Gray v. Sanders

PETITIONER:James H. Gray et al.
RESPONDENT:James O’Hear Sanders
LOCATION:Georgia State Capitol

DOCKET NO.: 112
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 372 US 368 (1963)
ARGUED: Jan 17, 1963
DECIDED: Mar 18, 1963

Facts of the case

Since the beginning of the 20th century, the State of Georgia used a county unit system for counting votes in primary elections. Under this system, the candidate who received the highest number of votes in a county would receive all of that county’s unit votes. The overall winning candidate would then have to receive a majority of the county unit votes statewide. This system ended up giving rural counties a majority of the unit votes, even though rural counties made up only about a third of the population as of the 1960s.

In 1962, James O’Hear Sanders, a voter in Georgia’s most populous county, brought suit against several representatives of the Georgia State Democratic Executive Committee and the Secretary of State of Georgia. Sanders claimed that the county unit system violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment and the Seventeenth Amendment. As a voter within one of the urban counties, Sanders claimed his vote had less of an influence on the nomination of candidates than that of a rural voter. A special three-judge panel of the United States District Court for the Northern District of Georgia agreed with Sanders and held that the county unit system violated the Equal Protection Clause. However, the district court did not outlaw the county unit system entirely. The State appealed directly to the Supreme Court of the United States.

Question

Does the county unit voting system violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution?

Earl Warren:

Number 112, James H. Gray as Chairman of the Georgia State Democratic Executive Committee et al., Appellants, versus James O’Hear Sanders.

Mr. Murphy.

B. D. Murphy:

Yes, Your Honor, may it please the Court.

This is an appeal from a decision by a three-judge District Court which held unconstitutional Georgia’s statute describing the county unit system of nominating a party of candidates for state offices and enjoining the party of authorities against holding the primary of 1962 or any primary under a county unit system.

The history of the county unit system of Georgia is set forth to some extent in the opinion of the Court.

The law is also stated to some extent in the briefs of counsel.

It may be worthwhile for me to state it here as briefly as I may.

Georgia, of course, is one of the original 13 states.

When it became a state, it consisted mainly in a few certain areas along the Atlantic coast.

I’ve forgotten how many counties we had at that time.

Well, I think it was six or seven.

The state officers were elected by the legislature.

The Constitution assigned certain num — a certain number of representatives to each county.

I think Liberty County had 14.

Some of the other counties had two, some had four.

The town in Port of Savannah had two that represent that trade.

The town in Port of Sunbury had two to represent that trade.

That was the legislative body.

As I say, the legislative body elected the county — the state officers.

We had no election of governor by the people until 1823.

Early in the history of the state — the political history of the state, the county’s unit system of nominations developed.

It started by caucuses in the legislature, members of the legislature who belong to the Democratic Party would get together and nominate their candidate for governor.

In the same manner, the members of the Whig Party and the legislature would get together and nominate the Whig candidate for governor.

Gradually, they began to invite to those caucuses members of the party from counties that were represented in legislature by the opposite party.

The Whig members would invite democrats from — or invite Whigs from counties who didn’t have Whig representatives and the democrats would do the same thing.

Our convention system of nomination grew out of that.

We never had any direct primaries in Georgia until about 1890 and I think the direct primaries in Georgia grew out of the probably the strength of what was then known as the Populist Party.

The final election of the officers for the state had been — have always, since election by the people was inaugurated about 1823 by a majority vote of all the voters.

The legislature meets and canvasses the vote and declares the person having the majority of all the votes to be the governor or the state — Secretary of the State as the case may be.

And, if nobody is elected, they have a — the legislature proceeds to elect a governor from the — either the two or three highest.

B. D. Murphy:

We had a situation of that sort in 1946 when the governor-elect died before the time came to inaugurate and the legislature elected from some write-in candidates, and the Supreme Court held they couldn’t do that and if the old governor continued to hold office and he hadn’t resigned, the lieutenant governor-elect was to be the governor until there could be an election.

That, of course, has nothing to do with this particular question.

But I say, the county unit system developed in that way.

