Gray v. Sanders – Oral Argument – January 17, 1963 (Part 2)

Media for Gray v. Sanders

Audio Transcription for Oral Argument – January 17, 1963 (Part 1) in Gray v. Sanders

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Earl Warren:

Mr. Leverett.

E. Freeman Leverett:

Chief Justice and may it please the Court.

I would like to make one or two full remarks with regard to one or two questions or rather one of two matters that Mr. Murphy touched on.

That has referenced to the evolution of the county unit method of nominations insofar as in 1917, it was enacted into law.

I think Mr. Murphy made it clear that the — the basis for that enactment into law was the fact that at that time, under the party rule, there was no provision for a run over primary in the event that one candidate for Governor or Senate failed to receive a majority of the unit vote.

And it was this convention juggling and convention nomination that led to the incorporation of the county unit method into law.

It was not as an unfounded statement, we say in the appellee’s brief would have that it was tied in with any scheme to disfranchise Negroes.

It was instilled and stirred or inspired solely as we see it from the desire of the people to prevent convention nomination.

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

That —

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

That is — that is a consequence of it both before and after it was put into laws.

I will come to that momentarily —

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

Yes.

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

That is correct sir.

At the outset, I would like to state this that we think, do not contend otherwise that Baker versus Carr has settled all questions of justiciability, standing to sue in jurisdiction.

We make no issue of that.

At the same time, we do say this, that there is still remains an area, under the Fourteenth Amendment in which the State is accorded a wide latitude of discretion and with respect to which no court should undertake to substitute its judgment.

To that extent, there are still areas that are non-justiciable once you get past the initial question.

Before getting into the merits of what we think are the applicable Fourteenth Amendment standards in this case, I would like to discuss briefly one question which the appellee raises, which if he is correct of course would dispose of this case and that is that there is — that it’s unconstitutional to have any weighting at all in an electoral system.

The appellee says that representation is a shared right and consequently some weighting, some inequality is necessary due to interim shifts in population and that sort of thing.

On other hand, he says that voting is not a shared right, and therefore, there can be no weighting.

We think that this cannot withstand analysis.

The Governor and other executive department officers represent the citizen in the execution of the laws, just as represented — represent the people in the making of the laws.

And, neither the legislative apportionment case or in the case of the judiciary and we elect our judges in Georgia or in the case of the executive, the voter votes individually.

No one else participates or shares in the casting of that vote and that’s true in the legislative case.

Now, what happens after his vote is cast and after it has been tabulated, the influence of the effect that is given to that vote is necessarily weighted because he obviously cannot exist in a vacuum.

There are other people to be considered whose votes also have some influence in a way.

Byron R. White:

Mr. Leverett, you are suggesting then that — that if the — if the legislative question were here along with the county unit question, the apportionment of the State legislature and the measure was the same in each case that you should get the same answer here in this Court?

E. Freeman Leverett:

Indirectly, I think so.

If this juncture primarily —

Byron R. White:

That must be the — that must be the result of your argument?

E. Freeman Leverett:

At this juncture, I am primarily refuting an argument that is advanced in the brief of the appellee to the affect that —

Byron R. White:

And also making the contrary argument?

E. Freeman Leverett:

That is correct sir.

That’s correct.

Byron R. White:

And the —

E. Freeman Leverett:

Now, as to a legislative representative, the total legislative power is shared by the allocation of one or more members of a multi-unit body or collegiate body by the allocating of one of more of those numbers to particular areas.

And under the electoral arrangement involving the executive of the judiciary, you don’t have a number of people to be shared by allocating one out to each.

You only have one individual, the Governor or the particular judge or the other State House office and the sharing necessarily has to take effect in a different manner.

So, in that case, as in the case of the election of the President, under the electoral college which the sharing is done by the allocation of units rather than by the allocation of individual representatives.

Potter Stewart:

The difficulty with your argument so far as I’m concerned and as I understand it tentatively is this — let’s take the case of the United States Senator.

The Constitution of the United States itself provides what — what district, what territory, what sovereignty is going to elect a United States Senator and that is the sovereign state of the United States, so you — that — that is predetermined.

We don’t have here, in the case of an election of the United States Senator any problem or any choice of the State to divide up the district?

E. Freeman Leverett:

We aren’t contesting its argument that it can.

We are arguing that it is —

Potter Stewart:

It’s not a matter of districting —

E. Freeman Leverett:

No.

Potter Stewart:

— when it comes to it because this is — this has all been decided in the Constitution of United States, it’s the State that’s the unit.

E. Freeman Leverett:

The State is the unit, that’s correct sir, (Voice Overlap).

Potter Stewart:

And the State elects the United States Senator?

E. Freeman Leverett:

Well, that is — that’s true in Georgia.

We don’t district the State for purposes of electing Senators.

We have devised the unit system for the purpose of dispersing electoral power, but we do not draw any district alliance from the standpoint of — of people we (Voice Overlap) —

Potter Stewart:

I — I’m just suggesting that to me unlike my Brother White’s suggestion as I got it from his question that this a quite a different case from a legislative apportionment case?

E. Freeman Leverett:

There are differences, that is correct sir, but we say this that if it’s constitutionally permissible to have any weighting of votes with regard to legislative representation beyond the de minimis weighting that inevitably flows due to population shifts, that it necessarily should follow, that you can have the same thing with reference to a statewide office as a Governor or a judge, it’s — it’s granted, it has to be accomplished, the — the form as the —

But the basic underlying proposition is that if there can be weighting as to one like what is there to say that you cannot have weighting as to the other.

The Fourteenth Amendment draws no such distinction.

Potter Stewart:

But I’m just suggesting that the problem is different?

E. Freeman Leverett:

I think that would follow.

Earl Warren:

It’s your position (Inaudible)

E. Freeman Leverett:

That what — what feature of it, please?

Earl Warren:

The question of weighting the votes.

E. Freeman Leverett:

Our — our position will be that —

Earl Warren:

You say that’s a — that’s a —

E. Freeman Leverett:

That it’s Constitution —

Earl Warren:

— situation the Court must stay out of it, isn’t — do you think it is not a justiciable question?

E. Freeman Leverett:

I think that it’s not constitutionally impermissible.

Now, I think you — it’s justiciable to the extent that you get into the area and you go to a certain point, I will come to that momentarily and if I haven’t answered your question —

Earl Warren:

Well —

E. Freeman Leverett:

— please stop me but it would —

Earl Warren:

Right, (Voice Overlap) —

E. Freeman Leverett:

A little ahead of myself on this point.

Earl Warren:

Go right ahead.

E. Freeman Leverett:

Now, in the court below, as did the two courts in the South and the Turman case did not accept this attempted distinction.

They said this, it relied upon MacDougall versus Green, they said, “We do not strike the county unit system as such.

We do strike it in its present form and cited references to the permissibility of weighting the votes.”

In the Justice Department, I don’t think either accepts this attempted distinction.

They referred to it and say that there probably are some differences, but they end up saying that we don’t have to decide that here and then they go all up on (Inaudible) involving burden of proof and end up postulating two standards that they say should apply in these cases.

I will come to those also momentarily.

However, the Government does concede that if you had a situation where there was not a direct election of a statewide official such as you had years ago with regard to governors in many states that you probably could have weighting there.

We say that that is exactly what this is because the county unit system, as devised, with regard to units, its simply a substitution for this collegiate body that, theretofore had done the electing and that is the convention, to nominate not to elect.

Now, that brings me to what we think are these proper standards in this case and I think it would also follow in a legislative apportionment case.

Arthur J. Goldberg:

Mr. General, when you’re arguing (Inaudible)

E. Freeman Leverett:

Yes sir.

Arthur J. Goldberg:

In other words, you clearly mentioned something that the state government (Inaudible) constitutional requirement.

E. Freeman Leverett:

That is my position, yes sir.

This has to be approached I think from a two-fold standpoint.

E. Freeman Leverett:

First, the validity of a unit system per se, and then the secondly, the overall substantive standards that would apply under the Fourteenth Amendment, governing the weighting of votes.

First, with respect to the validity of the unit system per se, you might —

(Inaudible)

E. Freeman Leverett:

You did not pass on it.

Now, the appellee, I believe, argues that.

I do not wish to occupy the time of the Court if you think that it’s not before the Court, but the appellee argues it and I’m not certain whether —

(Inaudible)

E. Freeman Leverett:

It is here.

I’m not — frankly, I’m not familiar with the rules and procedure of this Court.

Under Georgia law, if a judgment is right for any reason, it should be sustained on appeal regardless of the reason given to in below.

And I presume that is the rule here.

I have never actually read a case on it.

The — this question might be restated thusly, would a unit system be valid even assuming equality of population within each of the participating units?

The court below as well as the court in the Turman case and the South case have said or resolved this question in the affirmative.

The appellees though says no.

He (Inaudible) — or relies upon the Mosley case, United States versus Mosley in which the Court held that there was a federal right to have one’s vote counted.

The appellee says that since in a unit system, the candidate or rather the votes of the unit are cast as a unit that the votes of the people within the unit who voted for the minority candidate are not counted, and therefore, it brings it within the pale of Mosley versus United States.

As far as the Mosley case is concerned, we think it’s sufficient to distinguish by the fact that it was a criminal case where there has been fraudulent and covert acts that were contrary not only to federal law but to state law, that some votes have just not — it’s been simply — people tabulating them had refused to count them.

And that being a criminal case, we think has no relevancy to this situation where this is legal under State law and there was nothing covert about what is done here.

And we say that the idea of casting votes by unit is Constitution that it gives recognition to the organization of the State on a county basis and that has been true as illustrated by the history in this case of the county unit system from the very earliest.

Georgia has accorded a high degree of autonomy to its counties.

They voted as a unit in electing the Governor in the — at the outset.

As the Court in the case here said below, counties were governmental units in Georgia before the union and had their voice in the councils of government on the State level through representation.

In the South case, a judge simply said this, the history of the State and of the political parties within it shows that political power has from the beginning been exerted to a large extent through counties as voting units on similar unit lines.

Similar recognition has been given to the identity of interest in a county that brings about the rationality of treating them as a unit.

In several, the recent reapportionment cases, the Tawes case from Maryland, the Simon case from New York, Baker versus Carr itself upon remand, and the Scholle case in Florida.

Under Georgia law, our counties have always enjoyed a high degree of autonomy.

They have it within their power to levy taxes or not levy taxes, to afford certain vital services or not to afford.

They elect their own officer.

They have their own system of courts and public records.

E. Freeman Leverett:

County government is managed by a wide variety of boards of county commissioners, ordinances and county managers.

The Georgia Constitution expressed the exempts of county government from — to uniform its provisions.

Lastly, each county has its own school system, determines amount of taxes that it will levy within the certain limits and the extent of enrichment programs that it will impose upon its educational system.

And is — in this context, the unit aspects of this case of course apply equally to all counties, regardless of the population.

That brings me to the Fourteenth Amendment standards that we think are applicable to cases of this nature and similar to cases involving apportionment.

We think that these standards are inferable from a composite of the majority concurring and dissenting opinion in Baker versus Carr, regardless of the divergences in that opinion with respect to the procedural questions of jurisdictions, justiciability, standards and so forth.

In the majority of opinion, it was stated, “Judicial standards under the Equal Protection Clause are well developed and familiar and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must that a discrimination reflects no policy, but simply arbitrary and capricious action.”

In one of the special concurring opinions, this statement was found.

Universal equality is not the test.

There’s room for weighting.

The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.

And another concurrence where emphasis was placed upon the fact of horizontal as well as vertical discrimination, the blending of those two which brought about a situation, where it was impossible to determine if there was a basis.

Another concurrence was careful to give assurances that State legislatures need not be “so structured” as to reflect with approximate equality, the voice of every voter.

Nor does the Constitution prevent the states acting not irrationally from choosing any electoral, legislative structure it thinks best suited to the interest, temper and customs of its people.

Mr. Justice Frankfurter’s dissenting opinion, he very strongly says in a language that I could hardly improve that the idea of equality of voting power is not implicit in the history of American institutions.

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

Yes sir, I think that it is as far — as far as the Constitution is concerned.

And I”m not arguing political science and I would hope the Court will not argue political science.

Arthur J. Goldberg:

Let’s talk about the Constitution.

