan, Jr.:

I think that’s where we — this is almost what we’ve — we lead to as we moved forward either that or —

Byron R. White:

Tell me, was — of course this doesn’t have to but just a matter of curiosity.

I — was Georgia one of the states that was readmitted by a congressional statute?

Charles Morgan, Jr.:

Yes, sir.

Byron R. White:

And at that time I gather the Georgia Constitution had this provision in it at the time of readmission if that’s the right the word —

Charles Morgan, Jr.:

It didn’t.

As I recall it, readmission — I’m really not certain of this but it’s my best recollection that Georgia had difficulty gaining readmission in the Congress.

Byron R. White:

But it did succeed with a constitution which included this provision?

Charles Morgan, Jr.:

I’m really not sure.

Byron R. White:

Or a provision that dates 1824?

Charles Morgan, Jr.:

It must have been in the Constitution —

Byron R. White:

But now how — when do you — do you suppose Georgia was admitted — readmitted as you would call it before or after the induction of the Fourteenth Amendment?

Charles Morgan, Jr.:

I think Georgia was readmitted as a part of the adoption, was it not?

Byron R. White:

When the —

William O. Douglas:

As an adoption appointee?

Charles Morgan, Jr.:

Well, I mean it’s a — as a part of a condition.

Byron R. White:

So here it was in — Fourteenth Amendment is which — is what you rely on?

Was — it was ratified at the same time as Georgia was being readmitted with this provision on its constitution?

Charles Morgan, Jr.:

Yes, sir.

But now here we go back to Mr. Justice Harlan’s dissent in Reynolds versus Sims.

Byron R. White:

Yes, but this is respect to a state now.

This is respect state procedures not federal procedures.

Charles Morgan, Jr.:

Fine.

Byron R. White:

And also I suppose the Senators were elected by state legislatures until 1912.

And I gather the readmission, I forgot whether — does it formally or not but when Congress admits or readmits a state, isn’t there a judgment whether the submissions — submitted form of Government constitutes a Republican form of Government for purposes of Article IV —

Charles Morgan, Jr.:

A judgment by the Congress of the United States which I did not think could foreclose this Court from (Voice Overlap) —

Byron R. White:

— that depends on whether we have any power to pass on what’s a Republican form of — or were that exclusively for the Congress (Inaudible)–

Charles Morgan, Jr.:

We’re trying.

But as I say we haven’t raise this question here as much as —

Hugo L. Black:

Whether Congress did — does it readmit Georgia, did it not with considerable discretion?

Charles Morgan, Jr.:

Yes, sir.

Hugo L. Black:

As to the validity of the Constitution which is presented and accepted it as its constitution.

Charles Morgan, Jr.:

Yes, sir.

Byron R. White:

And I suppose you would argue that a state could not adopt the Parliamentary form of a Government.

Charles Morgan, Jr.:

I’ve — I really find myself almost being forced into that position and that I’m almost into it I want to get out of it and I don’t want to argue that, frankly.

Now —

Abe Fortas:

Now —

Charles Morgan, Jr.:

Yes, sir.

Abe Fortas:

I’m sorry, — I have a (Inaudible) book by Albert Perry cite the Constitution on the history of Georgia, I don’t know whether it’s a reliable book or not, I’m not familiar with it.

But I’d tell you that Georgia was the fourth state in the nation to ratify the Constitution.

It ratified it in 1788 and at that time I’m — according to this book, the — nothing of the electing of the Government was that the House, Lower House submitted a list of three names to the Senate and the Senate was to choose the Governor from that list.

Do you have any information on this?

Charles Morgan, Jr.:

No, sir.

Abe Fortas:

And I suppose that one of the —

Charles Morgan, Jr.:

They come —

Abe Fortas:

— the questions that may or may not be relevant, I suppose that the Georgia Constitution contain that system today and suppose if that were challenged, what would be the impact if any of the Constitution of the United States on the validity of that system?

Charles Morgan, Jr.:

Well to take it that way, how would the state to get to — I’m asking myself questions as I go, how would the state get to that sort of a system?

It would get to that sort of system by its State Constitution.

State Constitution will be voted upon by the people.

I should think that this would be the declaration of the right to vote by the people themselves and under Lucas versus Colorado it might be forbidden — might be forbidden under the Lucas-Colorado case.

Now, we know that federal analogies are inapposite.

We know that through Gray v.Sanders and Reynolds versus Sims.

We come to this Court asking this Court for more than merely a ruling on what the lower court did below and we ask it for guidance.

Now, we understand that fully that this Court does not render advisory opinions but it does render opinions.

And we think that it’s in the interest of all Georgia voters and in the interest of federal judiciary and the state judicial system also that where constitutional questions as such as this come up.

That whatever the opinion the Court renders is — that at least indicate some sort of rules for people as to what they cannot do at least.

Charles Morgan, Jr.:

In light of that we want to refer to the federal analogy of the State Constitutional provisions that Mr. Hill referred to in his opening argument.

There is a great deal of certainty in American Government.

There is certainly a certainty with respect to the way the state capital appears.

Earl Warren:

We’ll recess now Mister.

Mr. Morgan, you may continue your argument.

Charles Morgan, Jr.:

Thank you Mr. Chief Justice, may it please the Court.

First on the matter that Mr. Justice Brennan raised on case of controversy, I think it related to the election results and returns from the fact that they’re opened at a later time under Section 34-1506 (c) of the Georgia Election Code.

The — a copy of those returns that are transmitted to the Secretary of State are retained by the election officials themselves.

So, an exact copy can be obtained of what the — those returns are.

Under Section 34-403 of the Georgia Election Code, those returns are subject to public inspection.

Earl Warren:

Are they in the record?

Charles Morgan, Jr.:

They are not in the record, no, sir.

Earl Warren:

What did the judge make a decision on?

Charles Morgan, Jr.:

I’ve said judicial knowledge or common knowledge that there was not a majority obtained regardless of who was the high candidate.

Now, and regarding a case of controversy question of course I can assure the Court there is a controversy going on in Georgia and that the stakes are rather high.

The problem I want to discuss with the Court now if we might is the certainty that existed in the Georgia Constitution before the District Court ruling.

Assuming that this Court affirmed that has a great deal to do with the remedy to be affected by a Court or by the state — General Assembly itself or by a state court either by this Court or the District Court below.

Whoever decides how the Governor of Georgia is to be elected?

The certainty of the constitutional provision that was in effect has a great deal of bearing to do with this case.

Now —

Byron R. White:

(Inaudible) forgive me because I haven’t asked you but really so much of this stiff like (Voice Overlap) —

Charles Morgan, Jr.:

Surely, I know.

Byron R. White:

— the state.

You’re not the one who argued that results permits the legislator to —

Charles Morgan, Jr.:

No, sir.

We did not the raise that question.

I —

Byron R. White:

Do you suggest that it does?

Charles Morgan, Jr.:

I don’t really.

Ray versus Blair of course, again it’s a federal analogy question going into the electoral college question.

Charles Morgan, Jr.:

I really haven’t concede that this oath by its terms other than one of a moral obligation it imposes upon the person who takes it.

That this oath by some terms does extend beyond that November 8th general election and I do believe that that November 8th general election for the purposes of this case and for the — other purposes is over now.

I would pretty much take this position of the state I believe on that especially because I’m going to be discussing now what I think ought to happen and what has to happen because there’s many thorny constitutional questions I believe in the way you finally get a Governor of Georgia as are initially looking forward to the affirmance of the Court decision below.

Earl Warren:

Well, if this area — this is a new proceeding and the election is over, is there any constitutional question involved as to whether they can have the legislature elect a Governor?

Charles Morgan, Jr.:

Well, I think so because that —

Earl Warren:

Well, that — what — are you going to address yourself to that?

Charles Morgan, Jr.:

Yes, sir, right.

Earl Warren:

In your own time then.

Charles Morgan, Jr.:

Alright.

With respect to the entire electoral process that went on in Georgia, it’s very difficult of course in any case of this type to make a record as to what voters intend in any election contest case.

It’s always difficult to say that a certain number of voters would have voted another way or did vote another way because that sort of proceeding is always open to perjury as to what people say their intentions were and what they were going to do?

We’ve tried to take the case of Davis versus Schnell and to utilize some of the techniques there used to show the intention of the legislature and the electorate regarding this general election.

Now it’s our contention generally that the election was held under the provisions of the Georgia Constitution.