Finally, they began to have direct primaries for the election.

They first began to have primaries for the election of delegates to the conventions.

Then, they began to have — some of the delegates were elected by mass meetings.

Your Honors will find a complete history of the county unit system in the report of the case of Turman against Duckworth in the 68 F.Supp. 744 which was the first county unit lawsuit we had.

The practice was entirely a party practice.

There was never any law on the subject and the convention was the final nominating authority until the adoption of the Neill Primary Act of 1917.

Prior to that time, delegates were, although committed to the man who — candidate who carried their county, did not always vote in a conformity without amendment and frequently there were convention fights.

The one which produced the Neill Primary Act, so-called, was in 1914 when there were three candidates for the United States Senate and neither of them had a majority of the county unit votes.

And, that was a convention contest which lasted a number of days and was finally resulted in a nomination of Senator Thomas W. Hardwick who was not the leading candidate in the vote of the people.

The legislature passed the Neill Primary Act in 1916.

Incidentally, it’s named for Cecil Neill who was the Speaker of the House of Representative of Georgia at that time and who came from one of the city counties, Muscogee.

Well, it was vetoed by Governor Harris, who was then governor of Georgia and who also came from one of the city counties, Bibb.

It was reenacted in 1916 and near 1917, and it was then approved by the new governor.

The Neill Primary Act made no substantial change in the nominating process.

It does not require primaries.

It never has required primaries.

It does not abolish conventions, but it provides that whenever a dem — a political party has a primary, the person — the candidate for any office who carries — gets the most votes in the county, it’s in plurality of votes and it’s still a plurality not a majority, is entitled to the unit votes of that county on the county unit basis and that the candidate who gets the majority of all of the county unit votes is entitled to the nomination, and that can be ascertained and declared without a formal convention vote.

Incidentally, in some years when there’s another — it’s not the year the elected governor don’t even have a convention in Georgia.

The Democratic Party does.

Always in the convention, the Democratic Party and the Democratic Conventions — so far as I know, the Republican parties never had one in Georgia.

Always in the Democratic Conventions, each county is entitled to two votes for each member in the Lower House of the General Assembly.

Georgia has, now, 159 candidates.

It had a 137 in 1877 when the Constitution of 1877 was adopted.

The — it has what is called a 3-2-1 ratio of legislative representation in the House of Representatives.

The eight largest counties have three representatives.

The next 30 have 2 and the rest have 1.

As I say always, in the convention and in computing the nominating units on the county unit system, the counties have had two votes — each county has two votes for each member of the House of Representatives to which the county is entitled.

B. D. Murphy:

That is — that was the party practice before the Neill Primary Act was enacted and it has been the party practice and the provision of the Neill Primary Act since that time.

Potter Stewart:

General Murphy, this case doesn’t involve at all, at least certainly doesn’t involve directly, that the system under which your 3-2-1 – your 3-2-1 system for election of the State House Representative?

B. D. Murphy:

It’s not involved in this case at all, except that that was, until an amendment of 1962, the method whereby Union votes were allocated to the various counties.

Potter Stewart:

Well, it was derivative.

It was derived from that.

B. D. Murphy:

This is from the county —

Potter Stewart:

But this —

B. D. Murphy:

— from the representation of the Lower Houses of the General Assembly and that had always been the rule.

Potter Stewart:

I just want to be sure in my — so I can understand the argument as we go on that we’re not — that there’s not involved here legislative apportionment as such at all for your state legislature.

B. D. Murphy:

The apportionment as such.

Now, I say, in 1877, we had 137 counties in Georgia.

We may have too many but they all created by the Constitution.

And, that Constitution provided there should be no more.

In 1903 or 1904, they amended the constitution.

The legislature amended it and proposed it to the people.

The people ratified it to add — bring the number of counties up to 145, and enough additional counties were created to bring the number of counties up to 145.

It has not always been the eight highest with the three representatives but that’s the way it is now and was cite one time, it was 6, and 26 in one.

And, the — since that time, a number of counties had been three which brought the total, at one time, up to 161.