(Inaudible)

E. Freeman Leverett:

Simply because it has never been the law before that equal population representation is the only legitimate basis of electoral apportionment.

Also because there are other factors that enter into it.

I — I will — I’m coming to that and if I have — do not answer your question, please call my attention to it and I will go back, I will try to, I may not, but I will certainly will.

(Inaudible)

E. Freeman Leverett:

That’s correct sir.

We think that several propositions necessarily follow is corollary to this or from what has been said in these cases, in the various opinions.

First, that the Fourteenth Amendment does not limit a state’s choice and allocate its electoral power to a single basis, equal population representation, either in the case of legislative representation or in the case of the allocation of electoral strength as the statewide offices.

And particularly is that so, in this situation where this is simply the primary and you do have a general election where people are capable of expressing themselves with numerical equality and that has been done.

We had a run-off election in Georgia for Lieutenant Governor and a dissent arose as to the candidates who would participate in that.

And another candidate who is following them was limited mostly to one of the big cities came within 2000 or 3000 votes of getting enough signatures to get on the nominating petition in a little less than two weeks.

E. Freeman Leverett:

We have traced in our brief the history of legislative assemblies and demonstrated that when the founding fathers came to draft the Constitution, they were divided into two factions.

One, the French school of thought which inspired by the writings of Rousseau were referred to as the egalitarian democrats, the egalitarians, one man, one vote.

On the other hand, in a raid against them was the British school of thought which saw the necessity for imposing limitations upon majority will at its very source, a proposition that had been suggested as early as Aristotle’s political, the history of the convention records that the resulting product was more English than French.

In fact, the — one of the affidavits of the appellee that is in the record concedes this fact that the English school of thought predominated in the nominating or rather in the constitutional conventions.

It’s been shown too I think that while Thomas Jefferson has generally recorded as being on the side of equalitarian democracy.

He was basically an agrarian democrat and it just happened that equalitarianism fit in quite fine with his conception of a grand — agrarian democracy as the people started moving out of the tidewater areas out into the western portions of the country and tilling the land.

But we don’t have to go to the records of the constitutional convention to determine what the nature of this government is that was founded.

We think the plain words of the Constitution itself are highly ambiguous.

To begin with, a national legislature was provided for, in one House of which each State has equality of representation regardless of the number of people.

And even in the other branch which as George Mason said was to be the grand depository of the democratic principle.

Equality is not achieved there either because of the fact that — of the requirement that each State had at least one representative regardless of the number of people.

Potter Stewart:

Suppose what we have before us here is an amendment of that Constitution which was adopted about almost to not quite 100 years afterwards, that’s what’s before us here.

E. Freeman Leverett:

That’s right.

Potter Stewart:

There is no constitution in the (Inaudible)

E. Freeman Leverett:

And you have the Fifth Amendment which was adopted after that Constitution —

Potter Stewart:

That contains (Voice Overlap) —

E. Freeman Leverett:

— which contains a Due Process Clause of this —

Potter Stewart:

No Equal Protection Clause?

E. Freeman Leverett:

No, but as this Court said in Beadle versus Scholle — versus Scholle that it would be unthinkable that the Equal Protection Clause of the Fourteenth would impose a high standard upon the States than the Fifth does against Federal Government.

The second illustration I think of the Constitution in this regard is with regard to the President who is elected not by the people, but by electoral votes.

And there’s disproportions in between the States in the casting of those electoral votes.

The third illustration is the provision for changing the fundamental law itself.

That’s voted on by the States in which each State has one vote regardless of the number of people.

When Congress elects a President in those situations when it’s permissible for Congress to do so, each State votes as a unit, each State has one vote.

Arthur J. Goldberg:

Suppose they’re all (Inaudible)

E. Freeman Leverett:

Is the —

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

That is correct sir, but could you — could you say that the Federal Constitution does not construct a republican form of government?

Arthur J. Goldberg:

No, but that’s not the question.

The question is — you’re arguing the question as to whether a constitutional right (Inaudible)

E. Freeman Leverett:

I will answer that this way, it seems to me that if you say otherwise, you have to say that the Federal Constitution imposes a system that is arbitrary, that is unreasonable, that denies equal protection to the voters and merely because of the fact that there’s no Equal Protection Clause applicable to it, is the only thing that saves it.

Potter Stewart:

No, that — as Mr. Justice Goldberg says, the specific provisions of the United States Constitution save it.

Some people might think this is arbitrary and discriminatory, but it is certainly — there’s no question about its constitutionality because these are provided and we all know without going into it, the history behind all that.

The history here is quite a different history.

Georgia wasn’t created by several counties getting together and voluntarily giving up some of their sovereignties to create the State of Georgia.

E. Freeman Leverett:

Those differences I think were pretty well disposed off at least to my thinking in the Tawes case.

If this argument about sovereignty is circular, what do you mean when you say one was sovereign, one was not?

It’s simply this, that there is here an identifiable unit, a group of people who have particular interest that those interests should be given some recognition.

Now, I do not think that it is unreasonable for Georgia to take that analogy and apply it in its own internal structure as it has and as it would continue to do so unless this Court intervenes.

I — I can’t conceive of the — under the Equal Protection Clause which is itself a product of history and in determining what is rational, history and tradition and the federal system itself would seem to offer some test at least.

Now, the Court may disagree, but that is a way that it — as I see it.

That is the way I would answer the question.

The last point I think that we might say that disputes the fact of complete equality and expression of majority will is the example of this Court itself.

The founding fathers created this Court composed of nine men, no one of which has ever been voted on by anybody, but yet gave you the power.

As Madison pointed out in the federalists, to set aside the Solomon Act, it’s enacted by 535 of the people’s chosen representatives and the President who was also elected.

This opinion in Baker versus Carr, Mr. Justice Frankfurter reviewed the apportionments existing in legislatures and common law and the English procedure and the colonies and the States at the time of adoption, the States at the time of the adoption of the Fourteenth Amendment and today, and concluded that, as he stated, “These figures show more than individual variations from a generally accepted standard of electoral equality.”

They show that there is not as there has never been a standard by which the place of equality as effect an apportionment can be measured.

We think that that brings up another of subordinate propositions up to the general proposition that equal protect — equal population is not the only basis of electoral apportionment.

And that is that courts should not become involved in drawing mathematical formulas.

That is not the type of thing that is generally thought to be a judicial function.

To begin with, first, judicially insoluble question that you have is what method of mathematical evaluation are you going to use, aside from the actual fixing of the limits and the formula itself?

Would it be the theoretical minimum of persons unable to — capable of electing a majority of both Houses or one House and what about a unicameral legislature and I think you have a case in Nebraska, I do not know whether it is coming up here or not.

How would you apply to the Georgia situation?

Would the — assume that theoretical minimum is the test.

The more difficult problem then remains of fixing the limits.

Should it be 16.5%, the theoretical minimum of persons who are capable of electing a majority in the United States Senate, or should it be 43.3%, the number of persons residing in 39 States who could cast a majority of the electoral votes for President.

Now, the three-judge court in the Georgia legislative apportionment case held that a theoretical minimum of 22% for both Houses was invidiously discriminatory and that one house at least had to be proportionate to population.

Upon remand in the Baker case, the District Court invalidated minimums of 26.9 for the Senate and 28.7 for the House.

In New York on the other hand, theoretical minimums of 36.9% for the Senate and 38.2% for the House were up held.

The Idaho Court in Caesar versus Williams upheld a minimum of 32.7 which by the way is substantially the theoretical minimum under the 1962 revised county unit law.

E. Freeman Leverett:

Colorado minimums of 29.8 for the House and 32.1 for the Senate were held invalid.

But in none of these cases, as any court undertake it to say just where this line can be drawn and the reading of the opinions leaves you completely helpless in trying to discern from there any ascertainable standard or formula.

Or, there’s another method that you could use and evaluate.

That’s the mathematical ratio, the comparison of one political entity to another that can be compared to either the most disproportionate or the least populous unit or it can be compared to an average unit.

And applied to the Georgia County unit system, it results that the ratio of Fulton County, the State’s largest county, the Echols County, the smallest county is 14.8 to 1.

On the other hand, it is the court below held that the comparison should be from the particular county to the average county of their ratio would be approximately 1.93 to 1.

Baker versus Carr, the courts validated an apportionment which gave ratios to largest to the smallest of 7 to 1 for the Senate, 23 to 1 for the House.

There were some variations in Alabama that got involved there on the problem of the fact that one House could not be completely proportionate to population.

Under the Electoral College, the ratio of New York to Alaska runs 8 to 1 as to eligible voters and 5 to 1 with regard to population.

The ratio of the average Congressional District to Alaska which is one Congressional District is approximately 2 to 1 not 5 to 1.

When compared with Senate representation, the ratio of Alaska to New York is 74 to 1 as to population and a 131 as to eligible voters.

Now, there’s a third statistical approach and that is suggested by the American Society of Political — the American Political Science Society and that is comparing the percentage departure from the median or from the average district or unit as involved in this case.

The Science Association recommends a maximum departure of 15% for Congressional districts.

Representative Celler has recommended 20% in some legislation he has proposed and Senator Clark who apparently was inspired by Mr. Anthony Lewis’ article in the Harvard Law Review has proposed a 50% maximum deviation from the average district.

Now this is simply a preview, a prelude of things to come.

If this Court or any other court gets itself in the position or trying to evaluate, to set formulas, to draw lines that is not the solid stuff that is traditional to the judicial system.

They are no judiciable manageable standards by which you can evaluate such a situation.

I would certainly hate to think that this Court or any other court should get itself in the position that the Swiss Federal Tribunal did recently, when they undertook to draw lines and they struck down a coram limitation on its proportionate system of apportioning representation by holding that a 6.6% coram limitation was valid, whereas a 12.4% limitation was invalid.

They didn’t tell us approximately what point it becomes permissible or unconstitutional.

Arthur J. Goldberg:

General, (Inaudible)

E. Freeman Leverett:

Nothing except that the express desire of his law making power was frustrated.

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

I don’t — I don’t think you can say that it’s the will of the people, the legislature, they’re supposing they represent the will of the people, they provide it otherwise.

Potter Stewart:

Well, that’s certain with respect to your argument.

I never heard that the legislature is terribly upheld here so far as representing the people of the State.

E. Freeman Leverett:

The argument I think that — of the question that you asked presupposes, does it not, that equality of representation is the only basis of representation.

Potter Stewart:

No, I was only pointing out that the — it’s hardly to be presumed that the law as provided — legislature of Georgia as presently apportioned, at least its House of Representative can be presumed to be the will of the majority of the people of Georgia, whether it’s constitutional or not, it’s a different question.

Tom C. Clark:

I thought the 1962 election has been the same (Inaudible)

E. Freeman Leverett:

It would have, except it would not have been a run-off as I recall in the race for Lieutenant Governor.

He would have been elected on the first ballot.

Tom C. Clark:

But all the other officers did the same?

E. Freeman Leverett:

That’s right.

So there — there would’ve been a difference in the — one of the Congressional districts, of course that’s not imposed by state law.

It — I wouldn’t — well, I say this, it would — under the old system, it would have been — there would have been a difference under the new — under the new system.

Of course, it was abandoned before but a successful candidate would have won anyway under the new system.

Arthur J. Goldberg:

But your argument basically is that’s the only (Inaudible)

E. Freeman Leverett:

That’s correct sir.

Arthur J. Goldberg:

And the court was (Inaudible)

E. Freeman Leverett:

Which old system?

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

If this Court had not decided Baker versus Carr, my guess would be that we would have probably applied it, but I have no — there had been a move a foot to get it — to bring it up to fall of what it was at the time it was originally not enacted in the law in 1970.

Now, in all candor, I think I should say that I do not think it would have taken place last year if it had not been for Baker versus Carr.

Byron R. White:

I understand you to say that there’s enough reason for the legislature to simply to want to prefer beyond the less populous counties and that’s the end of the question.

Did you simply want to — the legislature simply wants to weight the less populous county’s votes?

In the primary they should be perfectly free to do so.

E. Freeman Leverett:

That’s correct.

Byron R. White:

And you — and that’s enough ration — that’s enough rationality.

E. Freeman Leverett:

That’s right sir.