And the Attorney General of Georgia issued an Attorney General’s opinion were not the supporters of Mr. Callaway and not the supporters of Mr. Maddox but the supporters as to the Write-in Movement went to the Secretary of State and said, “Look, we think that we can have a runoff from this election and that’s what we want.”

And at that point, the Attorney General of Georgia issued an official opinion saying that the runoff statute did not jive with the Constitution of Georgia and they couldn’t have a runoff election.

Now from that point on, there’d became a great misleading of the electorate of Georgia and that misleading was not a venal misleading.

It wasn’t done by the candidates deliberately or the press deliberately, by the Attorney General Georgia deliberately, it’s just the State Constitution conflicted with the state’s statute his interpretation.

He said, “State Constitution would prevail and this election would go to the state legislature.” Now, what would be the effect of that?

Well, I think its common knowledge that in politics you often have the argument or question with respect to the lesser of two evils.

This candidate is the less of — lesser in two evils in every state and in every national election.I’m sure that argument is made.

But in thiselection it went further than that.

It was commonly argued in the State of Georgia that in the event that you vote for a write-in candidate whether with Mr. Arnall or anybody else, you thereby contribute to the election of Mr. Maddox because when you do that, if there’s no majority, it will go the General Assembly and there Mr. Maddox will get a second chance based upon the oath that was already taken in the Democratic predominance in the General Assembly.

Now, this had an effect on that election which was such as to render the November 8th proceeding invalid and void and to constitute a total failure of election because — due to the misleading that election could not be a proper election for nominating the two candidates who either the legislature could select or the people of Georgia could vote on at a later time.

Now —

Potter Stewart:

There was nothing misleading about it if it turns out that the District Court in this case was mistaken in their judgment, was it?

Charles Morgan, Jr.:

No, sir.

There would not be any misleading under those circumstances.

And this portion of the argument goes only to the — based on the assumptions that this Court affirmed the District Court below.

Now, the influence on that voter —

Hugo L. Black:

Do you mean that argument that the Court should suppose that you have any — dig up all the campaign arguments that were made, you can hold the law unconstitutional on account of something — somebody have seen it, an opinion?

Charles Morgan, Jr.:

Oh, no.

No sir, no sir, not at all.

I don’t mean to (Inaudible).

But they — what I think we do — this has nothing to do with respect to whether it’s constitutional or not, the principal question before the Court or the opinion of the District Court.

This has nothing to do with whether this Court affirms or perhaps overrules or overturns or remands the case, you know for other proceedings.

Hugo L. Black:

But what is its relevance?

Charles Morgan, Jr.:

Its relevance here is with respect to what opinion this Court might write as to the kind of remedy that the parties below might receive in the event the Court affirmed the decision of the District Court.

Hugo L. Black:

But you think that we could make Georgia spend the money to hold another statewide election?

Charles Morgan, Jr.:

I think that in Reynolds versus Sims the ruling of this Court made Alabama hold — have its legislature go into a special session at least twice.

Hugo L. Black:

That was — they decided to do it.

Charles Morgan, Jr.:

Well, sir they didn’t.

And I think Reynolds versus Sims is the best answer to the political thicket question I’ve ever seen because if there’s ever been a place where I felt like we’d have trouble with that decision that was the place and though — and there are a lot of television commentaries and speeches and everything else but by (Inaudible) they went along.

And after they passed a couple of laws, the District Court below in the — what then became Sims versus Baggett ruled and we got a properly apportioned state legislature.

Now, and I think that the same thing happens here.

I think this Court just to conjure up the problems that may confront it and I hate to do that but I – to the gander — candor, I think I have to.

To conjure up the problems of affirming the District Court, these are the kinds of problems the Court may face.

First of all, what is the right to cast a write-in the ballot?

Now, most of the cases that I have read with respect to this right arose at the time the Australian ballot was being adopted in this country or seemed to have risen about that time.

And this right to cast a write-in ballot is the right of a voter to reject the nominees trust upon him by the major parties or by any other nominating process.

Now, repeatedly throughout the history of this country, we’ve had recurrent efforts to bar minority groups in the ballot.

Now, we have laws all across the country that provides certain requirements for a group to come to the floor to get on the ballot via percent of the vote in the last election, 10% whatever it may be.

Now, the right to vote is the most personal right a man has.

I know in Harper versus Virginia State Board of Election this Court stated that it didn’t reach the question of the relationship between the right to vote and the right of free expression and then went ahead to decide the case.

Well in this instance, we obviously have voters in Georgia and I’m not just contending there’s been a misleading of just the people who voted for the write-in thicket or just the ons who voted for the Callaway thicket or just the ones who go to the Maddox thicket.

I think it’s been misleading of all the voters in Georgia.

But in Georgia, we had some voters who just said, “No.

One time in our lives we’re not going to say the lesser of two evils.

We’re going to vote who we want to vote for and we’re going to do it by very cumbersome procedure and we’re going to express ourselves.”

And that’s what they did.

Hugo L. Black:

Did you argue it, pointed to a (Inaudible) holding that the federal constitution bars a state pass an election law to prevent write-in obtained in majority?

Charles Morgan, Jr.:

Well sir, as I understand that the three states now that do prevent write-in votes.

Hugo L. Black:

Well, yes but the — that’s the state jurisdiction.

— are you pointing out that the fact is one of our — what we could hold if we affirm it is that they can prevent or not prevent write-in votes?

Charles Morgan, Jr.:

No.

We’re taking the pos —

Hugo L. Black:

By the Federal Constitution?

Charles Morgan, Jr.:

No, we’re not.

Our co-appellees in — the co-appellees just — just are taking the position that this Court or the District Courts below should bar write-in votes in a runoff election between the two men who ran on November 8th.

Hugo L. Black:

In a state election?

Charles Morgan, Jr.:

In a state election.

Hugo L. Black:

Even if the state wants to have it?

Charles Morgan, Jr.:

Yes, sir.And the State Attorney General has taken the —

Hugo L. Black:

There’s no medicine, isn’t it?

Charles Morgan, Jr.:

It’s pretty strong medicine for me, yes sir.

And the State Attorney General has taken the position that the right to cast write-in ballots is a constitutional right in the State of Georgia under the State Constitution.

Hugo L. Black:

That’s the State Constitution.

Charles Morgan, Jr.:

Yes, sir.

Hugo L. Black:

Well, that’s a different thing, I was talking about the federal.

Charles Morgan, Jr.:

Yes, sir.

I understand.

I’m in complete agreement that’s a pretty strong thing.

Now, we do have a majority of the American states of course which have a plurality system and you can see and conjure ahead a conflict between the minority right to reject and the majority right to elect.

As I — in answer to Mr. Justice White awhile ago, I don’t think that this problem would come up because of the — you know because of a circumstances below.

I don’t think we’d have another write-in movement if we have a special election.

I think we do have a great problem.

If a Court of the United States or really any other governmental agency should arrange a procedure by some sort of ex post facto process of nominating who the people can vote for and declining to allow them to have a right to reject those nominees and vote.

Alright, I know the status’ content in its brief, the voters in this — in Georgia were not misled.

Somehow they were to be clairvoyant and they were to assume that the State Constitutional provision would be thrown out and that their own Attorney General was wrong.

Hugo L. Black:

Do you — did I understand you to say that he contended the voters were not misled in the general statewide election?

Charles Morgan, Jr.:

The point well made.

Charles Morgan, Jr.:

I think that the — that what we have here and I just want to use this example to demonstrate upon my — the kind of misleading that just take place.

Dr. Benjamin (Inaudible) in Georgia is a man perhaps known to the Court.

He President of Morehouse College, then there’s this — middle of the 1930s as President.

Has a PhD degree and in a clipping attached in our brief which is in the record below.

William O. Douglas:

What does he —

Charles Morgan, Jr.:

He stated on —

William O. Douglas:

— he discussed?

Charles Morgan, Jr.:

— in the Atlanta Journal of October 11th, “I am in sympathy with the statewide Grass Roots campaign to elect Ellis Arnall.”

Now 24 days later, November 4th in the Atlanta Daily World which the Negro Daily Newspaper with the circulation of 30,500, this man who has 19 honorary degrees stated, “After much searching of soul, I think the write-in might contribute to the election of the man I fear would set our state back.”

If Mr. Arnall pulled a heavy vote and the election were thrown into the legislature, Mr. Maddox would be Governor.

This is a hard decision to make but I make it.

He then proceeded to endorse Mr. Callaway.

Now this gentleman, the President of a Major Negro Educational Institution is a plaintiff in the justice case.