Each one of those counties was created by separate constitutional amendment proposed by the General Assembly and ratified by the people at the general election.

Sometime ago — some years ago, two of the counties have been created many years before were merged with Fulton County.

Those were Camilla and Milton, I believe.

So, now, we have 159 counties.

The Neill Primary Act, that I said a moment ago, didn’t changed the county unit system as it had been followed by the party up until that time.

It did provide that the convention couldn’t change the result of the primary as respects to right of a candidate who got the most votes in a particular county to the vote of that county on the unit basis and provided that nobody was part of the majority of the county unit votes for governor or United States Senate, that should be a run-over primary between the two highest candidates for those two officers alone.

And all the other state officers, the candidate with the most county unit votes, the plurality county votes was to be the nominee.

The can — the Neill Primary Act does not apply to the congressional district primaries.

It leaves to the determination of the congressional committee or to the executive committee of the party in the district, whether or not it will have a primary on a popular vote basis or on a county unit basis.

But, if it is held on a county unit basis, then the unit votes to which the county — which each county would be the entitled would be the same as fixed in the Neill Primary Act, that is two for each representative in the Lower House in the General Assembly.

In 1946, the first suit challenging the validity of the Georgia county unit system was filed in a three-judge court in the Northern District of Georgia.

That was filed by Mr. — Mrs. Turman against the Chairman of the State Democratic Executive Committee.

B. D. Murphy:

There was a companion case filed by Cook, a man named Cook, against the Secretary of State which related to the Fifth Congressional District of Georgia.

It so happen that in 1946, the governor of the c — the democratic candidate for governor who received the highest number of unit — the majority of unit votes did not receive the highest number of popular votes.

He didn’t — there were two candidates and the man who got the highest number of unit — majority of unit votes was the second in popular vote.

And, that brought about the case of Turman against Duckworth.

That was heard before a three-judge court and the three-judge court have decided against the plaintiffs there and it was appealed to this Court.

The appeal here was dismissed.

I don’t want to take to go into whether or not this Court dismissed the appeal because they were moot or for any other reason.

The record shows what happened.

That was shortly after the decision of this Court in the case of Colegrove versus Green from Illinois.

In 1915, there was another suit brought in the United States District Court for the Northern District of Georgia by a Mr. South and his associate whose name I’ve forgotten.

That was the case of South versus Peters, Mr. Peters being then challenged in the State Democratic Executive Committee.

That was tried before a three-judge court composed of Judge Sibley, Judge Andrews, and Judge Hope.

And, I say Judge Hope or Judge Sibley because he was then the senior judge, I think, of the Fifth Circuit Court of Appeals and, we think in Georgia, a very able judge.

Judge Sibley wrote a very strong opinion upholding the county unit system and it’s set forth in the case — in that case in the 89 F.Supp., at 672.

I will not undertake to read it, but he goes into the history of the county unit system again, as he had done earlier in Turman versus Duckworth.

That case was also appealed to this Court and it was, here, as I read the decision of this Court, affirmed.

In the meantime, MacDougall versus Green had been decided by this Court.

Arthur J. Goldberg:

(Inaudible)

B. D. Murphy:

Your Honor, I thought that the — I’ll be glad to look at it and refresh my recollection, but I thought that the judgment of the three-judge court was affirmed by this Court.

Arthur J. Goldberg:

It was, but (Inaudible)

B. D. Murphy:

Well, it may have been.

If so, it may be that the late — the last case, Baker versus Carr, answers those questions.

Now, the next case that we had was in the Supreme Court of Georgia.

That was the case of Cox versus Peters.

That case was dismissed on demurrer by the trial judge in the Superior Court of Meriwether County, and that dismissal was affirmed by the Supreme Court of Georgia and that appeal was dismissed in this Court for warrant of a substantial federal question.

The next attack on the county unit system was a suit brought in the United States Court for the Northern District of Georgia by Mayor Hartsfield of Atlanta against the Chairman of the Democratic Executive Committee and others which the trial judge dismissed and refused him to empanel a three-judge court.

And this Court did not allow an appeal from that decision.