Byron R. White:

And to — and you would get the same answer then I suppose if they did it another way and said each person in a rural area, you’re in a certain county gets three votes, he casts three ballots.

You get exactly the same results, wouldn’t you?

E. Freeman Leverett:

Casting of — I would — I would have to analyze that mathematically, I’m not sure that it would give you the same result.

Byron R. White:

Well, I mean whatever the figures would be —

E. Freeman Leverett:

It might.

Byron R. White:

You just said, he would cast out many more votes, he would’ve — you should come out with a — in the legislature spree to — to give people an equal voting power.

That’s — that’s essentially your argument.

E. Freeman Leverett:

That’s essentially, yes it is.

I will not say that I could — I’m not enough a mathematician to (Voice Overlap) —

Byron R. White:

Well, I don’t care about the figure — I don’t care about the figures.

I just — but wouldn’t you get the same answer also if the legislature changed its mind next year and said that we will give people in the city four votes and people in the country one vote?

E. Freeman Leverett:

Not — not just with that language because it doesn’t work that way (Voice Overlap) —

Byron R. White:

Well, I know, but let’s assume that you had — that they’ve just reversed the scales and made the county unit system preferential to urban areas —

E. Freeman Leverett:

That would be perfect for that.

Byron R. White:

— rather than rural areas.

E. Freeman Leverett:

Perfectly balanced.

Byron R. White:

So the history hasn’t anything to do with this.

E. Freeman Leverett:

I think history has because the — this Court has held time in time again that history and the traditions of the people have some influence, it’s not controlling but it has some —

Byron R. White:

So then you wouldn’t — you suggest you wouldn’t get the same result that you weighted this system in favor of the cities because that isn’t historical.

E. Freeman Leverett:

It was to some extent when the people first started moving out of the tidewater areas out into the country.

We had that problem in Georgia, the coastal counties which were the — you might say the urban areas were over represented at that time.

Byron R. White:

Well, do you have a suggestion as to why you say it’s irrelevant, I know that, but assume someone didn’t agree with you.

Do you have some suggestions as to why the rural area geographically should be preferred in the — in the amount of voting power it has in the primary?

E. Freeman Leverett:

I don’t think I could express it any better than — was expressed by the Court in MacDougall versus Green, that the desire to disperse, to diffuse political power, to prevent people in concentrated areas from — you have a community of interest, you have opportunities who have all of the mass media of communication available to —

Byron R. White:

Well, diffusion doesn’t mean inequality, does it?

E. Freeman Leverett:

How is that sir?

Byron R. White:

I mean, diffusion doesn’t mean inequality.

You had com — (Voice Overlap) —

E. Freeman Leverett:

That’s what we’re arguing, I think.

Byron R. White:

— you had absolute diffusion when you had a — when you had a — your life primary.

E. Freeman Leverett:

Diffusion is —

Byron R. White:

That was the — that was diffusion of —

E. Freeman Leverett:

It’s not the diffusion we usually think of in terms of MacDougall versus Green.

Byron R. White:

Yes.

And you would I suppose get the same result then when the legislature decided to weight the votes in favor of functional groups.

E. Freeman Leverett:

I’m coming — I — I’m going to touch on that with different methods of apportionment.

Even after you take into account the different methods of representation of mathematical computation, you then have a problem of what political scientists referred to as unofficial apportionments where these extra legal forces that rise up to neutralize — the juror apportionments such as lobbies, and pressure groups, and reapportioning of the State Senate.

We came across one aspect of that as originally drawn out of scenic districts, achieved a remarkable degree of equality, they didn’t vary more than 10%.

But when it got in the legislature, some people in one county said, we don’t want to be with this group, we rather go in this other county, even though there’s no other adjustments made to — to alleviate the inequality that results.

We have more community of interest with this particular group of counties over here.

That — that in our mind subordinates any considerations of abstract equality.

Now, the second proposition that follows from the idea that equal population representation is not the only basis is that this Court cannot pick and choose between conflicting bases of representation.

E. Freeman Leverett:

The oldest — one of the oldest at least is political unit apportionment which is exactly what Georgia has employed here, apportionment according to political units.

We have superimposed the population bracket on top of it to give it some aspect of equality, but political unit apportionment is one of the oldest.

Another is of course the functional division apportionment, William and Mary College elected its own Representatives as did the English universities.

Another type of functional division apportionment has been suggested recently by one commentator who says that we are developing cleavages in the urban areas that transcend urban and rural lives, that the rise of labor unions on one hand and employers on the other might some day make it desirable to apportion Representatives along functional divisions of the population in order to —

Hugo L. Black:

I think that was done in Italy once, wasn’t it?

E. Freeman Leverett:

How is that sir?

Hugo L. Black:

I think that was done in Italy once, wasn’t it?

E. Freeman Leverett:

Yes, sir.

Hugo L. Black:

By Mussolini.

E. Freeman Leverett:

Many European countries I think have followed that, particularly in Austria and in that area.

Another method of representation was suggested by John Stuart Mill who advocated the quotient system of apportionment, a pre-population allowance, that’s in vogue in Europe.

We say that the Court is not equipped to make the policy choices between these conflicting bases.

I don’t see how you can adjudicate that a particular basis is not permissible without at the same time adjudicating what is a republican form of government.

I recognize the distinctions made in the Baker versus Carr —

William O. Douglas:

But your — your present argument, it goes against the Baker versus Carr?

E. Freeman Leverett:

No, sir.

I don’t think it goes against it.

I — and I recall the distinction made, but what I’m saying is this that —

William O. Douglas:

That — that it isn’t a real distinction?

E. Freeman Leverett:

I don’t — I don’t see how you can avoid it.

It seems to me that you get down to this that you cannot determine whether a particular deviation or departure from equality is reasonable or unreasonable unless you first postulate what is the norm and when you have once postulated the norm, it seems to me that — I can’t see any difference in standard that would be compatible with equal protection and yet not at the same time represent a republican form of government or vice versa.

There may be, I — but I fail to see it.

Potter Stewart:

I don’t — I — perhaps I’m making a mistake in repeating it, but at least, as far as I’m concerned, your argument now doesn’t go to the problem before the Court in this case.

We’re here talking about — not about legislative apportionment at all.

We’re talking about the election of the United States or the — of the nomination by — in a one party state of a United States Senator and of statewide officials, executive and judicial as I understand it.

We don’t have all this history.

The fact is that as I understand the briefs, 47 out of the 50 States at least have a system of election of statewide officials which is based on one man — one voter one vote, counted equally.

You don’t have all this history that you have in legislative apportionment.

You don’t have all the problems of representative government in a State legislature.

Isn’t this quite a different kind of a case we have?

E. Freeman Leverett:

I think may be I can come to —

Potter Stewart:

That’s the fifth time I’ve asked that question, I shan’t ask it again.

E. Freeman Leverett:

I think I can come to the heart of the forum, and I say this, we think that the true test is not the Court to pick and choose between conflicting basis of representation, either legislative, diffusion of electoral power and State House Offices or otherwise.

The true test is, it’s the Court — is to tell them whether there’s any recognizable basis there.

If there’s any basis at all, then I think that ends it and there are some of course that obviously are impermissible, race, sex, and that sort of thing.

But if a particular system reflects a recognizable, identifiable expression of policy, and it’s a policy that is certainly had some recognition in governmental structure, I think the function of the courts should end there.

And they should not go into weighting, and as the Government would suggest, determine whether there’s only a moderate departure from per capita equality and all of the drawing of lines that that would entail.

And we say that the Georgia system does have a recognizable basis and that is as far as the matter should go.

Earl Warren:

Mr. Abram.

Morris B. Abram:

May it please the Court.

I want to interrupt the procedure of the argument which I will outline to the Court, so that the Court will know what I intend to argue here today to say that I think at the outset or the threshold of this case, it is very important from the argument we have just heard from the appellants to get firmly in mind the position which the appellee takes with regard to the differences between apportionment and voting.

Now, the problem arises through the necessity of giving a minority some voice.

To give a minority some voice in the field of representation, you have got to have some classifications, districting is classification.

If the drawing of a line in saying this man is in this district, this man is another.

That at least is classification.

The only other way you can give a minority of voice and representation is either to have a proportional system of representation or to ignore the minority’s voice by elections at large.

Therefore, using our system which is not a proportional system, the American system hasn’t developed that way, if you are going to give a minority a voice, a voice, not control, you must have some classification.

Now, in the field of voting, no classification is necessary because one man’s vote is his fair voice and no classification is necessary and nor is any classification usual at least in American history and in any of the State practices with the possible exception of the three that have been described here today.

The truth is that in franchise exercise, the majority or the plurality control generally under our law, but through a unit system and the only purpose of it could be is to see that a minority prevails because one or the other must.

If you try the classification of voters, qualified voters, that to the State is to aside who is a qualified voter, in order to give one man a greater vote there is an opposite side of this coin.

You have had to give somebody else a lesser vote, so obvious the classification in the field of voting must in necessity involve discrimination.

Now, I should like to point out that —

Potter Stewart:

Of course, as you’ve indicated the — as you’ve implicitly indicated that a State is not without power to discriminate in what might seem an arbitrary way among voters that — isn’t that correct that Georgia, as I understand you, if you’re 18 years old, you can vote.

Morris B. Abram:

Yes sir.

Potter Stewart:

But you can’t vote if you’re 17 years, 364 days old?

Morris B. Abram:

That’s a perfectly proper classification, I should think, the age classification.

Potter Stewart:

Now, somebody of that latter age might think it’s pretty arbitrary?

Morris B. Abram:

But he might very well do so, but I think that I could defend that sir and I would be prepared to do so if that were the issue, but —

Potter Stewart:

And I suppose a State could say to a person who’s lived in a — in a precinct or in a county only 29 days that you can’t vote or somebody (Voice Overlap) —

Morris B. Abram:

I think they’re all (Voice Overlap) to this but I think that particular suggestion appeals to me as a reasonable one.

Morris B. Abram:

I might say this sir, under the law of Georgia in Talbert versus Long, our Supreme Court has said that the qualifications of voters are established in the Constitution, Article II Section 2 and that once that classification has been established in the Constitution, the power to further classify is exhausted and the legislature has no further power.

Potter Stewart:

That’s as a matter of your State Constitution?

Morris B. Abram:

A matter of State Constitution.

Now sirs, prior to 1962, it shall be my contention here, the county unit system had developed into the irrational, discriminatory practice.

And this had been permitted because it was favorable to those who control the political system of Georgia.

But the new Act of 1962, I shall try to demonstrate was a deliberately discriminatory device.

It didn’t just grow.

It was created in a few days of the General Assembly session.

In answer to my Brother’s argument that this is something that the people through their Representatives want, I would point out at the threshold of the argument that the Georgia legislature which passed this unit system which is presently under attack and was held void was a legislature whose Lower House represented 22% of the people.

The majority of the House represented 22% of the people and the majority of the Senate, it’s now been reapportioned which passed this Act was elected sirs, by 5.5% of the people of Georgia due to the rotation system which I can’t go into.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

Well sir, I — I don’t adopt that premise.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

Oh, yes sir, because we have not had sir, in dealing with history which I presumed is permissible, we have not had a Governor of Georgia elected in the last four decades from a major county.

This Governor qualified after the unit system was knocked out, he was not going to run for Governor.

He was induced to run.

It is generally recognized because the unit system was knocked out.

The votes that were cast in the urban counties of Georgia were enormous, the registration just surged forward and the people went to the polls this time.

Mayor Hartsfield’s affidavit shows that it has not been customary for people in the urban counties to register or vote to anything like it, the proportionate numbers they are to the population because the fact your vote didn’t count.

You can’t say the system has it.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

Yes, yes, yes.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

That — that’s right.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

The Court is correct, yes.

Now sir, I should like to proceed on a more orderly basis and in order for the Court may know the course I’m going to take, I should like to say that first I’m going to try to examine the unit system.

Second, I’m going to mention very briefly the point alluded to by Mr. Justice White, that is the constitutional protection of this primary, but I’m going to deal at little length on the question of whether or not this primary effectively controls the election of the United State Senator because I think the Seventeenth Amendment question could be in this case.

And then I’m going to try to measure the county unit statute against the Fourteenth Amendment in practice and principle.

And then I’m going to briefly discuss the Seventeenth Amendment question.