I think it’s quite clear that he was misled and if a man with a PhD from the University of Chicago and 19 honorary degrees was misled then what of the 135,000 voters in the State of Georgia who were registered to vote under the provisions of the Voting Rights Act of 1965 and since that time.

Hugo L. Black:

Maybe they had more common sense — knowledge about the election than the (Voice Overlap) —

Charles Morgan, Jr.:

Well, they may have but I think of that perticularly is that they all usually go to the same side.

I want to conclude now by saying this we do have an important case before the Court and all of us recognized that.

This is the case in which we’ve all worked rather hard during the last few weeks.

It’s a case which this Court has moved to here rapidly.

It’s a case in which the Attorney General of Georgia wants a decision immediately.

And it’s a cases in which co-appellees want a decision immediately and it’s a case in which we want a decision.

When a decision can be reached taking into consideration the constitutional rights of all the parties involved.

There is a need for haste in the case but not for undo haste.

I think that this Court recognizes that there are complete — competing and conflicting interest here.

They’re really vital to 4 million people and perhaps to people in other states even though almost all of them have plurality provisions for the election of Governor.

So consequently I would urged the Court that there’s no possibility of a breakdown on the Government of Georgia.

Now, there’s no anarchy there.

There’s nobody proposing that we don’t — that the Government’s falling.

I want to express our appreciation for the rapidity which the Court has heard the case and also for the courtesy which we have received from counsel on all side in this matter.

I know that this Court in Reynolds versus Sims stated that and I thought well said stated, “We are cautioned about the dangers of entering into political thickets and mathematical quagmires.”

Charles Morgan, Jr.:

Our answer is this, “But a dial of constitutionally protected rights, the man’s judicial protection, our oath and our office require no less of us.”

Thank you.

Earl Warren:

Mr. Bondurant.

Emmet J. Bondurant, II:

Mr. Chief Justice and may it please the Court.

Initially, before proceeding to the merits and I feel we must meet the problem raised by Mr. Justice Brennan, whether we have in this Court a case of controversy on reasonably concrete facts on which this Court can act.

Mr. Morgan has touched on this question.

The District Court took judicial notice of a common public fact in Georgia that no candidate received the majority of the votes properly casts in the November 8th general election.

At the time it was meeting, this was a commonly known fact.

Further, although the state makes this argument that the returns are sealed and cannot be unsealed until the general assembly meets by law 34-1506 (a) of the election code certified copies, identical to those which are sealed are retained in the office of the ordinary as public records open to public inspection by anyone in the State of Georgia.

Since that time because of the expedition in which this case is handled ourselves representing justice et al and the state have joined in a stipulation which has been presented to clerk’s office in which we have obtained on the basis of telegram request from this ordinaries what these returns showed based on the statutory records and they have notified us and from all the counties, a 148 counties of the 159.

We do not have with — just because of the practically of the situation, the repetitive approach —

William J. Brennan, Jr.:

How many do you have Mr. Bondurant?

Emmet J. Bondurant, II:

148 of the 159 counties have notified us.

The remaining 11 counties, the — all public information indicates casts combined fewer votes then would take it to make a majority.

Hugo L. Black:

And this — and the notification is to what effect?

Emmet J. Bondurant, II:

The notification is that no candidate has received the majority.

And the total vote cast under the remaining 11 counties from which we have not heard by telegram would not be sufficient to give any candidate the majority even if totally added to his total.

So there can be no question.

This situation will be called into play that this is a real genuine case of controversy between adverse interests.

This —

William J. Brennan, Jr.:

Well, what was it that the Attorney General mentioned earlier about to being some discrepancies in figures?

Emmet J. Bondurant, II:

The news election service as I understand it Justice Brennan computed returns through noon on Friday following the election on Tuesday and at the time when we were in the District Court this was the most current information which we then have.

Many counties have paper ballots and tallied very slowly.

The discrepancies undoubtedly are result of final tabulations being completed after that time, particularly write-in ballots which in Fulton County, Atlanta there were more than 15,000, 16,000, 20,000 which took a great period of time to tabulate.

The same thing is true with other metropolitan counties.

These have been added to the total since then and they do change the totals.

William J. Brennan, Jr.:

But what you now have represent the final figures from these 158 counties together?

Emmet J. Bondurant, II:

As we understand it with the exception of 11 counties, these are according to the ordinaries, communicated by wired to us or by letter that which is shown by the certified copies which they maintained by law in their respective offices open to public inspection.

The originals of which or duplicate copies of which have been sealed and forwarded to the Secretary of State under the provisions to which the state refers.

So there is no question of acting in a hypothetical confusing or possibly changeable situation when those sealed returns opening — opened.

Emmet J. Bondurant, II:

We know what our situation is.

Everyone knows what it is.

This case is —

Potter Stewart:

There are — were there absentee ballots?

Emmet J. Bondurant, II:

Yes, Your Honor.

They were –

Potter Stewart:

(Inaudible)

Emmet J. Bondurant, II:

The absentee ballots were necessarily excluded from the news selection service tabulation and were counted more slowly and therefore later, when their service terminated on noon on Friday after the election on Tuesday.

As we understand it, these absentee ballots are included in the certified returns, the information of which has been communicated.

Potter Stewart:

They are included?

Emmet J. Bondurant, II:

Yes, Your Honor.

The certified returns would include everything necessarily because they could not be sealed and forwarded until all votes were included.

This case is as we suggest not a representation case.

This is not Reynolds and Sims.

This is not Wesberry against Sanders.

This is not even Toombs against Fortson.

This is the right of the people of Georgia, the citizens and all of our 159 counties to elect her Governor in a popular statewide election on a one man, one vote basis.

We do not have here the question as to whether had Georgia chose and initially in 1966 to put this election in some other agency, whatever that agency might be whether that the constitutionally be done.

We have the question of whether Georgia having – by its Constitution said that there shall be a primary election of which every citizens of the state may participate.

A general election in which every citizen of the state qualified otherwise may participate and nearly a million did participate, may elect the Governor.

Changed only by the situation created by Georgia’s desire to have a majority vote for her Governor which places the final selection power in the general assembly when no majority is achieved in the general election.

This is the sole purpose that the General Assembly is involved in any degree.It is a popular election in every sense of the word.

It is in every other state except in the unlikely event of a tie vote, a popular election.

It is the people’s right to elect their Governor.

It has been in every state since before 1868 when the Fourteenth Amendment was adopted.

No state by 1868 did as Georgia initially and elected the Governor in the legislature or any other office.

It was a vote of the people and it is the vote of the people in Georgia.

And everyone in Georgia considers it such.

The General Assembly gets involved only because no candidate received the majority.

Solely in the name of majority vote to achieve the strength of popular support which majority expresses much better than plurality that the General Assembly become implicated in this process.

Emmet J. Bondurant, II:

And yet, it’s clear the General Assembly will not represent the strength of the majority support.

Not merely so effectively as a runoff.

The ironical and paradoxical thing about this case is that the Georgia legislative process at the time when the legislature was far more malapportioned than we are today.

In 1964, adopted the new election code which in expressed language says, “There shall be a runoff in every elected state public office where no candidate receives the majority.”

And in that context at the same session adopted a new State Constitution, they proposed a Constitution which would have repealed, superseded and done away with this 1824 provision and would have provided in expressed terms without a doubt, without debate, that this 1966 election would have been resolved by the vote of the people of Georgia in a runoff election between the two highest candidates.

There is no possibility as Mr. Justice White has suggested that we might have to go on and on because our election code itself says, “That a runoff shall be between the candidates receiving the highest number of votes in a general election.

We do not suggest that write-in votes can be excluded by either this Court or the District Court by order where the state has not done so.

We suggest instead that the General Assembly of Georgia has already done so in the expressed language in which it used in the election code that the runoff will be between the two candidates receiving the highest number of votes.

This is after all implicit in the nature of a runoff itself.

But the language was used — General Assembly has used is consistently with the exclusion of write-in votes.

This —

Hugo L. Black:

That law may I ask you is not in effect, is it if the old provisions of the Constitution, State Constitution is constitutional?

Emmet J. Bondurant, II:

That is correct Your Honor.

The Attorney General has —

Hugo L. Black:

It’s true what the law would be if this other law is unconstitutional?

Emmet J. Bondurant, II:

The election code expresses what the General Assembly of Georgia attempted to provide in 1964 and which but for conflict with this archaic 1824 provision would be the situation prescribed by the elected representatives in Georgia for election by the people in 1966.