So, the Justice thought that a rule to show cause should be issued, but it was not issued and that appeal was not granted.

Now, that ended the litigation about the Georgia county unit system until the decision of this Court in Baker versus Carr.

We had a new suit in the Northern District of Georgia which was heard by a three-judge court and that’s the case we have here.

Potter Stewart:

Do these cases, maybe you’ve told us and I don’t need — we don’t need to know in detail, but do these cases all involve the same issue that’s involved here, that is the election of statewide executive and judicial officers or —

B. D. Murphy:

Yes.

Potter Stewart:

— or were some of them de — were some of them an attack on the legislative apportionment system?

B. D. Murphy:

None of them was an attack on the legislative apportionment.

Potter Stewart:

They were all —

B. D. Murphy:

They —

Potter Stewart:

They were all of a piece of the kind of litigation we have before us now.

B. D. Murphy:

That’s correct.

As a matter of fact, I think, the petition in this case was copied almost verbatim from South versus Peters.

It was filed on the same day of the decision in Baker versus Carr.

I will say that in South versus Peters, the election involved there — the election in 1950, I think it was 1950, also involved the election for the nomination of the United States Senate.

Now, this case was filed and immediately after Baker against Carr.

I don’t think it’s improper to say.

That was, of course, a great deal of conversation among Georgians, Georgia politicians about the effect of that decision and there were numerous conferences on the subject, and the legislature was called into extraordinary session.

It was actually an extraordinary session at the time of the hearing in the court below in this case.

As a matter of fact, it passed and the governor approved on — the judgment in this case was — or the hearing was concluded.

I’m not sure whether judgment was entered on that day or the next day.

The governor approved a statute which amended the Neill Primary Act and these respects, I said a little while ago we have 159 counties in Georgia, and the new Act allocated unit votes to the various counties in accordance with the bracket system that’s set forth in the Act and is in the, I think, in the briefs and is also in the opinion of the Court.

No longer was the number of votes of the county — number of unit votes to which the county was entitled based twice than the number of the representatives in the lower House to give us in.

The Act provides, new armies will have it, that all counties with the population of less than 15,000 shall have 2 unit votes.

Counties with a population between 15 and 20 or 25, I’m not sure which, will have 3 and so on.

Finally, it gets up to a bracket where they allocate additional votes at the rate of 2 for each 15,000 additional population.

Under the county unit system, as it was enacted by that statute, Fulton County which had 6 unit votes under the old system and now has 40.

No county has less than two, however small the population may be.

The Court of — the three-judge court held that this new — that the Neill Primary Act, as amended by the Act of 1962, was unconstitutional because it was invidiously discriminatory against people who lived in — against the plaintiff and others similarly situated, if they have been a resident of Fulton County.

I overlook, saying that the new Act provides that, in order to be nominated in the first primary, the candidate must receive not only a majority of the county unit votes but a majority of the popular votes.

And, if he does not receive a majority of the county unit votes and no county receives a majority of the county unit votes and a majority of the popular votes, there’s a run-over primary between the candidate receiving the greatest number of county unit votes and the candidate receiving the greatest number of popular votes.

Unless, it so happens that the candidate will receive the greatest number of county unit votes, also received the greatest number of popular votes, but not a majority of either or both.

Then, it run-off is between the candidate with the highest number of county unit votes and the candidate with the highest number of popular votes but, in that run-off primary, the candidate who receives the majority of the most county unit votes, without being a majority because there’d be only two, is declared the nominee.

There was this additional change in the nominating process that, as respects, officers — candidates for officers, other than governor and United States Senate, the same rule applies of requiring the majority, both the county unit vote and the popular vote.

B. D. Murphy:

And, if there is no majority of both, then the two highest candidates would have to run again.

Now the —

Potter Stewart:

That happens with the one who got the highest unit votes when —

B. D. Murphy:

The one who gets the highest unit —

Potter Stewart:

— unit votes?

B. D. Murphy:

Of course he has to have a majority because there’s going to be two.

Potter Stewart:

A majority of the units?