Morris B. Abram:

Now to begin with, I think Mr. Justice White was correct when he asked the question or if there was an implication in the question, what would be the effect of Georgia saying that a man in Echols County shall have seven-and-a-half ballots, a man in Clayton, one ballot, DeKalb, three-fifths of a ballot, a man in Fulton half a ballot, a man just one county removed, three-and-a-half ballots, a man over a county line, one-and-a-fifth ballots.

For no matter how you look at the unit system this is precisely its effect and that’s what it’s designed to achieve.

The system is further more compounded in its effect by the fact that a man does not have to get the majority of the votes of the county in order to carry the full county units straight to the county.

In a five-man race, a man may get 30% of the votes of a county and carry the full unit vote of the county thus reversing the vote for those who voted against him who were in the majority.

It is for this reason that the system contrived to produce some rather absurd results.

For example in 1954, the Governor of Georgia was overwhelmingly elected by unit votes though he only received 36% of the popular votes and 72% of the people had in fact voted for somebody else.

Arthur J. Goldberg:

That is not possible under the amendment.

Morris B. Abram:

Oh, yes sir, it is possible under the amendments.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

No, sir.

He must, but if Your Honor, if there — one man has the majority of the popular vote and the other man has a majority of the unit vote then they get into a run-off under a unit vote.

And then you got the man who won the popular vote tagged, there’s a popular vote candidate in a county unit election which of course would be politically disastrous.

Now, the system I said a moment ago, prior to 1962 —

Potter Stewart:

You mean this would be a — this would be a terrible political liability to be known —

Morris B. Abram:

It would —

Potter Stewart:

— as the fellow who the majority of the people, the State report for Governor?

Morris B. Abram:

It would be that sir and Mayor Hartsfield’s affidavit in the record shows why there were campaign after campaign of scorn and vilifications directed against the most people of the State who lived in urban centers, day after day from the start.

The record shows this, the kind of language that was used against people from cities.

And the kind of a program hit upon the cities in election after election by people who presumably were trying to represent it.

Potter Stewart:

I’ve heard this that about some people that nobody has formed but the people, but I didn’t realize that it was such a terrible (Voice Overlap) —

Morris B. Abram:

Well, under the unit system, it doesn’t help if the people have (Inaudible), if the units are against you.

The record is complete I think on that point sir.

Now, when the Governor called the legislature after this suit was filed, he called it and I quote his call, “To preserve, protect and defend the traditional democratic institutions existing in this State,” meaning the unit system.

There is on the record an affidavit from a legislator who was present at the briefing sessions about this legislation and I’d like to read to you what he said went on there.

“The general tenure of the briefings of the Governor and the Attorney General and the associated counsel present at said meeting of April the 10th, 1962 was to preserve, protect the county unit system, maintaining as far as possible existing discrimination ratios, and to do as little as possible to correct these and at the same time attempting to prevent further intervention by the federal courts.”

Now, I might say that there is not one scintilla of evidence in this record to contradict this purpose and intent which was — which was flagrantly demonstrated in the trial of the case below.

John M. Harlan II:

Is there any legislative debates on there?

Morris B. Abram:

Sir, we don’t keep records of legislature debates.

We don’t have committee reports in general either sir.

Now the system as it was devised is a bracket system. From zero to 15,000 population, you get two units, then you get another unit for additional 4999 people, then a unit for 9999, then a unit for 14,999, then a unit for 14,999 and then two units for 29,999.

Morris B. Abram:

Now, it’s rather curious, 30,000 people at the bottom of the scale get four units, 30,000 additional people at the top of the scale get two units.

29,999 people at the bottom of the scale get four units, but 29,998 people at the top of the scale get no units.

Now, it’s mentioned that the history of the unit system supports this.

I might point out — I’m going to argue that no unit system is permissible because the — of course the decision below was standard, the Court adapted that principle which I think is the correct principle in this case.

But in 1970, 50.5% of the people had forty-four and eight-tenths percent of units.

The effect of the system as demonstrated in the Hartsfield affidavit has been — it has been politically profitable for candidates for statewide officers to run races in which direct attacks are made upon the centers having the greatest population.

No man from Fulton County has served as Governor for four decades.

No Fulton man or United States Senator in the 20th Century.

There hasn’t been a Fulton County Congressman serving a full term for 25 years until the unit system was voluntarily abandoned and Congressman James Davis who had been twice elected by a minority vote and twice defeated by a majority was sent home and a new man returned to Washington.

There was, as Mayor Hartsfield has pointed out, a tremendous lack of interest in elections growing out of this state of affairs.

I might point out further that there is not one sentence in this record which shows that any public permissible good or and was achieved by the unit system or prevented by it.

The record does show however, and I think by plenty of evidence that there is a connection between the county unit system, a Negro disfranchisement.

Now, I shan’t go into this at great length but the basic premise of this argument —

Potter Stewart:

It does not make any – you’re not relying on the Fifteenth Amendment?

Morris B. Abram:

No, sir.

But the (Voice Overlap) —

Potter Stewart:

Well then what’s the point of your argument at all?

Morris B. Abram:

Well, in Nixon versus Herndon, it was said by the Court, Mr. Justice Holmes that the violation of the Fourteenth Amendment was so great he didn’t have to rule under the Fifteenth Amendment.

Potter Stewart:

And that’s your argument here too.

Morris B. Abram:

And that will be my argument here too.

Potter Stewart:

So why do you —

Morris B. Abram:

Well, I mentioned it only to show that the purpose of this, this deliberate discrimination and the reason for permitting this — this secular discrimination over a long period to develop was that it was giving a great deal of benefit to those who wish to depress and to void the Negro franchise.

But I think it’s only fair to say that I don’t want to say anything more about it except the record shows that where the county unit power gave to the inbuilt political apparatus, the greatest advantage there, you had real Negro disfranchisement and in certain counties with large Negro populations, with high unit values, no votes at all from Negroes.

On the other hand, in the urban counties where the Negroes were voting and of reasonable proportion of their population, their votes didn’t count.

It ends up in a statement by Professor Banner which is in the record.

These facts had a considerable bearing upon the determination of rural lawmakers to maintain the county unit system.

Now, maintain it, they have.

In 1952 and in 1950, a constitutional amendment was submitted by the legislature having them passed by two-thirds of both Houses to the people of the State to engraft the system upon the Constitution and each election by popular vote of about 30,000 majority, the attempt was defeated.

I don’t think it would have been possible that there would have been any change in this had it not been for Baker versus Carr and the intervention of the federal court below.

And I might quote Mr. Madison on this principle who says in the debate on Article I, Section 4 of the Constitution, the right of the Congress to control the time, place and manner of elections, he said this.

Morris B. Abram:

“The inequality of representation in the legislature of a particular State would produce a like and equality in their representation in the national legislature as it was presumable that counties have power in the former would secure it to themselves in the latter and secure it to themselves they did in Georgia.”

I should like now to turn to the question whether this primary is protected and I want to read one statement, one sentence here from the Classic case which I think outlines it in its proper form.

Where the State law has made the primary an integral part of the procedure of choice or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary election includes the rights protected by Article I, Section 2.

Potter Stewart:

The State law does not require a primary.

Morris B. Abram:

It does not, but it does say this, that if a primary be conducted, it shall be conducted by the unit system.

Potter Stewart:

Has to be done in this way.

Is there anything — forgetting now what the Constitution might or might not require, is there anything in the injunction which would prevent a group of democratic party leaders meeting and nominating the candidates for State office?

Morris B. Abram:

No sir, but there is a reason why it will not happen.

And that is when a man goes through a primary, he has got a badge of respectability attached to him which makes him a formidable candidate at the polls.

And that is one of the reasons, I suggest, why the Republican Party has not developed in Georgia, you can always make the argument they have nominated their man on a telephone.

Potter Stewart:

But probably — well, that’s about all the Republicans are in Georgia?

Morris B. Abram:

Well, no sir, there are great many of them and many of them — I must say that many of them are people of great substance and ability.

But the point is they are still not conducting a primary and I suspect one of the reasons they haven’t is because they would have to do it by the unit system and they would be tarred with the same brush that they used in arguing against the Democratic candidates that they have a unit system of election.

Potter Stewart:

Just let me pursue my question once more in a different way.

If — if there were — if there were a convention, let’s say to which the delegates came in kind of a county unit way, for instance in Connecticut, there’s a convention of that kind, if I understand it, I don’t know the detail, would that be a State action?

Morris B. Abram:

I would suppose that if State law governed it in some way and —

Potter Stewart:

Let’s say the State law was just (Voice Overlap) —

Morris B. Abram:

Didn’t govern it at all.

Potter Stewart:

— this provided for — that if a party had gotten a certain percentage of the vote at the last election then they were a party, but that they’re — but they were entirely free to nominate their candidates any way they wanted for the next election.

Morris B. Abram:

Well, let me state two answers that I have to that sir.

The first answer in Georgia, the Democratic Party did held a convention of this party, it would be a State action by virtue of the fact that it would be tantamount to election.

Potter Stewart:

Isn’t that what the Classic said?

Morris B. Abram:

That’s what Classic says.

In fact, controls the procedure of choice.

Potter Stewart:

So that doctrine —

Morris B. Abram:

That doctrine —

Potter Stewart:

— is limited to a one-party state, so to speak.

Morris B. Abram:

That’s right, on one-party states.

Now, on the two-party state I think the thing is less clear, but I should say that the two-party state still couldn’t do certain things with respect to convention, they couldn’t bar Negroes, I am sure the Fifteenth Amendment would control that.

And I suppose if there are limits to what you can do in a convention.

Morris B. Abram:

I don’t want to try to argue about (Voice Overlap) —

Potter Stewart:

Well, suppose you could conceive of a party — of a party that it was political objective was, say, white supremacy and citizen’s counsel party to say, it — couldn’t it bar — I mean, (Voice Overlap) —

Morris B. Abram:

(Voice Overlap)

Potter Stewart:

— under — we have the right of free political expression and free speech?

Morris B. Abram:

I must say I don’t know what the Court would do with it if the case got here but my feeling is that that is not before us because in Georgia, the case before us without any doubt the Democratic Party controls the procedure of choice under the Classic doctrine.

Potter Stewart:

I’m giving a case —

Morris B. Abram:

Yes, I understand.

Potter Stewart:

— that’s not here, I was just —

Morris B. Abram:

But I would say this, Terry versus Adams goes very far, because in that case you held it was state action for this Jaybird Party to have a nomination process, excluding Negroes with respect to what, with respect to county and precinct offices in a pre-primary — primary entirely unregulated by state law.

Now under the doctrine of Terry versus Adams it wouldn’t take much of an extension to get the kind of a problem that the Court is speaking of.

Now, whether or not the Georgia Primary is tantamount to election, I think you have the precedent of the Georgia Supreme Court in Thompson versus Talmadge which said this.

Over a period of approximately half a century before the drafting of the 1945 Constitution, throughout that period, there has been only one and one dominant political party in the state.

And Professor Banner says in his affidavit that Georgia has been one-party state since removal of federal troops in 1871, none but democrats have held the State Office since the 1890 decade after which period this party has been completely in control of statewide elections.

You have before you in the record the kind of voting that takes place in the general election as compared to the primary and non-presidential years and except when some grave constitutional questions are being presented for ratification which further demonstrates that this primary is a procedure of choice.

May it please the Court, I would like now to turn to this equal protection problem in this case and I want to start by saying that the Due Process Clause was pleaded in the complaint.

We have not stressed it before this Court for the reason that in Beadle versus Scholle, the Chief Justice stated this.

“As this Court has recognized discrimination maybe so unjustifiable as — to be a violation of due process.”

And consequently, I think it would be well to address ourselves and myself to the question of the Equal Protection Clause.

Now, I start from the premise that voting is a personal right and this Court decided this point in U.S. versus Bathgate, I have already mentioned the fact that I think you’ve got to have some classification to give a minority some voice in the representation process and need no classification in order to achieve that in the election process, the franchise itself.

Potter Stewart:

But (Inaudible) — you must concede that a State can classify as to eligibility of voters.

Morris B. Abram:

Oh, yes, I —

Potter Stewart:

I mean you’ve already asked the age and —

Morris B. Abram:

I mean after you point (Voice Overlap) —

Potter Stewart:

Length of residency?