Hugo L. Black:

There’s nothing wrong with these ages, right?

Emmet J. Bondurant, II:

Age itself is nothing — is not wrong.

Hugo L. Black:

It’s been (Inaudible) the constitutional code, doesn’t it?

Emmet J. Bondurant, II:

Yet in many other things which were not constructional have been reincorporated.

The last adoption of the Constitution was in a manner which the Georgia Supreme Court later recognized but was powerless to remedy was a matter not permitted by our State Constitution.

It was proposed as a single amendment which that Court said was not authorized.

The whole package had to be separately accepted or rejected.

And the Court said that we’re looking at it before it had been ratified, it would have been something valid but could not afterwards.

So the idea of the ratification is that you might have had in the Colorado case where a single amendment was approved by a majority of the voters in every county of the state was not shown in Georgia.

The whole package, the good and the bad was approved in 1945 more than 20 years ago.

It is our view that this is a voting rights case.

That the people of the Georgia do have a right conferred by the Georgia Constitution to elect their Governor.

That the argument that this is a two step process or that some other process might apply is mere sophistry.

The here and now, the practicalities of the situation is that 950,000 people have voted in the general election.

Emmet J. Bondurant, II:

Nearly 900,000 people have voted twice in primary elections leading up to this.

And if those people have the right to elect their Governor and that the instrumentality of election by the General Assembly solely in the name of majority rule is a device which deprives these voters just as truly as did the old unit system of nomination of the right to a full and equal voice, having been selected as the common denominator for selection in that final election process.

This is far more pernicious than that.

Hugo L. Black:

It would divide as in — indicates there’s something wrong.

You don’t think that this thing has been in the Constitution for 142 years was put there in order to constitute a device by the people of Georgia, their votes?

Emmet J. Bondurant, II:

I think it would be difficult to predict exactly what’s its purpose was in 1824 Justice Black.

The problem now is that the General Assembly grossly unrepresentative may elect in a manner not consistent with the prior choices in the same election expressed by the people between the candidates put before the General Assembly.

Hugo L. Black:

Do you think those are unrepresented?

What do you mean by that if you are taking up the argument that this is bad because the state legislature is malapportioned?

Emmet J. Bondurant, II:

Yes, Your Honor, we are.

We take it on two basis.First is on the initial basis of the county unit system itself as you will recall the county unit system.

And the county unit votes were distributed in gubernatorial primary elections based on representation in the Georgia General Assembly which was apportioned on the old 321 system.

You had two unit votes for each sits you had in the House.

If Georgia hears merely by a legislative of election substituted, animate legislators from inanimate objects.

In the unit system you at least had the protection that the candidates were voting for a specific candidate much as they do in electoral college not for a legislator who performs many other functions with no knowledge of him ever being called on to do this.

In 142 years, we have never had this problem.

So far as we are aware no other state has ever had this problem.

But they do not vote for legislators with the view towards that one of them will — they will select one of the two candidates in a gubernatorial race.

Hugo L. Black:

Well, the majority of states have a provision in their constitution, do they not that in case of a tie, selection shall be by the legislative body?

Emmet J. Bondurant, II:

The overwhelming majority of states do Your Honor.

We do not find it necessary in this case to reach the constitutionality of that problem which may have considerations other than those expressed in our own Constitution under the circumstances present in this case.

That tie vote may well be justified by considerations that are just not pertinent here, the only reason.

This goes to the General Assembly is not because the electorate is deadlock on a tie vote with no clear expression of a — even a plurality will of the type which would be sufficient in 47 of our 50 states.

The reason is in the name of majority vote.

This doesn’t show majority vote.

It does not assure a majority support.

The legislator has prescribed a far less restrictive alternative in the election code which is permissible in this Court in a number of opinions has recognized that even if the legislative purpose is legitimate and substantial as admittedly here, the desire to have the Governor elected by majority vote is.

It may not pursue this in a manner that is unduly restrictive of the rights of the plaintiffs in this case or the other citizens of Georgia to elect their Governor in a popular election.(Voice Overlap) —

Hugo L. Black:

Well, do you claim that they have that right under the Constitution of the United States to elect – to provide for the election of the Governor by the legislative body if it wants to?

Emmet J. Bondurant, II:

Your Honor, we feel again that this is a question which may not be reached in this litigation because whether or not the Constitution of the United States confers a right on every citizen of Georgia in the first instance to elect its Governor had Georgia chosen a prime minister system or some other system.

Emmet J. Bondurant, II:

The situation in Georgia is that Georgia says that the people shall elect their Governor.

They participate in the primary election.

They participate in the general election.

The Georgia Constitution, the very first section of Bill of Rights which was put in only in 1877 more than 40 years after this provision became a part of the Constitution says that all state offices are the trustees of the people.

Our Constitution has undergone a change of democratizing in itself.

First and foremost and always in Georgia, the Governor is elected and is understood to be elected by the people.

This is merely a very minor situation —

Tom C. Clark:

That were the basic changed made in 1824, wasn’t it, because under your Constitution of 1798 as I understand Georgia history, the legislature at that time chose the Governor?

Emmet J. Bondurant, II:

Yes, Your Honor, that’s correct.

It was a basic change that was — that increased democratization in 1824.

There was further increase in 1877 when our Bill of Rights put in stronger language then was ever in there before recognizing that the people first and foremost are the basis for Government in Georgia and that all public offices including the Governor are trustees directly responsible for the people.

Hugo L. Black:

Do I understand that you are arguing (Inaudible) or for anything else.

That is this Section 5 is constitutional.

Georgia still — Georgia law still authorize the election by the people under all circumstance and forbid the election by the state legislature?

Emmet J. Bondurant, II:

Our position is Your Honor that these provisions which I have been discussing demonstrate in the same sense that the county unit legislation and the county unit case demonstrated that the election in Georgia is on the basis of the people that the state has made a conscious choice.

And that this choice is only departed from in the isolated situation arising from the failure to achieve a majority.

William O. Douglas:

As I remember our cases in this field, Reynold, Sims, Lucas, Gray and Sanders, they dealt with on a statewide election by the people, is that right?

Emmet J. Bondurant, II:

Of course, Reynolds involved district elections in one sense.

The Governor — Gray is the only real statewide election case that in my view that this Court has had.

The state — every citizen in the state is eligible to vote for one of these two candidates in a runoff election or in the general election on November 8, 1966.

They are not in districts for any other purpose.

If they are — and this Governor is designed to be responsive to all of those people.

Hugo L. Black:

If the Federal Constitution forbids the election of a Governor by anything but the people, how low down would that government offices, statewide offices in your judgment?

Emmet J. Bondurant, II:

Your Honor, I — again, I suggest —

Hugo L. Black:

What about (Voice Overlap) states, they’d audit?

Emmet J. Bondurant, II:

The Secretary of — neither the Secretary of State nor the State Auditor nor the Attorney General nor many of the other period myriad of imperious state offices expressed the position, power, prestige and importance of the Chief Executive of the state who heads one of the major three branches of State Government.

Hugo L. Black:

Is this important, important for him as an officer?

It mean that we forbid under the Federal Constitution of command of federal law that a state shall not select its officer, its Governor by a legislative body?

William O. Douglas:

I suppose our question goes different.

I suppose our question is whether or not this legislative stage is a part of this general election that we have held must be one person, one vote.

Emmet J. Bondurant, II:

I would suggest that precisely the question and that answers the —

Hugo L. Black:

I would suggest that its not the only question?

I would suggest the question whether a state a right whether the Federal Government forbids the state to elect its Governor by the legislative body?

Emmet J. Bondurant, II:

If that were the question Your Honor, we would unhesitatingly take the position that the Federal Constitution would not permit us now to go back to monarchy or any other form of Government.

Given the fact that the Chief Executive of a state is now occupies a position which he now occupies.

It’s interesting, it seems to me very remote to be (Voice Overlap) —

Hugo L. Black:

In order words, if the Constitution has changed and it is no longer that law of the Constitution if the states and the people of states have all the powers reserved to them except those that are expressly forbidden.

Emmet J. Bondurant, II:

I would say that it is changed in the same sense that apportionment of legislatures has changed since 1790.In 1790, at the time of the final ratification of the Constitution over half of the 13 original colonies elected their Governor in a popular and or immediately thereafter even when the first constitution inducted after that time.

William O. Douglas:

But we have a more immediate question than that and that is what do you mean in — all these cases by saying one person, one vote?

Emmet J. Bondurant, II:

I agree completely Mr. Justice Douglas —

Hugo L. Black:

I suppose we meant one person, one vote in an election by the people?