B. D. Murphy:

Majority of the units.

He’s entitled to nomination.

I say it makes that change in the nominating process, as embodied in the Neill Primary Act.

The Neill Primary Act requires only plurality of county unit votes of candidates other than the governor and United States Senate.

Whereas, this Act, as I read it, requires the same sort of majority for all the candidates than it does for governor and United States Senate.

Now, the Court in this case said that this Act was invidiously discriminatory and it set forth its definition of invidious discrimination in the opinion and enjoined the Secretary of State, who was the state official who handles elections and putting in the voter’s name on the ballot with the general election who is nominated under the Act or by virtue of the county unit system.

Now, enjoined the party authorities from holding any primary in 1962 or any other time.

Under any county unit system, unless it was such a county unit system as it would not be invidiously discriminatory under the opinion that was filed by the Court in this case.

As I read that opinion, it provides that the county unit system will not be invidiously discriminatory if it allocates unit votes to counties on a basis of population or if it allocates unit votes on the basis of – on the law of equal proportion that relates to the assignment of the representatives in Congress and will not be discriminatory if — but it provides that no discrimination will be deemed invidious if there’s no greater discrimination against any county than there is against the laws — against any state in the assignment of electoral votes at the last election for president and vice-president of the United States.

I’m not sure that I know where that theory would lead Georgia with reference to the assignment of county unit votes.

Potter Stewart:

The position of the government of that part of the Court’s opinion and decree should be excised.

Would you agree that it was perhaps unnecessary to the decision of this case no matter how it was decided, whether it was decided —

B. D. Murphy:

Well, if you — if this Court holds that the Neill Primary Act is unconstitutional for —

Potter Stewart:

That’s really all that’s before us, isn’t it?

B. D. Murphy:

No, sir.

It’s not all that’s before here.

There’s also before you the question of whether or not the Democratic Party in Georgia, without any state law.

Potter Stewart:

Well, that yes, that’s before us.

B. D. Murphy:

They can hold a primary on a county unit basis.

Potter Stewart:

But, it — but, there is not before us any other alternative system, is there?

B. D. Murphy:

No, sir.

There’s been — none has been adopted.

As a matter of fact, when this case was handed down, the State Democratic Executive Committee met and revised its rule so as to provide for a popular vote and the primary then was held in September 1962.

Potter Stewart:

No stay was requested in this Court, was there?

B. D. Murphy:

No stay was requested in this Court.

Potter Stewart:

There was a stay requested in —

B. D. Murphy:

But there was denied in the court below, and I don’t — now, as I say, if the Court holds that the Neill Primary Act, as amended, is unconstitutional, as did the trial court, then the next question is what can the Democratic Party in Georgia do about it?

Under this decree, it can hold a democratic primary on a county unit basis, to hold it only on a popular vote basis, although it may if the Court permits this formula that was set forth by – for the court below to stand.

It may hold the primary on the county unit basis, provided it meets the requirements of the Court’s idea about what will not be invidious discrimination.

Now, it’s the position of the appellants here as stated in our brief and is — I think we stand upon that the county unit system, as it existed in Georgia at the time of the amendment of the Act of 19 — the Mandatory Act of 1962 and, as it now exists, is that and represents a proper exercise of legislative power by the state.

Of course —

John M. Harlan II:

It did not strike — the Court did not strike down the money as such, did it?

B. D. Murphy:

No, sir.

It struck down the Act we had.

John M. Harlan II:

Yes.

B. D. Murphy:

And said you could have one if you — the party could hold — of course the party — the Act, being unconstitutional, is left to the party but the party did not know and take the word out.

The — a system that would be in conformity with the Court’s opinion, the party simply reverted to the majority vote and the last election was held on majority vote basis.

Now, we needed to have a reapportionment here.

So, that’s not on its way up here because we had — as a matter of fact, the Court never have granted appeal to judgment and express this —

Byron R. White:

Mr. Murphy, you don’t — do you contend that the — that, without there being a state Act which had been set aside, you say the party did something or you — is there any part of your argument that the state action would — would —

B. D. Murphy:

I don’t think so, Your Honor.