Morris B. Abram:

But I should say to be accurate and to be careful about it, I should say this.

After the state has classified you as an eligible voter, no further classification is permissible.

Potter Stewart:

Without carrying that a little further, could a state classify an eligible voter in terms of whether or not he pays taxes, state taxes?

Morris B. Abram:

Sir, I would say only this. I suppose that is possible, but I would say this that after having two people, both of whom have paid taxes and have entered the class, the State itself is established whether through it’s Constitution or it’s laws.

I do not think it is permissible then to draw distinctions between the people whom it is already classified.

Potter Stewart:

Could it classify on a basis of whether he has got at least an eighth grade education.

Morris B. Abram:

I should think so.

Potter Stewart:

Certainly could as to whether or not he’s literate?

Morris B. Abram:

I should certainly think so.

Potter Stewart:

Could he do it on how much property he owns?

Morris B. Abram:

I — no.

I really would say that that’s historically been permissible.

And whether or not at the present time it would be so regarded, I can’t say, but I don’t think that it’s necessary to decide this case in order to determine how you set the original qualifications of the vote.

Potter Stewart:

No, I do not think you get very far calling one original and something — something else could say — give a man with a graduate degree, five votes, a man with a college — with a BA degree, four votes and a man with an eighth grade education, three votes?

Morris B. Abram:

I would say this.

It would have more rationality behind it than this statute as we’re going to try to demonstrate in a moment, but I still think it would be in my judgment irrational.

Potter Stewart:

But that would be an original classification as —

Morris B. Abram:

Yes.

Potter Stewart:

Because it is the same thing when you give somebody zero vote or one vote —

Morris B. Abram:

I would concede that is true.

Potter Stewart:

— it’s whether you get one or two.

Morris B. Abram:

I would concede that’s true.

Potter Stewart:

So the — and you do — and you do as I think you must concede that a state does have power to classify certainly as to age and —

Morris B. Abram:

Yes.

Potter Stewart:

— the length of residence?

Morris B. Abram:

I agree with that.

Potter Stewart:

And literacy?

Morris B. Abram:

All I am saying is that once you have established too as a qualified voter, you may not then on grounds that have in them two elements that I am going to now discuss, begin further reclassification and distinctions.

Potter Stewart:

I was reading Senator Tower’s new book the other day and it seemed to indicate that the — perhaps the best democratic theory was to let those who spend as little — the least money, have the least vote — the voters who spend the most money have the most vote, would that be a — a rational classification?

Morris B. Abram:

I should not think so Your Honor, but there maybe those who think so, but I don’t think that is necessary for —

Potter Stewart:

Would that be original?

Morris B. Abram:

I would say that it would be original.

I certainly would agree in two senses perhaps.

Your Honors, I think the general principles that govern this field are these: classification, if it produces substantial discrimination and is irrational in the sense of capriciousness.

That is without rhyme or reason I think as Mr. Justice Clark said in Baker versus Carr is an improper use of classification in this field if any classification beyond the classification of voter per se is permissible.

And I also might point out that irrational could also mean a system of discrimination to achieve what is an impermissible state policy, or one without some kind of reasonable objective in terms of what we generally regard as the end of state power.

(Inaudible)

Morris B. Abram:

Well, I am going to try to demonstrate in a moment when I analyze the unit system Your Honor that the Georgia County unit system does not classify with regard to voters on any basis that could conceivably have any rational relationship to a permissible state end.

Now, I do not think geography is a permissible state end and I don’t think —

(Inaudible)

Morris B. Abram:

I must say.

William J. Brennan, Jr.:

Well, you had (Inaudible)

Morris B. Abram:

I’m going into that sir.

William J. Brennan, Jr.:

(Inaudible)

Morris B. Abram:

Exactly, I am going to try to demonstrate how the system even cuts into the voting power of those who are generally in the class that presumably favors and I think I can demonstrate it on this record.

Byron R. White:

(Inaudible)

Morris B. Abram:

Yes, Your Honor, and that —

Byron R. White:

(Inaudible)

Morris B. Abram:

Yes, Your Honor.

You see, I am in an area right now and perhaps I should say that.

I don’t really — on my premise of this case, I do not really — I really shouldn’t be arguing the question of what kind of classifications based on geography or based on other things should be permitted.

My point is that none of this is permitted.

But if the Court, if the Court believes as the lower court did that some kind of weighting can be given.

I am trying to define the standards at least from my viewpoint which would be more proper than others or less improper than others.

William J. Brennan, Jr.:

Now, you say none should be submitted, speaking now only with primary elections?

Morris B. Abram:

I am speaking of a primary election and I think it would apply to the general election too, Your Honor.

William J. Brennan, Jr.:

Well, I understand.

Would you apply it necessarily?

You don’t have to (Inaudible) as a matter of legislative representation?

Morris B. Abram:

Sir, I don’t think this case really involved a necessary representation and I haven’t thought out what the standard should be in the field of legislative representation.

I don’t want to enter that field, if I can avoid it because —

William J. Brennan, Jr.:

That’s why — that’s why —

Morris B. Abram:

Yes.

William J. Brennan, Jr.:

I thought your argument was that whatever it might be in the area of —

Morris B. Abram:

Yes.

William J. Brennan, Jr.:

— legislative representation, in this area —

Morris B. Abram:

That’s right.

William J. Brennan, Jr.:

Your position is that there ought to be no weighting of (Voice Overlap) —

Morris B. Abram:

That’s correct, that is exactly my position.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

I thought I said Your Honor, I thought I said, some may think it is permissible on the grounds of history, and certainly there is a — there has been a traditional sense.

But I do not have any definitive views with respect to what property qualifications, how much property qualifications, what educational levels.

My point is that we don’t have that in this case because we have established two qualified voters are and the sole question here is whether a man who happens to live at one particular place shall have seven votes and another man a half.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

It could conceivably be.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

It could conceivably be.

Potter Stewart:

Georgia had a poll tax from (Inaudible).

Morris B. Abram:

Georgia had a poll tax for many years.

It abolished the poll tax.

Now, in the Georgia system — I’m sorry — I’m — I didn’t — I weren’t referring to the question which I left, any classification which produces substantial discrimination and is irrational in a sense of capriciousness, no rhyme or reason, I would say is a violation of the Equal Protection Clause.

Irrational may also mean that it may have a pattern, but seeks to achieve some kind of an impermissible state policy which is another way of saying that the discrimination is directed in hostility towards certain groups.

Now, the Georgia system has a discriminatory object and a capricious impact.

There is no pattern that you can discern in this system except that the larger the population, the less the vote of each voter shall be counted.

But, the system also can be viewed as discriminating as amongst counties in roughly the same population groupings, and in roughly the same geographical areas.

On page 22 of our brief, we point out some mountain counties.

Now, these counties are all small counties in the mountains.

Dawson, one vote for 1795 population, Towns one for 2269, Lumpkin, one for 3620, Rabun, one for 3728, Pickens, one for 4451, Franklin, one for 6637.

Then, you can go down in the Southwest section of the State, the old plantation belt and you will find discrimination ratios as great amongst those counties sirs as 1 to 1200 to 1 to 6500.

Then you can take the counties, this one is just on a random, that Board of the State on Florida and the discriminations ratios run from 1 unit assigned to 938 votes to 1 unit assigned for 8211 votes.

You can take it within Congressional districts and you will find counties adjoining each other in a Congressional district which has some maybe historical grouping.

You will find Crawford County adjoining Bibb and Crawford has one vote for 2900 and Bibb one for 11,000. Echols County adjoins Lowndes in Eighth Congressional District, Echols has 1 for 938 and DeKlab has 1 for 12,850 and so it goes.

Now actually, how much rationality is in the system?

In the lower court, a counsel was asked by one of the three judges.

Now, I am asking you, what was the purpose of making it all the way through, less units for thousand as the counties got large, rather than making it the same unit for a 1000?

What was the purpose behind that, the court asked.

Morris B. Abram:

Counsel replied, “Well, I don’t know.”

The legislature passed this bill.

We have to take it whether or not it’s valid and understandable by what it says.

The State does not suggest directly any permissible ends or state policy which could justify this classification.

And I am perhaps straining at an implication when I suggest that their brief and their argument here today, because it quoted Harrington Mills, suggest that there may be two.

They quote Harrington as saying not until the French romanticism was there any serious questioning of the principles of economic basis of politics.

Now, if this system has some economic base presumably, it’s based upon the distributional of property or income or something like that, but if you will look at the Hammer affidavit on page 157 and 158 and nine of the brief, you will find that those counties that have the least personal income had the most votes.

Those counties have at least distribution of wages and farm products have the most votes and those counties that have the least property have the most votes.

And in each case, the growth, the progression of affairs is running against the counties that have the most votes.

Potter Stewart:

So, this — certainly, arguably and nothing irrational and having a reverse twist on economic (Voice Overlap) —

Morris B. Abram:

It’s not the historical basis though.

Potter Stewart:

No, but they —

Morris B. Abram:

That they were arguing it on a historical basis.

Potter Stewart:

If the state, I suppose, arguably could decide that we want the have-nots in the state to have more representation than they have because they are the ones who need the legislative help?

Morris B. Abram:

They could argue it, but as far as I am concerned, I would feel the argument is not correct.

Potter Stewart:

I don’t know that it has been argued in this case.

Morris B. Abram:

It has not in this.

But they do argue the second point very affirmatively.

They say that with regard to education, and this is the way they put that, quoting Mill, “However, frequently overlooked as Mills’ insistence that vote should be weighted according to competency.”

And then they quote Mills directly, “It is not useful but hurtful that the Constitution of a country should declare ignorance to be entitled to as much power as knowledge.”

Now they come out on one side of that question.

Now, what’s the record show?

The record shows that in the counties that have the least voting power, you’ve got the highest median educational levels.

In the old six-unit counties, you’ve got 10.66 being the median educational level and in the two-vote counties, you’ve got two-and-a-half years less.

Truth is that the record only shows one basis, hostility against people, the more people, the less the vote and the more the discrimination.

Now, I think this is the kind of a case which was alluded to, though not directly by Mr. Justice Harlan and Mr. Justice Frankfurter in Baker where they said, of Baker, this is not a case in which a state has through a device, however, sophisticated and oblique, denied Negroes or Jews or red-headed persons a vote or given them only a third or sixth of a vote, that was Gomillion versus Lightfoot.

This is a case — leaving aside the racial elements, this case in which as state had deliberately given people on a basis not on their education, not on any basis if they are willing to stand up and tell us a half a vote or seven-and-a-half votes and that feels discrimination.

I must admit that there is a presumptive validity to state legislative acts, but once you have demonstrated the kind of discrimination implicit in this case in which a majority — I’m sorry, in which a man maybe or in which a — 50% of the people have only 31% of the units and in which it is mathematically possible to find a Governor elected by 50.5% of the votes in a two-man race and 6.1% of the votes in a five-man race.

Once you’ve demonstrated this, I think there was some burden on the State to put something in this record and they put not a word.

William J. Brennan, Jr.:

If you’re right Mr. Abram, on this record, I gather we don’t have to reach the question whether unit system per se violates the (Inaudible)

Morris B. Abram:

You mean whether unit systems are which —

William J. Brennan, Jr.:

Per se.

Morris B. Abram:

Per se?

I think this about it.

I don’t think you have to, but I will tell you why I have argued it.

I believe the Court is going to — probably want to write an opinion on the case rather than just a per curiam order.

Now, if it writes an opinion, I assume that it would want to set guidelines on the basis of what the law actually is, and the way the Constitution should be interpreted and I think therefore it’s important to argue the point of constitutionality per se.

Potter Stewart:

How wide of an impact would this case have if there — am I right, in understanding from the briefs that there are only two other states in the union that have any approximation of this?

Morris B. Abram:

I have never heard of any other states having any approximation to it except the State of Maryland and the State of Mississippi.

Potter Stewart:

Mississippi.

Morris B. Abram:

And the State of Maryland of course is a two-party State.

Legitimately, the State of Mississippi I think you all agree is a one-party state, except in presidential years.

Tom C. Clark:

On your Classic argument (Inaudible)

Morris B. Abram:

Sir?

Tom C. Clark:

On your Classic argument.