Emmet J. Bondurant, II:

And —

William O. Douglas:

That’s the question is then — is this a part of the election?

Emmet J. Bondurant, II:

We suggest that we have precisely that an election by the people if the General Assembly is not involved at any other stage.

It would be incredible and indeed I’m conscionable to suggest that after this Court’s decision in Gray versus Sanders, the Georgia General Assembly without changing the general election process could have gone back and said, “We will nominate all candidates.

Hugo L. Black:

But it hasn’t gone back, it hasn’t going back?

It’s following the law which had been the law since 1824?

Emmet J. Bondurant, II:

But Gray could not be evaded by that sort of device.This device works at the other end of the legislative process.

Abe Fortas:

Counsel, do you remember when the Fourteenth Amendment was adopted, was it after 1824?

Emmet J. Bondurant, II:

It was considerably after 1824.

It was in 1868 at which time all states elected their Governor in a popular election.

There was no state which still provided the legislative election as Georgia had in 1798 until 1824.

And that fact, the historical argument that was made that in 1868 the legislatures of the state were not only one man, one vote basis was easily rejected by this Court.

It would seem to me its no greater step to say that the Fourteenth Amendment reads in to State Government given the power to the Chief Executive the uniformed practice of all of the states in 1868.

It’s no surprise to me that Georgia has not considered repealing this provision before since it’s never occurred?

And as long as we were a one party state, it was never likely to occur because we —

Hugo L. Black:

But wouldn’t that be the right place to do it if he was in Georgia?

Emmet J. Bondurant, II:

Well, Your Honor I would suggest that the General Assembly has attempted to do precisely that and which would have occurred but for two – for two of the circumstances not now before the Court.

But the constitutional problem remains.

Georgia does have a popular election.

Emmet J. Bondurant, II:

It is whatever held it maybe called in any other place, on any other system.

It is an election by the people.

The people if the write-in votes had not been count – cast would have finally decided this question on November 8 and the General Assembly would never had been involved.

Byron R. White:

So, you don’t suggest counsel then that Georgia could not constitutionally have the election of a good Governor by the legislature without any popular votes?

Emmet J. Bondurant, II:

I would suggest that’s just simply not this case.

We have done something entirely different.

It makes it very abstract and hypothetical and frankly, we don’t feel capable of anticipating all the ramifications of that —

Byron R. White:

Well, I know — I personally don’t think it’s such an abstract question and irrelevant.

I would think if – that if Georgia could say, from the very outset, we’re going to have the election of Governor for — by the popular vote but if it say also, “Well, we’re going to have it that way every other year.

And then the off years, we’re going to have them in the legislature.”

We’ll also say that if there’s a — that if it say we’re going to have a popular election as long as there’s a pure majority.

And there isn’t a fair majority or if there’s a tie.

Say, there’s a tie, the legislature is going to do the job just like it always did.

What about ties by the way, counsel?

Emmet J. Bondurant, II:

We would feel of course that we don’t have to reach the tie situation.

Byron R. White:

I understand that, —

Emmet J. Bondurant, II:

The tie situation —

Byron R. White:

I know you’d — you wouldn’t like to reach any of these questions and I take it, they’re very relevant.

Emmet J. Bondurant, II:

We would say if compelled to reach it to justify our position if a tie situation would also be unconstitutional.

We feel that our situation is far stronger because there is a readily available alternative in a runoff election to achieve majority.

We’re not in this situation of a tie.

The considerations justifying going to a legislature — to the legislature in a tie situation are because there is a genuine deadlock, you can’t get the machine off the assembly — (Voice Overlap) —

Byron R. White:

In your runoff elections, if you won, what’s your answer to all the people who — write-in votes would be thrown away?

What about there votes on a one man, one vote basis?

Emmet J. Bondurant, II:

We are suggesting that they have —

Byron R. White:

You’re just saying if they must vote for somebody they didn’t want to vote for in the first place and don’t want to vote for now.

If they don’t want to vote now, stay home.

That’s your only answer.

Emmet J. Bondurant, II:

Oh, I would suggest that this is in the nature of Republican Government.

The write-in people nor I nor anyone else has a right to vote for a candidate who’s not qualified and we have that question in Georgia already decided.

Byron R. White:

Very good then.

Hugo L. Black:

What is Republican Government?

Emmet J. Bondurant, II:

Excuse me, Mr. Justice Black.

I didn’t understand you?

Hugo L. Black:

What is a Republican Government?

You said that and I just want to know what it is?

Emmet J. Bondurant, II:

I didn’t realize that I —

Hugo L. Black:

That was your idea.

Emmet J. Bondurant, II:

Alright.

I didn’t realize that I have taken the position that we were arguing under Article IV Section 4.

It would seem to me that —

Hugo L. Black:

But you referred to it as the — to give you a Republican Government.

Now, what is that?

Emmet J. Bondurant, II:

I don’t real — I don’t even recall that.

But it would — I would hesitate to try to define it in the time that we have but I would say at least where a Governor has the major branch of Government as he does in Georgia and has the powers that he has and we start an election process in which all of the people could qualify, can participate and simply because the majority rule we want to take it away and go to some other system where that expressed will of nearly a million Georgians can be totally disregarded.

Second candidate you can hypothesize a much worst case (Voice Overlap) —

Hugo L. Black:

In other words, the right of the people to elect their Governor, that’s what makes it a Republican Government?

Emmet J. Bondurant, II:

I would think that would certainly be indicative of that in our situation.

It would certainly not fail to comply if the people had at least had that right?

Hugo L. Black:

Well, how many times would they have to hold separate elections?

Why should they stop with – just with the top two?

Why shouldn’t it stop to — first have one head problem and then another head problem and another problem —

Emmet J. Bondurant, II:

Certainly —

Hugo L. Black:

— we have five or six elections —

Emmet J. Bondurant, II:

Certainly, that’s a reasonable accommodation of the right of the people to select their representatives in a reasonable sort of manner and the right of the state to get on with State Government and get an executive qualified within the time limits available.

This situation has not arisen before.

We are not threatened with multiple endless elections.

Our General Assembly is adequately anticipated that problem even though they haven’t able to get through in the constitutional problem.

And we won’t have endless series of elections.

Hugo L. Black:

But why shouldn’t you have if you got to accommodate everybody who’s candidate — people who wanted to vote for?

Emmet J. Bondurant, II:

Not at all.

We are simply trying to accommodate in the name of our only constitutional requirement of majority rule.

Those candidates who can’t command a sufficient strength practically be considered to be entitled to the runoff if the legislators wanted to say the top four that would have been the legislature’s judgment.

But as long as it’s going to require majority rule.

It makes no sense at all to take away from the people of a state the right to make this final determination in place of the county unit system.

Hugo L. Black:

Even though it’s in a tie and can’t get it going?

Emmet J. Bondurant, II:

Even though they try and cannot get the majority —

Hugo L. Black:

You say then it requires at least two shots, you’ve got to take shots for the – before they could – that the sort – select the Governor in some other manner?

Emmet J. Bondurant, II:

I would say that it takes at most two shots.

It’s not essential if it takes two shots.

It never has for more than 142 years and until 1942, we have gubernatorial elections every two years.

It has not been of significance before Georgia because we never had a two-party system.

We’ve never had a contest in the general election that made any real difference.

And in primaries, in this primary in this year, we had a failure to achieve a majority for a Democratic nominee and what did we do?

We held a runoff.

Now, we didn’t go to the General Assembly and we didn’t go to some other electoral college body or Party Executive Committee or any other group.

We said that we’ll have a runoff between the two candidates receiving the highest number of votes and we had that runoff.

There were five candidates.

There were no particular write-in efforts, if there were, the votes were not counted.

And we selected from those two the candidate whom would carry the Democratic standard and for the general election.

It seems clear that this is — it makes no point to argue what other systems Georgia might have.

This is a people’s election.

Justice Matthews in the county unit case, one of the defenses indeed argued in the unit case was, “No one has a right to equal protection in the primary elections because Georgia permits you to nominate by conviction.

And nobody in a party convention has a right to an equal vote or equal representation depending on where they live.”

So, since Georgia could have chosen that method initially it did not have to permit nomination by a primary.

It was perfectly alright to do this in the Democratic primary election.

After all, if you didn’t like it, you could still have a conviction.

But this Court rejected that and said, “What other methods Georgia might have chosen it also had the primary.”

And once its chose to put this on the basis, the people in the primary, it is a people selection.