Byron R. White:

Or do you think that the record —

B. D. Murphy:

I think that Baker versus Carr answers that question that this Court can deal with what I’m trying to say here that, where the Act —

Byron R. White:

That’s the primary.

B. D. Murphy:

Sir?

Byron R. White:

That’s the primary.

B. D. Murphy:

This is a primary, yes.

Byron R. White:

This is a primary and it’s a party primary.

B. D. Murphy:

It’s a party primary, yes.

Byron R. White:

No — you raise no question about it being a state action?

B. D. Murphy:

No, sir.

We raise no question about it being state action.

I think we have passed all that questions.

B. D. Murphy:

I think this Court is —

Byron R. White:

Or any question about the case being moot?

B. D. Murphy:

It would be moot if it related only to the 1962 election, but the judgment of injunction is broad and sweeping.

It’s enjoined this forever against holding a primary under county unit basis under the county unit system unless we do it according to what the Court says would not be invidiously discriminatory.

Byron R. White:

Well, would you tell me how the — why this is state action?

B. D. Murphy:

Why it is a state action?

Byron R. White:

Yes.

Let’s assume there was no statute whatsoever stated in your argument relating county unit, but there’s the party rule only.

B. D. Murphy:

Well, I think it is — we would contend —

Byron R. White:

After all, the party was the one who decided to hold a popular —

B. D. Murphy:

That’s correct.

I think, under the decision of this Court, this Court will hold this at state action, and I don’t mean to say by that but I agree with it but I say my point —

Byron R. White:

Now, what —

B. D. Murphy:

— in trying to flog the dead horse on that question.

Byron R. White:

What decisions are those?

B. D. Murphy:

Terry against Adams and these other cases, the classic case.

I wouldn’t say that — the law of Georgia doesn’t require primary.

It doesn’t require primary for any purpose and the Neill Primary Act, as it existed before the Court struck it down as unconstitutional, unless we can get to this Court to reverse it, doesn’t require a primary.

Byron R. White:

I suppose then if the primary is state action, so is the convention.

B. D. Murphy:

That’s the contention on the other side and I think that’s what this Court decided and I don’t think —

Tom C. Clark:

Well, it’s the only where the state is predominantly what party, where the Pentagon has an election.

B. D. Murphy:

Well, that exact question was that where Judge Sibley in — the only time is have been considered, I think authoritatively, was by Judge Sibley in South against Peters and he said it was not equivalent to election.

Hugo L. Black:

He said what?

B. D. Murphy:

That it was not equivalent to election, the democratic nomination.

Tom C. Clark:

We have several times it was — I think, have used the word “tantamount to election.”

B. D. Murphy:

Yes.

Tom C. Clark:

In the Jayberg —

B. D. Murphy:

Well, in the Jayberg, I don’t know whether the Court might review that situation again in view of the fact that there is an elected republican senator in Georgia and we’ve got a republican senator in the state senate who was elected in November.

William J. Brennan, Jr.:

Mr. Murphy, now that you’ve tried the popular primary, are you suggesting that the party would like to return, nevertheless, to the —

B. D. Murphy:

To the county unit system?

William J. Brennan, Jr.:

County unit system.

B. D. Murphy:

Well, we think that the county — the Democratic Party of Georgia would have a right to adopt any method of nominating its candidates if it sees prompt.

William J. Brennan, Jr.:

Without suggesting that it intended to return.

B. D. Murphy:

How is that?

William J. Brennan, Jr.:

Without suggesting that it intended to return.

B. D. Murphy:

Yes sir.

I have no idea as I’m not a member of the State Democratic Executive Committee and I don’t know how or what the next committee will do.

I will say this, the only time that the dominant political factor in Georgia heretofore has changed from the county unit system was 1908, I believe, when Governor Hoke Smith who, by which of being a governor was well dominating the Executive Committee, reverted to the popular vote plan and abandoned the county unit system and he was very silently defeated for that reason, and since then, they’ve been back on the county unit basis.