Morris B. Abram:

Yes, yes.

Now —

Potter Stewart:

Is that — does any state ever had the — this kind of system in the general election as distinguished from the primary?

Morris B. Abram:

No sir, but —

Potter Stewart:

Majority?

Morris B. Abram:

But there was another unit system which I’m going to talk about in just a minute, Houston, Tennessee and stricken by their Supreme Court in 1937, I want to get into that in just a minute.

I want to refer the Court to the language of a case which I think has been frequently overlooked at least by me.

Mr. Justice Bradley in Missouri versus Lewis at 101 U.S. spoke these words.

“It is not impossible that a distinct territorial establishment and jurisdiction might be intended as, or might have the effect of a discrimination against a particular race or class, where such race or class should happen to be the principal occupants, just happen to be the principal occupants of a disfavored district.

Should such a case ever arise, it will be time enough then to consider it.”

This at least is such a case.

I might point out that on the merits, every Justice of this Court and every judge below who has ever considered the county unit system on its merits and thought it to be a justiciable issue has ruled it unconstitutional.

That was the opinion of Mr. Justice Andrews in South versus Peters.

It was the opinion of Mr. Justices Douglas and Black in South versus Peters.

It was the opinion of the three-judge court below in this case and it was also true with regard to Tennessee’s Supreme Court in Gates versus Long decided in 1937.

Morris B. Abram:

Now, I’d like to go into that case in just a minute.

Tennessee erected a unit system by statute for a use in its primaries and under this system, every county had the same proportionate number of unit votes as its proportion was to the population as a whole with this exception.

No county should have more units than one-eighth of 1% of its population.

We have done an analysis of how the county in the system in Tennessee would have assigned units under the county unit system in Georgia?

How Georgia will assign units.

That appears in our brief.

Under the present unit law under attack in Georgia, Echols County has two units and Fulton has 40.

Under the Tennessee law, Fulton would have 695 and Echols would have three.

Yet applying the Equal Protection Clause, the State Supreme Court of Tennessee declared that system unconstitutional.

There has been some allusions and I am sure that the Court’s thoughts will naturally turn to MacDougall versus Green and I think I should pay some attention to it.

The case did not say as I think my Brothers would agree that there is some room for geographic distribution of voting strength.

It stands only for a principle or permissible geographic distribution of voting initiative which is an entirely different thing.

Potter Stewart:

Those were nominating petitions, were they?

Morris B. Abram:

Yes sir, nominating petitions.

Now in that case, they rose under the desire of the Progressive Party in 1948 Government ballot and the law in Illinois required that you get 25,000 signatures, but of those 25,000 names, at least 200 had to come from each of 15 counties in the State.

Now, there are 102 counties in Illinois at the time and the record demonstrates that you could get 61 — I’m sorry sir.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

Well, sir, the first point about it is not a geographic test with regard to voting, but only with regard to political initiative.

Arthur J. Goldberg:

(Inaudible)

Morris B. Abram:

I’m not going to argue that the case was correctly decided, but I do say that under the principle of that case, there is a vast distinction between this case and the MacDougall case, the first distinction being political initiative rather than voting, and the second being the bite of the system.

For example, under the Illinois system, Cook County had 52% of the population by the 1940 census and you could get 61% of the signatures under that law from Cook County.

There were at that time at least 49 other counties with more than 25,000 population which meant that to get 200 signatures in each of these 49 counties leaving aside the 51 other counties that you could’ve gone to, you would’ve been getting only eight-tenths of 1% of the people to sign your nominating petition.

And this Court apparently thought it was a reasonable device.

Now, I would like to turn for a moment to the Seventeenth Amendment claim.

The language of the Seventeenth Amendment on this point is clear.

The Senate of the United States shall be composed of two Senators from each State elected by the people thereof and it doesn’t stop there.

It was very careful to decide and to determine who those people shall be, it said this.

The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

It said, the State can determine who these electors shall be and Georgia has.

Georgia has said it in these words of its Constitution.

Morris B. Abram:

Every citizen of this state who is a citizen of United States, 18 years or upwards not laboring under any disabilities named in this article and possessing the qualifications provided by it shall be a qualified voter.

So Georgia has now decided who the elector shall be under the Seventeenth Amendment.

Now, having decided who the elector shall be, the state legislature has determined that these electors shall not elect the United States Senator from Georgia.

He is in fact and has been in fact since Reconstruction, elected by not living human beings or qualified electors, but by county units and a unit is not a person.

There is no way to change a unit into a person and if the legislative history of the Seventeenth Amendment demonstrates a desire to get rid of the indirect election of Senators, this system of course grabs an indirect election upon us.

I should like to conclude by saying —

Potter Stewart:

Seventeenth Amendment says Senators shall be elected by the people of the State?

Morris B. Abram:

It says, “The Senate of the United States shall be composed of two Senators from each State elected by the people thereof.”

Potter Stewart:

Of course that can’t mean literally what it said with people (Inaudible) —

Morris B. Abram:

Then it says with the people shall be — then it says the electors (Voice Overlap) —

Potter Stewart:

A 5-year-old boy can go up and say I’m —

Morris B. Abram:

It says the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Potter Stewart:

Alright.

Morris B. Abram:

But my point is that once a State has made that definition, it then grabs upon the people who are defined as qualified voters, a right then secured by the Seventeenth Amendment to vote for the Senator of United States.

William J. Brennan, Jr.:

Mr. Abram, if we were to agree with you on this point, would that be enough to dispose of this case without touching the State office?

Morris B. Abram:

No sir, because you would then have state elections for Governor, Lieutenant Governor, for the judges of all of our higher courts, the Commission of Agriculture, the man who sets the fire insurance rates, the Comptroller General, all of these offices would then be elected by county units.

Tom C. Clark:

Those are all statewide offices?

Morris B. Abram:

They’re all statewide offices.

You see sirs, every statewide officer in Georgia who sits in the Capital and administers our law and runs our government from the Chief Executive going down is elected under the unit system under the Act as amended.

The U.S. Senators are also elected.

Now, the Congressmen, the statute does not provide that the Congressman shall be elected by a county unit system, but under practice —

William J. Brennan, Jr.:

You’re quite right Mr. Abram that it’s the same statute that applies to the United States Senator and the others.

Morris B. Abram:

Yes, that’s right sir.

William J. Brennan, Jr.:

Well, if we agreed with your argument regarding the United States Senator, wouldn’t that be sufficient to affirm this injunction without referring to it.

Morris B. Abram:

But I should suggest sir, if you put it on that ground, on that ground alone, while you would have upheld the judgment below, I would say there might be room and certainly as long as there’s light and there’s hope for passing the statute that limited itself to the Governor, Lieutenant Governor and the other important officers —

William J. Brennan, Jr.:

You mean you don’t — would be back here again?

Morris B. Abram:

No sir, for this reason sir.

There had been about five county unit cases that have attempted to reach this Court and every time we tried to reach this Court, we tether between mootness and prematurity.

If we file the petition in equity, pertaining to our election before the State Democratic Executive Committee has met to determine whether there shall be a primary, we are met at the threshold by the argument but we don’t know whether we’re going to have a primary or not and you are premature.

But if we wait until at the last minute, they decide to hold a primary which means the unit system then applies, then we are in a great race to get to this Court, because otherwise under the doctrine of U.S. versus Anchor Coal Company, we then — be moot which is the way we read the disposition of the original county unit cases in this Court.

Morris B. Abram:

So consequently, we are constantly tethering between prematurity and mootness.

This is one of the few cases that in which there was enough speed below to afford a relief and an opportunity to reach this tribunal.

Tom C. Clark:

What do you say the practice in the congressional race it was?

Morris B. Abram:

The practice there Mr. Justice Clark is this.

Under the rules of the party whether or not the unit system is employed in a congressional primary depends upon the decision of the democratic executive committee which governs that primary.

That committee by the way is always named by the incumbent Congressman provided he is a democrat, incidentally all are Democrats, is named by the incumbent Congressman.

So the Congressman does have under this system a way of determining under which system I want to run.

Whether I want to get elected by unit votes or whether I can best throw myself on the wishes of the people.

Potter Stewart:

Nominated technically (Voice Overlap) —

Morris B. Abram:

Nominated, yes sir, nominated.

The word should be nominated, but I might add sirs that we have a case now pending in the Federal District Court of the Southern District of Georgia, it has been pending I might add for over two years there, a damage suit based upon a Congressman’s having been elected with less than a majority of the popular vote and though he got a majority of the unit votes.

Tom C. Clark:

Some districts (Inaudible)

Potter Stewart:

Yes sir, and if one wants to argue the electoral college analogy, I am perfectly agreeable to going into it.

But I don’t think it’s apposite for the reason that it’s — as Mr. Justice Stewart pointed out, it’s something that came out of the Twelfth Amendment and this of course predated the Fourteenth Amendment.

The Seventeenth Amendment argument necessarily depends upon this proposition that — this is an election rather than a nomination.

Morris B. Abram:

Yes sir.

Potter Stewart:

Does it (Inaudible)

Morris B. Abram:

It has to go on the principles in the Classic case that it’s tantamount to an election.

Potter Stewart:

Well, it is not more than tantamount but it is.

Morris B. Abram:

That is the election.

It is the election where the Senator is elected in Georgia.

It is undoubtedly true that as a legal proposition he could not — and he could not —

Potter Stewart:

He couldn’t take office after that — after the —

Morris B. Abram:

But that’s where he has been elected.

Byron R. White:

Well, Mr. Abram, as I — you didn’t cross petition here, did you?

Morris B. Abram:

Sir?

Byron R. White:

You didn’t cross petition —

Morris B. Abram:

No sir.

Byron R. White:

— here and — so, you’re perfectly happy with the discriminations that are built into the — and allowed by the decree below?

Morris B. Abram:

I am not happy about them sir, but I’ll want to be perfectly candid to the Court.

Morris B. Abram:

I knew and I still that no unit system that discriminates a little bit will ever be adopted by the Georgia Democratic Party because unless it discriminates a lot, there is no magic in it and there is no profit from it.

Byron R. White:

But doesn’t be really the decree below to the extent that it does allow a discriminatory system?

Doesn’t it really violate some of the things you have been arguing here?

Morris B. Abram:

Exactly.

I couldn’t agree with the Court more.

I think the decree below in avoiding the system as it was then in use was thoroughly right and correct and should be affirmed.

But if the Court goes into the question of whether or not if this advice as to how a unit system could be constructed is or is not proper, I would say that the system they have suggested is improper.

Byron R. White:

Well, the State as I understand in your brief suggest that the — that — and the Government suggests that some part of the decree be eliminated —

Morris B. Abram:

The Government —

Byron R. White:

That part of the injunction.

Morris B. Abram:

The Government says if I — the Government will speak through the Attorney General —

Byron R. White:

Well, (Voice Overlap) — what do you think about that?

Morris B. Abram:

The Government’s suggestion is that the Court should not do any more than affirm the invalidation of the Neill Primary Act as an amendment that the rest of the opinion is an advisory opinion and was improper to be put either in the opinion or the decree.

My judgment is, my view is, that — and I am the one with the Government on this, the decision below was correct in invalidating the county unit system as amended.

But it was incorrect when it suggested that a county unit system could be devised and used in this franchise field.

But, my view is — further — goes further than I understand the Government’s view —

Byron R. White:

I understand.

Morris B. Abram:

I say that when the Court writes its opinion, it should say that no unit system, this or any other is constitutional under the Fourteenth and Seventeenth Amendment.

I should like to conclude Your Honors by saying this.

It’s been foreshadowed by some conversation already.

The thing I’m going to say and that is that the worse that can happen, if this Court upholds the court below is that everybody in Georgia can have a vote who has been declared a valid qualified voter by the Constitution of the State.

And furthermore, I do not think there is any way that you can uphold this system even if you don’t say a system is per se unconstitutional, until you can say that two equals four or feel that 50 cents is the proper amount of change for a dollar or that you can give eight ounces per pound.

I think a qualified voter is a qualified voter, is a qualified voter and a vote, is a vote, is a vote.

Earl Warren:

Mr. Attorney General.

Robert F. Kennedy:

Mr. Chief Justice, may it please the Court.

I would first like to state the interest of the United States in this case.