One man, one vote in any system of waiting those votes —

Hugo L. Black:

That’s an equal protection question, one man, one vote.

Emmet J. Bondurant, II:

One man one vote where the state has selected the unit and we suggest that unit is the people.

Hugo L. Black:

Whether to make this by a primary election, by election, a vote?

Emmet J. Bondurant, II:

That’s correct Your Honor.

But we suggest that just as it’s selected the people in the primary elections, Georgia has also selected the people in the general election.

And the only reason it purports to depart from the people as the basic unit of selection is in the name of majority rules.

The faith of the people to cast a majority of their ballots, it would be ironic if the people are to be deprived to their right to choose entirely, if by mere faith of a majority of it to cast their ballots for a single candidate.

The essence of majority rule is that the people, a sufficient number of the people cast those votes together.

And its ironic if the split among the people is to deprive the people of any hand in the process whatsoever.

Convert them over into the mere nominating procedure and have a legislative body in which they are not equally represented far further to make the final selection where in the Cobb County for instance, a suburb of Atlanta that grossly underrepresented by more than 40% in both the House and the Senate.

There are seven Senators, it was a heavy vote for one candidate in that county.

These seven Senators and Representatives cannot vote equally with those of other counties which are overrepresented by more than 40%.They are losing the effectiveness of those votes.

There’s no question about it.

Hugo L. Black:

They lost them when they failed to get a majority, isn’t it?

Emmet J. Bondurant, II:

Are the people to be penalized because of this?

Hugo L. Black:

Because they don’t get a majority?

Emmet J. Bondurant, II:

It’s unconscionable to have the division in the electorate — deprive the electorate of any right to choose all together.

So far as I know, no one else should attemptted it and it’s never happened.

And it —

Hugo L. Black:

What you are saying is its unconscionable not to elect the Governor?

Emmet J. Bondurant, II:

If forced to that I would —

Hugo L. Black:

Suppose it is, if – does this Court had power to fasten its judgment on the people of Georgia to add to the Constitution a provision because they think its unconscionable not to elect the Governor, if they’re going to hold this law in the constitution?

Emmet J. Bondurant, II:

This Court need only say that it seems to us as it did in the county unit case that Georgia has placed this election on the basis of the people.

That the people are sovereign in Georgia that it is their choice and having made it a choice of the people election that state cannot thereafter use any device whether the name of majority rule or any other device which would wait those votes unequally between voters living in different areas of the states.

This Court need not reach the question whether had Georgia initially done what no other state for more than a 100 years has tried to do, wanted to put this in an election — in the legislature itself.

This Court need not reach it and I’m sure that Georgia citizens would not be deterrent if they chose to try to adopt that system.

It’s incredible in view of our historical practice in any state would try to do this here in the 20th Century.

The trend has been since 1790 away from legislative election and towards popular election.

And if one man, one vote means anything in statewide elections it should mean that in the final selection of the Chief Executive of Georgia.

The questions of remedy which have been raised here, we find to be quite easy.

Emmet J. Bondurant, II:

They are those which were prescribed by the General Assembly in 1964 in their expressed language, they are applicable.

They reflect consistently with the position which we have taken, the state policy of Georgia favoring election, final election by the people of Georgia.

This was almost a part of the organic law of the State of Georgia by virtue of the 1964 proposed constitution.

It is not upon of it in 1966 because of circumstances beyond the control of the General Assembly and the electorate.But the remedy is clear.

It’s consistent with this policy and it would afford that all the Georgia citizens as the General Assembly to whom the state is now trying to force this decision.

That of which the General Assembly has already said is the direction it should take, a one man, one vote runoff election between the candidatesreceiving the highest vote in the general election.

It would be just unconscionable in view of this Court’s decisions providing equal votes and legislatures providing an equal right to select the Congressman to provide an equal vote in primary elections.

You could now say that the final selection in the — on any basis other than an equal vote.

The citizens of Georgia deserve the right to make these decisions for themselves where they all have an equal opportunity to have a voice in the final selection to deny them this write-in in the name of an 1824 constitutional provision providing for the sole purpose of majority.

Hugo L. Black:

There’s nothing wrong with this age, is there?

Emmet J. Bondurant, II:

I agree completely that not just age but the change policy.

The change policy is reflected under State Constitutions —

Hugo L. Black:

It doesn’t have the same constitution?

Emmet J. Bondurant, II:

We don’t have the same State Constitution Mr. Justice Black.

Hugo L. Black:

We’ve had the same federal concepts and you were here under federal laws.

Emmet J. Bondurant, II:

We do not have the Fourteenth Amendment since 1824.

Hugo L. Black:

(Inaudible)

Emmet J. Bondurant, II:

Did not had it —

Hugo L. Black:

That is since 1868 or whatever that is, the adoption.

Emmet J. Bondurant, II:

That’s correct.

We didn’t have the Seventeenth Amendment putting the right to select Senators and the people there is an increasing democratization of all of these choices.

Hugo L. Black:

— when they amended the Federal Constitution.

Emmet J. Bondurant, II:

That’s right.

Hugo L. Black:

When the people amended and not this Court?

And —

William O. Douglas:

We have Baker versus Carr.

Emmet J. Bondurant, II:

That’s right.

Baker versus Carr is again a reflective (Voice Overlap) —

Hugo L. Black:

Baker versus Carr rely on the Equal Protection Clause of the Constitution as between — discrimination between individuals who are allowed to vote in an election.

Emmet J. Bondurant, II:

Well, we suggest that there is — that discrimination in this precise situation between citizens living in the Cobb County of Georgia and citizens living in Bulloch County and all the other counties of the state who are —

Byron R. White:

Mr. Bondurant, you have this provision I gather in the Constitution in 1870 as I understand it would be.

That time we have the Equal Protection Clause to them – that Congress passed the legislation readmitting Georgia?

Emmet J. Bondurant, II:

I would recognize that it was in the Constitution of 1868 which at the time of our readmission would have at least presumptively been reviewed by the Congress.

But I would suggest that this Court in Wesberry against Sanders answered the question as to whether any sort of congressional sanction of continued malapportionment of congressional districts or any other system could justify this Court’s refusal to act where it found a violation of the equal protection of the law.

And I would suggest also that the very practicality of the situation of this provision never having been called into play.

We’d never focus anybody’s attention in the State of Georgia on this provision or — and otherwise, it probably would have been changed long before now or challenged long before now.

So, I would suggest that is certainly no ratification.

But on the other hand the fact that in 1868, every state elected its Governor and recognized the right of the people to participate in a far greater degree should be read as having some implications on this decision made by this Court in (Inaudible).

Byron R. White:

Mr. Bondurant maybe you could help me.

What’s your explanation as to why the legislature of Georgia passed this provision for a runoff election in the face of the constitutional provision was this in anticipation of the new Constitution which would not have had this election by the legislature?

Emmet J. Bondurant, II:

Precisely, at the same session –

Byron R. White:

Why?

Emmet J. Bondurant, II:

— it was an extraordinary May-June session in the days of the malapportionment in the House before this Court’s decision in Reynolds against Sims.

The General Assembly drafted a new Constitution which provided expressly for runoff elections in the fair beginning in 1966.

So it could be ratified in 1964 in the election code tracking the same language, having the same provisions in the same purposes said in broad language, “All public offices of the state should be elected by a majority vote and there shall be a runoff between the two candidates receiving the highest number of votes in the event no candidate receives a majority.”

The legislature was not trying to ignore the 1824 provision.

It was trying to correct it in a manner which we feel as far more consistent with the compliance —

Byron R. White:

But it seems to us — it seems to assume of course that it was necessary to change the constitutional provision in order to — for them to be permitted to pass the runoff provisions.

Emmet J. Bondurant, II:

Having plenary power to propose amendments to the Constitution, I would suggest that the General Assembly chose to use that means rather the means which we have been forced to resort to in this litigation to delete the 1824 provision.

Byron R. White:

But until then there was no provision for a runoff for a Governor?

Emmet J. Bondurant, II:

That is correct.

But until then there was not even threat of a two-party system which might gave rise to a contest in the general election.

We already have runoffs and primaries, Democratic primaries being the only genuine elections in Georgia and statewide races.

Byron R. White:

Mr. Bondurant, the three-judged court enjoined the submission on that new Constitution of the electorate, is it not?

Emmet J. Bondurant, II:

As an entire document.

It did not enjoined the proposal of single amendments in the manner permitted by state law for single and rejection or acceptance —

Byron R. White:

But the whole new — I’m a little vague about this but didn’t that issue come here?