Now —

Byron R. White:

But, would you say that if the party decided to nominate by a convention, that — and that the convention was organized on the same basis as the — on the county unit basis, that we have a state action in this case?

B. D. Murphy:

Well, I don’t think you would and I think if the Democratic Party want to have a state convention to nominate its candidates, it ought to be allowed to do so and I think it could do so, most of the other states could.

Potter Stewart:

Now, wouldn’t it — would it or would it not be allowed to do so under the outstanding injunction?

B. D. Murphy:

I think, probably, it would, Your Honor.

Potter Stewart:

That’s what I think, too.

B. D. Murphy:

The outstanding injunction enjoining them against holding any primary.

Potter Stewart:

It just relates to primary, is it not?

B. D. Murphy:

It just relates to primary.

Potter Stewart:

I suppose, under that injunction, a Democratic Party, if it wanted to, could have a dozen party leaders meet in the smoke-filled room and nominate all your statewide officials.

B. D. Murphy:

Well, that’s what the republicans do in Georgia.

Potter Stewart:

Well, that’s all the republicans in Georgia, I suppose.

B. D. Murphy:

I think — I didn’t mean to be facetious, Your Honor.

Potter Stewart:

I know you weren’t and I wasn’t — well, we both were a little bit.

Hugo L. Black:

Well what’s the — what’s the republican run-off?

B. D. Murphy:

Well, Your Honor, they nominate the candidate for governor.

I mean, it’s in this record.

I suppose the only man who knew about it was Judge Tuttle who happens to be a republican, and he set out in this record in outlining the history of the Georgia politics and the Georgia county unit system how it is that — in the opinion of the Court, how it is that they nominate candidates, the republicans nominate candidates.

And, they have a county unit system.

It’s sort of like ours.

But, he says that the Republican Party of Georgia, although judiciary it is probably not action normally anyone from the statewide office during this century, uses a convention system for nominating for state office and presidential election here.

The convention also selects a State Central Committee which has the power to nominate candidates between quadrants of conventions which are held during presidential election here and its elect meets the county at mass meetings to the state and the primary toll in Georgia.

Potter Stewart:

Well, I — General Murphy, going back to Justice White’s and my inquiry, in your opinion, it would not be a violation of this injunction if the democratic party in Georgia decided to have a few party leaders and nominate the state officials, would it?

B. D. Murphy:

I don’t think so.

I don’t know how well it had to find election is to do it that way —

Potter Stewart:

Well, it’s been a q —

B. D. Murphy:

But I don’t think it would be a violation of this injunction.

I started to say that the republican quite operates that way in Georgia and did nominate a candidate for governor in 1962 and he qualified by getting a requisite number of signatures on his nominative petition.

Arthur J. Goldberg:

(Inaudible)

B. D. Murphy:

Well, I don’t know of any case in Georgia where a republican or any other party has not elected a candidate for state office since I have been old enough to vote.

I, again, remember back to reconstruction but the only reason that the Democratic Party elects the state officer — of course, that’s the way the people vote in the final election in November and he has to get a majority of all the votes cast.

Ordinarily, he doesn’t have any opposition.

I agree that that’s true, but the only reason why that is so is because that’s the way the people vote and, this year, there would’ve been a republican candidate who would’ve polled a very substantial vote.

The Republican Party got about 35 — between 35% and 40% of the votes in 1960 for in the presidential election.

And, Mr. — the candidate, unfortunately, was killed in an automobile accident and didn’t get to make the race, but they did nominate a very fine —

Hugo L. Black:

I can understand that you have raised any — asked us to overrule or reconsider Smith and Allwright?

B. D. Murphy:

No, sir.

Hugo L. Black:

— or Terry versus Adams.

B. D. Murphy:

No, sir, we have not.

We have not.

Hugo L. Black:

And then your vote said that this was state action, did it not?

B. D. Murphy:

Yes, sir, and we are not undertaking to reargue those questions, that is this difference, I think, in classic case and in the Allwright case that, in those cases, the primary was required by the law in the County in Georgia.

Earl Warren:

We’ll recess now.