Declaration of independent states a principle which is basic to our American way of life, namely that governments derive their just powers from the consent of the people.

In periodic elections here in the United States, we select our leaders.

If we become dissatisfied, we select new leaders.

So therefore, the free and unencumbered exercise with a franchise is basic to American system.

Robert F. Kennedy:

We believe that this free and unencumbered exercise with the franchise is under serious challenge in an arbitrary, capricious and discriminatory fashion in the State of Georgia.

But we believe that this evil is not confined to the State of Georgia as the Court heard in the Tennessee cases last term.

Districts have been so arranged in certain areas of the United States that an individual in one area has 10, 15, 50 or 100 times the vote strength of an individual in another area.

The United States Government has a responsibility to do all in its power to ensure that those who have been disfranchised in whole or in part that that right is restored to them.

That in this effort to also restore some confidence in representative government where this kind of practices exists.

In Baker versus Carr, this Court has determined that the weighing or dilution of votes through malapportionment was justiciable in the federal courts under the Fourteenth Amendment.

This is the first case in which the Court has been asked to pass upon the major substantive constitutional issue.

Therefore, the principles enunciated in this case will have an effect on millions of Americans who have been deprived in whole or in part of their franchise.

The issues involved in this case really are relatively simple.

First, as far as the facts are concerned, there has been a gross and arbitrary discrimination against the voters who live in the urban areas in favor of those who live in rural areas.

And number two that that gross discrimination is in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Beyond that, we don’t feel that it is necessary for the Court to go.

We don’t think it’s necessary for the Court to accept some hypothetical variant to this system which the Georgia legislature may pass in the future.

We don’t think that the Court should limit its future actions in this field by accepting a standards — standard which may or may not be applicable to other states under other circumstances in other parts of the union.

In this case, Mr. Chief Justice, the discrimination is gross, but before I get into a discussion of that, I would like to discuss just briefly about what we feel the scope of this case is in view with some of the questions that has been raised.

First, we are not against a county unit system as such.

We are against the Georgia County Unit System because it discriminates against those who live in urban areas in favor of those who live in rural areas.

And number two, we’re not saying or contending that under all circumstances in every situation, that every vote must be given equal weight.

If you have a unit system or if you have a representative form of government with Representatives that elected to the legislature other than statewide election, you’re bound to have some departure from exact equality.

Further, there are other theories of representation.

You might take into consideration geography, you might take into consideration historical background and you might take into consideration economic interests and a number of other matters.

These kinds of departures — perhaps they are harmless or perhaps they are necessary or perhaps are unavoidable.

The fact is in the Georgia County Unit System however that the departures are not harmless, are not unavoidable and are not necessary.

Further, I think that we should remember that we are considering here a statewide election for statewide offices.

We’re not — we don’t have to get really involved in various theories of representation.

Here is one man, one vote.

You can have equality.

We feel that, however, if you depart at all from this equality that it should meet the most exacting test, it should be subject to the most exacting test and that we feel at a minimum that test should be — that the departure should be minimal.

And number two that it should be — to further some part of the elective process.

We feel that what has happened in the State of Georgia under the Georgia County Unit System is not a departure that is minimal, is not harmless.

Robert F. Kennedy:

Let me just give you some examples.

If you live in one of the eleven smallest counties in the State of Georgia, your vote is worth seven-and-a-half times an individual who lives in one of the four larger counties in the State of Georgia.

If you live in Savannah, Georgia, your vote is worth four times if — if the — you have to get four votes in Savannah, Georgia to offset one vote in Glascock County, Georgia.

If you live in Fulton County, Georgia with Atlanta, you have to get 14 votes to offset one vote in Echols County.

A third of the populations living in the smallest county in the State of Georgia have a majority of the unit votes.

We used to have, and I repeat used to have, a saying in my City of Boston which was vote early, and vote often.

If — if you live in one of the small counties in the State of Georgia, all you have to do is vote early and you accomplish the same result.

Conversely, a majority of the population living in the larger counties in the city — in the State of Georgia have only a third of the unit votes.

If you live in one of the large counties in the State of Georgia, you’ve got one unit vote for every 12,889 people.

If you live in one of the smaller counties, one of the eleven smaller counties in the State of Georgia, you have one unit vote for every 17,115 people.

If you live in one of the 116 of the smallest counties in the State of Georgia, you have 251 unit votes.

But the same population in the four largest counties in the State of Georgia, approximately the same population has only 90 votes, a discrimination of almost three to one.

Now, this is — this kind of discrimination is unfair as giving everybody who lives in the Eastern part of the state 10 votes for every person who lives in the Western part of the state or people who have red hair five times their vote value of those who have blond hair or those who have white skins, 10 times the vote of those who have dark skin.

And this voting disparity has had a major result in the State of Georgia.

If you’re living in Fulton County, you pay — in 1960 you paid about $80 million in taxes to the State of Georgia.

That from the State of Georgia to Fulton County came approximately $22 million.

The other $59 million was used elsewhere in the State of Georgia mostly for the smaller counties.

If you live in one of the seven largest counties in the State of Georgia, you paid in 1960 a $160 million worth of taxes, $60 million of that was used elsewhere in the State, $60 million, excuse me, was used in those eleven counties.

The rest of it, the $100 million was used elsewhere in the State.

Now, what happens in Echols County?

Echols County paid $82,000 in taxes in 1960, but they received back from the State $280,000.

If you live in one of the eleven smallest counties in the State of Georgia, in 1960, you paid $2 million in taxes to the State of Georgia, back from the State however, you received $4,500,000 in taxes.

A person living in Fulton County, the State there — the county there pays $3.66 for every dollar they received back from the State.

But if you live in Echols County, you receive back from the State $3.40 for every dollar that you paid in.

The per capita tax in one of the largest — in the largest counties in the State of Georgia in 1960 was $77 per capita.

In the smallest counties in the State of Georgia, it was $19 per capita.

And yet what you received back from the State of Georgia, if you lived in one of the largest counties in the State of Georgia, you at least received back $22 per capita and if you lived in one of the largest counties, you received back $69 per capita.

Well, I’m not contending here that this money that was used by the State of the Georgia in these smallest counties was not for good purposes.

I’m not contending that there should not have been perhaps some discrimination between the taxes that were being paid by the larger counties and the smaller counties because the larger counties are better off financially.

But I do say that if you’re — if the large counties of the State of Georgia are going to pay the bills for the small counties, certainly their vote should count as much.

Robert F. Kennedy:

Certainly when you consider what has happened in Fulton County and Echols County, a vote in Echols County being worth 14 times the amount of the vote in Fulton County.

We hear and we talk a great deal about state’s rights, but to turn the coin of state’s rights over and you get state’s responsibilities.

There are many things that need to be done in the major metropolitan areas of the United States or problems of the urban renewal, of the purification of water, of transportation, of education, of juvenile delinquency and many of these problems are being ignored.

And while you have a system as you have in the State of Georgia or on the Georgia County Unit System where there is the great advantage for those who live in the rural areas in favor of those who live in the urban area.

The people in the urban areas are always going to figure and figure correctly that they are second class citizens and those in the rural areas are the ones that are going to reign supreme.

Byron R. White:

Well —

Earl Warren:

General —

Byron R. White:

— Mr. Attorney General — excuse me.

Earl Warren:

I’m just going to ask General, do you believe that there is any place in a state system of voting for weighting the votes in the general elections for Senator or Governor or the general state offices?

Robert F. Kennedy:

Mr. Chief Justice, I don’t think it’s necessary for us to reach that point.

I do say that although I have given it a great deal of thought, I have difficulty coming up with any system that makes any sense which is a unit voting in connection with a statewide election.

As I say, I don’t think it’s necessary to reach that point and as I said a little bit earlier, what we are contending here is about the Georgia County Unit System.

But I do have a difficult time coming up with any meaningful unit vote as far as the statewide elections go.

William J. Brennan, Jr.:

Well, Mr. Attorney General, is the — what was — what is the Government’s view if we were to agree with the argument addressed in the Seventeenth Amendment as — respects to nominations for the United States Senate and can sustain the injunction addressed to the statute on that ground.

Would the Government think we ought to reach all these other questions (Voice Overlap)?

Robert F. Kennedy:

Yes, yes.

Because the order goes beyond — the order of the lower court goes beyond just the election of the United States Senator, Mr. Justice.

And what is involved here is a statewide election for all of these other offices and I —

William J. Brennan, Jr.:

Well, is this a suggestion then that indeed we can’t dispose of the case only on the Seventeenth Amendment?

Robert F. Kennedy:

That’s correct.

Potter Stewart:

You don’t express any position on the Seventeenth Amendment in your brief, do you?

Robert F. Kennedy:

No, we do not.

We don’t think that it’s necessary to reach that.

Potter Stewart:

I understand.

Robert F. Kennedy:

Now, the justification that has been offered for this discriminatory system is that those in the rural areas are not as able — well-able to organize themselves that they don’t — they are not as articulate as far as politics is concerned and they don’t take as active interest in politics.

I think that that contention does not bear upon to the facts.

I think that anybody that is in public life that has represented a rural area is found that his constituents are articulate, are vocal, are strong and well-able to take care of themselves.

I think that the statistics at least of the elections in the last few years have shown that those in rural areas take a very active interest in politics.

For instance, in the 1960 election, the — it was five states which were primary rule in the United States which led all the others as far as vote participation.

Idaho with 80.8%, New Hampshire with 80.6%, Utah with 80% and the two North Dakota and South Dakota with approximately 79%.

Robert F. Kennedy:

The City of New York, 59% of the eligible voters voted in the election in 1960.

Outside the City of New York, however, was 77%.

Approximately 50% of the people in Newark, New Jersey voted in the election, but outside the City of Newark, the percentage was far, far higher.

In Illinois, the vote in the down state counties of Illinois, the rural county was much higher by and large than the wards of Cook County, Chicago, Illinois.

The contention is what they’d — that they don’t vote as much as a block.

They don’t vote as much as a unit.

They don’t get together as much.

I don’t think that that is borne out either.

Of the 75 counties in the 1960 election in the United States which voted for more than 80% for one candidate or another, all but one of those 75 counties was a — had a population of less than 50,000.

But even assuming — even assuming that this contention was correct, Mr. Chief Justice, I still don’t think that it bears up.

It’s a — we put a great premium in United States on participation in elections, getting together and organizing them.

And if we — if the State of Georgia can penalize those who are well-organized, there is nothing to prohibit a State from penalizing the members of the American Medical Association for being better organized and housewives for instance.

Or even members of labor organizations because they happened to be better organized than say, some other group.

Arthur J. Goldberg:

(Inaudible)

Robert F. Kennedy:

I don’t think it would be constitutional and I don’t think that would be wise.

John M. Harlan II:

General, do you — do you — do you — the District Court as I read its opinion did not strike down the county unit system as such like it was careful to say that it was not doing so.

Do you — does the Government’s position is if the — is it the Government’s position that the system as such is unconstitutional?

Robert F. Kennedy:

No, the Government’s position of that subject that does not have to be reached by the Court.

We can think that this county unit system should be struck down as it’s been put into operation.

We don’t think that the Court need approved, as I said, some other system which may or may not be put into operation by the State of Georgia.

John M. Harlan II:

What — what you’re suggesting as I understand it is that the District Court’s decree in its advisory apportion, as that term is used that it would be modified by striking those out — those provisions out that the present county unit system as applied so to speak, as devised should be struck.

And without any indication as to what might meet the Court or that it might meet the constitutional standards if the legislature re-met and substituted four instead of three and five instead of six, (Voice Overlap)?

Robert F. Kennedy:

Yes.

John M. Harlan II:

Is that — is that it?

Robert F. Kennedy:

That’s correct.

We think that if the — it’s — be clear and starting really with the Tennessee reapportionment case and we hope in this case that what the ideal is, one man, one vote.

That number two, that if there is any variation of this that it has to be to further the elective process, that idea can be followed by states.

The reasonable men in our state legislatures and those who have the responsibilities in our state can follow that.

We don’t think to try — if — or the Court to attempt to set up a standard which is going to be applicable in Massachusetts and California and the State of Washington and Florida or in Texas is impossible.

These people know their states.

Robert F. Kennedy:

They know what the history and the background of it is.

They can pass a law which would be discriminatory.