Emmet J. Bondurant, II:

The issue came here and this Court declined to advance hearing before the November 8, 1964 general election.

And following the November 8 general election, the plaintiffs in that case moved to dismiss the appeal as moot because there was no longer a need for an ongoing injunction and this Court remanded to the District Court not with disapproval I would suggest but for reconsideration as to the need of that continuing injunction.

The plaintiffs no longer ask for the injunction.

Emmet J. Bondurant, II:

The District Court didn’t find it necessary.

And it was accordingly vacated and unless and until we — there has been no attempt to resubmit the same Constitution so the problem has not arisen.

Byron R. White:

Well, we had taken — if we advance that case, maybe you wouldn’t be here today, isn’t it?

Emmet J. Bondurant, II:

Ironically, that it happens to be the result that the General Assembly far more malapportioned than today has recognized more fully than perhaps others that the people should make this choice.

And they had — did everything possible to enable the people to do so.

It’s interesting to know that the —

Byron R. White:

But that — what would you – do you suppose the legislature would be discharging its powers under the Constitution or its authority of it – itself, all the runoff election?

Emmet J. Bondurant, II:

If this provision is not eliminated Mr. Justice White, the legislature would not have the power to do so since an amendment could only be submitted at a two-year general election under state law.

So, unless this Court acts as did the District Court the legislative processes as in Georgia are helpless to remedy this situation.

If it should go to the General Assembly, the General Assembly will meet in effect as a committee of the whole or its own electoral college solely for the purpose of electing the Governor.

There would be no debate under the rules of the House, majority of each House is necessarily constitute a forum but as soon as that forum exists in the House as thus constituted they forthwith proceed to elect.

There would be no review after reapportionment.

This would carry until 1968.

Abe Fortas:

Did you come across any explanation as to why 1824 amendment says that the General Assembly has to elect the Governor viva voce?

Emmet J. Bondurant, II:

No, I haven’t —

Abe Fortas:

If there’s any particular reason to become — as justifying that?

Emmet J. Bondurant, II:

Frankly, I know of no explanation other than that seems to have been common in similar provisions of other State Constitutions which most of which provided for tie vote situations which never arose.

I think this was probably just arose — copying from another provision.

The rules of the House provide for division of the House if the voice vote should be indeterminate.

But this isn’t just simply not like the normal legislative process.

This is stopping the consequences of which cannot be remedied after we achieve fair apportionment.

I would suggest then in response to questions previously raised that although the General Assembly maybe — have been approved both by the District Court and by this Court on a temporary basis for ordinary legislation.

The District Court was very emphatic in its language that the present plan of Senate apportionment in Georgia and this is the Court speaking in 1966 and the proposed plan of House reapportionments separately and collectively fall short of the mandate of Equal Protection Clause of the Fourteenth Amendment.

The court below said that a 15% standard which they said within the circumstances of Georgia no departure beyond that could be justified.

More than half of our Districts in the House exceed 15%.

More than a third exceed 20%.

We have extremes of more than 40%, an extreme of more than 2 to 2.6 to 1 in the House.

So we’re not talking about a minor situation in an election.

This is far more critical than in an ordinary legislative processes.

That’s a one man, one vote here.

Byron R. White:

(Inaudible) that plan were the purposes of election of the 1966 collegium?

Emmet J. Bondurant, II:

I would say that the significance to that fact is that this Court under the circumstances which it then foresaw in recognizing its retained powers as the court of equity and that of the District Court.

In the event of changed circumstances to amend its order in any way if found necessary or appropriate but it was alright to approve on an interim basis for which we could then proceed which was ordinary legislation for two years, constitutional apportionment being achieved in 1968.

This will not be achieved if the General Assembly is now allowed to elect the Governor who will hold office until 1971.

Court of equity would have no power in modifying this decree if the circumstance is changed.

If a new Constitution were to be proposed, this Court has not disapproved that.

And if that occurred, we would expect someone to move in the District Court to ensure the right of people of the future to have an equal voice in these major decisions and that is one of these decisions before the Court today.

In conclusion, we express our appreciation for the opportunity of having this matter aired fully before this Court expeditiously.

The rights which we assert are first and foremost federally constituted rights.

The right of the people of a state to elect their Governor which we feel will be deprived unless the District Court’s decision is affirmed.

Earl Warren:

Mr. Hill.

Harold N. Hill, Jr.:

May it please the Court.

I’d like to first say what my understanding of a viva voce is in response to the question by Mr. Justice Fortas.

It’s — I believe a voice vote but it’s not one of these situations where the chair calls for all the eyes and amaze.

It will be a roll call vote by name and each man’s vote will — he’ll have to get up and say, for one candidate or for the other are present and it’s not as its been suggested in the brief that nobody would ever know how their representative voted on this question.

William O. Douglas:

It’s to preserve —

Potter Stewart:

I mean it’s the offset from a secret ballot?

Harold N. Hill, Jr.:

Yes.

The constitutional provision referred to by Mr. Justice Fortas that existed in Georgia prior to 1798 reminded me of the one that existed in Maine up until 1962 which was that if no candidate received a plurality of all the votes returned that the House of Representatives would choose two from the top four and send it to the Senate.

And the Senate would choose one of those two men to become the Governor and if the Senate tied and the President of the Senate would select the Governor that’s one man, one vote.

Abe Fortas:

Well what if he can’t make up his mind?

Harold N. Hill, Jr.:

The situation with respect to tie votes I submit is not as remote or far off from this case as the appellees would like in May in 1962 out of over — almost 300,000 votes casts the difference between the Republican and Democratic nominee for the office of Governor was only 483 votes.

In Rhode Island for the offices of Governor in 1962, the difference was only 398 votes.

In Minnesota, in 1962, the difference was only 91 votes.

In Texas in a senatorial election in 1948, the difference was only 87 votes and Georgia’s experience has been that if a problem can arise it will arise.

The appellees — Morris complained now of an alleged Republican crossover in the Democratic primary.

Now Georgia has open primaries, the Republicans could not vote in the runoff Democratic primary.

Any such question as that should have been raised not after the general election but after the primary but they used that now as the basis to seeking to avoid the November 8 general election to get a special election.

They say that the public was misled or there were news articles in the newspapers predicting the filing of these suits.

There were lawyers stating in the newspapers that the General Assembly could not elect the Governor.

Harold N. Hill, Jr.:

The voters were not misled.

They just voted knowing that this case would be one day in this Court.

Where there is to be a special election followed by a runoff some voters are inclined to cast protest votes in the original election on the assumption that they will have another opportunity to make their votes count.

If a special elections were to be held in Georgia, prior experience to this year already indicates that no candidate would receive a majority and a runoff from that special election would be required.

And then we come to the problem of write-in a runoff which is what the appellees Morris — they want a runoff but no write-ins.

Now —

Justice?

Harold N. Hill, Jr.:

Excuse me, in the appellee’s injustice case.

The case of Gray versus Sanders did not deal with the convention system of nomination.

And this is one of the reasons that we feel that Gray versus Sanders did not deal with different systems of election, methods of election such as a different method of election by the General Assembly.

Each said that each voter’s vote is entitled to be counted and to be counted once.

But it did not say that it was entitled to be counted again and again.

The provisions which I referred to earlier which Mr. Justice Brennan raised as being points about case of controversy were mentioned for the purpose of showing that the quickie runoff which the appellee’s justice want is simply not possible unless we’re going to throw down all of these provisions which say the General Assembly shall be the sole judge.

They open the returns.

They’re kept sealed until they meet and so on.

William J. Brennan, Jr.:

Mr. Hill is this — do you think this is any different kind of a question that if some citizens came in and the — wanted to enjoin the submission of a new Constitution to the people?

And if you — and one of them enjoined because the legislature was malapportioned and couldn’t – be permitted to engage in these fundamental kinds of legislative act?

Harold N. Hill, Jr.:

That was I believe pretty much the situation in Fortson v. Toombs.

William J. Brennan, Jr.:

Did we set that order in time or no?

Harold N. Hill, Jr.:

The Court said, back to the court below —

William J. Brennan, Jr.:

How about — what about — is the order outstanding?

Harold N. Hill, Jr.:

No action has been taken to my knowledge in the court below since it was remanded.

William J. Brennan, Jr.:

The federal courts around the country have said that well, we’ll permit an election to proceed or will let the legislature sit pending the election of a better one.

But meanwhile if there are certain acts that it may doom, certainly that – it may not doom, federal courts have said that?

Harold N. Hill, Jr.:

The lower court in this instance was the only one to my knowledge that said that there were certain things a legislature could not do.

William J. Brennan, Jr.:

Well, others have said it.I’ll — then —

Harold N. Hill, Jr.:

What?

William J. Brennan, Jr.:

You would say that — you would say that this malapportioned legislature will do anything a legislature can do?

Harold N. Hill, Jr.:

Yes, because it would have —

William J. Brennan, Jr.:

And it would be improper for a Court to restrict its activities in any event, in any respect.

Harold N. Hill, Jr.:

I think so because of two — it would affect basic rights.

A law might be passed imposing capital punishment of their basic right.

The Georgia general assembly must spend the money.

It will spend in the next appropriate shortly and budget a $1,600,000,000.00.

Now, this is — that’s more money than the Governor’s worth maybe.

But they can spend that money eventhough they are — haven’t met the time table.

They have been approved on their apportionment as it exists now.

Byron R. White:

What about a new Constitution?

Harold N. Hill, Jr.:

We would think that a new Constitution could have been proposed.

We argued that it could have been proposed and I want to address myself to that because the court below has said that these cases bring into focus.

The question of gearing Georgia’s Constitution to update its Federal Constitutional concepts and counsel for appellee justice has referred to this as being an antiquated Constitution from 1945.

He has indicated that had the 1964 Constitution been voted on then the voters would have had a runoff.

I would point out that it was my very good friend Mr. Bondurant counsel for justice, who prevented in that law suit Georgia from voting on the 64 Constitution.

And so Georgia has been in the intolerable position of not being able to vote on a new Constitution and having its own — existing Constitution classified as adequate and updated.

William O. Douglas:

He must have had some help, he didn’t do that all by himself?

Harold N. Hill, Jr.:

There were quite a few lawyers Your Honor.

Abe Fortas:

What is the difference in theory between this system that you’re defending in the county unit system?

Suppose that the Constitution in Georgia provided in any event that the voters did not cast the majority of the votes for statewide office for a particular candidate?

Then the winner will be selected on the basis of a county unit vote tabulated in the form of county units, is it your contention that that would be valid?

Or then it would be under the Federal Constitution invalid?

What is it, that they submit —

Harold N. Hill, Jr.:

My immediate reaction to that would that it would invalid on the Gray versus Sanders because it is a waiting of the vote at some point arising out of the same election.

William O. Douglas:

Then you have to abandon your earlier argument that this theory, this election by the legislature is not a part of the general election?

Harold N. Hill, Jr.:

No.

I believe that’s the basis that I distinguished my answer to this question is that an election by the General Assembly is a separate part and the waiting it does not exist in the separate feature.

William O. Douglas:

But then, who does it then whether it’s a legislature or other county Governments who select in case of –?

Harold N. Hill, Jr.:

Well, in the question post it would be that the voter’s vote and if there’s no majority then you take those same votes and wait them on some sort of county unit basis and get the Governor out of that election.

And (Voice Overlap) —

Abe Fortas:

I suppose you counted alright, let’s take that then.

Let’s take a variant of it.

Abe Fortas:

Let’s suppose you counted the votes of the Georgia legislature, waited on the county basis which would be possible as practical matter.

Then were to say voters don’t cast the majority votes for any particular candidate that then goes to the legislature.

The legislators vote as between the top two candidates.

The vote of the legislators is counted on a county unit system and waited in the accordance with the old Georgia system.

Harold N. Hill, Jr.:

If that were the legal requirement that in the election by the General Assembly the vote of the legislators was waiting.

I think that Gray versus Sanders would apply.

Well, that simply is not —

Abe Fortas:

Well, that’s — it seems to me that that’s the logic of it that Gray against Sanders would apply.

Now, the only difference here is that you have a legislature which is voting on a one legislator, one vote basis, is that right?

Harold N. Hill, Jr.:

The only —

Abe Fortas:

That’s the only difference.

Harold N. Hill, Jr.:

— Republican representative —

Abe Fortas:

Now, the Constitution provides that the Governor in these circumstances would — can be selected from the top two candidates on the basis of a majority of the legislators present in voting, is that right?

Harold N. Hill, Jr.:

Correct.

Abe Fortas:

So that you can have that number of the person in voting as to constitute a forum which I assume is a majority.

Harold N. Hill, Jr.:

Yes.

Abe Fortas:

So you could have a majority of a majority.

The legislators which were — could certainly be a minority of the population, in fact even a majority an absolute majority.

The legislators could represent a minority and of the population on the voters of your state.

Harold N. Hill, Jr.:

But —

Abe Fortas:

And particularly isn’t that true in view of what is a present malapportionment of a legislator — of a legislature.

Harold N. Hill, Jr.:

The difference as I would understand it from the post hypothetical situation is that these legislators are not pledged or obligated by law to vote for either one of the two candidates —

Abe Fortas:

But the —

Harold N. Hill, Jr.:

— which a county unit system would impose upon them.

Abe Fortas:

Yes.

Harold N. Hill, Jr.:

They are free to select the one in their view (Voice Overlap) —

William O. Douglas:

This is a part of the general election, they are.

I would suppose you would have said in answer Mr. Justice Fortas’ question to this being separate, wholly separate from the electoral part of this that the legislature could — that the Georgia could provide that the votes in the legislature be cast at any basis of its Constitution to this?

Harold N. Hill, Jr.:

So long as it didn’t violate the Federal Constitution, that’s certainly correct.

Well, that’s —

That’s what we’re talking about?

Could they have provided that the Governor be chosen by lot destroying — destroying it by breaking the tie by lot?

Harold N. Hill, Jr.:

Kentucky does that, this is not —

Kentucky does it?

Is there anything unconstitutional about that?

I don’t see why you’re so ready —

Harold N. Hill, Jr.:

I think not.

— to concede with all respect to argument to your answer to Mr. Justice Fortas?

Harold N. Hill, Jr.:

I think not but there’s nothing wrong with the Kentucky system because in effect what the people have said, “We must have a Governor.

We must have continuity in executive leadership that it’s more important for us to have a Governor than to vote on him everytime.”

And in unusual circumstances where the Governor and Lieutenant Governor die or something of that type that we’d rather have a man exercise the responsibilities of the office of the Chief Executive even though he’s the Speaker of the House was — who was not elected by popular vote.

Abe Fortas:

So you’re not suggesting that the legislature is acting here in any capacity other than as a legislature, are you?

Harold N. Hill, Jr.:

No, sir, I’m not.

Abe Fortas:

In other words, you’re not suggesting that the legislature here is exercising delegated — their powers on the basis of a collegium or something like that?

Harold N. Hill, Jr.:

No.

Abe Fortas:

Its acting as the representatives of the people of the state, isn’t that right?

Harold N. Hill, Jr.:

That’s correct.

Abe Fortas:

So that when you view the legislature is acting in that capacity perhaps their answer to me is correct and you do run into the Gray against Sanders problem.

At least in a hypothetical situations when I put the —

Harold N. Hill, Jr.:

Well, look at the situation, may it please the Court, we are in now.

A runoff is being asked for by the appellees’ justice, a runoff not counting the write-in votes.

Now, if Gray versus Sanders applies to every election it must apply to runoff elections.And if Gray versus Sanders does not apply to every election as they suggested it does not, how can they argue that it applies to an election by the Georgia General Assembly?

If Gray does not require that counting of right in votes in a runoff election there is inequality in voting in that election.

A discounting of voting and the reason for its inapplicability in a runoff election is that a runoff is a separate stage of an election to which Gray is not applicable.

Now, if Gray does not apply to the separate runoff stage of the election, how can it be argued that Gray applies to the separate General Assembly stage of the election?

If we assume for a moment that Gray permits the discounting of runoff votes and as — an election, we still have a problem with whether the Georgia Constitution permits the discounting of write-in votes in a runoff election.

On the other hand it could be contended that in its basic concept Gray prohibits the plurality system of election.

On the ground that where public officials are elected by a simple plurality vote.

Vote cast against the plurality winner which constitute a majority are unconstitutionally diluted.

So that if Gray be extended into this area and goes both ways it would undo the majority system of election and might at the same time undo the plurality system of election and we submit that its application is to the election —

Byron R. White:

You mean to satisfy Gray you have to have three governors?

Earl Warren:

That’s possible with each one of them having power proportionate to the number of votes which they received in the general election.

We do appreciate the time of the Court.

Thank you.

Okay.