We feel that what has happened in the State of Georgia that this is discriminatory.

But I think as a men of good will that they will make an effort by and large throughout the State to pass a law which is their, an equitable law for the citizens now that the Supreme Court has passed on this matter.

Arthur J. Goldberg:

(Inaudible)

Robert F. Kennedy:

No, because we have the courage of it Mr. Justice.

We just don’t think it’s necessary to say at the moment.

John M. Harlan II:

You also (Voice Overlap) —

Robert F. Kennedy:

And we state that this county unit system is invidious.

In answer to the Chief justice, I said that I couldn’t — I could not give you a description of one that does not raise all kinds of problems, but I — there might be a state where the lawmakers for historical reasons, geography, for other factors that I’m not aware of at the moment who could come up with a unit system which would make some sense.

So, for — I just think that it’s not necessary to go beyond —

You can’t conceive it.

Robert F. Kennedy:

I cannot conceive it.

Byron R. White:

Well now, why is it — Mr. General, why is it so clear that the (Inaudible) — this particular system is so bad?

Is it (Inaudible) — the Government’s position that there is no scheme at all in this system that isn’t a crazy quilt without any reason or is it that it’s so clear and so — is there so much of a pattern of discrimination against urban areas?

Robert F. Kennedy:

I think (Voice Overlap) —

Byron R. White:

(Inaudible)

Robert F. Kennedy:

I don’t think it’s a crazy quilt.

Mr. Abram has pointed out that there were discriminations within groups, but I think that as a general proposition that this is a systematic discrimination and I think it’s been the —

Byron R. White:

So the more — the more rural an area is, the more weighted votes gets.

That’s the whole spectrum of discrimination.

Robert F. Kennedy:

That’s correct, in favor of those who live in rural areas and against those who —

William J. Brennan, Jr.:

So essentially, it is a rural-urban discrimination in the Government?

Robert F. Kennedy:

That’s correct.

In favor of those who live in urban — in rural areas against those who live on —

Byron R. White:

You say its — do you say the Government’s position is that beyond the power of the legislature of Georgia to prefer a rural voter to an urban voter?

Robert F. Kennedy:

Yes.

Potter Stewart:

At least in an election of this kind of a statewide election of executive or judicial officers with statewide constituency.

Robert F. Kennedy:

That’s correct.

Potter Stewart:

You — as I gather, you’ve implied there might be different considerations and other considerations in legislative apportionment within a state?

Robert F. Kennedy:

That’s correct.

John M. Harlan II:

(Inaudible)

I thought you recognized that the urban country consideration was a factor that could be taken into account, didn’t have to be scooted per se, but that it was over-weighted here or as applied here, it was enough reason for discrimination.

Robert F. Kennedy:

Well, I think that it can certainly in — if you were having a representative kind of election, Mr. Justice.

But none in statewide elections.

We don’t think that this is in furtherance of the elective process.

Now, as I say that this discrimination here as put into effect is gross and number two, that it’s not in favor, it’s not — does not further the elective process.

Those — that’s the test that we apply to any kind of — where there is a differentiation in the weighing of voting.

John M. Harlan II:

So that (Voice Overlap) —

Robert F. Kennedy:

This is different.

As has been pointed out, this is different than when you have an election that involves a representation of members to the House, to the legislature up to the Upper House in the State.

Earl Warren:

Well, in one situation, in the legislative situation, you have representations, but when you have a statewide election, you — there’s no necessity for weighting votes.

They — you vote for one office to represent not the districts but minorities or majorities but to represent the entire State, is that the — isn’t that the —

Robert F. Kennedy:

That’s correct.

Earl Warren:

— the difference between the two, General?

Robert F. Kennedy:

That’s correct.

And the — another justification that has been used for this kind of practice in the State of the Georgia is that one area or one county will still dominate the State that — that would be — the rest of these voters in the State will be overwhelmed.

That — that’s — really doesn’t bear up because the biggest county in the State of Georgia is Fulton County with only 14% of the vote.

Well then if they say that’s the geographical area, well, the DeKalb County borders which is the next biggest county borders on Fulton County, but the rest of the large counties are spread around the State.

For instance, the third biggest, the Chatham County which contains Savannah which is on the East Coast and you have Muscogee County which is the fourth largest county, and that is on the west side of the State.

Bibb County is the fifth largest and that’s in the central part of the State and the rest of them are all spread around.

So it’s not any geographical group that could so dominate or control the State which would cause this danger.

And it’s hardly a justification for penalizing those who live in these major metropolitan areas, penalizing their vote strength by 50% and rewarding those who happen to be, maybe who live just a few miles away in a small rural county who is only comparative virtue appears to be that they live in a area that has a small population.

Byron R. White:

(Inaudible) the real — really meaningful figures is not to be the population of the counties, the numbers of Democrats or Republicans in the Primary.

They really got a weight.

(Inaudible) strength of the counties, you ought to do it over the number of people voting in that primary, shouldn’t you, rather than the population.

Robert F. Kennedy:

So, I think that that’s (Voice Overlap) —

Byron R. White:

And isn’t that — isn’t that a significant factor in some counties of Georgia or isn’t it?

Robert F. Kennedy:

Yes it is.

That gets — when you consider that factor, it gets into many other problems which are not involved here.

Robert F. Kennedy:

There are some counties, that rural counties which vote a very high percentage of their population.

Frequently, they have a low Negro population.

Byron R. White:

And if they —

Robert F. Kennedy:

The one that have —

Byron R. White:

Suppose the number of Republican voters in Georgia is not large enough to make this (Inaudible)

Robert F. Kennedy:

It’s not very large.

Byron R. White:

In any county?

Robert F. Kennedy:

In any county.

Byron R. White:

There’s apportionment (Inaudible)

Robert F. Kennedy:

Not any — it’s not in (Inaudible)

Earl Warren:

General, in Georgia, is there any power in the people to initiate a constitutional amendment or must it come from the legislation?

Robert F. Kennedy:

There is not.

Earl Warren:

It must come (Voice Overlap) —

Robert F. Kennedy:

Must come from the legislature.

Earl Warren:

From the legislature itself.

Robert F. Kennedy:

Now, it’s a — didn’t argued also that this is comparable to the electoral college, Mr. Chief Justice and that you have some variance in the electoral college and so that therefore you should also have it here or can have it here.

I don’t think that really bears up.

I don’t think the analogy is correct because there is a far difference, a great difference between the states who gave up their sovereignty and there were concessions made.

When they gave up their sovereignty to create the United States, one of the concessions that was made to them was the fact that they would have the equivalent vote in the electoral college, equivalent to the number of Senators had — they had plus the numbers of Representatives they had.

Now this, I — I’m in disagreement with the brief of the appellants and the argument of the appellants that this was all like problem between the English system and the French system and Thomas Jefferson and Adams and others were involved in determining whether they really believed in democracy or not.

There wasn’t any question about believing in democracy but the struggle at that time was between the large states and the small states.

And there wasn’t anybody that contended that there was greater democracy in one state over another state, but there was this problem between large states and the small states.

The idea that there was this English-French system, that really wasn’t taken up, I don’t think it’s borne out by a study of the debate of the constitutional convention.

The English-French system and the merits of them were taken up after the constitutional convention rather the — it might be that there’s some confusion about Mr. Harrington, Mr. Harrington, who was a quoted, lived in the 18th Century.

And I believe that quotes come from Mr. Parrington’s book who was a — wrote about the American Scene in the 20th Century.

So, some of the confusion might arise out of that.

There is also contended that we don’t really have enough cases for the Court to pass on.

That there is — there hasn’t been enough litigation in connection with this matter for the Court to make any decision.

I don’t think that that bears up in — when the Constitution was written, we didn’t have decisions on due process or commerce between the states or freedom of speech, but we made important progress in all of these fields under the general umbrella of the Constitution and under the guidance of the Supreme Court.

When George Washington was President, you didn’t have railroads, you didn’t have automobiles let alone jet aircraft.

Robert F. Kennedy:

But the great miracle of the Constitution is that we’ve been able to deal with the problems of the 20th Century as well as the problems of the 18th Century.

These are the great problems that are facing the United States at the present time.

And this kind of invidious practice that exists now and has existed before and the Georgia County Unit System is a — strikes at the very heart of the United States.

If we can give equal protection to those who feel that they’ve been deprived of their economic rights, certainly we can give equal protection to those who have been deprived of the most basic right of all which is the right to vote.

If we cannot protect them, then the whole fabric of American the system, then our way of life is irreparably damaged.

Thank you.

E. Freeman Leverett:

I have got 3 minutes, I believe.

Earl Warren:

Yes, you have, (Inaudible) — go right ahead.

E. Freeman Leverett:

Please the Court.

I think the Seventeenth Amendment in this case proves too much.

Because if it is true, if it is a correct position.

The result would necessarily follow that in any state where nomination was tantamount to election, you could not nominate by a convention.

Reference was made to some State Constitution provisions defining the right to vote.

The Georgia Supreme Court held in Cox versus Peters that they related only to the general election and not to the primary, that’s binding on this Court as far as with reference to state law.

A statement was also made that the winning candidate for Governor was induced to run by virtue of the county unit system being stricken down.

That simply is not so.

I don’t want to involve myself in personalities, but I think I know where of — I speak in that regard.

So also to suggest —

Byron R. White:

Now what did — what was that point, I didn’t (Inaudible).

E. Freeman Leverett:

Mr. Abram stated in his argument that the successful candidate for Governor in Georgia in — of a 1962 General Election was encouraged to run because of invalidation of the county unit system in the court case below and I simply said that was not so.

Potter Stewart:

(Inaudible) not very important one way or the other?

E. Freeman Leverett:

No sir.

I hope not.

Next, we have not suggested as has been stated by reference to Parrington and by the way I forgot the “H” instead of a “P” there, it should have been Harrington, that the county unit system is based on the economic basis of apportionment.

We say that it’s based on political unit apportionment, not geographically, but its political unit apportionment.

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

Position of the State is that in it — that these things of those features which tend to give these concentrated areas of population in an inordinate amount of power by virtue of the fact of the concentrated numbers, that that — the State can take those matters into account.

And I think that’s always been the basis upon which this type of apportionment has been explained.

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

You there are getting into valued judgments in which the Court is called upon to evaluate and apply its policy judgments no differently than the Court a few generations ago did in Lochner versus New York.

Arthur J. Goldberg:

(Inaudible)

E. Freeman Leverett:

It’s not just because you’re in the labor union, but if you live in an area of concentrated population density where there are avenues for communication, where the mass media of communication can organize people along much more cohesive groupings than you have in the rural areas.

We think that those disparities in power are just as relevant when a state comes to apportion its electrical — its electoral power, as are the disparities in bargaining when Congress passed a (Inaudible).

Arthur J. Goldberg:

You have said that that is a rational basis for the state to engage in between what?

E. Freeman Leverett:

That is —

Arthur J. Goldberg:

Is that what you’re arguing?

E. Freeman Leverett:

That is correct sir.

Potter Stewart:

The basic — the basic issue that we end up with I suppose is whether a state under the Constitution in the election process of statewide officials, statewide officials can absolutely disregard the — what we think of is the traditional American system of majority rule?

E. Freeman Leverett:

One — one —

Potter Stewart:

Isn’t that it?

E. Freeman Leverett:

— person, one vote.

That’s correct sir.

Potter Stewart:

A majority rule is what we come down to —

E. Freeman Leverett:

And as to the —

Potter Stewart:

— in a statewide election?

E. Freeman Leverett:

— Chief Justice — the question of the Chief Justice which I think relates to what you have posited now Mr. Justice Stewart, you do not have to go to districting to — in your legislative area because you can get perfect equality of voting power in a legislative situation simply by doing the same thing that was done with respect to Congress in many states until 1842 when districting came, required by Act of Congress.

You could have a state at large election and have perfect equality.

But in order to get a diffusion, in order to give recognition to local interest, you district a state and then it’s where your inequalities come into.

MacDougall, we say as our case, I think it states very eloquently the reasons, the basis that we say this county unit system should be upheld.

We put in our answer, our verified answers at page 72 to 73 of the record and it has just as much probative value as the opinionated affidavits that the other party put in.

If it please the Court, I think that’s — my time is up so, I appreciate the Court’s indulgence.